Madras High Court
The Branch Manager vs Shanmugavaikunda Raman on 19 November, 2012
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/11/2012 CORAM THE HONOURABLE MR.JUSTICE P.DEVADASS Civil Miscellaneous Appeal (MD) No.410 of 2011 The Branch Manager, The Oriental Insurance Co. Ltd., Rajapalayam. ... Appellant/ 3rd respondent Vs 1.Shanmugavaikunda Raman 2.Mangaiyarkarasi ...Respondents 1 & 2/ Petitioners 1 & 2 3.P.Ramaraj ... 3rd Respondent/ 1st respondent 4.S.Rajasekaran ... 4th respondent/ 2nd respondent Civil miscellaneous appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and decree passed on 30.09.2010 in M.C.O.P.No.4550 of 2008 by the Motor Accidents Claims Tribunal (Sub Judge), Srivilliputhur. !For Appellant .. Mr.K.Bhaskaran ^For R1 & R2 .. Mr.M.Rajaraman For R3 & R4 .. No Appearance :JUDGMENT
The Insurance Company disputes the compensation awarded to the dependents of a deceased in a road accident.
2. On 14.11.2007, in Rajapalayam, a road accident took place. In this, one Ramesh died. His dependents were granted Rs.14,71,000/-.
3. The learned counsel for the appellant would contend that the evidence of P.W.2 shows that the deceased himself had driven the two-wheeler in a rash and negligent manner and caused the accident. The learned counsel would further contend that Ex.P8-salary certificate has not been supported by wage register or other relevant records. At any rate, Rs.9,000/-p.m. is excessive. The deceased died a bachelor. For choosing the multiplier, age of his mother or average age of his parents, whichever is higher has to be taken. His mother's age is 44. Average age of parents is 47 years. The multiplier is '13'. However, the Tribunal took the multiplier '15'. In case of bachelors, deduction for their personal expenses should be 50%. However, the Tribunal deducted 1/3.
4. In support of his contentions, the learned counsel for the appellant would cite the following decisions:
(1) SYED BASHEER AHAMED Vs. MOHD. JAMEEL [2009 (1) SCC (Cri) 731]; (2) SHAKTI DEVI Vs. NEW INDIA INSURANCE CO. LTD. [2011 (3) SCC (Cri) 848]; (3) NATIONAL INSURANCE CO. LTD. Vs. SHYAM SINGH [2011 (8) MLJ 551 (SC)]; and (4) SARLA VERMA & OTHERS. Vs. DELHI TRANSPORT CORPORATION & OTHERS [III (2009) ACC 708 (SC)].
5. On the other hand, the learned counsel for the claimants would contend that P.W.3 clearly spoken about Ex.P8 and he has been elaborately cross- examined. There is no reason to brush aside Ex.P.8. The learned counsel would cite SANTOSH DEVI Vs. NATIONAL INSURANCE Co. Ltd., [2012 (2) TN MAC (SC)] and submit that the deceased died at the age of 24 years, so, the addition for loss of future prospects should be 50% of his last salary. However, the Tribunal added only 30%. The learned counsel would further contend that in case the deceased was a bachelor, it is not an invariable rule that in all cases 1/3 has to be deducted from his salary for his personal expenses. The learned counsel would further contend that for choosing the multiplier, age of his mother has to be taken.
6. The learned counsel for the claimants would cite the following decisions:-
(1)UNITED INDIA INSURANCE CO. Ltd. Vs. RANI @ THILLAINAYAGI & OTHERS [2010 (1) TN MAC 27];
(2) P.S.SOMANANTHAN Vs. DISTRICT INSURANCE OFFICER [2011 (4) MLJ 169 (SC)];
(3) ORIENTAL INSURANCE CO. LTD. Vs. DEO PATODI AND OTHERS [2009 (1) TN MAC 629 (SC)];
(4) DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., v. RADHA SAIPRASAD [2012 (1) TN MAC 414 (DB)]; and (5) UNITED INDIA INSURANCE CO. LTD., Vs. V.S.NANDAKUMAR [2012 (1) TN MAC 489 (DB)].
7. I have anxiously considered their rival submissions, perused the materials on record and the impugned award of the Tribunal.
8. On 14.11.2007, at about 7.30 p.m., on the Rajapalayam main road, Ramesh drove his bike. At a little distance in another bike, he was followed by his brother Venkatesan (P.W.2). The bus driven by third respondent ran over Ramesh. Ramesh died. The bus has been insured with the appellant.
9. P.W.2 reported the accident to Police. In Ex.P1-F.I.R., he alleged that the bus driver came driven the bus in a rash and negligent manner. He deposed about the manner of accident. His cross-examination would show that the bus driver took the bus suddenly and that has contributed to the accident. P.W.2 denied the suggestion that the accident was due to the rashness on the part of his brother. There was no contra evidence. After investigation, Police charge sheeted the bus-driver (see Ex.P.4). In the Magistrate's Court, he has also admitted the offence (See Ex.P.18). In the circumstances, we concur with the finding of the Tribunal that the accident was due to the rash and negligent driving of the bus driver.
10. In UNITED INDIA INSURANCE CO. Vs. RANI & ORS. [2010 (1) TN MAC 27], when the deceased is a bachelor, for choosing appropriate multiplier, a learned Single Judge of this Court chosen the age of his mother. In SHAKTIDEVI Vs. NEW INDIA INSURANCE CO. [2010 (14) SCC 575], the age of the mother was followed. In NATIONAL INSURANCE CO. Vs. SHYAM SINGH & ORS. [2011 (8) MLJ (SC)], the average age of the parents was adopted. SARALA VERMA (supra) is also on similar line.
11. Then Ramesh was 24 years old. He died a bachelor. He left behind him his parents. In such circumstances, for choosing the appropriate multiplier, the age of the deceased becomes irrelevant. But, age of his parents becomes very relevant.
12. Ramesh's father and mother are 50 and 44 years old respectively. The average age of his parents is 47 years. Both under the schedule and as per SARLA VERMA (supra), the multiplier is '13' only. However, the Tribunal took 15. So, the correct multiplier is '13'.
13. Ex.P.8 salary certificate has been issued by an Hero Honda Agency in Rajapalayam. As per that, the deceased was paid Rs.9,000/- p.m. P.W.3 has been examined to speak about Ex.P.8. He has stated that Ramesh was employed in their concern and he was paid Rs.9,000/- p.m. It has been pointed out by the learned counsel for the Insurance Company that no ledger or acquittance register has been produced.
14. Ramesh was technically qualified and well experienced (See Exs.P.9, P.10, P.13 and P.14). He was very young. He was hale and healthy. He was employed as Manager (Spare Parts). He had a bright career. Of course, no register has been produced. With reference to Ex.P.8, P.W.3 has been elaborately cross- examined. In the circumstances, we are not to brush aside Ex.P8.
15. Salary or wages are not going to be static. Due to annual increments, promotion salary increases. Thus, in SARALA VERMA (supra) towards loss of future prospects, the Hon'ble Apex Court advocated adding of certain percentage of last drawn salary to the salary of the deceased, however, restricted it to persons employed in Government or Public sector. But in SANTOSH DEVI (supra), it was extended to persons employed in private sector and also to self-employed persons.
16. In this case, the Tribunal added 30% at a time, when SANTOSH DEVI (supra) was not there. Thus, this addition to salary cannot be faulted.
17. In this case, the Tribunal deducted 1/3 from the income of the deceased for his personal expenses. A person has to spend something for self. That is how deduction towards personal expenses has been effected. But, the rate of deduction varies. It depends upon the marital status of the person. Different rate of deduction has been prescribed for married persons and bachelors, who have lost their lives in road accidents. Still it dependents on the size of their family, number of persons dependent upon them.
18. The deceased would not have eaten the entire income by himself. Question is how much he would have contributed to the family. Naturally it would also depends on the number of persons dependent upon him. Even in SARLA VERMA (supra), the Apex Court observed that if the deceased is a bachelor and supported a big family, 50% need not be deducted.
19. In SYED BASHEER AHAMED & ORS. Vs. MHD. JAMEEL & ANR. [2009 (1) SCC (Cri) 731], it was held that in case the deceased is a bachelor deduction of 50% from his salary is the general rule. In ORIENTAL INSURANCE CO. Vs. DEO PATODI & ORS. [2009 (1) TN MAC 629 (SC)], the Court approved 1/3 deduction. In FAKEERAPPA Vs. KARNATAKA CEMENT PIPE FACTORY [2004 (1) TN MAC 190 (SC)], the Court held that rate of deduction for this purpose cannot be governed by any rigid rule or formula of universal application and it would depend upon the facts and circumstances of each case. In BILKISH Vs. UNITED INDIA INSURANCE CO. [2008 (4) SCC 259], the Court approved 1/3 deduction. Following these decisions, in UNITED INDIA INSURANCE CO. Vs. GOVINDARAJ & ORS. [2010 (1) TN MAC 246 (DB), a Division Bench of this Court upheld 1/3 deduction from the income of a deceased bachelor.
20. A perusal of these decisions goes to show that in case the deceased was a bachelor, deducting 1/3 is not an invariable rule. It varies. It depends on the facts and circumstances of each case. The Courts have held that due to peculiar circumstances of the case, 1/3 can be deducted from the income of a deceased, who is a bachelor.
21. In the decisions cited by the learned counsel for the claimants, 1/3 deduction was effected from the income of a deceased bachelor, when his dependents have no support except the deceased. But, in the case before us, after the deceased, his brother Venkatesan (P.W.2) is there to support their parents. His evidence shows that three children were born to his parents and out of them Ramesh alone is dead. In the circumstances, the peculiar circumstance referred to in the decisions cited by the learned counsel for the claimants is not present in our case. In the circumstances, in this case, the deduction must be 50% and not 1/3.
22. In the result, the appeal is allowed in part. The award of the Tribunal is modified. Respondents 1 and 2 are awarded a total compensation of Rs.12,79,000/- with 7.5% interest per annum from the date of filing the original petition till deposit with costs. Already the appellant has deposited the entire amount as awarded by the Tribunal. Respondents 1 and 2 are permitted to withdraw their share of amount as modified by this Court, less amount, if any already withdrawn. Amount in excess of the said modified amount with corresponding interest shall be refunded to the appellant. No costs.
rj2/smn2 To The Accidents Claims Tribunal, (Sub Judge) Srivilliputhur.