Madras High Court
M/S.United India Insurance Co. Ltd vs M.Ravikumar on 27 June, 2018
Author: N.Kirubakaran
Bench: N.Kirubakaran, Krishnan Ramasamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :27.06.2018 CORAM : THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN and THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY C.M.A.No.1739 of 2016 & CMP.No.13071 of 2016 and CROSS OBJ. No.35 of 2018 C.M.A.No.1739 of 2016 M/s.United India Insurance Co. Ltd., Branch Office, 14/1-77B, Salem Main Road, Puduchampalli, Mettur Dam, Mettur Taluk, Salem District 636 403 Rep by Divisional Office, 104-A, Peramanur Main Road, Peramanur, Salem -7 ... Appellant Vs 1. M.Ravikumar 2.Sri Hari (R2 remained exparte before Tribunal) ... Respondents CROSS OBJ. No.35 of 2018 M.Ravikumar ...Cross Objector Vs M/s.United India Insurance Co. Ltd., Branch Office, 14/1-77B, Salem Main Road, Puduchampalli, Mettur Dam, Mettur Taluk, Salem District 636 403 Rep by Divisional Office, 104-A, Peramanur Main Road, peramanur, Salem -7 2.Sri Hari (R2 remained exparte before Tribunal) ... Respondents PRAYER in C.M.A.No.1739 of 2016: Civil Miscellaneous Appeal filed U/s. 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 09.04.2015 made in M.C.O.P. No.358 of 2013 on the file of The Motor Accidents Claims Tribunal, Special Sub Court No.II, Salem. For Appellant :: Mr. S.Arunkumar For Respondents :: Mr. SP.Yuaraj for R1 PRAYER in CROSS OBJ. No.35 of 2018: Cross-Objection filed under Order 41 Rule 22 C.P.C. Pleased to enhance the compensation amount awarded in the Judgment and Decree dated 09.04.2015 made in M.C.O.P. No.358 of 2013 on the file of the Motor Accident Claims Tribunal/Special Sub Court, Salem. For Cross-Objector :: Mr. SP.Yuaraj For Respondents :: Mr. S.Arunkumar for R1 C O M M O N J U D G M E N T
(Judgment of the Court was delivered by KRISHNAN RAMASAMY, J ) The Insurance Company has come forward with this Civil Miscellaneous Appeal against the award dated 09.04.2015 made in M.C.O.P. No.358 of 2013 on the file of The Motor Accidents Claims Tribunal, Special Sub Court No.II, Salem and the claimant and the owner of the vehicle are the respondents. The claimant has filed the Cross Objection No.35 of 2018, seeking enhancement of compensation and the Insurance Company and the owner are the respondents.
2. Heard Mr.S.Arunkumar, the learned counsel appearing for the appellant/first respondent and Mr.SP.Yuaraj, the learned counsel appearing for the first respondent/cross objector.
3. The brief facts of the case are as follows:-
For the purpose of convenience, the parties are referred to herein as they are ranked before the Tribunal. First respondent owner of the vehicle remained exparte before the Tribunal. When the petitioner was riding his Hero Honda, Splender Plus Motor Cycle bearing Registration No.TN 46 2466, on 07.10.2012 at about 09.00 P.M, with utmost care and caution, on Mettur to Nangavalli Main Road, Near Pasa Kuttai, Opposite to Sivan Kovil, a Skoda Car bearing Registration No.KL 08 U 6711 owned by the first respondent and duly insured with the second respondent came in a rash and negligent manner. Due to the said accident, the petitioner was thrown out from the Motor Cycle and he sustained grievous injuries on his leg, hand, head and all over the body. Immediately, he was taken into Kurinji Hospital, Salem and thereafter shifted to Ganga Medical Centre Pvt. Ltd., Coimbatore for his better treatment.
4. The petitioner sustained the following injuries due to said accident:
1)Right lower limb: A wound present over the right thigh over the lower thigh exposing underlying muscle and fascia measuring 8 X 8 cm.
2)A degloving present over the right foot exposing underlaying muscle and tendons 8 X 7 cm.
3)spanning and ankle spanning exfix in sit Active toe movement present.
4)Comminuted fracture supracondylar femur with intra articular extension with insitu.
5)Tibial pateau fracture.
6)Comminuted both bone fracture distal third exfix insitu.
7)Distal ip joint dislocation 2nd toe and other lacerated, abrasion grievous injuries all over the body
5. Further, the petitioner was subjected to many tests, viz., X-ray, blood test, scans etc.,. The petitioner took treatment as an inpatient for the period of one month and continued his treatment as out-patient till the date of filing the petition. Consequently, a case was registered against the driver of the Skoda Car bearing Registration No.KL 08 U 6711 in Crime No.211 of 2012 by Nangavalli Police for an offence under Sections 279 and 338 of I.P.C. Therefore, the petitioner claimed a compensation of Rs.2,00,00,000/- (Rupees Two Crore Only) against the appellant/Insurance Company.
6. At the time of accident, the petitioner was 37 years old and he was hale and healthy. He was working as Electrical Officer in Executive Ship Management Private Limited, Mumbai. According to the petitioner, he was earning about Rs.2,25,000/- per month from his job. He was the sole bread-winner of his entire family. Due to the accident, the petitioner was unable to attend his normal work and he was not able to do walk and lift low weighted objects. Further, he was unable to perform his regular work. Therefore, the petitioner claimed that he cannot perform any work. Because of his 100 % disability, he could not continue his avocation due to the above said accident.
7. Resisting the same, the 2nd respondent/Insurance Company filed a detailed counter stating that the driver of Skoda car bearing Registration No. KL-08-U-6711 was driving the car slowly and diligently in Nangavalli to Mettur Main Road. Only the petitioner who was riding the Motor Cycle without wearing helmet, came in a rash and negligent manner and all of a sudden, overtook a lorry and going in front of it without noticing that the car is coming up in the opposite direction and dashed against it and sustained injuries. Therefore, according to the respondent the petitioner also contributed the accident. Hence, the claim should be reduced in terms of the contributory negligence.
8. According to the respondent/Insurance Company, the car was driven by one Sidhan, S/o.Subramani of Neringipettai of Bhavani Taluk, who was not having valid driving licence. However, the police had filed a charge sheet against one Raman of Dharmapuri. Therefore, according to the respondent/Insurance Company, the driver was replaced with the help of Nangavalli Police. The respondent/Insurance Company further stated even at the time of sending for Motor Vehicle Investigation Report, the driver in column No.6 of the MVI Report was blank and driving license particulars in column No.7 of the MVI Report was mentioned as not produced. Therefore, the respondent/Insurance Company contended that the driver was replaced to help the petitioner to get the compensation without any hindrance. Therefore, according to the respondent/Insurance Company, the claim of the petitioner should be dismissed.
9. The main issues for consideration in the present appeal are as follows:
1.Whether the negligence fixed on the driver of the car by the Tribunal is just and fair?
2.Is it necessary to fix any penalties for non compliance of 129 of the Motor Vehicles Act for not wearing helmet by the Injured?
3.Whether the 1/3rd of Income earned in US Dollars, determined by the Tribunal as monthly income of the injured is just and fair?
4.How to determine the rate of exchange of the foreign currency earned by the petitioner?
5.Whether the income earned in US Dollar is liable to tax in India?
6.Whether the 20% deduction of Income of the injured, by the Tribunal is just and fair?
7.Whether the 60% disability fixed by the Tribunal is correct?
8.Whether the compensation fixed by the Tribunal is just and fair?
9.1.1. Now, it has to just decided first, whether the accident occurred due to the negligence of the car driver or not? In this regard, Ravikumar (PW1), who was an eyewitness, also sustained injuries due to the said accident. PW1 deposed in his evidence that on 07.10.2012 at about 9 P.M, when he was riding his Hero Honda Splender Plus, Motor Cycle bearing Registration No.TN 46 -2466 with utmost care and caution, on Mettur Nangavalli Main Road, Pasa Kuttai, Oppostie to Sivan Kovil, a Skoda Car bearing Registration No.KL 08 U 6711 owned by the second respondent came in a rash and negligent manner in a very high speed and hit the Motor Cycle. PW1 marked Ex.P20 which is the photocopy of the driving license. It is clearly proved that the said Ravikumar (PW1) was holding proper driving licence at the time of accident. A First Information Report was filed against the driver of the car bearing Registration No. KL 08 U 6711 marked as Ex.P1 and a copy of the charge sheet was marked as Ex.P50.
9.1.2. On a perusal of the charge sheet, it is clearly proved that the car was driven by one Raman and against him the case was registered under Sections 279 and 338 of IPC. From the evidence of the PW1 and on a perusal of the Ex.P1, Ex.P20 and Ex.P50, it is proved that the accident occurred due to the negligence on the part of the driver of the Skoda Car. Further, it is clear that the driver of the car, at the time accident, was one Raman, though in the counter, the respondent stated that the car was driven by a different person, namely Mr.Sithan and subsequently the name of the driver was changed. This is only a statement of the respondent/Insurance Company in the counter affidavit. To substantiate the statement of respondent, they have failed to take any steps to prove the averments in the counter through any eyewitness or any other oral evidences.
9.1.3. Therefore, we have no hesitation to come to the conclusion that the accident occurred due to the rash and negligent driving of the car and it was also clearly proved by the petitioner that it was driven by one Raman and not Sidhan. Therefore, the Tribunal has rightly come to a conclusion that the driver of the car drove the vehicle in a rash and negligent manner and the negligence was fixed on the part of the driver of the Car. We also uphold the findings of the Tribunal and fix the negligence on the part of the driver of the Car. Further, while fixing the negligence on the part of the driver of the car, this Court took notice of the Apex Court Judgment reported in 2014 A C J 627 (SC) in the case of Syed Sadiq and other V. Divisional manager, United India Insurance Co. Ltd., relevant portion of which is extracted hereunder:
28.We find it pertinent to observe that both the Tribunal and the High Court erred in holding the appellants-claimants in these appeals liable for contributory negligence. The Tribunal arrived at the above conclusion only on the basis of fact that the accident took place in the middle of the road in the absence of any evidence to prove the same. Therefore, we are inclined to hold that contribution of the appellants-claimants in the accident is not proved by the respondents by producing evidence and, therefore, the finding of the Tribunal regarding contributory negligence, which has been upheld by the High Court, is set aside. Further the judgment reported in 2014 (1) TN MAC 456 (SC) in the case of Meera Devi & another Vs. H.R.T.C. and others, the Supreme Court held as follows:
''10.To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case.'' 9.1.4. The above decisions are squarely applicable to the present case. On behalf of the respondent, no eyewitness or any oral evidence was deposed before the Tribunal to substantiate their claim of negligence and other claims made in the counter. Therefore, as stated above, we have come to a conclusion, that the accident occurred due to the negligence on the part of the driver of the car and also held that the car was driven by one Raman and not Sidhan.
9.1.5. Further, the respondent/Insurance Company also took a stand stating that the petitioner was not wearing the helmet at the time of accident. Therefore, the contributory negligence should be determined by the Tribunal. In this regard, this Court would like to refer the Apex Court judgments as follows:
(i) New India Assurance Co. Ltd. V. Sharda Devi and others reported in 2013 ACJ 652:-
''4.The breach of rules in driving a two -wheeler without helmet and driving it with three pillion riders, by itself cannot be treated as composite or contribution to negligence on his part.''
(ii) India Lease Development Ltd. V. Savita and others reported in 2013 A C J 2038:-
''8.Simply because the deceased was not wearing a helmet and violated the terms of the Motor Vehicles Act, it cannot be said that he contributed to the accident.'' Merely because there are rules, driving the two wheeler without wearing the helmet itself cannot be treated as contributory negligence and merely the deceased was not wearing helmet, we cannot come to a conclusion that the same was the reason for the accident.
9.1.6. Therefore, as stated above, the accident occured due to the negligence on the part of the driver of the car and the same was substantiated by Ex.P1 and Ex.P50 and the eyewitness of PW1.
9.2.1.Though the accident occurred not due to the neglignece of the injured, not wearing the helmet, which is in violation of Section 129 of Motor Vehicles Act, 1988.
9.2.2. From the findings of the Tribunal and from the submissions of the respondents, this Court comes to the conclusion that there was clear violation of Section 129 of Motor Vehicles Act, 1988, by the injured. Now, the moot question to be decided here is that for the violation of the provision of the Section 129 of the Motor Vehicles Act (herein after called as Act) is it just and fair for the Tribunal awarding compensation to a non complier of the Motor Vehicles Act.
9.2.3. In Section 129 of the act there is no penalty/punishment clause. However, in the State Government Rules, the State Government fixed some fine for not wearing the helmet.
9.2.4. The issue cannot be come to an end, as in the present case due to not wearing the helmet the injured incurred head injuries. Therefore, the issue here is not paying the fine but to save the human life.
9.2.5. On the indepth perusal of the Section 129 of the Motor Vehicles Act, mandates the rider of the two wheeler compulsorily to wear the helmet. When the law mandates certain things and the deceased being citizen of India, is it not his duty to abide the law of land. If he is not abiding the law is it necessary for the Court to award compensation for non law abiding citizen. At this point of time, this Court also take a judicial notice that the Motor Vehicles Act delaing with the compensation is a benevolent legislation and not a penal one. Therefore this Court cannot ignore completely for avoiding the compensation for the claimant merely because of non-compliance of provision of Section 129. But at the same time, it is the duty of this Court to order certain amount of penalties for non compliance of provisions of the Act. Though the Motor Vehicles Act is a benevolent legilation, this Court cannot provide complete benefit available under the Act to a person who is not following the law of land strictly.
9.2.6. Therefore, this Court decides to fix 10% of the total compensation which will be deductable from the total compensation awarded to the claimant due to non wearing the helmet by the claimant/injured.
9.3.1. As far as the third issue is concerned, it is seen that the petitioner was aged about 37 years old at the time of accident. PW1 also marked Ex.P21 and Ex.P24 i.e., the photocopy of the passport and the PAN Card of the petitioner, in which, the Date of Birth was mentioned as 10.05.1975. Based on the above Ex.P21 and Ex.24, the age of the petitioner at the time of the accident was 37 years 4 months 27 days. Therefore, the petitioner proved his age as 37 years before the Tribunal. Further, we have also perused the records in Ex.P27 to Ex.P48, which are all various certificates of the educational qualifications of the petitioner, which clearly proved that he obtained all the qualifications, training and experiences working in Ship as Electrical Officer.
9.3.2. Further, according to the petitioner, he was working in Ship as Electrical Officer and earned a sum of USD 4560 per month. In support of the salary statement of the petitioner, PW1 also marked Ex.P25, which was agreement for the employment and in terms of agreement, the petitioner entitled to get a sum of USD 4560 every month. Further, Ex.P26, the Wage Account clearly proved that the petitioner was receiving a sum USD 4560 from 14.04.2012 to 01.09.2012. Further, this Court also perused Ex.23 and Ex.24, which clearly show that the petitioner worked as Electrical Officer in the Ship from 15.12.2000 onwards. Therefore, this Court comes to the conclusion that the petitioner was fit and obtained all qualifications and experiences. He was working from 14.04.2012 to 01.09.2012 in the Ship, and the present accident occured when he came back to his hometown for holidays.
9.3.3.Further, the respondent/Insurance Company made an objection before this Court that as he was working in the Ship for a period of six months, it cannot be assumed that he will be having the employment throughout the year and his income should be taken as Rs.4,50,000/- per month. This Court also took the judicial notice that he is an employee in the Ship and normally as per the contract, persons those who are all working in the Ship having work continously 6 months of one period and thereafter, they will be provided a long vacation. In the present case also, on a perusal of the document, we came to know that he was in employment from the year 2000. Accordingly, he was working for a period of six months with the salary of USD 4560 per month. Therefore, the petitioner established that he was receiving a salary of USD 4,560 per month through the NRI Account. Therefore, the salary for six months will be determined as USD 4,560 per month and he earned USD 27,360 for six months. The Tribunal took the six months salary as a salary for 1 year. This is becuase the employee of the Ship will continously worked for 6 months and the remaining six months there will be continous holidays. We also agree with the views of the Tribunal. Therefore, the Tribunal fixed a sum of USD 2280 (27360/12). So we have no hesitation to concur with the view of the Tribunal and fix the monthly salary of the petitioner as USD 2280 per month. So, we hold that the Tribunal fixed a sum of Rs.1,23,025.38/- per month as correctly. Now, the issue to be decided is that what would be the salary of the injured to determine the compensation.
9.3.4. Further, we also took a judicial notice of this Court that whether the USD 4,560 has been accepted for the purpose of determining the compensation in India under the Motor Vehicles Act. In this regard, this Court would like to refer the following judicial pronouncement in the case of Managing Director, Tamil Nadu State Tansport Corporation Ltd., V. S. Yobu reported in 2014 (1) TN MAC 295 (DB):-
''19. He is a qualified Mechanic. Then he was 31 years old. He was employed as a Mechanic in Shanfari Automotive Co. LLC, in Oman. Then he was paid 120/- Oman Riyal per month (See Ex.P14 Salary certificate). The Tribunal converted it to Rs.15,000/- in Indian rupees. However, it did not take it as it is. It took Rs.10,000/- p.m. Of course, it cannot be denied that the economic position in Oman and in India are not same. The value of the currency of both the countries is not the same.'' Further, in the case of Oreintal Insurance Company Limited V. Deo Patody and others reported in 2009 (1) TN MAC 629 (SC), the Supreme Court held as follows:-
''11.It is in the aformentioned situation, we are of the opinion that the fair amount of compensation should have been claculated at Rs.25,000/- per month being about 1/3rd of the amount which he was receiving in U.K'' 9.3.5. In the case of Jiju Kuruvila and others Vs.Kujujamma Mohan and others reporrted in (2013) 9 SCC 166 (SC), the Supreme Court has held as follows.
''22.The last question relates to just and proper compensation. Both the Tribunal and the High Court have accepted that the deceased was 45 years of age at the time of accident; he was working as Manager, Freeman Management Corporation, New York Branch, USA and was getting a monthly salary of 2500 US dollars. The High Court accepted that the deceased as per conditions of service, could have continued the employment up to the age of 65 years.
23.Ext.A-6 is a certificate issued by the employer of the deceased i.e. Freeman Management Corporation, USA dated 23.04.1990 which shows that his annual salary was 30,000 US dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service up to the age of 65 years. Ext.A6 was attested by the notary public and countersigned by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.
24.On the basis of the aforesaid annual income and exchange rate of Rs.17.30 per US dollar as applicable in April 1990 (Ext.A-7), the annual income of the deceased if converted into Indian currency will be Rs.30,000X17.30 = Rs.5,19,000/- at the time of death. The deceased was 45 years of age, therefore, as per the decision in Sarla Verma v. DTC, muliplier of 14 shall be applicable. But the High Court and the Tribunal wrongly held that the multiplier of 15 will be applicable. Thus, by applying the multiplier of 14, the amount of compensation will be Rs.5,19,000X14 = Rs.72,66,000/-.'' 9.3.5.In the above referred judgments, the Supreme Court discussed about how to take the foreign exchange earning by the injured, for the purpose of determination as compensation in India. While considering the determination of the compensation, the Supreme Court had considered various aspects, such as the value of the currency, the cost of living in the foreign countries or ships, life styles in the foreign countries or in India and economic position in the foriegn countries and in India. After considering all the aspects, the Hon'ble Supreme Court in Deo Patody's case come to a conclusion that it is appropriate to take 1/3rd of the Foreign Exchange earned by the injured/deceased would be appropriate to fix the compensation under the Motor Vehicles Act. In Jiju Kuruvila and others Vs.Kujujamma Mohan and others case, the Hon'ble Supreme Court considered the entire income earned by the deceased as the loss of income of the deceased.
9.3.6. We have perused the above three judgments pronounced by the Hon'ble Division Bench of this Court and the Supremen Court of India. In the judgment of Deo Patody, the Hon'ble Supreme Court took 1/3rd of foreign exchange income as the income to be earned in India for the purpose of calculation of compensation. In the case of Jiju Kuruvila and others Vs.Kujujamma Mohan and others case, the Supreme Court took 100% of the foreign exchange as income for the purpose of calculation of dependency due to the facts and circumstances of that case. In the present case, the injured worked for six months contract in the Ship. Further, he was working in Ship from the year 2000, in the similar manner on contract basis. Considering the present fact of the case, the Tribunal thought and fixed the 1/3rd income of the injured by following the judgment of the Deo Patodys is just and proper. The Tribunal rightly took 1/3rd of the income for the purpose of determining compensation. We also concur the finding of the Tribunal in this regard. Therefore, the income for the purpose of determining the compensation to the petitioner is 2280/3 equal to 760 US Doller per month. Hence, the income fixed by the Tribunal is just and fair.
9.4.1. The next question to be decided is as to how to determine the rate of exchange by the foriegn currency earned by the petitioner? According to the petitioner, he was working in the ship as Electrical Engineer from 15.12.2000. The accident occured on 07.10.2012. Further, the value of US Dollar fluctuates from time to time. Therefore, it is necessary to fix a date for converting the US Dollar into Indian money. In this regard, we would like to refer the decision rendered by the Apex Court in the case of JiJu Kuruvila and others v. Kunjujammma Mohan and others reported in 2013 ACJ 2141 (SC):-
"16. In the present case, admittedly the claimants filed a petition in April, 1990 (affidavit sworn on 24th March, 1990) and claimed compensation in INR i.e. Rs.57,25,000/-. Such compensation was not claimed in U.S. Dollars. For the said reason and in view of the decision of this Court in Forasol (supra) as followed in Renusagar Power Co.Ltd.(supra), we hold that the date of filing of the claim petition (April, 1990) is the proper date for fixing the rate of exchange at which foreign currency amount has to be converted into currency of the country (INR). The Tribunal and the High Court have rightly relied on Ext.-A7, to fix the rate of exchange as Rs.17.30 (as was prevailing in April, 1990)."
9.4.2. As held by the Supreme Court, we decided to take the date of filing of the petition as the date for the exchange rate for the income earned by the petitioner. Accordingly, at the time of filing the petition, value of one US Dollar equal to Rs.53.9585 in Indian Money. Therefore, monthly income of the petitioner for the purpose of determining a compensation will be a sum of Rs.760 X 53.9585 equal to Rs.41,008/-. In view of the above, the Tribunal rightly took the date of filing of the petition, for determining the exchange rate. Hence, we have no hesitation to concur with the finding of the Tribunal.
9.5.1. Before arriving at the exact compensation for the petitioner, it is just and necessary to decide whether the income earned in foreign currency and credited to the NRE account will be taxable in India?
9.5.2. As stated above, the petitioner was working as an Electrician in the Ship and earned USD 4560, for last six months salary which is about Rs.14,76,304.56/-, as per the monthly salary fixed by the Tribunal viz., Rs.1,23,025.38. As stated above, we have determined the salary for the purpose of compensation a sum of Rs.1,23,025.30/3 equal to Rs.41,008/-.
9.5.3.For this purpose, we have to examine the provisions of the Income Tax Act. In terms of Section 5 (2) of Income Tax Act, if the income is earned in Foreign currency by NRI, the same is credited to the NRE Account which will not be taxable in India. In the present case, petitioner was out of India for 6 months or 182 days or more. Hence, he qualifies to avail the benefit under Section 5 (2) of the Income Tax Act. Therefore, the income earned by the petitioner in foriegn currency and credited to NRI Account will not be taxable in India.
9.5.4. Hence, we have no hesitation to hold that the income of the petitioner is not taxable in India and the finding of the Tribunal that the Income of the petitioner about 20%, is liable to tax in India is wrong.
9.6.1.The next question is as to what are the permissible deductions from the income of the petitioners? While determining the compensation for the injured, it is just and necessary to make certain deductions from the income of petitioner. In general, the taxes payable like Income Tax, Professional Tax and Travelling Allowances will be liable for deduction. While calculating the Income Tax of the injured, the following are liable for duduction. GPF, LIC, repayment of Loan, any other outstanding payment, compensation, any contribution to the Pension etc., While deciding the present issue, we have also to consider the judgments of the Apex Court which are as follows:
(i) Mansvi Jain V. Delhi Transport Corporation and others reported in 2014 ACJ 1416 (SC):-
" 12. This Court in Shyamwati Sharma & Ors. Vs. Karam Singh & Ors. (2010) 12 SCC 378, while considering the issues of deduction of taxes, contributions etc., for arriving at the figure of net monthly income, held that while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans etc., should not be excluded from the income. The deduction towards income tax / surcharge alone should be considered to arrive at the net income of the deceased."
(ii) Vimal Kanwar and others V. Kishore Dan and others reported in 2013 ACJ 1441 (SC):
"19. The first issue is whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as Pecuniary Advantage liable for deduction. The aforesaid issue fell for consideration before this Court in Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 90. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a pecuniary advantage receivable by the heirs on account of ones death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as pecuniary advantage liable for deduction."
9.6.2. From the above, it is clear as to what are the deductions that can be made and as to what are the deductions that cannot be made at the time of determining compensation and at the time of calculation of tax liability of the injured. After perusal of the various records, as mentioned above, the petitioner was earning foriegn exchange and salary was credited through NRE (Non-Resident External) Account and therefore, we hold that there is nothing in the present case to deduct towards the Income Tax of the petitioner. However, the Tribunal wrongly came to the conculsion that the Income earned in foriegn exchange will be liable to tax in India. Hence, they deducted 20% of the income of the injured towards Income Tax and after deducting the 20%, they have determined Income of the injured for compensation. Hence, this Court set aside deduction of 20% made by the Tribunal.
9.7.1. DISABILITY: PW1/injured deposed that in his chief examination, due to the accident, the bone in his left leg was broken into pieces. Further, he deposed that many places of his body get severe injuries. Therefore, he was admitted initially in the Kurinchi Hospital at Salem and thereafter, he was shifted for better treatment to Kanga Medical Centre at Coimbatore. The petitioner further stated that he is not in a posititon to walk in the Ship. Therefore, he suffered 100% disablility and he will not exist in his employment. Further, on behalf of the petitioner, PW2 was examined, who is Dr.Srinivasan who deposed that the first aid was provided on 07.10.2012, immediately at the place of occurence of the accident and thereafter, for his better treatment, the injured was shifted to Kanga Medical Centre, Coimbatore. There he was taken treatment from 07.10.2012 to 24.10.2012 and thereafter, he was taking treatment on 07.11.2012 to 08.11.2012 and further, he was re-admitted on 18.11.2012 to 07.12.2012, 14.12.2012 to 19.12.2012 and 27.01.2012 to 08.02.2013. Therefore, according to PW2 Doctor Srinivasan, the petitioner was taken treatment as inpatient for various surgeries.
9.7.2. PW2 Dr.Srinivasan, deposed that they have provided the following treatment:
''Communited Fracture Supreacondlar Femur with intra articular extension with exfix insitu. Communited both bone fracture distal third with exfix in situ. G IIIB open communited Supra Condylar fracture right femur with Tibial Plateau fracture. G IIIB open communited fracture both bone right leg with knee spanning exfix insitu. Closed distral inter phalangial joint dislocation II toe right foot.. 10.10.2012 Debridement, SSG cover right thigh Leg and foot. 23.11.2012 external fixator removal and debridement and LRS application right lowerlimb and PSS. 28.01.2013 LRS removal, open reduction and internal fixation with LCP and bone grafting right distal femur. Closed reduction and internal fixation with retrograde interlocking nailing distal Tibia and bone graftin'' 9.7.3. Further, PW2 deposed that they have fixed steel rod in the leg and it should be fixed for some time and therafter the same can be removed. For that purpose, the petitioner needs to spend about Rs.1,00,000/-. PW2 ascertained the disability as 60.65%. On a perusal of Ex.P5 Discharge Summary, the petitioner was admitted from 08.10.2012 to 24.10.2012 and obtained treatment for the following:
"Diagnosis: Grad III B open comminuted supra condylar fracture right femur with tibial plateau fracture, Grad III B open communiuted fracture both bone right leg with knee spanning exfix insitu, Closed distal inter phalangeal joint dislocation II toe right foot ..., Procedure: and for this purpose on the treatment was provided in the following method: 10.10.2012:Debridement, SSG cover right thight, leg and foot"
9.7.4. Further, on a perusal of the Ex.P6 Discharge Summary, it is seen that the injured was admitted from 07.11.2012 to 08.11.2012 at Kanga Medical Centre as in-patient and the treatment was given to the injured in the Procedure of Conservative Management and the contents of diagnosis read as follows:
"Diagonosis: Follow up case of grade IIIB open comminuted supracondylar fracture right femur with tibial pateau fracture, Grade IIB open communited fracture both bones right leg eith knee spanning external fixator, closed distral interphalangeal joint dislocation socond toe right."
9.7.5. On a perusal of Ex.P7 Discharge Summary, he was admitted on Kanga Medical Centre as in-patient from 18.11.2012 and discharged on 07.12.2012 and he was taken treatment in the following method:
"Diagnosis: Follwup case of grade III B open communited inter condylar fracture right femur with Tibial plateau fracture, grade III B open comminuted fracture both bones right leg distral 1/3rd with knee spanning external fixator with infection, Dislocation second toe right with infection of distal femur right for that Procedure: External fixator femoval and debridement and LRS application right lower limb and PSS the treatment was provided in the above mentod."
9.7.6. On a perusal of Ex.P8 Discharge Summary, the treatment was given to the injured from 14.12.2012 to 19.12.2012 as in-patient in the following procedure:
"Diagnosis: Follow up case of grade II B open communited intercondylar fracture right femur with Tibial plateau fracture and grade III B open commmuniteed conservative treatment"
9.7.7. On a perusal of Ex.P9 Discharge Summary, the treatment was provided from 27.01.2013 to 08.02.2013 as in-patient in the following method:
"Diagnosis: Follow up case of grade III B open communited distal femur fracture righ with Tibial Plateau fracture with grade III B open fracutre both bone right leg with LRS insitu with delayed union and bone gap for the fracture caused this procedure was followed.
Procedure: LRS removal, open redruction and internal fixation with LCP and bone grafting right distal femur, closed reduction and internal fixation retrograde interlocking nailing distal tibia and bone grafting"
9.7.8. We have also perused Ex.P16 X-ray, Exhibit P17 Photographs of the petitioner, Ex.P4 Wound Certificate and Ex.P52 Disability Certificate. As per Ex.P52, the disability of the petitoner was fixed as 60.85%, we have also perused Ex.P19, the certificate issued by the District Welfare Officer for Disabled Persons, Salem who determined the disability as 60%. PW1 Ravikumar and PW2 Dr.Srinivasan spoke in their oral evidence about the disability of PW1. However, there is no eyewitness or any oral evidence on behalf of the respondent/Insurance Company for objecting the said disability as fake. Therefore, the Tribunal fixed the disability as 60%. Before come to any conclusion, we have to carefully examine the various precedences of the Supreme Court in connection with fixation of the disability, and the relevant decision of the Supreme Court are as follows:
(i) Manoj Rathaur V. Anil Raheja and others reported in 2012 ACJ 1459 SC:-
"10.Respondent No.3 did not adduce any evidence to establish its plea that the disability certificate was fake or that the assessment made by AW2 was not correct and that appellant could continue to do the work with the same degree of efficiency as he was doing prior to the accident. Therefore, it is not possible to approve the view taken by the Tribunal and the High Court that the appellant had not suffered permanent disability due to the fracture on his right thigh and that his working capacity did not get impaired a result of injury caused in the accident
(ii) Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd reported in 2011 ACJ 2436 (SC):-
"9.The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation"
(iii) Mohan Soni V. Ram Avtar Tomar and others reported in 2012 ACJ 583 (SC):-
"Para.8: The question of loss of earning capacity resulting from amputation of one the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Company Limited and another, (2008) 8 SCC 518. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated upto the knee joint. He made a claim under the Workmen's Compensation Act, 1923. The Commissioner for Workmen's Compensation held that disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen's Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. This Court set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation."
(iv) Rekha Jai V. National Insurance Co. Ltd., reported in 2013 ACJ 2161 (SC):-
"Para.38: For a film actress, the physical appearance particularly the facial features are very important to act in the films and in T.V. serials. It is in her evidence that on account of the accident her face was disfigured, she has put on weight and has become fat and therefore she is unable to perform the role as an actress in films in future. Having regard to the nature of vocation she has been carrying on and wishes to carry on with in future, the opportunity is lost on account of the disfigurement of her face, to act in the films as an actress either as a heroine or actress in supporting role or any other role to be played in T.V. serials, albums and also as a model. It is in the evidence of the appellant that as per the District Medical Board of Sambalpur, her permanent disability is 30%. Having regard to the nature of injuries and observations made by this Court and Karnataka High Court in the cases referred to supra, we have to record a finding of fact that the appellants permanent disability should be treated as 100% functional disablement as she cannot act in the films and in T.V. serials in future at all. Therefore, on account of the aforesaid reasons, she has suffered functional disability. In this regard, it is relevant to refer to the judgment of this Court in the case of National Insurance Company Ltd. V. Mubasir Ahmed[15]. This Court has held that loss of earning capacity is not a substitute for percentage of physical disablement. It is simply one of the factors taken into account to award just and reasonable compensation. Even though the claimant does not suffer from 100% physical permanent disability, he suffers from 100% functional disability if he loses the capacity to pursue his work as a result of the accident."
9.7.9. Therefore, the Tribunal rightly fixed the disability as 60% and on perusal of the above Judgments of the Apex Court, we have also agreed with the disability of the petitioner as 60%, since he cannot go and work in a Ship once again because of his disability. Further, his employment will not be available as same in Ship as Electrical Officer. Hence, we have no hesitation to uphold the views of the Tribunal fixing the disability as 60%.
9.8.1. The next issue is as to whether the compensation fixed by the Tribunal is just and fair? The compensations awarded by the Tribunal under various heads are tabulated below;
Heads Compensation awarded by Tribunal Loss of Future Earning Power Rs.53,13,600/-
Pain and sufferings Rs. 1,50,000/-
Medical Expenses Rs. 5,19,300/-
Loss of Amenities and Enjoyment Rs. 1,50,000/-
Loss of Expectation of life Rs. 1,00,000/-
Transportation Rs. 66,500/- Extra Nourishment Rs. 14,000/- Attender Charges Rs. 50,000/- Disability Rs. 2,00,000/- Future Medicial Expenses Rs. 75,000/- Loss of Income (12 Month Period) Rs. 4,92,000/- Damages Rs. 600/- Total Rs.71,31,000/-
9.8.2.The petitioner was aged 37 years and as stated above, during the course of examination of PW1, his Educational qualifications, Passport and PAN card were also marked and from that, it was proved that his age was about 37 years. Further, due to the nature of the injuries sustained by the petitioner, there is no scope for future employment as Electrician in the Ship to earn similar amount of salary, and hence, we have decided to apply the multiplier method to determine the compensation of the petitioner. In this regard, this Court would like to refer the Apex Court Judgment in the case of Syed Sadiq and others V. Divisional Manager, United India Insurance Co. Ltd., reported in 2014 A C J 627 (SC) which reads as follows:
17.Appellant-claimant in this appeal has sustained type-3 compound fracture of right femur fracture of tibia, fractur of middle shaft tibia and fibula. The injuries sustained and the treatment taken by the appellant-claimant are evident from the discharge card. Ex.P225; Photographs taken by the appellant-claimant marked as Exhs.P227 to P234; disability certificate marked as Exh.P236; X-ray films marked as Exhs.P574; supported by the oral evidence of the claimant and the doctor examined PW3 and PW4 respectively, Dr.Rajesh, PW4 had stated his evidence that appellant-claimant has suffered from permanent disability of 69 per cent to lower limb. The High Court has taken his functional disabily at 25 per cent. However, while determining the disability of the claimants in motor accident cases, this Court might be sensitive of about the functional disability involved and the nature of the occupation, particularly if the occupation involves manual labour. Therefore, we hold that the High Court erred in determining the functional disability of the appellant in the present appeal on the lower side. Since the appellant-claimant in this present appeal is also a vegetable vendor like the appellant-claimant in Civil Appeal M.F.A. No.1131 of 2011, we take his monthly income at Rs.6,500/- on average and for the reasons recorded in that appeal, we determine the functionaral disability of the appellant-claimant in the present appeal at 35 per cent. Considering his age, and based on the legal principal laid down by this Court in the cases mentioned supra, we hold his increment on future income at 50 per cent and the multiplier at 18. Therefore, he entitled to Rs.7,37,100 (Rs.6,500 X 35/100 + 50/100X 35/100 X Rs.6,500) X 12 X 18) under the head of loss of future income. 9.8.3. In view of the above precedence, we have decided to apply the multiplier. In this regard, the Tribunal has also rightly applied the multiplier method for the purpose of determining the Income of the injured. Further, it is also just and necessary to add for the future prospects. In this regard, this Court would like to refer the case of National Insurance Company Limited Vs. Pranay Sethi reported in 2017-13 SCALE 12:-
In summary, the Court has determined the applicable percentages for determination of future prospects, in case of deceased with a permanent job, and has also added the category where the deceased was self-employed or on a fixed salary, to be as follows:
Deceased with a permanent job (salaried) Addition made Where deceased was self-employed or on a fixed salary Addition made Below 40 years 50% Below 40 years 40% 40-50 years 30% 40-50 years 25% 50-60 years 15% 50-60 years 10% Calculation is actual salary, less tax Calculation is established income, less tax 9.8.4.The petitioner's employment was treated as permanent job and therefore, as held in Pranayi Sathi's Case (cited supra) the Tribunal added 50% towards the future prospects. However, we do not agree with the views of the Tribunal, since the petitioner was working in a private concern viz., Executive Ship Management Private Limited, Mumbai on contract basis. In consequence, the employment of the petitioner can be considered as he was self-employed in the fixed salray category. Hence, we inclined to add 40% of the salary towards the future prospects. Therefore, we have determined the income of the deceased as follows: Income per Month on Rs.41,008 X 12 = Rs.4,92,096/- towards the future prospects will be 40%, which will come around to Rs.1,96,838/- i.e., totally Rs.6,88,934/-, and the loss of income per annum is Rs.6,88,934/-, inasmuch as, the income of the injured along with 40% towards the future prospects is at Rs.6,88,934/- per annum.
9.8.5. Coming to Multiplier, in the present case, the age of the petitioner is 37 and as held in the case of Sarla Verma and others Vs.Delhi Transport Corporation and another reported in 2009 ACJ 1298 SC, we have decided to fix the multiplier as 15. Age of the injured being 37 years at the time of accident, by applying the multiplier 15 as held in Sarla Varma (cited supra), we fix 60% for the purpose of disability of the petitioner and the loss of income for the petitioner is as follows: Rs.6,88,934 X 15 X 60/100 = Rs.62,00,406/-.
9.8.6. The Tribunal awarded Rs.2,00,000/- towards the permanent disability for the petitioner. However, in the present case, we have followed the principles laid by the Apex Court decisions in Sarla Varma & Pranayi Sathi (Cited Supra) and on that basis, we have applied the multiplier and loss of future income. Therefore, there is no need to fix compensation towards permanent disability. Hence, we set aside the award passed by the Tribunal towards permanent disability. Moreover, the Tribunal has also awarded reasonable amount under the other heads. Therefore, this Court deems that the Tribunal has awarded a just, fair and reasonable compensation and there is no warrant to interfere with the award passed by the Tribunal on that aspect.
10.The Tribunal fixed a sum of Rs.4,92,000/- towards the loss of Income for 12 months for the period of treatment of the petitioner in the hospital. Since we have followed the multiplier along with adding the future prospects, there is no need for separately to fix any compensation towards loss of income for 12 months during the period of treatment of the petitioner. As a result, we set aside the order of the Tribunal for awarding compensation of Rs.4,92,000/- towards loss of income for the 12 months during the period of treatment of the petitioner.
11.The Tribunal awarded Rs.5,19,300/- towards medical bills and Rs.1,50,000/- for the pain and suffering, For Loss of amenities and enjoyment of life the compensation fixed as a sum of Rs.1,50,000/-, Rs.1,00,000/- for the Loss of expectation of life, for Nutritious and Extra Nourishment it awarded a sum of Rs.14,000/-, for attender fee at Rs.50,000/-, for future medical expenses the Tribunal awarded a sum of Rs.75,000/-, for Transportation the Tribunal fixed a sum of Rs.66,500/- and for damage of clothes the Tribunal awarded Rs.600/-, and this Court confirms the said award passed by the Tribunal under the above heads.
12. The petitioner/claimant is entitled to get the enhanced compensation as awarded by this Court as shown hereunder:-
Heads Compensation awarded by Tribunal Compensation awarded by this Court Loss of Future Earning Power Rs. 53,13,600/-
Rs. 62,00,406/-
Pain and sufferings Rs. 1,50,000/-
Rs. 1,50,000/-
dical Expenses Rs. 5,19,300/-
Rs. 5,19,300/-
Loss of Amenities and Enjoyment Rs. 1,50,000/-
Rs. 1,50,000/-
Loss of Expectation of life Rs. 1,00,000/-
Rs. 1,00,000/-
Extra Nourishment Rs. 14,000/- Rs. 14,000/- Attender Charges Rs. 50,000/- Rs. 50,000/- Disability Rs. 2,00,000/- --- Future Medicial Expenses Rs. 75,000/- Rs. 75,000/- Loss of Income (12 Month Period) Rs. 4,92,000/- --- Transportation Rs. 66,500/- Rs. 66,500/- Damages Rs. 600/- Rs. 600/- Total Rs.71,31,000/- Rs.73,25,806/-
As held earlier for not wearing the helmet this Court decided to deduct 10% of the total compensation awarded to the claimant/injured. The total amount of compensation awarded to the claimant/injured after deduction is Rs.65,93,226/- = (Rs.73,25,806/- - Rs.7,32,580/-).
13. We have modified the award of the Tribunal to the extent stated above. Accordingly we have answered all the issues.
14. The Insurance Company is directed to deposit Rs.65,93,226/-, with interest and costs directly through NEFT or RTGS as directed by this Court, after adjusting the amount, if any, already deposited, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the first respondent/cross objector/claimant is permitted to withdraw the said amount, from the total compensation payable to him, as per the modified award passed this Court. The first respondent/cross objector/claimant is directed to pay the requisite Court fee, on the enhanced amount of compensation within a period of one week from the date of receipt of a copy of this order.
15. In the result, the Civil Miscellaneous Appeal in CMA. No.1739 of 2016 is dismissed and the Cross Objection No.35 of 2018 is hereby partly allowed to the extent discussed above. The award passed by the Tribunal to the tune of Rs.71,31,000/- is enhanced to Rs.73,25,806/-. From the enhanced amount of compensation, the Insurance Company is directed to deduct a sum of Rs.7,32,580/- being 10% penalty for not wearing helmet by the injured. The said amount shall carry the same rate of interest as awarded by the Tribunal, i.e., 7.5% per annum and the apportionment of compensation shall be as ordered by this Court. Consequently, the connected miscellaneous petition is also closed. No costs.
(N.K.K. J.,) (K.R. J.,) 27.06.2018 rkp Index: Yes/No Interner: Yes/No Speaking order/Non Speaking Order To: 1.The Motor Accidents Claims Tribunal, Special Subordinate Judge No.II, Salem. 2.Section Officer, VR Section, Madras High Court, Madras. N.KIRUBAKARAN, J and KRISHNAN RAMASAMY, J rkp C.M.A.No.1739 of 2016 and CROSS OBJ. No.35 of 2018 27.06.2018