This civil miscellaneous appeal has been filed by the appellant/3rd respondent against the Judgement and Decree made in M.C.O.P.No.249 of 2003, on the file of the Motor Accidents Claims Tribunal, Principle District Court, Coimbatore, dated 30.04.2004, awarding a compensation of Rs.12,00,000/- together with interest at the rate of 9% from the date of claim petition till the date of payment of compensation.
2.The appellant/National Insurance Company Ltd., has filed the above appeal seeking to set aside the Order stating that the Tribunal has fixed the earnings of the deceased as Rs.7,577/- P.M. ignoring that the net salary of the deceased on record was only Rs.5,047/- P.M. Further, even if the salary has been taken as Rs.7,577/- P.M. the Tribunal has erred in not deducting 1/3rd share from this for personal expenses of deceased and as such the compensation awarded has been based on erroneous calculation and the compensation given under various heads are also excessive and not inconsonance with evidence on record. As such, the appellant has prayed for re-consideration of quantum of compensation awarded.
3.The short facts of the case are as follows:
On 27.10.2002 at about 16.45 hours, when the deceased was driving the motorcycle bearing registration No.TN 38 L 9778 from Mettur to Coimbatore along with his son Prabhakaran near Tamil Nadu College of Engineering, on the Coimbatore to Avanashi Main Road and as the motorcycle was proceeding from East to West on the leftside of the road with minimum speed and great caution, the first respondent drove the bus bearing registration No.TN 33 Q4259 from West to East direction with great speed and without care and caution and without blowing horn and dashed against the motorcycle. Due to the accident, the deceased Rajendran and his son Prabakaran sustained total injuries over their body and both of them died on the spot. Autopsy was conducted at CMC Hospital, Coimbatore. The accident was solely due to the rash and negligent driving of the first respondent. The Kammathampatti Police has registered a criminal case against the first respondent under
Sections 279 and
304(a) I.P.C.
4.The deceased was a young and active man. At the time of death, he was aged about 44 years. He was working as an Assistant in Commercial Tax Office, Chavadi Checkpost, Coimbatore. He was earning Rs.8,000/- P.M. If he was alive he would get promotion and would have drawn a salary of more than Rs.15,000/- per month. After his death, there is nobody to take care of the family. The 1st and 2nd petitioners future is doomed.
5.The first petitioner is the widow of the deceased, the second petitioner is the minor daughter of the deceased and the third and fourth petitioners are the parents of the deceased. All are living under the care and custody of the deceased. All are dependants of the deceased and are entitled to get compensation from the respondent. The petitioners have claimed a compensation of Rs.39,00,000/- under various heads. But, restricted their claim to Rs.25,00,000/- only with interest at 12% from the date of application till realisation along with cost under
Section 166 (1) of the Tamilnadu Motor Vehicles Act. The first respondent is the driver and the second respondent is the owner of the bus and the third respondent is the insurer of the bus bearing registration No.TN 33 Q 4259. Since the accident was solely caused by the rash and negligent driving of the first respondent, all the respondents are jointly and severally liable to pay compensation to the petitioners.
6.The respondents 1 and 2 have been called absent and set exparte. The third respondent/The National Insurance Company Ltd., in its Counter had not admitted the cause and cause of the accident. Further, the third respondent did not admitted the age, income of the deceased as well as the dependency of the petitioners. Further, it was submitted that the claim of Rs.25,00,000/- as compensation, together with interest made by the petitioners is speculative and imaginary. As such, the third respondent has prayed for dismissal of the petition with costs.
7.On pleadings, the Tribunal framed the following issues:
(i) Whether the accident took place due to rash and negligent driving of the driver of the bus bearing No.TN 33 Q 4259, on 27.10.2002 at 16.40 hours, near Tamilnadu College of Engineering in Coimbatore City?
(ii) Whether the respondents 1st to 3rd are jointly and severally liable to pay compensation to the petitioners in both the petitions?
(iii)If so, what is the quantum of compensation, the petitioners 1st to 4th are entitled to?
8.The finding of the Tribunal with regard to negligence on the part of the driver of the bus and the consequential liability fixed on the appellant insurance company to compensate the claimants is not in dispute and the same is confirmed.
9.The only contention raised by the learned counsel appearing for the appellant is on the quantum of compensation.
10.Before the Tribunal, the first petitioner was examined as PW1. One M.Chandrasekar of Commercial Tax Office was examined as PW2 and an eye witness of the accident, M.Senthil Kumar was examined as PW3. In support of the claim petition Exs.P1 to P7 and Exs.P10 and 11 were marked. Ex.P1 is the copy of F.I.R. In Karumathampatti Police in Crime No.256/2002; Ex.P2 is the copy of the Motor Vehicle Inspectors Report of the vehicle No.TN 33 Q 4259 involved in the accident; Ex.P3 is the copy of the Motor Vehicle Inspectors Report of the vehicle No.TN 38 L 9778 involved in the accident; Ex.P4 is the copy of the Charge Sheet No.201/2002 registered by the M.Karumathampatty Police Station; Ex.P5 is the copy of the Postmortem Certificate in respect of the deceased M.Rajendran given by Coimbatore Medical College Hospital; Ex.P6 is the Legalheirs Certificate given by Tahsildar, Coimbatore (North) in respect of the deceased M.Rajendran; Ex.P7 is the Driving Licence of the deceased M.Rajendran; Ex.P10 is the copy of service register of front page in respect of the deceased M.Rajendran and Ex.P11 is the Salary Certificate given by Commercial Office, Coimbatore in respect of the deceased M.Rajendran. The deceased in this case was aged about 44 years. Based on the evidence on record and also the promotion prospects of the deceased, the Tribunal fixed the monthly contribution of the deceased to his family as Rs.6,000/- and the total annual contribution of Rs.72,000/-. As per II Schedule under
section 163 A of the Motor Vehicles Act, 1988, the multiplier of 15 was applied, pertinent to the age of the deceased and the total loss of income to the petitioners was fixed at Rs.10,80,000/-. In addition the Tribunal granted Rs.50,000/- for loss of precious life of the deceased M.Rajendran. Further, Rs.30,000/- has granted to the first petitioner for loss of consortium and Rs.25,000/- to the second petitioner, the minor daughter of the deceased for loss of love and affection and Rs.10,000/- each to the 3rd and 4th petitioners, the parents of the deceased for loss of love and affection. Further, a sum of Rs.5,000/- was granted by the Tribunal towards funeral expenses. Therefore, in total, a sum of Rs.12,00,000/- was awarded by the Tribunal as compensation to the petitioners 1st to 4th and the respondents 1st to 3rd were jointly held liable to pay the compensation and the third respondent/insurer was directed to deposit the entire award amount of Rs.12,00,000/- with accrued interest at the rate of 9% with costs into the credit of M.C.O.P.No.249 of 2003 on the file of the Motor Accidents Claims Tribunal, Principal District Court, Coimbatore, within a period of two months. Further, the Tribunal had apportioned Rs.4,00,000/- to the first petitioner, Rs.6,00,000/- to the second petitioner and Rs.1,00,000/- to the 3rd and 4th petitioners. Further, from and out of the share amount of Rs.4,00,000/- allotted to the first petitioner, a sum of Rs.1,00,000/- along with accrued interest and costs was ordered to be paid to her directly and the balance amount of Rs.3,00,000/- was ordered to be invested in a Nationalised Bank at Coimbatore for a period of three years. The share amount of the minor second petitioner, Kirthana, Rs.6,00,000/- was ordered to be invested in a Nationalised Bank till she attain majority. Out of the share amount of Rs.1,00,000/- allotted to each of the petitioners 3rd and 4th, a sum of Rs.75,000/- each was ordered to be invested in the same Nationalised Bank in the name of the petitioners 3rd and 4th for a period of three years and the remaining amount of Rs.25,000/- each with accrued interest was ordered to be paid to the petitioners 3rd and 4th directly. The petitioners 1st, 3rd and 4th were entitled to receive the accrued interest on the deposit amount from the bank periodically at their will.
11.The natural guardian of the minor petitioner, namely the first petitioner was entitled to receive the accrued interest on the deposit of the minor share amount periodically and was directed to utilise the amount for the welfare of the minor child. The advocate fee for both the counsel were ordered to be paid as per the legal practices and rules. The excess Court fee paid in the petition was ordered to be refunded to the petitioners.
12.The contention of the appellant/Insurance Company is that even if the salary of the deceased was taken as Rs.7,577/- P.M. the Tribunal has erred in not deducting 1/3rd share from this for personal expenses of the deceased and then calculating compensation.
13.According to the evidence of PW1, Amutharani, wife of the deceased Rajendran, the deceased husband was earing Rs.8,000/- P.M. as Assistant in Commercial Tax Office, Coimbatore and he still has 14 years of service and that if had not died in the accident, he would have got promotion three times in his future service. Further, even in the evidence of PW2, Chandrasekar, it has been adduced that the deceased was getting a monthly salary of Rs.7,577/- as has been shown in Ex.P11, Salary Certificate. He had stated that if the deceased Rajendran had not met with the accident, he would have retired on 31.05.2016 on superannuation as Assistant in Commercial Tax Office. Further, the evidence given by PW1 and PW2, the deceased as 44 years has not been disputed on the respondents side in the cross examination of PW1 and PW2. As such, the Tribunal held that the deceased would have put in 14 years of service till the age of superannuation and he would also have promotion opportunities in his service and could have retired as Assistant in Commercial Tax Office. However, the Tribunal considering the uncertainty in the life and fluctuation in the monthly income and also the promotion prospects in his future service had held that the deceased could have contributed a sum of Rs.6,000/- to his family out of his income and adopting a multiplies of 15 awarded a compensation of Rs.10,80,000/- as loss of depending to the claimants. This Court is of the view that, whether the future prospects of promotion should be taken into consideration would depend upon the eligibility and suitability for promotion, availability of posts to which the employee can be promoted during his full term of employment. Death of an employee does not make him eligible and suitable and a post is not created for his promotion, of there is none. Uncertainties by death or otherwise or the loss of employment are also to be considered. All these would depend upon materials available on record. No hard and fast rule can be said down that the deceased employed in a service which has the opportunities of promotion is to be promoted definitely or in all probabilities. Events, which are almost certain to happen in future can be taken into consideration, if materials are available on record, to determine the annual loss. But in the present case, this Court feels that other than the oral evidence of PW2, Chandrasekar attached to the employer there are no other strong pointers to show that the deceased would have been promoted and got enhanced salary. So, this Court is only inclined to take PW2's evidence, as regards the deceased's salary ie.Rs.7,577/- as per Ex.P11, Salary Certificate,
14.But, this Court after perusing the Tribunals issue of thinking in arriving at the above awards towards loss of dependancy and after hearing the contentions of the appellant feels that the appellant has raised a valid point in this issue. As per several Judgements of the Hon'ble Supreme Court, this Court considers that < of the salary of the deceased considering that there was five members in the family of the deceased ie.Rs.7,577/- should have been deducted towards personal expenses of the deceased and the balance sum only should be taken as effective contribution to his family ie.1/4 X 7577 ie. A sum of Rs.1,894/- should be deducted from the salary of deceased and then the compensation granted on that basis. As such, this Court takes the net salary contributed by the deceased as Rs.5,683/- only. Adopting a multiplies of 15, this Court computes that the Loss of income to the petitioners as Rs.5683X12X15=Rs.10,22,940/-.
15.Further this Court after perusal of the Tribunal's order, wherein they had awarded Rs.50,000/- for loss of precious life of deceased Rajendran, is of the opinion that no award can be given under this head as it is redundant and a pecuniary award under the head of loss of income has already been granted. As such, the award granted by the Tribunal under the above head is set aside. But, the other awards granted by the Tribunal towards loss of Consortium, Love and affection and funeral expenses are just and reasonable and this Court confirms the Tribunal's award under the above said heads. In total, this Court modifies the award granted by the Tribunal from Rs.12,00,000/- to Rs.10,92,940/-. Further, this award of Rs.10,92,940 will be apportioned in the same ratio as given in the order of the Tribunal.
16.This Court also permits the appellant/Insurance Company to withdraw an amount of Rs.1,07,060/- with accrued interest from the credit of M.C.O.P.No.249 of 2003, on the file of the Motor Accidents Claims Tribunal, Principal District Court, Coimbatore, if the appellant had already deposited the entire compensation amount of Rs.12,00,000/- by filing a necessary payment out application in accordance with law. Further, this Court also permits the claimants 1, 3 and 4 to receive the balance amount of their apportioned award with accrued interest by a necessary payment out application in accordance with law. The 2nd petitioner's (minor's) share of award should be retained as deposit in a Nationalised Bank until such time she attains the age of major. The first petitioner, being the natural guardian and mother of the minor 2nd petitioner is permitted to receive interest, on the minor's share of award once in three months from the bank, directly, until such time the minor 2nd petitioner attains the age of major.
17.In the result, the civil miscellaneous appeal is allowed in the above terms and reluctantly, the award dated 30.04.2004, passed by the Motor Accidents Claims Tribunal the Principal District Court, Coimbatore in M.A.C.T.O.P.249 of 2003 is modified. Having regard to the facts and circumstances of the case, the respective parties are directed to bear their own costs.
24.11.2009 Index: Yes/No Internet: Yes/No krk To
1.Motor Accident Claims Tribunal, Principle District Court, Coimbatore.
2. The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk Pre-deliver Order in C.M.A.No.229 of 2005 24.11.2009