Madras High Court
The Branch Manager vs Uma Rani on 22 November, 2018
Author: S.S.Sundar
Bench: S.S.Sundar, C.Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.11.2018
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.M.A(MD)No.23 of 2017
and
C.M.P.(MD) No.256 of 2016
AND
Cross Obj.(MD) No.21 of 2018
C.M.A.(MD) No.23 of 2017
The Branch Manager,
The New India Assurance Company Ltd,
A-104/105, Gail No.7, Pratap Nagar,
Mayur Vihar,
Near Mayur Vihar Ph-1 Metro Station,
New Delhi – 110 091. ... Appellant/2nd respondent
Vs.
1.Uma Rani
2.T.Arun Sabapathy
3.T.Aravind
4.T.Asvin Rajasimman ... R1 to R4/P1 to P4
5.A.R.Maravarman Sundarapandian ... R5/1st respondent
Prayer : Civil Miscellaneous appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and decree in
M.C.O.P.No.1496 of 2012, dated 08.08.2016 on the file of the Motor
Accident Claims Tribunal, (VI Additional District Court), Madurai.
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For Appellant : Mr.N.Vijay Karthikeyan
For R4 : Mr.T.Lajapathi Roy
Cross Obj.(MD) No.21 of 2018
1.Uma Rani
2.T.Arun Sabapathy
3.T.Aravind
4.T.Asvin Rajasimman ... Cross Appellants/
R1 to R4
Vs.
1.The Branch Manager,
The New India Assurance Company Ltd,
A-104/105, Gail No.7, Pratap Nagar,
Mayur Vihar,
Near Mayur Vihar Ph-1 Metro Station,
New Delhi – 110 091. ... R1/Appellant
2. A.R.Maravarman Sundarapandian ... R2/R5
Prayer : Cross Appeal is filed under Order 41 Rule 22 of C.P.C., against
the Judgment and decree in M.C.O.P.No.1496 of 2012, dated
08.08.2016 on the file of the Motor Accident Claims Tribunal, (VI
Additional District Court), Madurai.
For Cross Appellant : Mr.T.Lajapathi Roy
For R1 : Mr.B.Vijayakarthikeyan
COMMON JUDGMENT
http://www.judis.nic.in 3 (Judgment of the Court was delivered by C.SARAVANAN, J) The above appeal and cross appeal are directed against the order passed by the Motor Accident Claims Tribunal, VI Additional District Court, Madurai in M.C.O.P.No.1496 of 2012 dated 08.08.2016.
2.By the impugned order, the Tribunal has awarded a sum of Rs. 50,09,524/- to the respondent Nos.1 to 4/cross appellants. Though the Respondents 1 to 4/cross appellants 1 to 4 had quantified the compensation as Rs.62,77,000/- in their claim statement they had restricted the claim to Rs.50,00,000 before the Tribunal.
3.However, Respondents 1 to 4/cross appellants 1 to 4 have now sought for enhancement of the compensation by another Rs.25,00,000/-.
4.The Tribunal arrived at the compensation of Rs.66,79,495 and thereafter deducted 25% towards contributory negligence of the deceased and awarded the aforesaid amount of Rs.50,09,524/- to the claimants.
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5.The compensation claimed, awarded as prayed for by the either of the parties as detailed below:
Sl. Heads Compensation Compensation Compensation No. awarded by seeks by seeks by cross Tribunal appellant appellant
1. Loss of Earning Rs.62,41,495/- Rs.10,27,775/- Rs.62,53,732/-
along with
future
prospects 15%
2. For Loss Rs. 1,00,000/- Rs. 40,000/- Rs. 1,00,000/-
consortium
3. For loss of love Rs. 1,00,000/- Rs. 1,00,000/- Rs. 1,00,000/-
and affection
to the mother
and 3 sons
4. Funeral Rs. 25,000/- Rs. 15,000/- Rs. 25,000/-
Expenses
5. Travel Rs. 25,000/- ------- Rs. 25.000/-
Expenses
6. Medical Rs. 2,02,870/- Rs. 2,02,870/- Rs. 2,02,870/-
Expenses
Total Rs.66,79,495/- Rs.13,95,645/- Rs.66,96,602/-
6.The brief facts of the case are that the deceased T.S.Thangamuthu, husband of the first respondent/first cross appellant and the father of respondents 2 to 4/cross appellants 2 to 4 died in a road accident on 25.03.2012 at about 10.30 hours at Rajampadi, Madurai Theni Road, Near Rajiv Street, Maduri.
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7.The accident is said to have taken place when the deceased was negotiating a turn to his right to proceed to the north direction and was hit from behind by Alto car driven by one A.R.Vallimanalan, driver employed by the 5th respondent insured with the appellant/first respondent in the cross appeal on 25.03.2012.
8.The deceased later died on 02.04.2012 after undergoing treatment for the grievous injuries sustained by him on account of the said accident. At the time of the accident, the deceased was 59 years and merely had 9 months service with the Madurai Kamaraj University, where he was working as Associate Professor, Department of Medieval History, School of Historical Science. He was drawing a salary of Rs. 83,736/- at the time of his death. He would have retired on attaining the age of 60 years.
9.In the present appeal, the appellant insurance company has questioned the compensation awarded mainly on the ground that the Tribunal erred in applying the 9 multiplier .
10.The learned counsel for the appellant insurance company relied on the following decisions:
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(i)Branch Manager, National Inurance Co. Ltd. V. M.Arulmozhi – 2015 ACJ 698
(ii)Uma Shankar V. Revathy Vadivel – 2014(1) TNMAC 651 (DB)
(iii)Oriental Insurance Company Ltd., represented by its Assistant Manager, Kochi Vs. Valsa @ Valsamma - 2016 0 ACJ 1606.
11.It is submitted that the deceased was aged about 59 years at the time of the accident and had only about 9 months of service with the Madurai Kamaraj University, where he was working as Associate Professor, Department of Medieval History, School of Historical Science and therefore the only split multiplier should have been applied for determining loss of income.
12.It is submitted that though the Tribunal was justified in deducting 25% of the compensation on account of contributory negligence, the compensation ought to have been awarded only after applying split multiplier. It was submitted on behalf of the appellant that the for the first year the 1 multiplier should have been applied full salary of Rs.83,736/- and thereafter 8 multiplier should have been applied in 50% of the gross income at the time of the death of the deceased. The appellant has therefore submitted that the claim should be restricted to Rs. 14,00,000/-.
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13.It was further submitted that the wife of the deceased was also drawing pension of her own and the other claimants were well settled and therefore the compensation awarded was on the higher side.
14.Per contra the claimants/ 1st to 4th respondent/Cross appellants in their cross appeal and have prayed for enhanced compensation and submitted that the merely because the deceased did not possess a driving licence by itself did not mean that the deceased was guilty of negligence warranting 25% deduction. It was further, submitted that there is no question of applying split multiplier.
15.We have heard the counsel for the either sides and have considered their rival submission.
16.There are no disputes in the facts of the present case. Therefore, the short point that arises for consideration is whether or not the Tribunal was required to apply split multiplier and awarded lesser compensation and whether or not the Tribunal was justified in reducing the compensation by holding the deceased was guilty of contributory negligence for not possessing driving licence.
17.The correctness of the impugned order is to be tested as against the well settled principles of law as per the decision of the Hon'ble Supreme Court.
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18.The learned counsel for the claimants/respondents 1 to 4/cross appellants relied on the following judgments:
A: Against splitting the Mlultiplier
(i)K.R.Madhusudan V. Administrative Officer 2011(1) TNMAC 161 9SC)
(ii)Puttamma V. K.L.Narayana Reddy – 2014 (1) TNMAC 481 (SC)
(iii)Neeta Vs. Divisional Manager, MSRTC, Kolhapur (SC) 2015(1) TNMAC 161
(iv)Surti Gupta Vs. United India Indurance Co. 2015(1) TNMAC 472 (SC)
(v)Sarala Verma Vs. Delhi Transport Corporation (2009) 6 SCC 121
(vi)Oriental Insurance Co. Ltd. Vs. S.Venkateswari 2017(1) TNMAC 652 (DB) and
(vii)Bajaj Alliance General Insurance Co. Ltd. Vs. Prabhavati Hiraman Babar 2018(2) TN MAC 12 (Bom.) B.Just Compensation:
(i)United India Insurance Co. Ltd. Vs. Veluchamy 2005 ACJ 1483 http://www.judis.nic.in 9
(ii)Sudhir Kumar Rana Vs. Surinder Singh (2008) 12 SCC 436
(iii) Jiju Kuruvila Vs. Kunjujamma Mohan AIR 2013 SC 2293
(iv)Sanobanu Nazirbhai Mirza Vs. Ahmedabad Municipal Transport Service 2013 ACJ 2733.
19.We have considered the submissions made by either side.
20.While calculating the loss of income of the deceased, the Tribunal has added 15% of the salary and arrived at the annual gross income of the deceased as Rs.11,55,830/- and from the aforesaid amount, the income payable by the deceased has been deducted and figure of Rs.9,24,666/- has been arrived as the net income out of which ¼ of the amount has been deducted for the personal expenses of the deceased and after applying the decision of the Hon'ble Supreme Court in Sarala Verma's case, 9 multiplier has been adopted to arrive at the compensation of Rs.66,79,495. Since the Tribunal found the deceased also guilty of contributory negligence for not possessing the driving licence at the time of accident, 25% of compensation has been deducted towards contributory negligence and has awarded Rs.50,09,524/0 as compensation to the claimants/respondent/cross appellants.
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21.There is however no whisper regarding contributory negligence in the counter filed before the Tribunal. Only during the examination of their witnesses, an attempt was made to establish contributory negligence for want of driving licence, which was accepted by the Tribunal.
22.However, merely because the deceased did not possess a driving licence cannot mean that the deceased was guilty of contributory negligence. In Sudhir Kumar Rana Vs. Surinder Singh – (2008) 12 SCC 436, the Court held that contributory negligence cannot be fixed merely because the deceased did not possess a diving licence.
23.In fact, the Hon'ble Supreme Court in Dinesh Kumar Vs. National Insurance Company 2018(1) SCC 750 has held that contributory negligence cannot be inferred merely because the deceased did not possess licence. It has to be established on facts. Similar view was taken in State Express Transport Ltd., Vs. D.Malliga 2016(1) TNMTC 309 and by this Court in TNSTC Vs. S.Sundharam 2015(1) TNMAC 633 and in Jiju Kuruvila Vs. Kunjujamma Mohan AIR 2013 SC 2293, the Hon'ble Supreme Court held that contributory negligence cannot be inferred without proper evidence. In absence of contra evidence we cannot infer contributory negligence as held in Yerramma Vs.G.Krishnamurthy AIR 2015 SC 1145.
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24.In view of the above settled position of law, we are of the view that the deduction of 25% from the compensation towards contributory negligence merely because the deceased did not possess a driving licence is not sustainable. Accordingly, to that extent, the cross appeal filed by the claimants is liable to be allowed and the impugned order is to be inferred.
25.In fact, the Tribunals, High Court and for that matter Hon'ble Supreme Courts are bound to order just compensation as held by the Hon'ble Supreme Court in Nagappa V. Guru Dayal Singh (2003) 2 SCC 274 and as per the catena of decision of the Hon'ble Supreme Court including the one cited on behalf of the claimants/Cross appellants in Sanobanu Nazirbhai Mirza Vs. Ahmedabad Municipal Transport Service 2013 ACJ 2733.
26.As far as the applicablity of the split multiplier is concerned, the Courts have repeatedly held split multiplier has to be applied only based on adequate reasons. In this case, though the deceased had only 9 months to retire, he was a qualified as an Associate Professor and there was evidence to suggest that he could be employed even after retirement for a period of 5 years. Therefore, even if the deceased was to retire, he would have earned substantial amount even after his retirement. http://www.judis.nic.in 12
27.The Tribunal has adopted 9 multiplier. However, in appeal, the appellant insurance company has attempted to persuade us to split the multiplier into 1 and 8. For the first 12 months, it submitted that 1 multiplier should be adopted to determine at the annual income of Rs. 10,05,432/-. It was submitted that as the deceased could have retired in the next year, and he would have drawn only 50% of the monthly income. Therefore, it was submitted 8 multiplier should be applied for the residual period on the pension.
28.In para 19 of Sarla Verma case, the Hon'ble Supreme Court has held as follows:
“10.To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step 1(Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicant.
http://www.judis.nic.in 13 Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active careet, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he woul have lived or worked byt for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step 3(Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the “loss of dependency”to the family.
Thereafter, a conventional amount in the range of Rs. 5000 to Rs.10,000 may be added as loss of estate. Where the deceased i survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of paid, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should be added.”
29.In National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 , the Hon’ble Surpreme Court observed as follows:-
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42.As far as the multiplier is concerned, the Claims Tribunal and the courts shall be guided by Step 2 that finds place in para 19 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] read with para 42 of the said judgment. For the sake of completeness, para 42 is extracted below: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p. 140) “42. 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 [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 :
1994 SCC (Cri) 335] , Trilok Chandra [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362] and Charlie [New India Assurance Co.
Ltd. v. Charlie, (2005) 10 SCC 720 : 2005 SCC (Cri) 1657] ), 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.”
30.The Division Bench of this Court in Oriental Insurance Co. Ltd. Vs. S.Venkateswari 2017(1) TNMAC 652 (DB), has held that normaly 20% towards income tax ought to have been deducted towards tax to arrive at the net income and after 1/3 amount should be deducted for the personal expenses of the deceased. The Bombay High Court in Bajaj Alliance General Insurance Co. Ltd. Vs. Prabhavati Hiraman Babar 2018(2) http://www.judis.nic.in 15 TN MAC 12 (Bom.), under a similar circumstances applied 9 multiplier and did not split the multiplier as has been proposed by the appellant.
31.For determining future prospect, the Hon’ble Supreme Court held as follows:-
“ 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
32.We are therefore not inclined to split the multiplier. IN Para No. 34, the Hon'ble Supreme Court in Puttamma and others V. K.L.Narayana Reddy – 2014 (1) TNMAC 481 (SC) has noted as follows:
“34.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 (supra), as affirmed in the case of Reshma Kumari (supra)” http://www.judis.nic.in 16
33.The Tribunal has awarded a sum of Rs.1,00,000/- under the head of loss of consortium to the wife. As per the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others (supra) the loss of consortium to the wife should be Rs. 40,000/- and Rs.40,000/- each for the children for loss of love and affection and the funeral expenses would be Rs.15,000/-. There is no dispute regarding quantification on the conventional heads. However, we are reducing the funeral expenses by Rs.10,000/- as per the decision of the Supreme Court in Pranay Sethi case. Therefore, we are inclined to make minor modifications.
34.Under these cirucumstances, the loss of income shall be calculated as follows by applying 9 multiplier:
Rs.83786 x 12 x 9. = Rs.90,48,888
Less ¼ deduction towards
personal expenses of the deceased
if he had beel alive. = Rs.22,62,222
-------------------
Rs.67,86,666
Towards Future prospects at 15%(+). = Rs.10,17,999
(on Rs.67,86,666). -------------------
Rs.78,04,665
Less I.T. @ 20%. = Rs.15,60,933
-------------------
Total loss of income. = Rs.62,43,732
-------------------
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35.Therefore, the compensation already awarded is modified as under:
For Loss of income. = Rs.62,43,732 For loss of consortium for wife. = Rs. 40,000 For loss of love & affection to three sons (40000x3). = Rs. 1,20,000 For Funeral Expenses. = Rs. 15,000 For Travel Expenses. = Rs. 25,000 For Medical Expenses. = Rs. 2,02,870 Total. = Rs.66,46,602
36.Therefore, the compensation payable tot he claimants will be Rs. 66,46,602/-.
37.The appellant transport corporation is directed to deposit the modified compensation of Rs.66,46,602/- with interest at the rate of 7.5% from the date of petition till the date of realization and costs, within a period of eight weeks from the date of receipt of a copy of this order, less the amount already deposited, if any. On such deposit, the claimants are entitled to withdraw the same, as apportioned by the Tribunal, after filing proper application, less the amount already withdrawn by them, if any. http://www.judis.nic.in 18
38.Accordingly, this Civil Miscellaneous Appeal is disposed of and the cross appeal is allowed as indicated above. No costs. Consequently, connected miscellaneous petition is closed.
(S.S.SUNDAR J.,) & (C.SARAVANAN, J.) 22.11.2018 Arul To
1.The Motor Accident Claims Tribunal, (VI Additional District Court), Madurai.
2.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai. http://www.judis.nic.in 19 S.S.SUNDAR, J.
AND C.SARAVANAN, J.
Arul C.M.A(MD)No.23 of 2017 and C.M.P.(MD) No.256 of 2016 AND Cross Obj.(MD) No.21 of 2018 22.11.2018 http://www.judis.nic.in