| SooperKanoon Citation | sooperkanoon.com/1186546 |
| Court | Chennai Madurai High Court |
| Decided On | Dec-07-2016 |
| Case Number | C.M.A(MD)No. 1074 of 2015 & Cross Objection (MD)No. 24 of 2016 |
| Judge | M. Sathyanarayanan &Amp; The Honourable Mrs. Justice J. Nisha Banu |
| Appellant | M/s. Oriental Insurance Company Limited, Represented through its Divisional Manager and Others |
| Respondent | S. Venkateswari and Others |
(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.127 of 2009, dated 25.11.2014, on the file of the Motor Accident Claims Tribunal IV Additional District Court, Madurai.
Cross Appeal filed under Order 41 Rule 22 of the Code of Civil Procedure, against the judgment and decree in M.C.O.P.No.127 of 2009, dated 25.11.2014, on the file of the Motor Accident Claims Tribunal IV Additional District Court, Madurai.)
Common Judgment
M. Sathyanarayanan, J.
1. The second respondent/Insurance Company in M.C.O.P.No.127 of 2009 on the file of the Motor Accident Claims Tribunal IV Additional District Court, Madurai, challenging the negligence and quantum of compensation, in respect of the award and decree dated 25.11.2014, had filed this appeal.
2. The respondents 1 to 3/claimants 1 to 3 are the wife, and two sons of one P.Sennakesavan, who is a resident of Door No. 1-27-1, Anandapuram Nagar First Street, Aruppukkottai and he was employed as a Reader in Commerce Department of Saiva Bhanu Kshatriya College, Aruppukkottai and was earning a sum of Rs. 64,881/- (Rupees Sixty Four Thousand Eight Hundred and Eighty One only) per month. The respondents 1 to 3/claimants 1 to 3 would state that when P.Sennakesavan has travelled as one of the passengers/occupants in a Tempo Traveller Van bearing Registration No.TN-59-V-8987 owned by the fifth respondent herein and it was proceeding from Bellary to Madurai and at about 02.20 a.m., on 17.06.2008, the said Van was proceeding near Chellappanpatti Aravinth Accident Rescue Centre and the bus belonging to the fifth respondent Corporation bearing Registration No.TN-30-N.0612, came in the opposite direction in a rash and negligent manner and dashed against the Van and as a consequence, the said Sennakesavan sustained grievous injuries and died and the other occupants of the Van also sustained injuries. The jurisdictional police, namely, Nallipalayam Police Station, Namakkal, registered a case in Cr.No.262 of 2008 for the offences punishable under Sections 279, 337, 338 and 304(A) I.P.C.
3. The respondents 1 to 3/claimants 1 to 3 would state that the deceased Sennakesavan was the sole earning member in their family and apart from his employment as Lecturer, got Doctorate and also eking out Rs.2,00,000/- (Rupees Two Lakhs only) per annum through agricultural operations and hence, they claimed the compensation of Rs.99,30,000/- (Rupees Ninety Nine Lakhs and Thirty Thousand only) under the following heads and restricted their claim to a sum of Rs.69,00,000/- (Rupees Sixty Nine Lakhs only):
| 21(A).PARTICULARS OF LOSS AND EXPENSES: | |
| PART - I | |
| (a) Loss of earning | Rs.73,00,000.00 |
| (b) Future loss of earnings for ... years from .... onwards at the net rate of Rs..... | --- |
| (c) Transport to Hospital | Rs. 5,000.00 |
| (d) Funeral Expenses | 10,000.00 |
| (e) Damages to clothing and articles | --- |
| (f) Loss of earning from Agricultural income Rs. 2,00,000 X 10 | Rs.20,00,000.00 |
| (g) Others: | |
| 1. Loss of consortium to the 1st petitioner | Rs.50,000.00 |
| 2. Loss of love and affection | Rs.1,50,000.00 |
| 3. For shock and mental agony | Rs.1,00,000.00 |
| 4. Loss of dependency | Rs.1,00,000.00 |
| 5. Loss of amenities | Rs.15,000.00 |
| 6. Loss of social pleasure | Rs.1,00,000.00 |
| PART - II | |
| (h) Compensation for pain and sufferings | --- |
| (i) Loss of future guidance to the petitioners | Rs.1,00,000.00 |
| (j) Loss of continuing permanent disability, if any. | --- |
| (k) Compensation for loss of earning power | --- |
| TOTAL | Rs.99,30,000.00 |
5. The fifth respondent Corporation/third respondent in the claim petition filed the counter affidavit stating that the Van was driven in a rash and negligent manner, as a result of which, the accident had occurred and therefore, they cannot be mulcted with liability.
6. The other occupants had also filed the claim petitions and by consent, all the petitions were tried commonly as they arose out of one and the same accident.
7. The first respondent/first claimant examined herself as P.W. 4 and marked Exs.P.23, 24 and 25. On behalf of the appellant/Insurance Company, no oral evidence was let in, however, Exs.R.1 and R.2 were marked.
8. The Tribunal on consideration of the oral and documentary evidence has awarded the compensation of Rs.39,01,592/- (Rupees Thirty Nine Lakhs One Thousand and Fifty Two only) with interest at the rate of 7.5% per annum from the date of petition till date of realisation and also apportioned the liability between the appellant/Insurance Company and the fifth respondent Corporation and challenging the same, this appeal is filed.
9. The learned Counsel for the appellant/Insurance Company would submit that the bus belonging to the fifth respondent Corporation was driven in a rash and negligent manner and as such, they should be exonerated from the liability and on the quantum of compensation, would contend that admittedly, the deceased was on the verge of retirement and as such, split multiplier ought to have been applied. He would further contend that absolutely, there is no evidence available as to the earning through the agricultural operations as well as future prospects of getting fresh or other employment after retirement and as such, the award passed by the Tribunal is unsustainable and therefore, prays for allowing this appeal.
10. The learned Counsel for the appellant/Insurance Company, in support of his submissions, placed reliance upon the following decisions:
(i) R.Leelavathy v. Sheik Dawood and another reported in 2013 AAC 2457 (MAD);
(ii) K.R.Madhusudhan and others v. Administrative Officer and another reported in AIR 2011 SC 979;
(iii) National Insurance Co. Ltd. v. M.Arulmozhi and others reported in II (2015) ACC 417 (DB)(Mad.);
(iv) Royal Sundaram Alliance Insurance Co. Ltd. v. Sarala Devi and others reported in I (2013) ACC 862 (DB);
(v) K.Rengasamy and another v. Revathi and others reported in (2008) 2 LW 603; and
(vi) K.Perumal and another v. Tmt.Kamalabai reported in 2004 (2) TN MAC (DB) 535.
11. Per contra, the learned Counsel for the respondents 1 to 3/claimants 1 to 3 would contend that admittedly, the deceased was employed in a good position in a private college and earning a decent salary as evidenced from Exs.P.24 and P.25 and that apart also, earning Rs.2,00,000/- (Rupees Two Lakhs only) by doing agricultural operations and by virtue of his qualification, which includes Doctorate, even after retirement, he would have got a good job in yet another private unaided institution. He would further contend that the trial Court has also failed to adhere to the required parameters and awarded a lesser compensation and therefore, the respondents 1 to 3/claimants 1 to 3 filed Cross Objection (MD)No. 24 of 2016 seeking enhancement of compensation and thus, prays for appropriate orders.
12. This Court has carefully considered the rival submissions and also perused the materials available on record.
13. The following questions arise for consideration in this appeal as well as in the cross objection:
(i) Whether the bus belonging to the fifth respondent Corporation had solely contributed to the accident and as such, the appellant/Insurance Company is to be exonerated from the liability?
(ii) Whether the quantum of compensation is a just, fair and reasonable one and requires enhancement?
Question No.(i):
14. The Tempo Traveller Van insured with the appellant/Insurance Company met with an accident on the early morning hours at 02.20 a.m., on 17.06.2008, which resulted in the death of many persons and some of them had also sustained grievous injuries and the husband of the first respondent/first claimant died in the said accident.
15. Ex.P.1 F.I.R. came to be registered against the driver of the Van and the driver of the bus belonging to the fifth respondent Corporation was examined as R.W.1. The Tribunal has taken note the fact that the driver of the Van died in the accident and very many persons who travelled in the bus as well as the Van had sustained injuries and when there is a collision, the action of the police in registering the case against the driver of the Van, is unsustainable and the testimony of R.W.1 was that the F.I.R came to be registered at 08.00 hours, whereas at 05.30 hours itself, the sketch was prepared in his presence and on going through the rough sketch marked as Ex.R.2, has concluded that the driver of the fifth respondent Corporation is not speaking the truth.
16. The Tribunal has taken note of the testimony of the prosecution witnesses, who deposed that the drivers of both the vehicles are negligent and therefore, arrived at a conclusion that both the vehicles had equally contributed to the accident and as such, the owner of the Van and the appellant/Insurance Company jointly and the fifth respondent Corporation are liable to pay the compensation at 50% each.
17. In the considered opinion of this Court, the said finding rendered by the Tribunal cannot be said to be perverse as admittedly, it was a head on collision on the early morning hours on 17.06.2008 and some of the persons travelled in the Van died and some of them had sustained grievous injuries and so also, the passengers travelled in the bus belonging to the fifth respondent Corporation. Therefore, the Tribunal was right in holding that both the vehicles had contributed to the accident and therefore, the appellant/Insurance Company as well as the fifth respondent Corporation have to apportion the liability to pay the compensation to the respondents 1 to 3/claimants 1 to 3 at the rate of 50% each. Accordingly, Question No.(i) is answered in negative against the appellant/Insurance Company.
Question No.(ii):
18. The Tribunal while arriving at the quantum of compensation, found that as per the post-mortem certificate marked as Ex.P.23, the age of the deceased was mentioned as 45 years and in Ex.P.24 - salary certificate, the date of retirement of the deceased was mentioned as 11.06.2011 and therefore, fixed the age of the deceased at the time of the accident as 55 years and it cannot be faulted with.
19. The Tribunal further found that the deceased was employed as a Reader in Commerce Department in a private college and to prove his income, Ex.P.24 - salary certificate dated 14.12.2009 and Ex.P.25 - letter from his employer dated 14.03.2009 were marked.
20. The first claimant examined herself as P.W.4 and in the chief examination in the form of proof affidavit, she would state that her husband/deceased would have earned a sum of Rs.95,996/- (Rupees Ninety Five Thousand Nine Hundred and Ninety Six only) at the time of his retirement and he is a Doctorate and also carrying on the agricultural operations and earning a sum of Rs.2,00,000/- (Rupees Two Lakhs only) per annum and even after his retirement, he would have got the post of Advisor or Principal in a regular college or a tutorial college and thereby, continue to earn much, however, his life was cut short in a tragic accident.
21. P.W.4, in the cross-examination, would admit that insofar as the holding of land and the income, she has not filed any proof and was not aware of the income to be earned by getting employment in a private college.
22. Ex.P.24 is the certificate issued by Saiva Bhanu Kshatriya College, Aruppukkottai and the gross salary of the deceased is Rs. 64,881/- (Rupees Sixty Four Thousand Eight Hundred and Eighty One only) per month and the net salary is Rs.52,465/- (Rupees Fifty Two Thousand Four Hundred and Sixty Five only). Ex.P.25 is the letter of the employer of the deceased dated 14.03.2009 given by the college in which the deceased was employed and the contents of the same would reveal that on the date of his retirement on 11.06.2011, the deceased would have earned a sum of Rs.95,996/- (Rupees Ninety Five Thousand Nine Hundred and Ninety Six only).
23. It is the submission of the learned Counsel for the appellant/Insurance Company that since the deceased would have employed only for three more years, instead of multiplying the annual income with the multiplier 11, split multiplier of 4+7 would have to be adopted and in that event, after deducting 20% towards income tax [Rs.12,976/-] and 1/3rd amount towards personal expenses [Rs.17,302/-], the monthly income of the deceased would be Rs.32,179/-. [Rs.64,881/- - Rs.30,278/-] and the annual loss of come of the deceased would be Rs.28,96,152/- (Rupees Twenty Eight Lakhs Ninety Six Thousand One Hundred and Fifty Two only), which is calculated hereunder:
Rs.32,179/- X 12 X 4 = Rs.15,44,592/-
Rs.16,090/- X 12 X 7 = Rs.13,51,560/-
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Total = Rs.28,96,152/-
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and after adding the amounts awarded under the other heads, the just and reasonable compensation should be Rs.30,81,152/- (Rupees Thirty Lakhs Eighty One Thousand One Hundred and Fifty Two only) [Rs.28,96,152/- + Rs.1,50,000/- + Rs.10,000/- + Rs. 25,000/-] and since the liability of the appellant/Insurance Company is restricted to 50%, the compensation payable by the appellant/Insurance Company would be Rs.15,40,576/- (Rupees Fifteen Lakhs Forty Thousand Five Hundred and Seventy Six only) and has not advanced any serious arguments with regard to the negligence aspect.
24. The judgments relied on by the learned Counsel for the appellant/Insurance Company would speak about the split multiplier concept. However, in the judgment rendered by the Honourable Supreme Court in Puttamma and others v. K.L.Narayana Reddy and another reported in 2014 (1) TN MAC 481 (SC), at paragraph 34, it has been held that "We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply Split Multiplier in routine course and should apply Multiplier as per decision of this Court in the case of Sarla Verma v. Delhi Transport Corporation reported in 2009 (2) TN MAC 1 (SC) as affirmed in the case of Reshma Kumari v. Madan Mohan reported in 2013 (1) TN MAC 481 (SC)".
25. The Honourable Supreme Court in the above cited judgment, in paragraph 64 held that the judgment of the High Court of Karnataka is perverse and contrary to the evidence on record and while setting aside the same observed that future prospects of the deceased and adoption of split multiplier method is against law laid down by the Honourable Supreme Court.
26. In the light of the said decision of the Honourable Supreme Court, this Court is not inclined to adopt the split multiplier method.
27. The gross salary of the deceased as per Ex.P.24 is Rs. 64,881/- and however, the Tribunal has taken into consideration the net salary of the deceased alone and the same is unsustainable. Normally, towards income tax, 20% ought to have been deducted and therefore, after deducting a sum of Rs.12,976/- towards income tax at 20%, the income should be Rs.51,905/- and after 1/3rd amount towards personal expenses, the monthly salary of the deceased would be Rs.34,603/- and by adopting multiplier 11, the loss of income should be Rs.45,67,596/- [Rs.34,603/- X 12 X 11].
28. The Tribunal has awarded a sum of Rs.50,000/- (Rupees Fifty Thousand only) each to the respondents 1 to 3/claimants 1 to 3 towards of loss of love and affection; a sum of Rs.10,000/- (Rupees Ten Thousand only) towards transportation charges and a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards funeral expenses and the amounts awarded under these heads warrant no interference. However, no amount of compensation has been awarded towards loss of consortium for the first respondent/first claimant, who was aged about 42 years and therefore, a sum of Rs.1,00,000/- (Rupees One Lakh only) would meet the ends of justice and therefore, the respondents 1 to 3/claimants 1 to 3 are entitled to get the following compensation:
| Sl. No. | Heads | Amount awarded by Tribunal (Rs.) | Amount enhanced by this Court (Rs.) | Total (Rs.) |
| 1. | Loss of Income | 37,16,592.00 | 8,51,004.00 | 45,67,596.00 |
| 2. | Loss of Love and Affection to the claimants 1 to 3 - Rs.50,000/- each | 1,50,000.00 | --- | 1,50,000.00 |
| 3. | Transportation Charges | 10,000.00 | --- | 10,000.00 |
| 4. | Funeral Expenses | 25,000.00 | --- | 25,000.00 |
| 5. | Loss of Consortium to the first claimant | --- | 1,00,000.00 | 1,00,000.00 |
Grand Total | 48,52,596.00 | |||
Rounded off | 48,52,600.00 |
30. In the result,
(i) C.M.A.(MD)No.1074 of 2015, is disposed of and the award and decree in M.C.O.P.No.127 of 2009, dated 25.11.2014, passed by the Motor Accident Claims Tribunal IV Additional District Court, Madurai, is modified to the effect that the respondents 1 to 3/claimants 1 to 3 are entitled to the total compensation of Rs. 48,52,600/- (Rupees Forty Eight Lakhs Fifty Two Thousand and Six Hundred only) with interest at the rate of 7.5% per annum from the date of petition till date of realisation and it shall be paid by the appellant/Insurance Company as well as the fifth respondent Corporation at the rate of 50% each. Out of a sum of Rs. 48,52,600/- (Rupees Forty Eight Lakhs Fifty Two Thousand and Six Hundred only), the first respondent/first claimant is entitled to a sum of Rs.30,00,000/- (Rupees Thirty Lakhs only) and the respondents 2 and 3/claimants 2 and 3 are entitled to a sum of Rs. 9,26,300/- (Rupees Nine Lakhs Twenty Six Thousand and Three Hundred only) each. Time for deposit of the balance amount is ten weeks from the date of receipt of a copy of this judgment. No costs; and
(ii) Cross Objection (MD)No.24 of 2016 is partly allowed to the extent indicated above; No costs.