Madras High Court
Mrs.Radha Sagayamary vs Marimuthu on 21 January, 2019
Author: V.M.Velumani
Bench: V.M.Velumani
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2019
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.2960 of 2018 and
M.P.No.1 of 2015
1. Mrs.Radha Sagayamary
2. J.Rosary
3. J.Jennifer
4. J.Lourdhuraj (Minor)
(Rep. by his mother 1st Appellant) .. Appellants
Vs.
1.Marimuthu
2. United India Insurance Co. Ltd.
No.70, N.S.C. Bose Road
Sowcarpet, Chennai 600 079 .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the award of Motor Accidents Claims
Tribunal, III Judge, Small Causes Court, Chennai and made in MACTOP
No.1187 of 2012 dated 27.02.2015 praying to set aside the same.
For Appellants : Ms. P.T.Saleem Fathima
For Respondents : Mr.M.J.Vijayaraghavan for R2.
http://www.judis.nic.in
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JUDGMENT
The appellants are the claimants in MCOP No.1187 of 2012 on the file of III Judge, Motor Accidents Claims Tribunal, Small Causes Court, Chennai. They filed the said Claim Petition claiming a sum of Rs.10,00,000/- as compensation for the death of one Mr.P.Joseph, who died in a road accident that took place on 04.02.2012.
2. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident took place only due to the rash and negligent driving by the driver of the auto belonging to the first respondent and directed the second respondent/Insurance Company to pay compensation at the first instance with liberty to recover the same from the owner of the vehicle / first respondent, without filing any separate petition. The appellants have come out with the present appeal challenging the portion of award adopting split multiplier for granting compensation and for enhancement of compensation.
3. The learned counsel appearing for the appellant contended that the deceased was well trained in dealing with mentally disabled persons and he would be placed in a suitable job even after his retirement. The http://www.judis.nic.in 3 Tribunal ought to have taken the entire salary of Rs.19,140/- and applied multiplier of 8. The Tribunal ought to have awarded a sum of Rs.1,00,000/- towards loss of consortium to the first appellant and Rs.1,00,000/- each to the second and third appellants for loss of love and affection and contended that the amounts awarded under different heads are meager and prayed for enhancement of compensation.
4. Per contra Mr.M.J.Vijayaraghavan, learned counsel appearing for the second respondent contended that the deceased was aged 57 years and 8 months and had only 4 months of service and the Tribunal rightly applied split multiplier method after deducting ¼ towards personal expenses and awarded compensation for loss of income by following the judgment of this Court reported in 2013 (2) TANMAC 113 (DB) (R.Leelavathi Vs. Sheik Dawood and another) and the amounts awarded by the Tribunal under different heads are not meagre and prayed for the dismissal of the appeal.
5. Heard the learned counsel appearing for the appellants as well as the second respondent and perused the materials available on record.
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6. From the materials available on record, it is seen that the deceased was a first class male attender in the Institute of Mental Health. At the time of accident, the deceased was 57 years and 8 months old. In view of the same, the Tribunal applied split multiplier and after deducting 1/4th towards personal expenses, awarded compensation for loss of income. The contention of the learned counsel for the appellants that the deceased was a qualified male attender in Mental Hospital was not disputed by the respondents. Similarly, the contention of the learned counsel for the appellant that after retirement, the deceased would have got a similar job was also not disputed by the respondents. The question of applying split multiplier method was considered by the Hon'ble Apex Court in the judgment in Puttamma and Others v. K.L.Narayana Reddy and another [2014 1 TN MAC 481 (SC)]. In paragraph 34 and 64, it has been held 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). Compliance of Section 158(6) & 166(4) of the Act, 1988. http://www.judis.nic.in 5
64. In the Appeal which was filed by the Claimants before the High Court, the High Court instead of deciding the just compensation allowed meager enhancement of compensation. In doing so, the High Court introduced the concept of Split Multiplier and departed from the Multiplier System generally used in light of the decision in Sarla Verma(supra), case without disclosing any reason. The High Court has also not considered the question of prospect of future increase in salary of the deceased though it noticed that the deceased would have continued in pensionable service for more than 10 years. When the age of the deceased was 48 years at the time of death it wrongly applied Multiplier of 10 and not 13 as per decision in “Sarla Verma”.
Thus, we fail to appreciate as to why the High Court chose to apply Split Multiplier and applied Multiplier of 10. We, thus, find that the Judgment of the High Court is perverse and contrary to the evidence on record and is fit to be set aside for having not considered the future prospects of the deceased and also for adopting Split Multiplier method against the law laid down by this Court. In view of our aforesaid finding, we hold that the Judgment of the High Court deserves to be set aside. We, accordingly, set aside the impugned Judgment and hold that the claimants are entitled for total compensation of Rs.23,43,688/-. http://www.judis.nic.in 6 They shall also get interest on the enhanced compensation at the rate of 12% per annum from the date of filing of the complaint petition. Respondent No.2 – Insurance Company is directed to pay enhanced/additional compensation and interest to the claimants within a period of three months by getting prepared a demand draft in their name.”
7. In the said judgment, in paragraph 34, the Hon'ble Apex Court has held that in the absence of any specific reasons and evidence on record, the Tribunal or the Court should not apply split multiplier in routine course and must apply Multiplier as per the decision of Hon'ble Apex Court in the judgments reported in 2009 (2) TN MAC 1 (SC) [Sarlavarma and others vs. Delhi Transport Corporation and another] and 2013 (1) TN MAC 481 (SC) [Reshma Kumari v. Madan Mohan]
8. A Division Bench of this Court in the judgment reported in 2017 (1) TN MAC 652 (DB) [Oriental Insurance Co. Ltd. v. S.Venkateswari and others, after considering the judgment of the Hon'ble Supreme Court in Puttamma (cited supra), in paragraph 24 held as follows:-
“24. The Judgments relied on by the learned counsel for the Appellant/Insurance Company would speak about the split http://www.judis.nic.in 7 Multiplier concept. However, in the Judgement rrendered by the Honourable Supreme Court in Puttamma and others Vs. K.L.Narayana Reddy and another, 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, 2009(2) TN MAC 1 (SC), as affirmed in the case of Reshma Kumari Vs. Madan Mohan, 2013 (1) TN MAC 481 (SC).”
9. In the judgment reported in 2013(2) TNMAC 113(DB), the deceased was Assistant Special Grade Officer in University, the possibility of being employed after retirement was considered. In the present case, the deceased was working as a male attender trained in dealing with mentally retarded persons and he could have got a job even after his retirement and get the same salary. The Tribunal failed to consider the possibility of deceased getting a job after retirement and getting decent salary. In view of the judgment of the Hon'ble Apex Court and Division bench of this Court referred to above and the possibility of getting a similar job after retirement, the split multiplier applied by the Tribunal is http://www.judis.nic.in 8 set aside. The compensation for loss of income is modified as follows:
Rs.19,140/- x 12 x 8 x ¾ = Rs.13,78,080/-.
10. As per the judgment of the Hon'ble Apex Court, the appellants are entitled to a sum of Rs.40,000/- towards loss of consortium, Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate. A sum of Rs.25,000/- granted for loss of consortium to the first appellant is meager and the same is enhanced to Rs.40,000/-. A sum of Rs.50,000/- granted towards love and affection is set aside. The Tribunal has not awarded any amount towards loss of estate. A sum of Rs.15,000/- is granted towards loss of estate. Thus, the compensation awarded by the Tribunal is modified as follows:
S.No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of Income 7,00,000/- 13,78,080/- Enhanced
2. Loss of Love and 50,000/- - Set aside
affection
3. Funeral 15,000/- 15,000/- confirmed
4. Loss of 25,000/- 40,000/- enhanced
consortium
5. Loss of Estate - 15,000/- granted
Total 7,90,000/- 14,48,080/- Enhanced by
Rs.6,58,080/-
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11. In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.7,90,000/- is hereby enhanced to Rs. 14,48,080/-(Rupees Fourteen Lakhs Forty Eight Thousand and Eighty only) with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. The second respondent/Insurance Company is directed to deposit the award amount now determined by this Court with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the appellant/claimant is permitted to withdraw the enhanced award amount along with interest and cost, less the amount if any, already withdrawn. No costs. Consequently, connected miscellaneous petition is closed.
21.01.2019 Index : Yes / No Internet : Yes/ No svki/bga To III Judge, Motor Accidents Claims Tribunal, Small Causes Court, Chennai.
V.M.VELUMANI,J.
http://www.judis.nic.in 10 Svki/bga C.M.A.No.2960 of 2018 21.01.2019 http://www.judis.nic.in