Madras High Court
The Managing Director vs )G.Dhanalakshmi on 15 March, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Civil Miscellaneous Appeal(MD)No.193 of 2016
and
C.M.P(MD)No.2731 of 2016
The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
Periyamilaguparai,
Trichirapalli-1. .... Appellant
vs.
1)G.Dhanalakshmi
2)Minor G.Pridhiviraj
3)Minor G.Priyadharsan
4)R.Sivakami
5)R.Ramasamy .... Respondents
(Minors 2 and 3 are represented through their
mother and natural guardian G.Dhanalakshmi, 1st respondent herein)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against
the judgment and decree dated 19.04.2012 in MCOP.No.860 of 2005 on the file
of the Motor Accident Claims Tribunal, Principal Subordinate Judge,
Tiruchirapalli.
!For Appellant : Mr.D.Sivaraman
^For Respondent :
:JUDGMENT
(Judgment of the Court was made by Mr.Justice S.MANIKUMAR) Being aggrieved by the award, made in MCOP.No.860 of 2005, dated 19.04.2012, by the Motor Accident Claims Tribunal, Principal Subordinate Judge, Tiruchirapalli, the present appeal is filed.
2.That on 24.10.2004, about 06.00 P.M., while Gnanaselvan, was returning to home, in a Yamaha Motor Cycle bearing registration No.TN-48/D- 3660, driving on the extreme left side of Trichy to Chennai main road, near a Petrol bunk Pallividai Bridge, a bus bearing registration No.TN-45/N 1003, belonging to the appellant transport corporation, driven by its driver, in a rash and negligent manner, dashed against the motor cycle. Gnanaselvan sustained fatal injuries and died on the way to Hospital. Contending that the accident occurred solely due to the negligence of the driver of the transport corporation bus, wife, minor sons and parents of the deceased, filed MCOP.No.860 of 2005, on the file of the Motor Accident Claims Tribunal, Principal Subordinate Judge, Tiruchirapalli, claiming compensation of Rs.60,00,000/-.
3.Resisting the claim petition, the appellant transport corporation filed a counter affidavit, contending inter alia that when the bus was proceeding, on its trip from Trichy to Villupuram, near Pallividai Bridge, the driver of the bus noticed a lorry coming in the opposite direction. Behind the lorry, a motor cyclist was coming in a rash and negligent manner and attempted to overtake a Lorry. On noticing the same, and in order to avoid the accident, driver of the bus, turned the same, to the left side of the road and stopped the bus. Even then, the motor cyclist, dashed against the bus, and thus invited the accident. Therefore, the appellant is not liable to pay compensation. They also contended that the compensation claimed under various heads, as excessive.
4.Before the Tribunal, PW1 is the wife of the deceased. PW2 is the eye-witness to the accident. PW3 is a Labour Welfare Officer in BHEL, examined to prove employment of the deceased. Ex.P1-Photocopy of FIR, Ex.P2- Postmortem Certificate of the deceased, Ex.P3-Legal heirship certificate, Ex.P4- Legal heirship certificate dated 13.01.2005, Ex.P5-Photocopy of Identity Card of the deceased, Ex.P6-Pay slip of the deceased for the month of October, Ex.P7-Photocopy of the Ration card of the deceased, Ex.P8- Photocopy of R.C Book of the deceased, Ex.P9-Photocopy of Accident Register, Ex.P10-Details of the Human Resource Management, in respect of the deceased, Ex.P11 and Ex.P12-photocopies of the details of the employee, have been marked, on the side of the respondents/claimants. Driver of the transport corporation bus has been examined as RW1, and no document has been marked, by the appellant.
5.On evaluation of pleadings and evidence, the Claims Tribunal held that both the drivers of the bus and the lorry had contributed to the accident, and accordingly, fixed negligence, in the ratio of 50 : 50. The Tribunal awarded compensation of Rs.18,09,750/- with interest, @ 7.5% per annum.
6.Assailing the correctness of the impugned award, Mr.D.Sivaraman, learned counsel for the appellant contended that the Tribunal has erred in fixing contributory negligence, when PW2/Eye witness and the first informant has admitted that the accident occurred only when the deceased attempted to overtake the lorry from his right side. He further submitted that income of the deceased determined at Rs.30,000/- per month, is without any basis. Added further, he submitted that the Tribunal has erred in applying '15', multiplier, when '14' is the proper multiplier, for the age group of persons between 40 and 45, as per the judgment of the Hon'ble Supreme Court in Smt.Sarla Verma & Ors. v. Delhi Transport Corporation and another, reported in 2009 (2) TNMAC 1 (SC). He also contended that the compensation awarded under various heads is excessive and requires reduction.
Heard the learned counsel for the appellant and perused the materials available on record.
7.Before the Tribunal, PW1-wife of the deceased has deposed that the accident occurred only due to the negligent driving of the driver of the bus. However, she is not a witness to the accident. PW2 brother of the deceased had deposed that he had witnessed the accident and lodged Ex.P1-FIR. RW1- Driver of the transport corporation bus, has deposed that the accident occurred only due to the negligence of the deceased, while he attempted to overtake a vehicle on his left side.
8.Though PW2 in his evidence has deposed that while the deceased was riding his motor cycle carefully, the driver of the transport corporation bus came in a rash and negligent manner on the right side of the road, and hit against the motor cycle, his version is not corroborated by the contents of FIR, lodged by him, wherein he has stated that when the deceased tried to overtake a vehicle, a Government bus coming in the opposite direction hit against the deceased and caused the accident.
9.From Ex.P1-FIR, it could be seen that a criminal case has been registered against RW1, driver of the bus, by Samayapuram Police Station in Crime No.661/04 under section 304(A) IPC, and that the same was under
investigation. The evidence of RW1 that on noticing that the deceased was attempting to overtake the lorry, he stopped the bus, is not supported by any independent evidence. Normally, while overtaking a vehicle, the vehicle coming in the opposite direction, should give way for such action. Equally, the vehicle overtaking, should also see as to whether there is sufficient space for overtaking. Had the driver of the bus really stopped the same, it would not have resulted in fatal injuries to the deceased. So also, the fact that had the deceased driven the motor cycle cautiously, the accident could have been averted, also cannot be ignored. Considering the totality of evidence, inference could be easily drawn that both of them have contributed to the accident. Thus, the finding of the Tribunal fixing contributory negligence cannot be said to be erroneous and the same is confirmed. It is the contention that transport corporation bus was stopped and motor cyclist hit the bus. We are unable to accept the contention that on a highway a speeding bus was stopped.
10.The age of the deceased has been determined as 42 years, relying on the entries in Ex.P2-Postmortem Certificate, which cannot be found fault with in view of the judgments in Fakeerappa v. Karnataka Cement Pipe Factory [2004 (4) LW 20] and The Managing Director, Tamilnadu State Transport Corporation, Madurai v. Mary [2005 (5) CTC 515]. As regards the quantum of compensation, the claimants have stated that the deceased was working as a Fitter in Bharath Heavy Electricals Ltd., Trichy, and earned Rs,25,000/-. To prove the employment of the deceased, claimants have examined PW3-Labour Welfare Officer working in BHEL, who has deposed that, at the time of accident, the deceased was working as a Fitter Grade 4 and he was drawing gross salary of Rs.25,000/- per month. Through PW3, the claimants have marked Ex.P10-Details of the Human Resource Management in respect of the deceased, Ex.P11 and Ex.P12-Photocopies of the employee details respectively. Considering the increase in income, the Tribunal has determined the monthly salary of the deceased at Rs.30,000/-. The Tribunal ought to have computed the compensation, by taking into account the future prospects also, as per Sarla Verma's case. But the Tribunal had added only Rs.5,000/-.
11.After deducting 1/3rd of the income towards the personal and living expenses of the deceased and applying '15' multiplier, the Tribunal has arrived at a sum of Rs.36,00,000/- towards loss of income. Though the learned counsel for the appellant has contended that the Tribunal ought to have adopted 14 multipler as per the judgment of the Hon'ble Supreme Court in Smt.Sarla Verma & Ors. v. Delhi Transport Corporation and another reported in 2009 (2) TNMAC 1 (SC), this Court is not inclined to accept the same, as the award amount under other heads are meagre. As observed, had the compensation been computed by adding 30% of the income, towards future prospects, the compensation awarded under the head loss of contribution to the family, would be more.
12.In the instant case, evidence has been adduced by the respondents/claimants that the deceased was working as a Fitter in BHEL, an organised sector. In such a view of the matter, the Tribunal ought to have considered as to whether the respondents would be entitled to a just and reasonable compensation under the head ''future prospects'' also. In a recent judgment in M/s.Royal Sundaram Alliance Insurance Co. Ltd., Salem vs. Tmt.Vennila (C.M.A.Nos.3273 of 2014, 723 and 2386 of 2015, dated 13.10.2015), a Division Bench of this Court, to which, one of us (SMKJ), is a party, after considering the ''Per Capita Income'', ''Gross Domestic Product'' and ''Consumer Price Index'' etc., at paragraphs 54 to 68, held as follows:-
54.Taking into consideration the above illustrative cases of some of the employees, engaged by the Government, on daily rated basis and being revised periodically, we wish to state that the factors taken into consideration or the reasons stated by the Central Government or the District Collector, as the case may be, while revising the wages, from time to time, whether a person is employed in an organised or unorganised sector, would remain the same and consequently, decide the living conditions of different classes of persons, whether engaged in organised or unorganised sectors, as the case may be, to meet out the day to day expenditure and basic amenities.
The difference in the rates of wages between the persons employed in a salaried structure, revisable periodically, though not, in strict sense, be applied with the same percentage to those, engaged in unorganised sectors, but it cannot be contended that there will not be any change in the earning or income.
55.The government servants have an expectation of periodical revision. So also, the employees working in Public Sector, Boards, Corporation, Companies owned and controlled by the Government. In respect of Private Limited Companies, it is more on the basis of terms and conditions of the contract, in which, they are governed. But in the case of self-employed or those, engaged in unorganised sectors, revision of wages or salary or in the case of self-employed, though may not be on par with the salaried structure in organised sectors or on the terms and conditions of the contracts in limited companies, still the important factor, Consumer Price Index, the deciding factor, would be the same, for a change in the earning of the self- employed or revision of salary or wage, even in unorganized sectors and that the expectation of a future event, ie., possibility of a change in wage or financial expectation, cannot be ruled out, for the simple reason that nothing has remained static, in this country.
56.As tabulated in the foregoing paragraphs, it should be noted that Consumer Price Index, Gross Domestic Product and Per Capita Income, have increased. One cannot disown the fact that the percentage of those in unorganized sectors is more than the organised sectors. While that be so, would it be appropriate for the Insurance Companies and Transport Corporations, to contend that there is absolutely no chance of any upward revision in wages or salary of those, employed in unorganised sectors or for that matter in the earnings of self-employed. If the contentions of the Insurance Companies and Transport Corporations have to be accepted, whether the self-employed or those engaged in unorganised sectors, can never have any expectation of an event in future, ie., increase in earnings or wages? With the basic study of the statistics, we are of the considered view that the answer should be a clear 'No'. When the Consumer Price Index is applicable uniformally to rich or raff, it cannot be contended that those who are engaged in unorganized sectors or self-employed, would continue to earn the same income, for years together.
57.For the abovesaid reasons, we are of the considered view that the word, ?prospects? should not be read and understood, only in plural sense, meaning thereby, its prospects or an apparent probability of advancement in employment, in organised sectors alone. Narrowing down the meaning of the words, ?future prospects? only to the employment prospects and consequently, more possibility of earning income, only in the case of organised sector and not in unorganised sector or selfemployed, would affect the majority and therefore, the meaning of the word, ?prospect? used in singular, meaning thereby, expectation, possibility or probability, chances of earning more income in future, depending upon the factors, stated supra, should also be considered.
58.Thus, from the above particulars, extracted supra, it is evident that both the Central and State Governments have periodically revised the minimum wages across the country. It has been raised taking into consideration the Consumer Price Index. In respect of scheduled employments, for skilled, semi-skilled, unskilled, construction workers, labourers, etc., wages, are fixed in various scheduled employments, right from Agarbathi Industry to Woolen Carpet and Shawl wearing machinery.
59.While that be the position in organised sectors, it cannot be contended that insofar as unorganised sectors or self-employed, is concerned, there would not be any revision in the wages or salary or earning. When the minimum wages of an employee in the organised sector, is revised periodically, taking into consideration the Consumer Price Index and Variable Dearness Allowance, the living conditions, then the others, in a unorganised sector may expect more or less the same wage, and if there are more number of persons, there may be chances of lesser wage, on account of surplus human resources and in such cases, the bargaining power of certain class of employees, depending upon the field, for revision of wages or earning, may be less.
60. If a non-salaried domestic worker sells a piece of any article, which he or she manufacturers and if the customer bargains the rate, he or she would immediately reply, as to how much amount, he/she has to spend for buying the basic materials, other materials used, compare the erstwhile travel expenses and the cost of labour. Can anyone in this Country can say that the electricity charges, water charges, rent, fee received by the Government, cost of education, price of commodities, etc., have remained the same, without any change. Cost of tea sold in a ordinary tea stall is the same for any person, whether engaged in organised or unorganised. Contenting inter alia that there would not be any increase in wages or earning for those engaged in unorganised sectors, for years to come, can it be said that he would never take a cup of tea, outside?
61. At this juncture, it should be borne in mind that Consumer Price Index is fixed, taking into consideration that the majority consumers are from unorganised sectors. Thus, with reference to Gross Domestic Product, Per Capita Income, Consumer Price Index and such other economic factors, determined on the basis of participation and contribution of both organised and unorganised sectors, the classification that those engaged in unorganised sectors, should be totally denied of any addition of income under the head, future prospects, would in our humble view, would affect Article 14 of the Constitution of India. When the majority of persons, in unorganised sectors, also decide the economic factors, stated supra, it would be unjust and unreasonable to contend that there would not any prospect or addition in the earning of those engaged in unorganised sector, forever. If there is addition of Variable Dearness Allowance to the basic wages, in the case of organised sector, depending upon the Consumer Price Index, applicable for a particular period, one would reasonably expect the same factor of variable Dearness Allowance, to be a relevant factor, for determining the variation in the wage in case of unorganised sector also, as Consumer Price Index is common to all, whether engaged in organised or unorganised sector.
62. At this juncture, we deem it fit to consider, what ?Dearness Allowance? means? ?Dearness Allowance? is a cost of living adjustment allowance paid to Government employees, Public sector employees (PSU)and pensioners. Dearness Allowance is calculated as a percentage of an Indian's basic salary to mitigate the impact of inflation. Variable Dearness Allowance is always linked to Consumer Prince Index. The notifications of Minimum wages by the Central and State Government reflects how much is the Variable Dearness in each field.
63. In the light of what we have tabulated above, judicial notice can also be taken that the cost of labour, whether it is in agricultural field or manufacturing or services, has increased. Thus, focusing on the increase in wages or earning, in almost all the fields of operation, right from agricultural or industrial or manual labourers, tea shop or road side vendor, the Consumer Price Index, being the same to rich or raff and therefore, correspondingly to meet out the living conditions, atleast for providing the basic amenities, like food, shelter and clothing, and not to add up the expenditure towards health, education, certainly, there would be revision of wages or earning, even in unorganised sectors also. Future is the period of time that will come after the present or things that will happen. Having regard to the consistent and periodical revision of wages by the Governments, it cannot be contended by the Insurers or Transport Corporations that a person in unorganised sector, has no future at all, in the matter of revision of wages or earning.
64. In R.K.Malik's case (cited supra), the Hon'ble Supreme Court considered the quantum of compensation, payable to the legal representatives of the deceased children, aged between 10 and 18 years. Referring to the inflation, price rise, etc., the Hon'ble Supreme Court, by observing that the there would be a future prospects, for the children also, granted a sum of Rs.75,000/- under the head, future prospects, though as on the date of accident, they were children, studying in a school. In V.Mekala's case (cited supra), the injured was a student studying in 11th Standard. While determining the monthly income of the injured as Rs.10,000/-, the Hon'ble Supreme Court added 50% of the income, under the head, future prospects. In the recent decision in Munna Lal Jain's case (cited supra), the Hon'ble Supreme Court added 50% under the head, future prospects. 65. Thus, from the line of judgments, it could be noticed that the Hon'ble Supreme Court has considered the addition of a quantified sum, under the head, future prospects, in effect, indicating that there is a prospect or chance or possibility of earning more income, after a passage of time, though not periodically, as done in the case of Government or Public Sector Undertakings or Boards or Corporations, Companies owned and controlled by the Government or Limited Companies.
66. We have already extracted the orders of the Chief Labour Commissioner, Ministry of Labour and Employment, Government of India, New Delhi and taken into consideration a sample case, City of Chennai. Wage revision may vary in rural or urban areas or metropolitan cities. At the risk of repetition, as observed earlier, the number of persons, engaged in unorganized sectors, agriculture or industrial, or home based or self- employment, etc., are more in number, than those employed in organised sectors.
67. Income from the organised sector alone, is not the deciding factor, for determining Gross Domestic Product, Consumer Price Index or Per Capita Income. Thus, from a basic study of the factors, taken into consideration by the Governments for revision of wages, to the enumerated categories of employees, one cannot lose sight of the fact that the said factors, would also have an indeligible effect on those, engaged in unorganized sectors also. In the light of our discussion and the details considered, we are of the considered view that addition of certain percentage of income under the head, future prospects, has to be done in the case of those engaged in unorganized sector or self-employed also, otherwise, they would be deprived of just compensation. Addition of income under the head,future prospects, should not be restricted to only salaried persons, with stable jobs.
68. Though it is the case of the Insurance Companies and Transport Corporation that in the case of persons engaged in unorganised sector or salaried or persons, who do not have any permanent job, addition of certain percentage of income, under the head, ?future prospects?, to the income drawn, at the time of death, should not be made, for computation loss of dependency compensation, we are not inclined to accept the same, for the reason that the expression ?future prospects? should not be confined only to the prospects of the deceased in the career, progress or upgradation of position, in which, he was engaged, prior to death, but the expression ?future prospects? should also be extended to the likelihood of increase in wages/salary, earned by either a skilled or semi-skilled person, clerical and others, considering the upward increase in the cost price, inflation and such other factors.''
13.Perusal of the impugned award shows that the Tribunal has awarded only a meagre sum of Rs.5,000/- as compensation under the head loss of consortium to the wife of the deceased, who was 41 years at the time of accident. 'Consortium' as per the decision in Best v. Samuel Fox reported in 1952 AC 716 means, "Duty owned by a wife to her husband and vice versa, companionship, love and affection, comfort, mutual services, sexual intercourse, etc." In Rajesh and others v. Rajbir Singh and others reported in 2013(3) CTC 883, the Hon'ble Apex Court, held as follows:
''In legal parlance, 'Consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for Loss of Consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By Loss of Consortium, the Courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the Courts award atleast Rupees one lakh for Loss of Consortium.?
14.Perusal of the award also shows that the Tribunal has awarded a lesser compensation of Rs.2,000/- under the head, funeral expenses. On the aspect of awarding compensation for funeral expenses, in Rajesh and others Vs. Rajbir Singh and others reported in 2013(3) CTC 883, the Hon'ble Supreme Court held as follows:
?21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head '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 follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-.?
15.A sum of Rs.12,500/- awarded under the head loss of estate is also on the lower side. There is no award under the head transportation. Perusal of the award also shows that there is no award for love and affection to the sons of the deceased. Legal representatives of the deceased, wife, parents and in particular, the minor children, aged 16 and 14 years respectively, at the time of accident, have lost the love and affection of the deceased. In Rajesh v. Rajbir Singh reported in 2013 (2) TNMAC 55, the Hon'ble Apex Court has awarded Rs.1,00,000/- for the loss of love and affection. Parents are stated to be aged 67 and 75 years respectively and they have lost the love and affection of their son. Though loss of love and affection cannot be precisely measured in terms of money, but the same has to be quantified. The Tribunal has grossly erred in not awarding the compensation for loss of love and affection.
16.Considering the overall quantum of compensation, this Court is of the view that the same cannot be termed as a bonanza to the legal representatives of the deceased. Hence, the Civil Miscellaneous Appeal is dismissed. No costs.
17.Ultimately, the quantum of compensation payable to the legal representatives of the deceased is only 50% of the sum determined. The appellant is directed to deposit 50% of the award amount in respect of 50% liability fastened on them, with proportionate accrued interest and costs, to the credit of MCOP.No.860 of 2005 on the file of the Motor Accident Claims Tribunal, Principal Subordinate Judge, Tiruchirapalli, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the respondents 1, 4 and 5/claimants are permitted to withdraw their respective shares with proportionate accrued interest and costs, by making necessary application before the Tribunal. Respondents 2 and 3/minor claimants aged 16 and 14 years respectively, at the time of accident and now they would have attained majority. Hence, they are also permitted to withdraw their respective shares with proportionate accrued interest and costs, by making necessary application before the Tribunal. Consequently, C.M.P(MD)No.2731 of 2016 is closed.
To Principal Subordinate Judge, Motor Accident Claims Tribunal, Tiruchirapalli..