Madras High Court
K. Kamala, K. Suguna, K. Sarala And K. ... vs C. Vijayakumar And The United India ... on 7 March, 2008
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT R. Banumathi, J.
1. Being dissatisfied with the quantum of compensation of Rs. 3,08,600/- awarded by the Tribunal for the death of Baskaran in the road traffic accident on 17.08.1999, wife and daughters of deceased Baskaran have preferred this appeal.
2. Relevant facts which are necessary for disposal of these appeals are as follows: On 17.08.1999 at about 19.30 hours when the deceased was walking along the left side of the GNT Road, a lorry bearing Registration No. TNG 9367 which was coming in the opposite direction in a rash and negligent manner hit the deceased, as a result of which, the deceased sustained head injuries and fatal injuries all over the body. The deceased was admitted in Stanley Hospital where he succumbed to the injuries on 18.08.1999. At the time of accident, the deceased was working as peon and was getting monthly salary of Rs. 2,125/-. Alleging that the accident was due to the rash and negligent driving of the lorry driver, claimants have filed Petition under Section 166 M.V. Act, claiming compensation of Rs. 7,00,000/-.
3. Opposing the claim, the Insurance Company has filed counter denying negligent driving of the offending vehicle. Insurance Company also disputed age, occupation and income of the deceased and the loss of dependency.
4. Before the Tribunal, 1st claimant was examined as PW-1. Eye witness was examined as P.Ws. 2. Assistant Bank Manager was examined as PW - 3. Exs. P-1 to P-12 were marked. The respondents have neither examined any witness nor marked any document as exhibit. Upon consideration of oral and documentary evidence, Tribunal held that the accident occurred due to rash and negligent driving of the lorry driver and held that the owner of the vehicle - first respondent and the insurer are jointly and severally liable to pay compensation. Taking the monthly income of the deceased at Rs. 2,175/- and deducting 1/3rd for personal expenses, the Tribunal had taken the monthly contribution at Rs. 1,415/- and calculated the annual dependency at Rs. 16,980/-. Adopting multiplier 17, Tribunal has calculated the loss of dependency at Rs. 2,88,660/-. Adding conventional damages, the Tribunal has awarded total compensation of Rs. 3,08,600/-.
5. Challenging the quantum of compensation, learned Counsel for the Appellant has submitted that the Tribunal erred in taking the monthly salary of the deceased as only Rs. 2,175/- whereas his gross salary was Rs. 4,800/- p.m. The learned Counsel for the Appellant further submitted that the Tribunal erred in failing to assess the future prospects of the deceased. It was further submitted that the deceased was working as peon and that he had another 26 years of service and that he would have earned periodical increments and he would have also been promoted to higher posts and he would have earned more salary and the future prospects of the deceased was not kept in view while arriving at annual dependency.
6. The learned Counsel for the second respondent Insurance Company has submitted that the quantum of compensation arrived at by the Tribunal is just and reasonable. The learned Counsel for the insurance further submitted that the deceased was aged 32 years at the time of accident and he was a bachelor and while so, the Tribunal erred in adopting multiplier 17 based on the age of the deceased and the Tribunal ought to have adopted multiplier 10 or 11 based on the age of the first claimant - mother of the deceased and therefore, the quantum of compensation awarded by the Tribunal is fair and reasonable.
7. It is not necessary to narrate the entire facts as to how the accident has occurred, who was responsible and who was rash and negligent in driving the vehicle. It is for the reason that the Tribunal has recorded the findings on the above aspects in favour of the claimant. Secondly, those findings of the Tribunal are not under challenge. Only the quantum of compensation is in dispute.
8. At the time of accident, deceased Baskaran was aged 32 years and he was working as a peon in the Indian Overseas Bank. PW - 3 Deputy Manager of the Bank has stated that at the time of his death, the deceased was getting salary of Rs. 4,800/-. Ex. A-12 is the Salary Certificate which would also show that in August, 1999 gross salary of the deceased was Rs. 4,801.79. After deductions, his net salary was Rs. 2,125.29.
9. Tribunal had taken the net salary Rs. 2,125 as the monthly income of the deceased and thereafter, deducted 1/3rd for personal expenses and calculated the monthly contribution of Rs. 1,415/- and annual dependency at Rs. 16,980/-.
10. The Tribunal had taken net salary after giving credit to all deductions. Section 168 of the Act uses the word "Just Compensation", which in my considered view should be assigned a meaningful interpretation. Salary means "Gross Salary", i.e. the total monthly emoluments, including any sum i.e. paid for contribution for Provident Fund, Family Welfare Fund and other contributions. Though these are recovered from the salary, they are only deferred payments, which would be paid to the employee as per the extant rules. It is fairly well settled that income of victim is pay packet including all other benefits, contributions towards P.F., Gratuity, Insurance of medical policy for Self and family which are beneficial to members of the family.
11. The question came for consideration before Justice. S. Manikumar in the Manager, National Insurance Co. Ltd. v. Padmavathy and Ors. C.M.A. No. 1114/2006 decided on 29.1.2007, wherein it was held: "Income tax, Professional tax which are deducted from the salaried person goes to the coffers of the government under specific head and there is no return. Whereas, the General Provident Fund, Special Provident Fund, L.I.C., Contribution are amounts paid specific heads and the contribution is always repayable to an employee at the time of voluntary retirement, death or for any other reason. Such contribution made by the salaried person are deferred payments and they are savings. The Supreme Court as well as various High Courts have held that the compensation payable under the Motor Vehicles Act is statutory and that the deferred payments made to the employee are contractual. Courts have held that there cannot be any deductions in the statutory compensation, if the Legal Representatives are entitled to lumpsum payment under the contractual liability. If the contributions made by the employee which are otherwise savings from the salary are deducted from the gross income and only the net income is taken for computing the dependancy compensation, then the Legal Representatives of the victim would lose considerable portion of the income. In view of the settled proposition of law, I am of the view, the Tribunal can make only statutory deductions such as Income tax and professional tax and any other contribution, which is not repayable by the employer, from the salary of the deceased person while determining the monthly income for computing the dependancy compensation. Any contribution made by the employee during his life time, form part of the salary and they should be included in the monthly income, while computing the dependency compensation".
12. Referring to Rajapriya's case , in 2008 AIR SCW 143 National Insurance Co. Ltd. v. Indira Srivatsava and Ors. observing that income of victim is not only pay packet, but perks which are beneficial to his family, the Supreme Court has held as under:
8.The term 'income' has different connotations for different purposes. A Court of law, having regard to the change in societal conditions must consider the question not only having regard to the pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms.
9. Section 168 of the Act uses the word 'just compensation' which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory Provident Fund, Gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined.
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17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contra- distinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.
13. Applying the ratio of the above decisions, in my considered view, the Tribunal erred in taking the net salary as the monthly income of the deceased. At the time of accident, the deceased was getting gross salary of Rs. 4,800. Therefore, his monthly income is taken as Rs. 4,800/-. Deducting 1/3rd for personal expenses, i.e. Rs. 1,600/-, the deceased would have contributed Rs. 2,400/- to the family. At the time of accident, deceased was aged 32 years. Based on his age, the Tribunal had taken the multiplier 16.
14. The learned Counsel for the Appellants/claimants has submitted that as per Second Schedule, the Tribunal had rightly adopted multiplier 16. It was further submitted that since the claimants are mother and sisters, the Tribunal was justified in adopting multiplier based on the age of the claimants as well as the deceased.
15. Placing reliance upon Rajapriya's case, the learned Counsel for the second respondent Corporation has submitted that the latest trend of the Supreme Court is to adopt a lower multiplier. The learned Counsel for the second respondent has further submitted that the deceased being unmarried, Tribunal ought to have selected multiplier based on the age of the first claimant - mother of the deceased and the Tribunal erred in adopting higher multiplier 16. It is fairly well settled that the choice of multiplier would depend upon the age of the deceased or claimants and which ever is higher has to be taken. Where the dependants are parents, then the age of the younger of the parents will determine the multiplier. Merely because sisters are shown as the claimants, multiplier cannot be adopted on the basis of the age of the claimants 2 to 4.
16. Where the annual income of the deceased exceeds Rs. 40,000/- and where the Claim Petitions have filed Petition under Section 166 M.V. Act, trend of the Supreme Court appears to be to adopt a lower multiplier.
17. But, the latest trend of the Supreme Court appears to be to adopt a lower multiplier. In TNSCTC v. Rajapriya , the deceased was aged 38 years at the time of accident. The Supreme Court has held that considering the age of the deceased, appropriate multiplier would be 12. In the case of The Managing Director, TNSCTC v. Sripriya and Ors. 2007 (1) TN MAC 319 (SC) the deceased was aged 37 years at the time of accident. The Supreme Court has held that considering the age of the deceased, appropriate multiplier would be 12.In the case of TNSCTC v. K.I. Bindu and two Ors. 2005 (7) Supreme 171, the deceased was aged 34 years at the time of accident. The Supreme Court has held that considering the age of the deceased, appropriate multiplier would be 13. In a recent decision in the case of New India Assurance Co. Ltd. v. Kalpana , the Apex Court applied the multiplier of 13 in case of death of a taxi driver aged 33 years on the date of accident.
18. In this case, the deceased was aged 32 years and he was a bachelor. Since the deceased was a bachelor, multiplier could be adopted only based upon the age of the first claimant. First claimant was aged 55 years. As per the Second Schedule, the multiplier applicable for the age group of 50-55 years is 11. However, having regard to the future prospects and facts and circumstances of the case, in my considered view, it would be appropriate to adopt multiplier 12.
19. The loss of dependency is calculated at Rs. 3,45,600/- [Rs. 2400 x 12 x 12]. For medical expenses and damage to clothes, Tribunal has awarded Rs. 1,500/- plus Rs. 1,000/- and the same is maintained. For funeral expenses, Tribunal has awarded Rs. 3,000/- and the same is enhanced to Rs. 5,000/-. Totally, there are four claimants - mother and sisters of the deceased. The family has lost earning male member of the family. The first claimant who was already a widow, has lost the love and affection of her son in the old age. Likewise, claimants 2 to 4, who are sisters of the deceased have lost the love and affection of their brother. For the loss of love and affection, compensation of Rs. 50,000/- is awarded [Rs. 20,000/- to the first claimant ad Rs. 10,000/- to each of the claimants 2 to 4].
20. In the result, The compensation amount of Compensation of Rs. 3,08,660/- is enhanced to Rs. 4,03,100/- and this C.M.A. is partly allowed;
Enhanced compensation of Rs. 94,440/- is payable with interest @ 7.5.% from the date of Petition till the date of deposit;
The compensation amount of Rs. 3,08,660/- awarded by the Tribunal is payable with interest @ 9% from the date of Petition;
Enhanced compensation of Rs. 94,440/- along with accrued interest is payable to the first claimant - mother of the deceased;
The apportionment of quantum of compensation of Rs. 3,08,600/- ordered by the Tribunal shall hold good;
The enhanced amount along with accrued interest shall be deposited within a period of three months from the date of receipt of copy of this order;
On such deposit, the claimants are entitled to withdraw the entire compensation amount payable to them.
There is no order as to costs in this appeal.