Madras High Court
New India Assurance Co. Ltd vs Farisha Iqbal on 27 June, 2012
Author: B.Rajendran
Bench: R.Banumathi, B.Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/06/2012 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI And THE HONOURABLE Mr.JUSTICE B.RAJENDRAN C.M.A.(MD).No.656 of 2009 New India Assurance Co. Ltd., The Divisional Office Through its Divisional Manager 242B, Kamarajar Salai Madurai -9 ... Appellant/1st Respondent Vs 1. Farisha Iqbal 2. Aysha Bivi 3. Neelakandan ...Petitioners 4. V.Tamilvanan ...Respondents/2nd Respondent PRAYER Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree, dated 24.10.08 passed in M.A.C.O.P.No. 873 of 2006 on the file of the Hon'ble Motor Accidents Claims Tribunal (Principal District Judge) Madurai. *** !For Appellant ... Mr.G.Prabhu Rajadurai ^For RR 1 to 3 ... Mr.S.Srinivasa Raghavan for M/s.Khan K.S.M.Ibrahim :JUDGMENT
B.RAJENDRAN, J.
The Insurance Company has come forward with this Appeal challenging the award of the Motor Accidents Claims Tribunal granting an amount of Rs.22,47,500/-.
2. The learned counsel appearing for the appellant restricted his argument towards the quantum alone. The accident is admitted. The liability is admitted. According to the appellant, in the accident took place, the deceased V.K.H.Mohammed Ali Iqbal was driving his vehicle and a lorry coming from the opposite direction came in a rash and negligent manner, dashed on the van, which was driven by the deceased. The deceased died on the spot.
3. The Lower Court after examining the witnesses ultimately came to the conclusion that the deceased was entitled to the compensation and it was the mistake of the lorry. The driver of the lorry has also admitted the offence and paid the fine and marked Ex. P-6 is the copy of the Judgment.
4. The only grievance is that the income as fixed by the Lower Court was very high. Even according to the petitioners, the deceased was owning vehicles and running a contract for TVS Cherry, Fenner India Ltd and other companies using his vehicles. He has produced income deduction certificate, namely, Form 16-A under Exs. P- 17 to P-19. He was having only two vans and the RC Books were marked as Exs. P-21 and P-22. As the accident took place only in the year 2005, the Court should have taken the income as made by him for the year 2004-2005. But, they have also considered the income for the previous year 2001-2002. Further, the Lower Court has taken into consideration, the entire income as admitted by them. From the records, as if it is the income derived by him without taking into consideration that the profit out of the payment received by him will be much below, the Court ought to have taken into consideration the expenses including the fuel expenses and all other incidental expenses. Therefore, the income as fixed by the Court below at the rate of Rs.25,235/- per month and thereafter, deducting only 1/3rd for personal expenses fixing the income at Rs.60,381/- per month is very high and thereafter, arrived at compensation amount of Rs.22,22,484/- is very high, considering the age of the deceased at 52.
5. The next contention of the petitioner was that since it is only service oriented Industry, namely, utilising the vehicle for earning, there is no difficulty for the wife or the mother to continue the business, as the vehicle is intact. Therefore, the loss of income is not there. Though the third petitioner is arrived at a party, he is the brother-in-law, under law he is not entitled to be a legal representative and rightly, the Court below has rejected his part of claim.
6. In this matter, the appellant aggrieved only against the quantum and therefore, he has come forward with this Appeal.
7. The learned counsel appearing for the respondent/claimant would only contend that the actual legal representatives are the wife and the mother. In fact, he cannot claim enhanced amount as he has though not filed a separate appeal, the claim amount as granted itself is less, as the Lower Court has deducted 2/3rd amount of the income as expenses and fixed only 1/3 rd income as the actual income or profit out of the business, which is not legally sustainable according to them. In fact, the learned counsel for the respondent also contended that they have only taken into consideration the income derived from the companies and has excluded the income from other sources private parties. Therefore, even the amount awarded is fair, reasonable and correct.
8. Heard both parties. By mutual consent of both sides, the Civil Miscellaneous Appeal itself is taken up for final disposal.
9. As the accident is admitted and the liability is admitted. Only in respect of the quantum, the arguments have been made. The following order is made:
(i) The deceased was a van operator and he had two vans. The RC Books of the two vans have been produced and Exs. P-12 to Exs. P-16, which are the agreements entered by the deceased with some companies like TVS Cherry and their subsidiaries and Exs. P-17 to P-19 are income tax deduction certificate and Ex. P-20 is Form 16-A and Exs. P-21 and P-22 are the RC Books. The evidence is that apart from the two vans owned by him, the deceased was also engaging five vans for transporting staffs. The other vans are engaged by himself for hire. At the same time, the Lower Court also referred to the Form 16-A, issued by the various companies and tallied them the total amount at Rs.1,09,931. The average comes to Rs.12,225/-.
(ii) Rightly the appellant counsel argued that in so calculating Ex. P-19 is the Form 16-A payment to the deceased by the TVS R & M Ltd., that Form 16-A pertains to the year 2001-2002. So definitely this cannot be tagged on or added to arrive at an average for the year 2004 - 2005. Therefore, the total amount comes to Rs.1,18,442 and the average comes to Rs.10,768/- arrived by the learned Judge for arriving at the average has to be excluded, if that is excluded from Rs. 75,765/- as arrived by the Lower Court, it comes to Rs.64,997/- rounded of Rs.65,000/- average. Then since the Lower Court has taken the income as supported by Form 16-A, income tax deduction by the companies, since the entire amount has been given right for the entire year, the basis that fixing the average income is fair, reasonable and correct.
(iii) After arriving this, the Court has also definitely taken into consideration, out of the income received what could be the expenditure for running the company, including the maintenance of the vehicle. Rightly the Lower Court has taken into consideration that 2/3 rd of this amount will go towards the expenses, as it include the fuel expenses, interest on the loans, maintenance, driver's salary, bata and all other incidental expenses.
Therefore, the calculation of expenses, 2/3rd is reasonable. If 2/3 rd is deducted from Rs.65,000/- Rs.42,666/- will be the expenditure and the average per monthly income would be Rs.22,334/- and this will be then net income for the individual. From out of this, we should deduct 1/3 rd towards personal expenses as per Sarla Verma's case. Then the contribution to the house cane be easily construed as Rs.7,444/- then the average income will be at Rs.14,990/- (ie., 22,334-7444) rounded of Rs.15,000/- will be the monthly income. In yearly, the total loss of income will be at Rs.1,80,000/-.
(iv) The multiplier as adopted by the Court below and as per the schedule, for the age 52 years is 11, which is correctly applied in the Lower Court. Therefore, for the loss of income at Rs.1,80,000/- per annum is taken into consideration if the multiplier 11 is adopted, we arrive at a compensation for a sum of Rs.19,80,000/- instead of the Lower Court awarded at Rs.22,22,484/- . Rs.19,80,000/- can be round of at Rs.20,00,000/-. So in this regard, under the loss of earning compensation can be granted is only at Rs.20,00,000/- and not at Rs.22,22,484/-.
(v) In respect of other heads, the Lower Court has awarded a sum of Rs.5,000/- only for funeral expenses, which is fair and reasonable. Similarly a sum of Rs.10,000/- towards loss of consortium is awarded, which is very meagre. Therefore, the amount is increased to Rs.25,000/-. Similarly, Rs.10,000/- is awarded for loss of estate. No amount has been awarded towards love and affection of the mother, for which, a sum of Rs.25,000/- can be awarded to the mother and the break up details of the modified amount is as follows:
Loss of Earning : Rs.20,00,000/- Funeral Expenses : Rs. 5,000/- Loss of Consortium : Rs. 25,000/- Loss of Estate : Rs. 10,000/- Love and affection of the mother : Rs. 25,000/- ------------ Rs.20,65,000/- ------------
(vi) The Lower Court has awarded only 7.5% interest, which is fair, reasonable and correct.
10. In fine, the Civil Miscellaneous Appeal is partly allowed. The compensation is reduced to Rs.20,65,000/- from 22,47.484/- along with interest at 7.5% p.a. from the date of petition. It is submitted that the appellant has already deposited entire award amount with accrued interest and therefore, the appellant is permitted to withdraw the excess amount, if any, after calculation of the reduced amount at 7.5% interest. As the amount has already been deposited, only the first and second respondents, viz., wife and mother alone, are entitled to the compensation, as rightly pointed out by the Lower Court and the mother, second respondent, will be entitled for a sum of Rs.6,50,000/- instead of Rs.7,00,000/- as apportioned in the Lower Court and the balance amount will be paid to the first respondent, wife. No costs in appeal.
vsg To The Principal District Court Motor Accidents Claims Tribunal Madurai