Madras High Court
R.Leelavathy vs Sheik Dawood on 18 June, 2013
Author: T.S.Sivagnanam
Bench: R.Banumathi, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.06.2013
CORAM
THE HON'BLE MRS. JUSTICE R.BANUMATHI
and
THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM
C.M.A.No.490 of 2009
R.Leelavathy .. Appellant
Vs.
1. Sheik Dawood
2. The Divisional Manager,
The National Insurance Company Limited,
No.19, Officers Line,
Vellore. .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles (Amendment) Act, 1988 against the Order and decretal Order dated 14.3.2008 made in M.A.C.O.P.No.797 of 2006 on the file of the Motor Accidents Claims Tribunal cum District Court, Tiruvannamalai.
For appellant .. Mr.R.Thirugnanam
For respondents .. Mr.J.Chandran for R.2
No Appearance for R.1
JUDGMENT
(Judgment of the Court was delivered by T.S.SIVAGNANAM, J.) The claimant is the appellant. Not satisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal cum District Court, Tiruvannamalai by the Order dated 14.3.2008 made in M.A.C.O.P.No.797 of 2006 for the death of her husband Santharam in a road traffic accident, the claimant has filed this appeal seeking enhancement.
2. The case of the claimant is as follows:
On 17.07.2006 at about 9.30 a.m., when the deceased Santharam was proceeding in his Kinetic Honda bearing Regn. No.TN 07 F 3938 on Santhome High Road from south to north and reached opposite to the house of one Sivalingam, a maxi cab van bearing Regn. No.TN 22 M 8338 belonging to the first respondent driven by its driver in a rash and negligent manner came in the same direction and dashed against the deceased. In the accident, the deceased sustained grievous crush injuries all over the body and succumbed to the injuries, on the way to hospital. A case was registered in Crime No.357/AM3/06 on the file of Adayar Police Station for the offence under Section 304(A) I.P.C. The deceased was working as Assistant Special Grade Officer in University of Madras and earning Rs.23,000/- per month. The deceased was aged 57 years at the time of accident. Alleging that the accident was due to the rash and negligent driving of the driver of the van, the claimant/wife of the deceased filed the claim petition claiming Rs.25,00,000/- as compensation.
3. Denying the manner of accident and alleging that the accident was due to the negligence of the deceased, the 2nd respondent - Insurance Company filed counter contending that the appellant - claimant has to prove age, employment and income of the deceased. The deceased had no valid driving licence and the van driver also had no valid driving licence. The claim made by the claimants is highly excessive.
4. Before the Tribunal, the claimant examined herself as P.W.1 and eye witness Sivaraman was examined as P.W.2. On the side of claimant, Exs.P.1 to P.11 were marked. No oral or documentary evidence was adduced on the side of the Insurance Company.
5. Upon consideration of oral and documentary evidence, and also the evidence of claimant/P.W.1, the Tribunal held that the accident was due to the rash and negligent driving of the van driver and that the insurance company is liable to pay the compensation. Considering the age of deceased and his employment as as Assistant Special Grade Officer in University of Madras and he had one more year of service, awarded Rs.88,000/- as loss of income for one year. The Tribunal further awarded Rs.5,32,000/- (Rs.76,000/- x 7 = Rs.5,32,000/-) towards loss of dependency by adopting multiplier 7 by taking Rs.9,500/- as pension of deceased and accordingly awarded a total compensation of Rs.6,25,000/- i.e., Rs.6,20,000/- (Rs.88,000/- + Rs.5,32,000/-) towards loss of dependency and Rs.5,000/- towards loss of consortium to the claimant together with interest at 7.5% p.a.
6. Initially, the appeal was filed by the appellant/ claimant restricting the value of the appeal to Rs.2,00,000/- and subsequently the appellant filed application in M.P.No.1 of 2012 before this Court for enhancement of the value of the appeal to Rs.17,00,000/- and the amendment was permitted by order dated 6.6.2013.
7. We have heard Mr.R.Thirugnanam, learned counsel for appellant and Mr.J.Chandran, learned counsel appearing for the respondent Insurance Company.
8. The nature of accident and the negligence aspect are not in dispute and the appeal is confined only to the quantum of compensation awarded. The deceased - husband of the claimant was aged about 57 years at the time of accident and was working as Assistant Special Grade Officer in the University of Madras. The deceased had one more year of service left for superannuation as the age of retirement in the University of Madras was 58 years. To prove the salary of deceased, Ex.P.6 was marked, wherein it was shown that the gross salary earned by the deceased was Rs.22,474/-. The Tribunal while arriving at the quantum of compensation payable held that the take home salary of the deceased for the left over period of one year i.e., the period of remaining service was Rs.11,000/- and the yearly salary was worked out to Rs.1,32,000/- and after deducting 1/3rd therefrom for personal expenses the sum of Rs.88,000/- was arrived at for the period of one year towards contribution to the family. For the remaining period i.e., after his superannuation, the Tribunal arrived at income (pension) of the deceased at Rs.9,500/- per month and the yearly pension at Rs.1,14,000/- and after making 1/3rd deduction of Rs.38,000/- therefrom and adopting multiplier 7 the amount of contribution/ loss of dependency to the family was arrived at Rs.5,32,000/- (Rs.76,000 x7). To this, adding Rs.88,000/- being the loss of income to the family of deceased for the period of one year service, had the deceased been alive, the total amount of loss of dependency was arrived by the Tribunal at Rs.6,20,000/- and a sum of Rs.5,000/- was awarded for loss of consortium and total compensation of Rs.6,25,0000/- was awarded together with interest at 7.5% percent.
9. Learned counsel for appellant placed reliance on the decision of the Hon'ble Supreme Court in K.R.MADHUSUDHAN AND OTHERS VS. ADMINISTRATIVE OFFICER AND ANOTHER, (2011) 4 SCC 689 and contended that the split multiplier ought not to have been adopted in the present case and the salary of the deceased at the time of his demise ought to have been taken into consideration and multiplier "8" ought to have been applied. The facts of the case before the Supreme Court were quite distinct and different. The deceased therein was aged about 53 years and was an employee with the Karnataka Electricity Board. The Supreme Court took into consideration the evidence of P.W.3, who was a Senior Assistant in the Electricity Board, who deposed that the deceased was 52 years at the time of his death and was having 6 years of service and the deceased would have earned an annual increment of Rs.350/- and the year of the retirement of the deceased, the basic pay of the deceased would have been Rs.16,000/- in all and he would have earned gross salary of Rs.20,000/- per month. Further, the said witness deposed that as per the Board procedure, once in five years there is a compulsory revision of pay. Thus, taking into consideration these factors, Honourable Supreme Court adopted the income of the deceased at Rs.20,000/- per month and after deducting 1/3rd towards personal expenses, applying multiplier 11, calculated the loss of dependency. Thus, in the peculiar facts and circumstances and on account of the evidence which was available before the Supreme Court, in the said case, the Supreme Court adopted multiplier 11. The facts of the present case are clearly distinguishable. At the time of accident, the deceased had one year of service and after retirement he would have earned only pension, which would be approximately 50% of his salary.
10. Likewise, the other decision of Division Bench of this Court relied on by the learned counsel for the claimant in POONGAVANAM VS. D.JOHNSON, 2012 (1) TNMAC 496 is also clearly distinguishable on facts as the age of the deceased therein was about 48 years and considering the evidence available and taking note that the deceased had nine more years of service left the Division Bench though fit not to apply the split multiplier theory. Therefore, the decisions relied on by the learned counsel for the claimant are of no assistance as they are clearly distinguishable on facts.
11. In the case on hand, Ex.P.6 is the salary certificate. In the absence of any contrary evidence, Tribunal was not right in fixing the take home salary of the deceased at Rs.11,000/- for the period during which he would have been in employment. The Tribunal ought to have taken the salary of deceased at Rs.22,474/- for the period of one year of left over service of deceased taking into consideration that the deceased is aged 57 years at the time of accident and deducted 1/3rd therefrom towards personal expenses of deceased, to arrive at the loss of dependency to the family. Therefore, we deem it appropriate to take the salary of deceased as Rs.22,474/- for the period of one year i.e., till the deceased attained the age of 58 years. After deducting 1/3rd for personal expenses, Rs.7491/-, contribution to the family is calculated at Rs.14,983/- which is rounded off to Rs.15,000/- and the yearly loss of contribution to the family is calculated at Rs.1,80,000/- (Rs.15,000/- x 12).
12. In respect of the period after superannuation of the deceased on attaining the age of 58 years, he would have got 50% of his last drawn salary as pension, which could be approximately quantified at Rs11,250/- (Rs.22,474x 50/100) and deducting 1/3rd for the personal expenses therefrom, loss of contribution per month would be Rs.7,500/-. The age of the deceased is 57 years and as per the Second Schedule to the Motor Vehicles Act, the proper multiplier would be "8". As we have taken multiplier "1" for the period of his service, the amount of Rs.7,500/- as loss of contribution to the family is to be taken into account for the remaining multiplier of "7". The loss of dependency to the claimant for the remaining period of 7 years works out to Rs.7,500 x 12 x 7 = Rs.6,30,000/-. Therefore, the total loss of dependency is Rs.8,10,000/-
13. Under the head "conventional damages", only Rs.5,000/- was awarded by the Tribunal towards "loss of consortium", which in our opinion, is too low and therefore the same is increased to Rs.25,000/-. The Tribunal did not award any amount towards "funeral expenses" and a sum of Rs.15,000/- is awarded towards "funeral expenses". Accordingly, the total compensation awarded is Rs.8,50,000/-. (Rs.8,12,000/- towards loss of dependency + Rs.25,000/- towards loss of consortium + Rs.15,000/- towards funeral expenses) and the compensation awarded by the Tribunal is enhanced to Rs.8,50,000/-.
14. In the result, the Civil Miscellaneous Appeal is allowed in part and the compensation of Rs.6,25,000/- awarded by the Motor Accidents Claims Tribunal (District Court, Tiruvannamalai), in M.A.C.O.P.No.797 of 2006 is enhanced to Rs.8,50,000/- together with interest at 7.5% per annum from the date of filing of petition. The enhanced compensation amount along with interest shall be deposited by the 2nd respondent - Insurance Company within a period of six weeks from the date of receipt of copy of this judgment. On such deposit, the claimant is permitted to withdraw the entire compensation amount together with interest thereon. No costs.
usk Note to Office:
If there is excess court fee paid by the appellant, the same shall be refunded.
usk To The District Judge Tiruvannamalai