Madras High Court
M/S.Icici Lombard General vs Mumtaj Begum on 13 August, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.08.2014
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
C.M.A.No.377 of 2013 &
and M.P.No.1 of 2013 and
Cross Objection No.70 of 2014
M/s.ICICI Lombard General
Insurance Company Ltd.,
First Floor, Arihant Plaza,
No.84/85, Walltax Road,
Parrys,
Chennai 600 003. ... Appellant in CMA No.377 of 2013 /
Respondent in Cross Objection No.70 of 2014
vs.
1.Mumtaj Begum
2.Rizwana Bargeen
3.M.Mohamed Sahib (Minor)
(Minor rep.by mother & guardian
first respondent Mumtaj Begum)
4.Arjit Jose ... Respondents in CMA No.377 of 2013 / Appellants in Cross Objection No.70 of 2014
Prayer in CMA No.377/2013 : Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act against the judgment and decree dated 10.02.2012 made in MCOP No.762 of 2009 on the file of the Motor Accident Claims Tribunal (Fast Track Court No.II), at Poonamallee.
Prayer in Cross Objection No.70/2014 : Cross Objection filed under Order 41 Rule 22 of C.P.C. against the judgment and decree dated 10.02.2012 made in MCOP No.762 of 2009 on the file of the Motor Accident Claims Tribunal (Fast Track Court No.II), at Poonamallee.
For appellant : Ms.R.Sreevidhya
in CMA No.377/2013
and respondent in
Cross Obj.70/2014
For respondents : Mr.K.Suryanarayanan
in CMA No.377/2013 for R.1 to R.3
and appellants in
Cross Obj.70/2014
JUDGMENT
Challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal (Fast Track Court No.II), at Poonamallee, in and by an award dated 10.02.2012 made in MCOP No.762 of 2009, C.M.A.No.377 of 2013 has been filed by the insurance company stating that the amount awarded by the Tribunal under the head loss of income is extremely on the higher side.
2. Not being satisfied with the quantum of compensation awarded by the Tribunal, the respondents/claimants 1 to 3 have filed Cross Objection No.70 of 2014 for enhancement of the compensation amount.
3. The respondents / claimants are the wife, daughter and son of the deceased G.Mohammed Yakoob respectively who had died in a road accident that had occurred on 28.09.2009 involving a vehicle owned by the 4th respondent and insured with the appellant/insurance company.
4. Since the present appeal has been filed only questioning the quantum of compensation, I am not dealing with the finding rendered by the Tribunal with regard to the rash and negligence aspect.
5. In so far as the quantum of compensation is concerned, it is the case of the respondents/claimants before the Tribunal that the deceased was working in a Khadi Gramodyog Bhavan and earning a sum of Rs.11,277/- per month. He was aged about 52 years at the time of accident. In order to prove the income earned by the deceased one Azhagiri, Assistant from Khadi Gramodyog Bhavan was examined as P.W.2 and the salary certificate of the deceased was marked as Ex.P5. The Tribunal, by placing reliance on the evidence of P.W.2 and Ex.P5, has fixed the monthly income of the deceased as Rs.11,277/- and thereafter by deducting 1/3rd amount towards personal expenses of the deceased, by adopting multiplier 11 based on the age of the deceased, has awarded a sum of Rs.9,90,000/- as compensation under the head loss of income. That apart, the Tribunal has awarded a sum of Rs.10,000/- towards funeral expense, Rs.5,000/- towards transportation, Rs.20,000/- towards loss of consortium, Rs.10,000/- each to the respondents 2 and 3 towards loss of love & affection and thus passed an award for a total sum of Rs.10,45,000/-. Now, CMA No.377 of 2013 has been filed by the Insurance company challenging the amount awarded by the Tribunal under the head loss of income. Not being satisfied with the quantum of compensation, the claimants have filed the Cross Objection for enhancement of the compensation amount.
6. It is the main submission of the learned counsel for the appellant/insurance company that at the time of death, the deceased was working in Khadi Gramodyog Bhavan and he was aged about 52 years. He was left with only six more years of service for superannuation and under such circumstances, the Tribunal ought not to have calculated the compensation amount by fixing a sum of Rs.7500/- as monthly contribution by the deceased, for the entire eleven years. It is further submission of the counsel for the appellant that the Tribunal ought to have made the calculation by splitting up the 11 multiplier into two portions, i.e. for first 6 years, (i.e. from the date of death of the deceased till the period of superannuation) the Tribunal ought to have made the calculation based on the actual salary of Rs.11,277/- and for the balance five years, by taking 50% of the income into consideration the Tribunal ought to have made the calculation. Thus, the learned counsel submitted that by applying the doctrine of split multiplier, the Tribunal ought to have made the calculation under the head loss of income. But, instead of doing so, the Tribunal, by taking the monthly income of Rs.11,277/- into consideration and made the calculation for the entire 11 years which had resulted in awarding an exorbitant sum of Rs.9,90,000/-. Thus, the learned counsel for the appellant sought for reduction of the award amount awarded under the head loss of income by applying split multiplier.
7. Per contra, the learned counsel appearing for the respondents/claimants, by relying upon the judgment rendered by the Hon'ble Supreme Court in the case of Puttamma & ors. v. K.L.Narayana Reddy & anr. reported in 2014 (1) TN MAC 481 (SC), submitted that adopting split multiplier method to award compensation under the head loss of income is not correct. Further, the learned counsel for the respondents/claimants would contend that the Tribunal had not added any amount towards future prospects of the deceased. Hence, by adding 30% of monthly income of deceased towards future prospects, the compensation awarded by the Tribunal under the head loss of income has to be enhanced.
8. By way of reply, the learned counsel for the appellant/insurance company submitted that since the first respondent/claimant is receiving family pension after the demise of her husband, this is a case where the doctrine of split up multiplier could be applied to arrive at a just and proper compensation. Furthermore, absolutely there is no need to add 30% of the income towards future prospects. Thus, he opposed for the enhancement of the compensation amount.
9. Keeping the submissions made by the learned counsel on either side, I have carefully gone through the entire materials available on record.
10. It is the submission of the learned counsel for the appellant/insurance company that since the petitioner is having only six more years of service for his superannuation, the Tribunal ought to have made the calculation by applying the concept of split multiplier method for computing loss of income. In this regard the learned counsel for the appellant also submitted that since the first respondent/claimant is receiving family pension after the demise of her husband, the Tribunal ought not to have made the calculation by taking the entire monthly income into consideration for the loss of income and hence there is no need for further enhancement of the compensation. But, the judgment relied upon by the learned counsel for the respondents/cross objectors in Puttamma & ors. v. K.L.Narayana Reddy & anr. cited supra gives a fitting answer for this issue wherein it is held as follows -
32. For determination of compensation in motor accident claims under Section 166, this court always followed Multiplier method. As there were inconsistencies in selection of Multiplier,this Court in Sarla Verma prepared a Table for selection of Multiplier based on age group of the deceased/victim. Act, 1988 does not envisage application of Split Multiplier.
33. In K.R.Madhusudhan and others v. Administrative Officer and another, 2011 (1) TN MAC 161 (SC): 2011 (4) SCC 689, this Court held as follows :
14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6.
15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method.
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).
11. From the above judgment, it is clear that Split Multiplier cannot be adopted as routine course. Hence, I am not inclined to apply the concept of Split Multiplier in this case. Further, in my considered opinion, the family pension is a benefit given to the respondent/claimant pursuant to the employment of the deceased and therefore the insurance company cannot take due advantage of it to reduce the compensation amount. In this regard, the learned counsel for the respondents/claimants relied upon a judgment of the Hon'ble High Court of Delhi in Delhi Transport Corporation and anr. v. Sushma Bhatnagar and others reported in 2012 ACJ 388, wherein it is held held as follows -
7. ..........................................The claim of compensation under Motor Vehicles Act is independent of other benefits granted to the dependents of the deceased by employer of the deceased granted by employer would have been there even in case of natural death. The death of an employee may take place due to illness or due to any other reasons. The compensation granted under Motor Vehicles Act cannot be reduced because the dependents got some amount from the employer of the deceased.
Further, the learned counsel also relied upon a judgment of the Hon'ble High Court of Punjab and Haryana in Oriental Insurance Co. Ltd., v. Saroj Devi and others reported in 2013 ACJ 129 wherein it is held as follows -
44. Every law framed by the State has an 'Object' attached to it because law is never created in vacuum. In order to achieve a particular Object, a reasoning or justification is required as to why the 'Object' is sought to be achieved. I believe that the scheme of compassionate assistance is in recognition of the services already put in the discharge of the affairs of the government and a further recognition that the deceased would have continued to perform his services diligently but for his demise. I am even inclined to hold that the compassionate assistance coming from the State is itself a form of deferred wage, which the deceased employee has earned by putting in his labour and effort in the service of the State. I, therefore, hold that financial assistance under the Compassionate Assistance Rules and the compensation as assessed under the relevant provisions of Motor Vehicles Act are mutually exclusive and have no reciprocal bearing on the quantum as arrived at under the respective heads. Accordingly, I hold that the Insurance Companies are liable under the terms of their contract with the insured, independent of the financial assistance as received under State compassionate assistance policy, to pay the compensation as assessed by the learned Tribunals under section 166 or 163 A of the Motor Vehicles Act, except to the extent worked out in accordance with the formulae as detailed herein above.
12. Considering the dictum laid down in the above said cases, I am not inclined to accept the submission made by the learned counsel for the appellant that since the the first respondent/claimant is receiving family pension after the demise of her husband, she is not entitled for enhancement of the compensation.
13. In so far as the cross objection filed by the respondents/claimants is concerned, I am of the opinion that as per the recent decision of the Hon'ble Supreme Court, the Tribunal ought to have added 30% towards future prospects but in the instant case, the Tribunal has failed to add 30% towards future prospects in the income earned by the deceased. Therefore, by adding 30% towards future prospects in the income earned by the deceased, the amount awarded by the Tribunal under the loss of income can be enhanced. The Tribunal has awarded Rs.9,90,000/- under the head loss of income. The 30% in the said amount works out to Rs.2,97,000/-. If the sum of Rs.2,97,000/- arrived at towards future prospects is added with the loss of income, the total loss of dependancy works out to Rs.12,87,000/- (Rs.9,90,000 + Rs.2,97,000/-) Hence, the amount of Rs.9,90,000/- awarded by the Tribunal under the head loss of income is hereby enhanced to Rs.12,87,000/-. Further, I find that only a sum of Rs.20,000/- is awarded under the head loss of love & affection. Considering the fact that the minor respondents had lost their father at tender age, the sum of Rs.20,000/- awarded by the Tribunal under the head loss of love & affection is enhanced to Rs.50,000/-. Except the above modification, the amount awarded by the Tribunal stands confirmed. Accordingly, the break-up details of the enhanced amount are as follows:-
Loss of income ... Rs.12,87,000/-
Funeral expenses ... Rs. 10,000/- Transportation expenses Rs. 5,000/- Loss of consortium ... Rs. 20,000/- Loss of love & affection (Rs.25000/- each to respondents 2 & 3) ... Rs. 50,000/- ------------------- Total ... Rs.13,72,000/- ==========
14. In the result, the compensation awarded by the Motor Accident Claims Tribunal (Fast Track Court No.II), at Poonamallee dated 10.02.2012 made in M.C.O.P.No.762 of 2009 is hereby enhanced to Rs.13,72,000/- and the Civil Miscellaneous Appeal is dismissed. Consequently, Cross Objection No.70 of 2014 is partly allowed.
15. In view of the above enhancement of the award, the appellant/insurance company is directed to deposit the enhanced compensation amount along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the respondents/claimants 1 and 2 are permitted to withdraw their share amount alongwith proportionate interest, after deducting the amount already withdrawn by them, if any. The share of the 3rd respondent/claimant is directed to be deposited in any one of the Nationalised Bank, till he attains majority. The 1st respondent is permitted to withdraw the in terest from the deposit amount once in three months.
13.08.2014 Index:Yes/No rgr To
1.The Motor Accident Claims Tribunal (Fast Track Court No.II), Poonamallee.
2.The Record Keeper, V.R. Records, High Court of Madras.
R.SUBBIAH, J., rgr C.M.A.No.377 of 2013 & Cross Objection No.70 of 2014 13.08.2014