Madras High Court
Natarajan vs A.Yusuf on 26 October, 2016
Bench: M.M.Sundresh, M.S.Ramesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.10.2016 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH and THE HONOURABLE MR.JUSTICE M.S.RAMESH C.M.A.Nos.2464 of 2011 and 2700 of 2011 and M.P.No.1 of 2011 CMA.No.2464 of 2011 1.Natarajan 2.N.Nagarathinam (deceased) 3.Kavin Kumar (3rd appellant brought on record as LR of the deceased 2nd appellant vide order of Court dated 26.08.2014 made in M.P.Nos.2 & 3 of 2014 in CMA.No.2464 of 2011) .. Appellants Vs. 1.A.Yusuf 2.The Managing Director, Tamil nadu State Transport Corporation Ltd., Division-I, Mettupalayam Road, Coimbatore. .. Respondents CMA.No.2700 of 2011 The Managing Director, Tamil nadu State Transport Corporation Ltd., Coimbatore Division I, 37, Mettupalayam Road, Coimbatore. .. Appellant .Vs. 1.K.Natarajan 2.N.Nagaraththinam(Deceased) 3.A.Yusuf(given up) 4.Kavin Kumar (R4 respondent brought on record as LR of the deceased 2nd respondent vide order of Court dated 26.08.2014 made in M.P.No.1 of 2014 in CMA.No.2464 of 2011) .. Respondents Common Prayer: Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act, 1988 praying to set aside the fair and decreetal order dated 28.08.2009 passed in M.C.O.P.No.292 of 2008 by the learned Principal Sub Judge, Motor Accident Claims Tribunal, Gobichettipalayam. For Appellants in CMA.No.2464 of 2011 and Respondents 1 and 2 in CMA.No.2700 of 2011 : Mr.Ma.P.Thangavel For R2 in CMA.No.2464 of 2011 and appellant in CMA.No.2700 of 2011 : Mr.S.Swaminathan C O M M O N J U D G M E N T
( Judgment of the Court delivered by M.S.RAMESH,J) Being dissatisfied with the quantum of compensation of Rs.6,78,000/- awarded by the Tribunal in M.C.O.P.No.292 of 2008 dated 28.08.2009 on the file of Motor Accident Claims Tribunal (Principal Sub Court), Gobichettipalayam for the death of one Hariharan in a road accident which occurred on 15.09.2007, the claimants have preferred CMA.No.2464 of 2011 for enhancement.
2.Being aggrieved by the quantum of compensation, the State Transport Corporation has preferred C.M.A.No.2700 of 2011.
3.Since both the appeals arise out of the same award, they are taken up and heard together and disposed of by this Common Judgment.
4. For the sake of convenience, the parties are referred to as per their rank in C.M.A.No.2700 of 2011 filed by the State Transport Corporation.
5. Brief facts are as follows:
5.1 On 15.09.2007 the deceased Hariharan was travelling in a motorcycle bearing Registration No.TN32-A 5873 as pillion rider from south to north direction on the left side of Coimbatore Oppanakkara Street. At about 19.30 hours, when the motor cycle was nearing Kumaran Silks, a bus bearing Registration No.TN-38 N 1052, belonging to the Appellant-Transport Corporation driven by its driver in a rash and negligent manner, dashed against the motorcycle. Due to the same, Hariharan sustained grievous injuries and he was immediately taken to CMC Hospital, Coimbatore, but he died on the way to the hospital. Regarding the accident, a criminal case in Crime No.319 of 2007 was registered for the offences under Sections 279 and 304(A) IPC against the driver of the bus.
5.2 At the time of accident, the deceased was working as a Computer Engineer in Cognizant Technology Solutions India Private Limited, Chennai and was earning a sum of Rs.35,000/- per month. Alleging that the accident was due to rash and negligent driving of the bus driver, the claimants who are the parents of the deceased, have filed a Petition claiming a sum of Rs.50,00,000/- as compensation.
5.3 Resisting the claim petition, the Appellant-Transport Corporation has filed a counter contending that on 15.09.2007, the driver of the bus took his trip from Eachanari and was proceeding towards Gandhipuram, at about 7.20 p.m. when the bus was going in Oppanakkara Street, two motorcyclists were following the bus in a rash and negligent manner and were attempting to overtake the bus in the left side, due to which, they grazed themselves and fell down on the road and the pillion rider of the motorcycle viz., Harikaran hit on the road and sustained injuries and hence, the driver of the bus is in no way responsible for the accident. It was further averred therein that since the accident was due to rash and negligent riding of the motorcyclist, the Appellant-Transport Corporation is not liable to pay compensation to the claimants.
5.4 Before the Tribunal, 1st claimant -Natarajan examined himself as P.W.1. Complainant-Rajan @ Mohanraj was examined as P.W.2. Eye witness Senthil was examined as P.W.3. The co-employee of the deceased Hariharan viz., Rajapandian was examined as P.W.4 and Exs.P1 to P37 were marked as documentary evidence on the side of the claimants. The driver of the bus viz., Yusuf was examined as R.W.1, but, no document was marked on the side of the Appellant-Transport Corporation.
5.5 Upon consideration of oral evidence of P.W.2, P.W.3 and R.W.1 and Ex.P1-FIR, the Tribunal held that the accident was due to rash and negligent driving of the bus driver and that Appellant-Transport Corporation was liable to pay compensation to the claimants. The Tribunal further held that the claimants have failed to prove that at the time of accident, the deceased was working in M/s.Cognizant Technology Solutions India Private Limited, Chennai and was getting monthly income of Rs.35,000/-. While holding so, the Tribunal observed that the deceased being a MCA graduate, would have earned at least Rs.150/- per day. Accordingly, the Tribunal fixed the monthly income of the deceased at Rs.4,500/- per month i.e. Rs.54,000/- per annum. Adopting multiplier of '18', the Tribunal calculated the loss of income at Rs.9,72,000/-. After deducting one-third for personal expenses i.e. Rs.3,24,000/-, the Tribunal awarded the loss of dependency at Rs.6,48,000/-. Adding conventional damages, Tribunal has awarded total compensation of Rs.6,78,000/- to the claimants in the following manner : -1
Loss of income (Rs.54,000/-X 18x1/3) 6,48,000 2 Loss of love and affection to the appellants 1 & 2 20,000 3 Funeral expenses 5,000 4 Loss of estate 5,000 Total 6,78,000 5.6 Aggrieved against the Award, both the parties have preferred the present appeals seeking enhancement/rejection of the compensation respectively.
6. Though the respondents/claimants have raised various grounds in their appeal, the learned counsel for the respondents emphasised the ground that the petitioner was indeed employed in M/s.Cognizant Technology Solutions India Private Limited, Chennai, (CTS) and his annual income was Rs.4,01,352/- as evidenced by Exs.P.32 and P.36, which were marked through P.W.4. The learned counsel appearing for the respondents would submit that since the deceased possessed P.G.qualification in M.C.A., the reasoning of the Tribunal in disbelieving the employment of the deceased in CTS is erroneous and that failure to consider his future prospects is perverse. The learned counsel also touched upon the compensation under the heads of loss of love and affection and funeral expenses and submitted that the award under these heads were inappropriate and hence sought for enhancement.
7. Per contra, the learned counsel for the appellant/Transport Corporation, by reiterating the reasoning given by the Tribunal in its Award and by relying on the evidence of P.W.2 and P.W.4, argued that the claimants have failed to prove the employment and monthly income of the deceased beyond reasonable doubt. The learned counsel for the appellant further contended that the multiplier of '18' adopted by the Tribunal, while awarding compensation to the claimants is erroneous, since there was serious dispute with regard to age, occupation and monthly income of the deceased. The learned counsel for the appellant also submitted that the compensation awarded by the Tribunal is unjust, unreasonable and highly excessive.
8. We have heard the learned counsel appearing on either sides and also perused the records.
9. Since the issue relating to liability is not seriously contested by the learned counsel for the appellant, the main point that arises for consideration before us, would be whether the deceased was actually employed in M/s.CTS at the time of his death and if so, what was his actual earnings and his future prospects? Even otherwise, we do not find any perversity on the finding of the Tribunal qua negligence which is also based on evidence.
10. Some of the undisputed facts in these appeals are that the deceased was aged about 26 years at the time of his death and that he possessed P.G.qualification in MCA. It is also not in dispute that he was the recipient of many certificates in various games/sports.
11. We shall now deal with the various grounds points by the respective parties.
Multiplier:
The Tribunal had adopted the multiplier of 18, relying upon the second schedule of the Motor Vehicles Act. The deceased was aged about 26 years at the time of his death and this fact has not been disputed by the appellant-Transport Corporation. The selection of multiplier fell for consideration before this court in the light of the decision of the Hon'ble Supreme Court in Sarla Verma vs. Delhi Transport Corporation, 2009 ACJ 1298 (SC). In the said case, the Apex Court, taking into consideration the decisions in General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas, 1994 ACJ 1 (SC); U.P.State Road Trans.Corpn.v. Trilok Chandra, 1996 ACJ 831 (SC); New India Assurance Co., Ltd., v. Charlie, 2005 ACJ 1131 (SC); and Fakeerappa v. Karnataka Cement Pipe Factory, 2004 ACJ 699 (SC), held as follows:
21. We, therefore, hold that the multiplier to be used should be as mentioned in column 4 of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 ( for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is,M-17 for 26 to 30 years M-16 for 31 to 35 years, M-15 for 36 to 40 years M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years".
Following the same, the Hon'ble Supreme Court had also in Amirtha Banu Shali and Others v. National Insurance Co., Ltd., and Others reported in 2012 ACJ 2002, observed as follows :
The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependant. There may be a number of dependants of the deceased whose age may be different and, therefore, the age of dependants has no nexus with the computation of compensation.
In the case of Sarla Verma, 2009 ACJ 1298 (SC), this Court held that multiplier to be used should be as mentioned in column (4) of the Table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of death was 26 years, multiplier of 17 ought to have been applied. Thus, the proper multiplier that could be adopted for a person's age of 26 years, would be 17, as per column 4 of the table of the said judgment. Applying the ratio held in the case of Sarla Verma and taking into account the age of the deceased at the time of his death, the appropriate multiplier to be adopted in the case in hand is 17 and not 18 as held by the Tribunal.
Employment and Income The respondents-claimants' case is that the deceased was employed in CTS and was drawing a monthly salary of Rs.35,000/- and in support of the same, Exs.P.34 and P.36 were marked, which were denied by the appellant-Transport Corporation.
The Tribunal in para-10 of the award has discussed the issue relating to the employment and income of the deceased holding that the deceased was aged 26 years at the time of his death as per Exs.P2 and P.9 and that he possessed a bachelor decree in Applied Science together with Post-Graduate qualification at the time of his death. Relying on Exs.P10 to P.12 and P.31 and taking into consideration the evidence of P.W.4, the Tribunal has held that, barring Ex.P.34 which is the deceased's salary slip for the month of January 2007, the proof relating to salaries for the remaining months had not been marked. The Tribunal further held that though the deceased died on 15.09.2007, Ex.P.36 shows as if the deceased was employed till 15.11.2007, i.e., after his death and hence, raised a doubt on the genuineness of Ex.P36. While considering the evidence of P.W.4, who was a contract employee of CTS and who was summoned to give evidence, the Tribunal had relied on his statement in the cross examination that he had not produced relevant documents to establish the deceased's employment in CTS and his consequential income and thereby came to the conclusion that the claimants have not established the deceased's income.
As rightly pointed out by the Tribunal, Ex.P36 evidences as if the deceased was employed in CTS till 15.11.2007, whereas, the deceased had died on 15.09.2007, as per Ex.P8 - Death Certificate. For better appreciation, the relevant portion of Ex.P36 is extracted hereunder:
This is to certify that Mr.Hariharan.N (EMP # : 151144) was a bonafide associate of our organization and had been working with us from December 4, 2006 to November 15, 2007. The learned counsel for the respondents-claimants is unable to give any satisfactory explanation on the discrepancy between Ex.P8 and P.36 and hence, we are constrained to concur with the doubts raised by the Tribunal about the genuineness of Ex.P.36. Further, Ex.P.32 is the appointment letter issued by CTS and Ex.P.34 is the pay certificate issued by CTS for the months of January 2007 and September 2007. The Tribunal while referring to Ex.P.34, had observed that the respondents-claimants had not produced any evidence to establish the income of the deceased for the other months. To substantiate the employment service of the deceased, the respondents-claimants had also produced a copy of the appointment order which was marked as Ex.P.37. The deceased's acceptance of the appointment order is dated 04.12.2006. Ex.P32 is the copy of Ex.P.37. There is no explanation either in the pleadings or in the grounds raised in this appeal as to how a copy of the appointment letter (Ex.P37) shows the acceptance of the deceased while the original appointment letter (Ex.P32) contains a blank column to that effect. The documents relied upon by the respondents-claimants have been marked through PW4 who was a contract employee of CTS, who had not deposed with any positive information with regard to the deceased's employment in CTS.
Under such circumstances, we have no other option except to accept the findings of the Tribunal on the doubts raised with regard to the employment and income of the deceased.
Notional Income Merely because, the claimants have not established the factum of the employment of the deceased, it cannot be concluded that he was incapable of earning during his life time, particularly in view of his academic qualifications and that leaves us to consider the issue with regard to his notional income.
It is not the case of the appellant-Transport Corporation that the deceased was unfit for any employment. Neither is their case that the academic and extra curricular certificates produced by the claimants before the Tribunal are concocted. It is a common knowledge that the scope of employment to a person possessing PG qualification in computer application is rather high in the IT Sector. Though we constrain to accept the Tribunal's reasoning in rejecting Ex.P.32, P.34 and P.36, it cannot be said that the deceased was disqualified for an offer of employment in CTS, Wipro or any other employer in the Multi National IT Sector. Furthermore, the deceased possessed further skills in sports-games as evidenced in Exs.P.14 to P.30, which might add better scope for the deceased to get a decent employment. Taking into consideration the living condition of the deceased, the Tribunal ought to have awarded a reasonable amount, while fixing the notional income of the deceased at Rs.4,500/- per month. Even the minimum wages of unskilled worker in an industry was more than the notional income fixed by the Tribunal. Therefore, the determination of the income of the deceased by the Tribunal's at Rs.4,500/- per month is neither just nor reasonable.
Not just because there is no rationale behind the Tribunal's decision to fix the notional income at Rs.4,500/- and not reasonable" because the Tribunal had not taking into account the educational qualification and other skills as deceased's possessed at the time of his death. The Hon'ble Supreme Court in a Judgment reported in 2012 ACJ 702, New India Assurance Co., Ltd., vs. Yogesh Devi and Others, had observed as follows:
7. This Court in Jasbir Kaur's case, 2003 ACH 1800 (SC), held that the Tribunal is required to make a just and reasonable award determining the compensation to be paid to the dependants of the victim of a fatal motor vehicle accident. Explaining the concept of just and reasonable award in the context of a motor vehicle accident claim, this Court held as follows:
" (7) It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense ' damages' which in turn appears to it to be ' just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be 'just' and it cannot be a bonanza: not a source of profit; but the same should not be a pittance. The courts and Tribunals have a duty to weigh the various factors and quantity the amount of compensation, which should be just. What would be 'just' compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particulars facts and circumstances and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of ' just' compensation which is the pivotal consideration. Though by use of the expression ' which appears to it to be just' a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of wild guesses, whims and arbitrariness. The expression 'just' denotes equitability, fairness and reasonableness, and non-arbitrariness. If it is not so it cannot be just (See Helen C.Rebello v. Maharashtra State Road Trans.Corpn., 1999 ACJ 10 (SC))."
In another judgment reported in 2016(2) TN Mac 424 (DB), S.Saraswathy and other vs. A.Elumalai and other, it has been held as follows:
10. In the present case, it is not in dispute that the deceased died in the accident which happened on 05.08.2011 and at the said point of time, the deceased was in his Final Year in Engineering. It is further evident from the record that the deceased was an Engineering student studying in Eswari Engineering College and that his parents, viz., the claimants were doing business. It is also further evident from the records that the deceased was holding shares in the Companies run by his family and was receiving dividends on those shares, which fact is further evident from the Income-tax Returns filed by the deceased. All the above factors clearly established that the deceased was earning money in the form of dividends even while he was studying. Further, the deceased was an Income-tax Assessee, which clearly proves that the deceased had an income. In such a situation, the fixation of Notional Income at Rs.7,500/- per month for an Engineering student, who was getting income, cannot be justified. Further, in the present day scenario, the average Monthly Salary of an fresh Engineering Graduate would certainly be in the region of Rs.20,000/-. In such view of the matter, this Court fixes the Notional Monthly Income of the deceased at Rs.20,000/- per month. Under such circumstances, it would be just and reasonable, if the notional income of the deceased at the time of his death is fixed at Rs.10,000/- p.m. Funeral Expenses:
The Tribunal had awarded a sum of Rs.5,000/- towards funeral expenses which according to the claimants is not reasonable. The funeral expenses cannot be deemed to be the actual expenses for cremating the deceased, but also includes various other incidental expenses, which arise while performing the last rites of the deceased. That being so, a sum of Rs.5,000/- as awarded by the Tribunal may not be adequate to him, and it may not cover even 1/5 th of the expenses that is likely to be incurred during the performance of the last rites of a person. This Court had an occasion to deal with a similar situation in the Judgment reported in 2016(2) TN Mac 424 (DB), S.Saraswaithy and other vs. A.Elumalai and other, which reads as follows:
13. As has been laid down by the Supreme Court in Rajesh v. Rajbir Singh, 2013(2) TN MAC 55 (SC) : 2013 (9) SCC 54, the " Price Index" in the present day scenario has gone up and, therefore, the expenses that are shelved towards the funeral are substantially high. As rightly pointed out by the Supreme Court, " Funeral Expenses" does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, it will be just, air and equitable, under the head of " Funeral Expenses", in the absence of evidence to the contrary for higher expenses, to award atleast an amount of rs.25,000/-. In such view of the matter, this Court deems it fit to enhance the amount awarded under the head " Funeral Expenses" to Rs.25,000/-. Thus we hold that the claimants are entitled to a sum of Rs.25,000/- towards under the head of " funeral expenses".
Loss of Love and affection:
The Tribunal's award of Rs.25,000/- towards loss of love and affection is yet another head, which requires interference. The original claimants are the parents of the deceased. No money can replace the love towards their children. Nevertheless if situation warrants that love and affection be compensated in terms of money, then a sum of Rs.50,000/- to each of the parents, would be a reasonable compensation.
Under such circumstances, the Award of the Tribunal under the head of 'loss of love and affection' is enhanced from Rs.20,000/- to Rs.1,00,000/-.
Thus by taking into account the notional income, compensation for loss of love and affection and the funeral expenses and by adopting multiplier of 17, the claimants are entitled to get compensation of Rs.16,55,000/- which is detailed hereunder:-
SL.No. Calculations Total (In Rs) 1 Rs.10,000( Notional Income) add (50% of Rs.10,000/- (Future Prospects) 15,000.00 2 50% of (Rs.15,000/- (Deductions)) 7,500.00 3 Rs.7,500/) multiply by 12 (Annual income)) 90,000.00 4 Rs.90,000/-) multiply by (17 Multiplier)) 15,33,000.00 5 Add ( For each Rs.50,000/- towards loss of love and affection to the claimants 1,00,000.00 6 Funeral Expenses 25,000.00 Total enhanced compensation 16,55,000.00
12. There shall be no change with regard to the compensation awarded under the other heads by the Tribunal.
13. With regard to the disbursal of the enhanced compensation amount, this Court, in a Judgment dated 11.03.2016 passed in CMA.No.428 of 2016,( the Divisional Manager, The Oriental Insurance Co., Ltd., Kannur vs. Rajesh and two others) had formulated guidelines /directions to serve the cause of justice, more particularly to innocent and illiterate victims/claimants. We deem it appropriate that the said guidelines also have to be adopted for this case for disbursing the enhanced compensation amount, so as to reach the claimants at the earliest. Paragraph 11 (vii) and (xv) of the above said Judgment dated 11.03.2016, are extracted hereunder:
viii) The Claims Tribunal shall, as a matter of rule, direct the insurance companies or transport corporations or such other entities held liable to pay the compensation, to deposit the award sum to the credit of the bank account of the Claims Tribunal directly by NEFT or RTGS mode. The Registry will issue appropriate directions in this regard enabling the respective Claims Tribunal or the District Court concerned to open separate account, which will bear a suffix MACT to identify that the account is in relation to motor accident claims.
The Claims Tribunals shall ensure that as and when order is passed for disbursal of compensation amount, it will ensure that such disbursal of compensation shall be made directly to the credit of the bank account of the claimant/victim as the case may by NEFT or RTGS. The bank account details of the claimant/victim(s) shall be stated in the award/order of the Claims Tribunal. Apportionment:
The Original claimants in M.C.O.P.No.292/2008 are the parents of the deceased. During the pendency of the present appeals, the second respondent who is the mother of the deceased died and the 4th respondent was brought on record as the legal representative of the deceased second respondent. Out of the enhanced compensation of Rs.16,55,000/-, a sum of Rs.11,55,000/- along with accrued interest shall be paid to the first respondent/father of the deceased and balance of Rs.5,00,000/- along with accrued interest shall be paid to the 4th respondent/Legal representative of the deceased second respondent.
14. In the result : -
i) the Award of the Tribunal is enhanced from Rs.6,78,000/- to Rs.16,55,000/-.
ii) Out of the enhanced compensation of Rs.16,55,000/-, a sum of Rs.11,55,000/- along with accrued interest shall be paid to the first respondent/father of the deceased and balance of Rs.5,00,000/- along with accrued interest shall be paid to the 4th respondent/Legal representative of the deceased second respondent.
iii) the Award amount shall carry interest at the rate of 7.5% p.a. from the date of the claim petition till the date of deposit.
iv) the appellant-transport is directed to deposit the enhanced award amount within a period of eight weeks from the date of receipt of a copy of this order, to the credit of the bank account of the Claims Tribunal directly by NEFT or RTGS mode. The Claims Tribunal shall ensure that as and when the enhanced compensation amount is deposited to the Bank account, the same shall be disbursed directly to the credit of the bank account to the claimants -respondents in CMA.No.2700 of 2011 by NEFT or RTGS.
v) There shall be no order as to costs.CMA.No.2700 of 2011
This Civil Miscellaneous Appeal is dismissed in all other respects, apart from modifying the multiplier from 18 to 17. No costs. Consequently, connected miscellaneous petition is closed.
CMA.No.2464 of 2011In the result, this Civil Miscellaneous Appeal is partly allowed as aforesaid. No costs.
(M.M.S.,J.) (M.S.R.,J.) 26.10.2016 Index : Yes/No Internet : Yes/No kkd To The Principal Sub Judge, Motor Accident Claims Tribunal, Gobichettipalayam. M.M.SUNDRESH,J and M.S.RAMESH,J kkd C.M.A.No.2464 of 2011 and CMA.No.2700 of 2011 and M.P.No.1 of 2011 26.10.2016 http://www.judis.nic.in