[Judgment of the Court was delivered by K.KALYANASUNDARAM, J] The Insurance Company has preferred this appeal challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal, Kulithalai, in MCOP No.251 of 2008.
2.MCOP No.251 of 2008 was filed by the legal-heirs of the deceased Sulthan @ Mohammed Sulthan, who died in a motor vehicle accident on 10.02.2008 claiming compensation of Rs.75,00,000/-. The case of the claimants is that on 10.02.2008 at about 16.30 hours, the deceased was driving Qualis Car TN-49-L-2161 along with his friend on Trichy-Perambalur National Highways and when the vehicle was proceedings near Padalur, an Omni bus coming from the opposite direction in a rash and negligent manner, dashed against the Car. In that process, the deceased sustained injuries all over the body and he was taken into the Perambalur Government Hospital, but on the way, he died. In this regard, the Perambalur police registered a case in Crime No.28 of 2008 under
Sections 279,337 and
304(A) IPC against the driver of the Omni bus.
3.The appellant Insurance Company resisted the claim petition on various grounds and also specifically contended that the driver of the Omni bus was not responsible for the accident and the claim was excessive.
4.Before the tribunal, the claimants in order to prove the negligence, examined PW3 Sundarrajan, who witnessed the accident and marked Ex.P1 First Information Report, Ex.P3 sketch, Ex.P4 report of the Motor Vehicle Inspector and Ex.P5 Charge Sheet filed against the driver of the Omni bus. On the basis of the evidence, the tribunal came to the conclusion that the driver of the Omi bus was responsible for the accident. As observed above, finding on negligence is not questioned in this appeal.
5.With regard to quantum of compensation, the tribunal fixed the age of the deceased as '53' based on the date of birth given in the Passport (Ex.P7). The claimants have stated that the deceased was working in Saudi Arabia and was earning equivalent to Indian money Rs.35,000/-. Exs.P14 to P17 are Salary receipts. The tribunal has taken the average income as Rs.30,000/- per month and after deducting 1/3rd towards his personal and living expenses and by applying multiplier '11', awarded Rs.26,40,000/- towards loss of dependency. Further, the Tribunal awarded Rs.15,000/- towards transportation and funeral expenses and Rs.15,000/- towards loss of consortium and Rs.20,000/- each for loss of love and affection to the claimants. In total, the Tribunal awarded Rs.27,50,000/- as compensation.
6.Mr.D.Sivaraman, learned counsel appearing for the appellant would submit that at the time of accident, the deceased was 53 years old and he would be retired at the age of 60 years, but the tribunal has adopted usual multiplier of '11' and it has to be reduced.
7.Mr.Sudhagar Nagaraj, learned counsel appearing for the respondents 1 to 4/claimants contended that admittedly, the tribunal failed to add amount towards future prospects and the award under other heads is very low.
8.It is to be noted that in the case of fatal accident, on the basis of the age and income of the deceased, the courts determine the loss of dependency. Further, if the deceased is an employee, the age of superannuation again plays a vital role due to the reason that after retirement, the employee would not earn the same income.
9.It is true that in 2014(1) TN MAC 481 in the case of Puttamma Vs. K.L.Narayana Reddy, the Hon'ble Apex Court has observed that in the absence of any specific reason and evidence on record, the tribunal or the court shall not apply split multiplier in routine course and should apply multiplier as per the decision in Sarla Verma. The issue came up for consideration before this court on many occasions and the Division Benches of this court in the decisions reported in 2013(2) MWN (Civil) 729, 2014(1) TN MAC 334, 2014(1) TN MAC 651, 2015(2) TN MAC 449 and an unreported judgment made in CMA(MD)Nos.320 and 321 of 2013, dated 28.01.2014 and the Division Bench of Kerala High Court in 2016(1) TN MAC 493 have consistently applied theory of split multiplier taking note of the fact that the Government Servants would get 50% of the salary as monthly pension after their retirement. In view of the above fact, in cases where the claimants have not established the possibility of extension of service and constant income after retirement, it would be appropriate to adopt split multiplier. In those cases, it would be appropriate to take 50% of the salary as loss of contribution to the family.
10.The main grievance of the appellant is that the tribunal failed to apply split multiplier to determine the loss of dependency. It is not in dispute that the deceased died at the age of 53 years and he had 7 years left over service. As per recent decision of the Hon'ble Apex court, the claimants are entitled for addition of 10% for future prospects. By adding amount towards future prospects, the income of the deceased is worked out at Rs.33,000/- and after deducting 1/3rd towards personal expenses, the loss of income for the service left over is arrived at Rs.18,48,000/- (Rs.22,000/- x 12 x 7) and after retirement, the amount comes to Rs.5,28,000/- (Rs.11,000/- x 4 x 12). In total, the claimants would be entitled to Rs.23,76,000/- towards loss of income. The conventional damage of Rs.90,000/- awarded by the Tribunal is confirmed.
11.In the result, this appeal is partly allowed. The award amount of Rs.27,50,000/- is reduced to Rs.24,66,000/-. The interest awarded by the tribunal is maintained. It is represented that the entire award amount has already been deposited before the Tribunal. Therefore, the claimants are permitted to withdraw the modified compensation as apportioned by the Tribunal, less the amount already withdrawn, if any. The excess amount shall be refunded to the appellant/Insurance Company. No costs. Consequently, connected Miscellaneous Petition is closed.
To
1.The Motor Accident Claims Tribunal-cum-
III Additional District Judge, (PCR), Madurai.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.