Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2013 CORAM THE HON'BLE MRS.JUSTICE R.BANUMATHI and THE HON'BLE Mr.JUSTICE R.SUBBIAH C.M.A.No.2951 of 2011 and Cross Objection No.94 of 2013 and M.P.No.1 of 2011 C.M.A.No.2951 of 2011 Royal Sundaram Alliance Insurance Co.Ltd., Sorrento Building, I Floor, 6, Lattice Bridge Road, Adayar, Chennai 20.Appellant vs 1.Saradha Tamilarasu 2.Minor Laknesh rep.
By his mother/R1 3.Balasubramaniam 4.Saraswathy 5.P.Rajavel 6.D.Radhamani .Respondents Cross Objn.
No.94 of 2013 1.Saradha Tamilarasu 2.Minor Laknesh rep.
By his mother/1st Cross Objector 3.Balasubramaniam 4.Saraswathy .Cross Objectors versus 1.Royal Sundaram Alliance Insurance Co.Ltd., Sorrento Building, I Floor, 6, Lattice Bridge Road, Adayar, Chennai 20.
2.P.Rajavel 3.D.Radhamani .Respondents (R2 and R3 remained exparte before the Tribunal) Appeal and Cross Objection against the judgment and decree dated 10.05.2011 in M.C.O.P.No.194 of 2010 on the file of Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.III).Coimbatore.
For Appellant .Mr.S.Manohar in C.M.A.No.2951 of 2011 For Respondents .Mr.MA.P.Thangavel for R1 to R4 in C.M.A.No.2951 of 2011 For Cross Objectors .Mr.MA.P.Thangavel in Cross Objn.
No.94 of 2013 For Respondents .Mr.S.Manohar for R1 in Cross Objn.
No.94 of 2013 COMMON JUDGMENT
R.BANUMATHI, J.
Questioning the negligence as well as the quantum of compensation awarded by the Tribunal in M.C.O.P.No.194 of 2010, the insurance company has filed C.M.A.No.2951 of 2011.
2.Being dissatisfied with the quantum of compensation awarded by the Tribunal for the death of Tamilarasu in the road traffic accident on 05.12.2009, the claimants have filed Cross Objection No.94 of 2013, seeking enhancement of compensation.
3.Brief facts are that on 05.12.2009 at about 5.00 p.m., when the deceased Tamilarasu was riding his motorcycle bearing Regn.
No.TN38AL7323from north to south direction on the Mettupalayam-Coimbatore Main Road from Perianaickenpalayam Agriculture Office, near Srinivasa Mahal Kalyana Mandapam, Gas Company, N.S.N.Palayam, Coimbatore, the lorry bearing Regn.
No.TN34D6954came from behind the motorcycle, overtook the same and hit against the motorcycle, due to which, the deceased fell down and the rear wheel of the lorry ran over his head, resulting in the death of the deceased on the spot.
A case was registered in Crime No.673 of 2009 on the file of Perianaickenpalayam Police Station for the offence under Sections 279 and 304 A I.P.C.The deceased was aged 47 years at the time of accident and he was working as Deputy Agricultural Officer in the Office of Joint Director of Agricultural Office, Coimbatore and earning Rs.28,640/- per month.
Alleging that the accident was due to the rash and negligent driving of the driver of the lorry, the claimants, who are the wife, minor son and parents of the deceased have filed the claim petition, claiming compensation of Rs.35,00,000/-.
4.Resisting the claim petition, the insurance company has filed the counter, denying the manner of accident, age, occupation and income of the deceased and the dependency of the claimants.
5.To substantiate the claim, the wife of the deceased examined herself as P.W.1.
Eye witness - Mohan Dharia Patjak, co-employee of the deceased was examined as P.W.2.
One Swaroop was examined as P.W.3.
On the side of the claimants, Exs.P1 to P17 were marked.
On the side of the insurance company, driver of the lorry was examined as R.W.1 and no documentary evidence was adduced.
6.Upon consideration of the oral and documentary evidence, the Tribunal held that the accident was due to the rash and negligent driving of the driver of the lorry and the insurance company is liable to pay the compensation.
The deceased was aged 47 years at the time of accident and he was working as Deputy Agricultural Officer in the Office of Joint Director of Agriculture, Coimbatore and earning a sum of Rs.28,640/- per month.
Since the deceased was aged above 45 yeaRs.30% increase in salary had been added to the salary and Rs.37,232/- has been fixed as monthly salary.
After deducting 1/4th amount towards personal expenses of the deceased, adopting 11 multiplier till his retirement and thereafter, deducting 10% towards income tax, the Tribunal awarded a sum of Rs.33,55,000/- (Rs.3,38,784/- x 11 = Rs.37,26,624/- (-) 10% of Rs.37,26,624/- = Rs.33,54,624/-, rounded off to Rs.33,55,000/-) towards loss of income.
Even though the Tribunal stated that totally 13 multiplier to be adopted, it only adopted 11 multiplier.
The Tribunal awarded total compensation of Rs.34,00,000/- as under: Loss of dependency .Rs.33,55,000.00 Loss of love and affection .Rs.20,000.00 Loss of consortium .Rs.15,000.00 Transport charges .Rs.5,000.00 Funeral expenses .Rs.5,000.00 = = = = = = = = Total .Rs.34,00,000.00 = = = = = = = = 7.Mr.S.Manohar, learned counsel for the insurance company submitted that the Tribunal erred in fixing the liability on the insurance company and it was only the deceased, who invited the accident, by overtaking the lorry.
The learned counsel has further submitted that the Tribunal has awarded excessive amount as compensation and the amount deducted towards income tax is also on the lower side.
8.Per contra, the learned counsel appearing for the claimants/cross objectors submitted that the Tribunal ought to have adopted 13 multiplier instead of 11.
It was further submitted that the amount awarded for conventional damages is also on the lower side and prayed for enhancement of the compensation awarded by the Tribunal.
9.In his evidence, P.W.2 stated that the driver of the lorry, who was coming behind his motorcycle, overtook his vehicle and hit against the left side of the motorcycle ridden by the deceased, as a result of which, the deceased fell on the road and the rear wheel of the lorry ran over the deceased.
As per Ex.P4 rough sketch, the accident had occurred on the western side of the road, whereas in his evidence, R.W.1 driver of the lorry stated that the deceased only tried to overtake him and invited the accident.
10.If the evidence of R.W.1 is accepted to be correct that only the deceased attempted to over take the lorry, then the accident would have occurred on the eastern side of the road.
By perusal of Ex.P4 rough sketch, the accident was on the western side of the road.
Pointing out that the accident was on the western side of the road and accepting the evidence of P.W.2, the Tribunal has held that it was the driver of the lorry/R.W.1 who caused the accident by his rash and negligent driving and the deceased had not contributed to the accident.
The criminal case was also registered against the lorry driver and the charge sheet was also filed against him.
Apart from the evidence of R.W.1, the Insurance Company has not adduced any evidence to substantiate its plea of contributory negligence.
Merely because deceased was not wearing the helmet, negligence cannot be fastened upon him.
Therefore, we are of the view that the finding of the Tribunal that the accident was due to the rash and negligent driving of the lorry driver is based on evidence and materials and does not warrant any interference.
11.Insofar as quantum of compensation, in her evidence, P.W.1/wife of the deceased stated that the deceased was working as Deputy Agricultural Officer in the Office of Joint Director of Agriculture, Coimbatore and earning Rs.28,640/- per month.
P.W.1 further stated that the deceased was aged 46 years at the time of accident and he got 11 more years of service and he would have got more salary.
P.W.1 had also produced Ex.P9 salary slip for the month of November, 2009 and Ex.P14 pay statement for the month of November, 2009.
12.In his evidence, P.W.3 stated that the deceased was working as Deputy Agricultural Officer and in support of the same, he has produced Exs.P13 to P17 viz., Service Register, Pay particulars for the month of November, 2009, Income Tax Calculation Statement for the period from March, 2008 to February, 2009, proceedings of the Joint Director of Agriculture, Coimbatore regarding increase in pay of the deceased and the Government Order in G.O.Ms.No.257 Finance (Pay Cell) Department dated 26.08.2010 regarding the revised pay scale for the post of Deputy Agricultural Officer.
13.Ex.P12 is the Transfer Certificate, as per which, the date of birth of the deceased was 10.06.1962.
The deceased was aged 47 years at the time of accident.
Therefore, the Tribunal has taken the age of the deceased as 47 yeaRs.In Ex.P14 pay slip for the month of November, 2009, the salary of the deceased was shown as Rs.28,640/-.
Since the deceased was working as a Government Servant and was aged 47 years at the time of accident, out of 13 multiplier, the Tribunal has taken 11 multiplier for calculating the loss of income till his retirement.
Applying the ratio of the decision of the Honourable Supreme Court in Smt.Sarla Verma and Others versus Delhi Transport Corporation and Others (2009 (5) L.W.561).the Tribunal added 30% to the actual salary drawn by the deceased towards future prospects and taken the monthly income of the deceased at Rs.37,232/-.
The monthly salary of the deceased is taken as Rs.37,232/-.
14.Since the deceased was drawing Rs.28,640/- per month, he would have certainly paid income tax and in National Insurance Co.LTD.versus Indira Srivastava and others ((2008) 2 SCC763, the Honourable Supreme Court has held that tax payable has to be deducted from the compensation.
Following the same, 20% is deducted towards income tax i.e.Rs.7,446/- and the number of dependants being four, 1/4th of the amount is deducted towards the personal expenses of the deceased and the monthly contribution to the family is calculated at Rs.22,340/- (Rs.29,786/- - Rs.7,446/- = Rs.22,340/-).The deceased being a Government servant would have attained the age of superannuation at the age of 58 years and would have earned only for a period of 11 yeaRs.Adopting multiplier 11, the annual contribution of the deceased is calculated at Rs.29,48,880/- (Rs.22,340/- x 12 x 11 = Rs.29,48,880/-).For the remaining two yeaRs.the deceased would have received pension and would have got only 50% of the salary i.e.Rs.18,616/- (being 50% of Rs.37,232/-) as pension.
After deducting 1/4th amount towards his personal expenses i.e.Rs.4,654/-, he would have contributed only Rs.13,962/- per month to the family.
Therefore, for the remaining 2 multiplier, loss of income is calculated at Rs.3,35,088/- (Rs.13,962/- x 12 x 2 = Rs.3,35,088/-).Thus the total loss of income is calculated at Rs.32,76,944/- (Rs.29,48,880/- + Rs.3,28,064/- = Rs.32,76,944/-).15.In so far as the conventional damages, the Tribunal has awarded only Rs.20,000/- (Rs.5,000/- each to four claimants) towards loss of love and affection.
Since the minor son had lost the love and affection of his father at the tender age of four years and the wife and parents had also lost the love and affection of the deceased, the amount awarded towards loss of love and affection is enhanced to Rs.50,000/- (Rs.12,500/- each to the four claimants).The Tribunal awarded Rs.15,000/- to the fiRs.claimant/wife of the deceased towards loss of consortium and the same is enhanced to Rs.50,000/-.
The Tribunal has awarded Rs.5,000/- towards transport charges and the same is maintained.
A sum of Rs.5,000/- awarded for funeral expenses is enhanced to Rs.10,000/-.
16.The amount of compensation awarded by the Tribunal at Rs.34,00,000/- is reduced to Rs.33,91,944/-, rounded to Rs.34,00,000/- as under: Head Amount awarded by the Tribunal Rs.Amount now awarded Rs.Loss of dependency 33,55,000/- 32,76,944/- Loss of love and affection 20,000/- 50,000/- Loss of consortium 15,000/- 50,000/- Transport charges 5,000/- 5,000/- Funeral expenses 5,000/- 10,000/- TOTAL3400,000/- 33,91,944/- Rounded off to Rs.34,00,000/-.
17.In the result, the compensation awarded by the Tribunal (Additional District Judge, Fast Track Court No.III).Coimbatore in M.C.O.P.No.194 of 2010 at Rs.34,00,000/- payable with interest at the rate of 7.5% per annum is confirmed.
Accordingly, the appeal filed by the insurance company in C.M.A.No.2951 of 2011 is dismissed.
The Cross Objection filed by the claimants in Cross Objection No.94 of 2013 is also dismissed.
No costs.
Consequently, connected miscellaneous petition is closed.
By order dated 13.10.2011 in M.P.No.1 of 2011 in C.M.A.No.2951 of 2011, interim stay was granted on condition that the insurance company should deposit the entire amount of compensation awarded by the Tribunal along with accrued interest and the claimants 1, 3 and 4 were also permitted to withdraw 50% of their respective shares.
It is stated that the insurance company has already deposited the entire amount of compensation awarded by the Tribunal along with accrued interest.
Claimants 1, 3 and 4 are permitted to withdraw their respective shares of the compensation, less the amount, if any already withdrawn.
In so far as the share of the minor second claimant, the same shall be invested in any one of the Nationalised Banks till he attains majority and the mother of the minor second claimant is permitted to withdraw the interest accrued on the minor's deposit once in three months directly from the Bank.
(R.B.I.J.) (R.P.S.J.) 30.09.2013 mmi Index : Yes Internet : Yes To 1.The Additional District Judge, Fast Track Court No.III (Motor Accidents Claims Tribunal).Coimbatore.
2.The Record Keeper, V.R.Section, High Court, Madras.
R.BANUMATHI, J.
and R.SUBBIAH, J.
mmi Common Judgment in C.M.A.No.2951 of 2011 and Cross Objection No.94 of 2013 30.09.2013