Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
01. 10.2013 CORAM: THE HONOURABLE MRS.JUSTICE S.VIMALA C.M.A.No.3180 of 2008 1. Santhi 2. Minor. Sathish (Rep. By next friend, Guardian, Mrs. Sathi) 3. Nallasamy 4. Nagarathinam .. Appellants ..Vs..
1. Sivamurughan 2. The General Manager, Tamil Nadu State Transport Corporation Ltd., Sennimalai Road, Erode, Erode District .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to enhance the compensation amount awarded in the judgment and decree, dated 05.02.2004, made in MCOP No.109 of 2002 on the file of the Motor Accident Claims Tribunal (II Additional Sub-Court), Gobichettipalayam, Erode District with interest and cost by allowing this CMA. For Appellants : Mr. MA.P.Thangavel For Respondents : Mr. N.Anand - - -
JUDGMENT
Chandrasekar, aged 33 years, had been working as a cook-cum-waterman in a Government Primary Health Center, Siruvalur, earning a sum of Rs.4,672/- per month, died in an accident that took place on 30.12.2001, involving the vehicle bearing Registration No.TN33-N-1194. The wife, son and the parents filed the claim petition for compensation, claiming a sum of Rs.10,00,000/-.
2. The Tribunal, on materials placed before it, has chosen to award a sum of Rs.2,49,800/- as compensation. The following are the break up details:- Loss of income - Rs.2,44,800/- Loss of love and affection - Rs. 3,000/- Extra nourishment - Rs. 2,000/- ---------------- Rs.2,49,800/- ---------------- 3. While assessing the loss of dependency, the Tribunal has taken the age of the deceased at 33. A salary certificate has been filed to show the income of the deceased. As per Ex.A-8, salary certificate, the total salary i.e., gross salary is Rs.4,672/- and the deduction shown under various heads comes to Rs.910/-. The carry home salary is Rs.3,762/-. The Tribunal has made an observation that from the net salary payable, the deceased would have spent some amount towards the personal expenses and the contribution to the family would be Rs.1,200/-. Adopting the multiplier of '17', the loss of dependency has been quantified at Rs.2,44,800/-. 3.1. The methodology adopted by the Tribunal is very strange. According to the calculation made by the Tribunal, the deceased is assumed to have a spent a sum of Rs.2,562/- towards personal expenses. When there are four dependents at home, wife aged 27 years, son aged 5 years, father aged 55 years and mother aged 50 years, would any person earning a sum of Rs.4,672/- can spent a sum of Rs.2,562/- towards his personal expenses, is the issue. Contribution to the family would be Rs.2,110/-, if gross salary is taken into account. If net salary is taken into account, according to the Tribunal, the contribution to the family is Rs.1,200/-, after deduction of personal expenses. A Government Servant earning below Rs.5,000/- per month cannot be expected to spend more than 50% on himself, especially when he is having a large family to maintain (consisting of old parents and young son). 3.2. A perusal of the order passed by the Tribunal only goes to show that the basic principle involved in assessing the quantum of compensation has been lost sight of. This view would gain support when the order reveals that for a dead man towards extra nourishment a sum of Rs.2,000/- has been awarded. 3.3. Whether gross salary or net salary should be taken as the basis for calculating the loss on account of monetary loss is the issue to be considered. There are two kinds of deductions one is optional deduction and another one is compulsory deduction. Compulsory deduction, which are often statutory deductions, on account of payment of income-tax / professional tax, which ultimately go to the State Exchequer and that would not enure for the benefit, either present or future, to the person earning, cannot be counted towards the head 'salary' for the purpose of computation of loss. But the deductions which are made towards the future benefit of the person earning or deductions made on account of the benefit already earned would always remain for the benefit of the person earning and those deductions should not be counted / subtracted from the total amount payable to the person earning. This distinction had been omitted to be taken note of by the Tribunal.
4. The deductions that are given in the salary certificate are towards General Provident Fund, Family Benefit Fund and Special Provident Fund. Deduction towards contributions like General Provident Fund, Family Benefit Fund and Special Provident Fund will ultimately go only to the benefit of the deceased or the legal representatives of the deceased. Therefore, those deductions even though termed as deductions should not have been omitted to be taken into account while considering the monthly contribution of the deceased to the family. After all, those deductions would remain for the future benefit of the family only. Therefore, those deductions should have been included in the salary account. Therefore, it is only the gross salary, which has to be considered for quantifying the compensation and not the net salary, subject to the limited exceptions stated above.
5. Apart from that, the Tribunal did not take into account, the future anticipated increase in the income. Of course, no evidence has been let in on the side of the claimants also, by examining either the employer or anybody working in the office. At least, the Tribunal should have called upon the employer to produce evidence regarding the future prospects of the deceased and should have got some material also. Therefore, there is no material to ascertain the exact increase in income. However, as it is taken in other cases where there is no proof for salary, 30% of the increase can be considered, which would be certain in the case of Government employees. Therefore, taking the monthly income at Rs.4,600/- and adding 30% towards the future prospective increase in the income, the total salary would be Rs.5,980/-, rounded off to Rs.6,000/-. Deducting 1/4th towards the personal expenses, the monthly contribution would be Rs.4,500/- and the compensation under the head of loss of dependency would be Rs.8,64,000/- (Rs.4,500/- x 12 x 16) (adopting the multiplier of '16' in the age group of 30-25).
6. Awarding a sum of Rs.10,000/- towards loss of love and affection for claimants 3 and 4 / appellants 3 and 4 each, (totalling Rs.20,000/-) and a sum of Rs.35,000/- for the second petitioner and Rs.25,000/- towards the loss of consortium to the first petitioner and Rs.5,000/- towards funeral expenses, the total compensation is quantified at Rs.9,49,000/-.
7. In the result, this Civil Miscellaneous Appeal is allowed, enhancing the compensation from Rs.2,49,800/- to Rs.9,49,000/-. 7.1. Learned counsel for the second respondent / Transport Corporation submitted that already the Corporation has deposited the amount as ordered by the Tribunal. In view of the order passed by this Court in this appeal, the Transport Corporation shall deposit the enhanced compensation, with interest at 7.5% per annum, from the date of petition till the date of deposit, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the first appellant (Santhi) is entitled to withdraw a sum of Rs.4,49,000/-the second appellant (minor) is entitled to a sum of Rs.3,00,000/- and the appellants 3 and 4 are entitled to withdraw a sum of Rs.1,00,000/- each. The amount payable to the minor will remain in deposit in any one of the Nationalised Bank till the minor attains majority and the first appellant is entitled to withdraw the interest, once in three months, directly from the Bank, under intimation to the Tribunal and utilise the same for the benefit and welfare of the minor. No costs. Consequently the connected MP is closed. srk 01.10.2013 Index : Yes / No Web : Yes / No S.VIMALA, J., srk To 1. The Motor Accidents Claims Tribunal, (Sub-Court), Krishnagiri 2. The Section Officer, V.R.Section, High Court, Madras C.M.A.No.3180 of 2008 and M.P.No.1 of 2008 01.10.2013