PRAYER: Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree passed in M.A.C.T.O.P.NO.397 of 2010 dated 11.07.2014 on the file of Motor Accidents Claims Tribunal, VI Small Causes Court, Chennai.
For Appellant : Mr.P.Suresh for Mr.K.Moorthy For Respondents : Mr.N.M.Muthurajan 1 and 2 CMA NO.1019 OF 2016 Reliance General Insurance Company Limited "Heavitree" Unit No.1, 3rd Floor, No.23, Spurtank Road, Chetpet, Chennai - 600 031. ... Appellant Versus
1.Jemima
2.M.Kathiresan
3.B.A.Nazebuddin ... Respondents PRAYER: Appeal filed under
Section 173 of Motor Vehicles Act, 1988, against the judgment and decree passed in M.A.C.T.O.P.NO.398 of 2010 dated 11.07.2014 on the file of Motor Accidents Claims Tribunal, VI Small Causes Court, Chennai.
For Appellant : Mr.P.Suresh for Mr.K.Moorthy For Respondents : Mr.N.M.Muthurajan 1 and 2 COMMON JUDGMENT (JUDGMENT OF THE COURT WAS MADE BY S.MANIKUMAR, J.) Arising out of an accident, which occurred on 14.11.2008, involving a motorcycle, bearing Registration No.TN09-R-4082, and a Van, bearing Registration No.TN07-U-3440, insured with Reliance General Insurance Company Limited, both rider and pillion died. A criminal case has been registered against the driver of the Van, on the file of J-3 Guindy Traffic Investigation, in Crime No.552/S3/08, u/s. 279 and 304(a) IPC.
2. As regards the motorcyclist, contending inter alia that he was a cleaner engaged in Raj Bhavan, and earned Rs.147/- per day and due to the sudden demise, the family has lost the contribution, parents filed M.C.O.P.No.397 of 2010, claiming compensation of Rs.8,00,000/-.
3. As regards the pillion rider, contending inter alia that at the time of accident, the deceased was a first year Diploma student, in Electronics and Communication Engineering, parents filed M.C.O.P.No.398 of 2010, claiming compensation of Rs.8,00,000/-.
4. Before the Tribunal, Reliance General Insurance Company Limited, Chennai, appellant herein, denied negligence attributed to the driver of the Van bearing Registration No.TN07-U-3440, insured with them and consequently liability to pay compensation. Without prejudice to the above disputed quantum of compensation claimed under various heads.
5. As both the claim petitions arose out of the same accident, M.C.O.P.Nos.397 and 398 of 2010 have been tried together.
6. Respondent / claimant, P.W.1 father of the motorcyclist S.Vinoth Kumar, deposed about the manner of accident. P.W.2 is the mother of pillion rider, K.Kapil Anand. P.W.3 is stated to be the eyewitness. Ex.P1 - FIR in Crime No.552/S3/08 on the file of J-3 Guindy Traffic Police Investigation Wing; Ex.P2 - Copy of the rough sketch; Ex.P3 - Copy of post-mortem certificate; Ex.P4 - Copy of death certificate; Ex.P5 - Copy of charge sheet; Ex.P6 - Copy of legal heir certificate; Ex.P7 - Salary certificate of the deceased Vinoth Kumar; Ex.P8 - Identity card of Mrs.Mala; Ex.P9 - Copy of post-mortem certificate; Ex.P10 - Copy of death report; Ex.P11 - Copy of legal heir certificate; Ex.P12 - Copy of transfer certificate of Mr.Kapil Anand; Ex.P13 - Identity card of the deceased Kapil Anand; Ex.P14 - SSLC Mark sheet of Mrs.Jemima and Ex.P15 - Copy of family card, have been marked.
7. On the side of the appellant, R.W.1 - Deputy Manager of the Insurance Company has been examined. Ex.R1 - Cover note and Ex.R2 - Copy of insurance policy have been marked.
8. On evaluation of pleadings and evidence, the Tribunal held that the driver of the Van, bearing Registration No.TN07-U-3440, insured with the appellant herein, was negligent in causing the accident.
9. As regards the quantum of compensation claimed in M.C.O.P.No.397 of 2010, for the death of S.Vinoth Kumar, the Tribunal fixed his age as 18 years. To prove that he was a cleaner engaged in Raj Bhavan, parents have marked Ex.P7 - salary certificate. Inasmuch as engagement of the deceased was on temporary basis, and relying on the decision of the Hon'ble Supreme Court in SYED SADIQ AND OTHERS VS. DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED [2014 ACJ 627 (SC)] the Tribunal fixed the monthly income of the deceased Vinoth Kumar as Rs.6,500/-. Following the decision of the Hon'ble Supreme Court, the Tribunal added 50% under the head future prospects. Applied multiplier 18. The Tribunal, after deducting 50% towards personal and living expenses of the deceased, determined the loss of contribution to the family as Rs.10,53,000/-. Tribunal has awarded Rs.2,00,000/- under the head loss of love and affection; Rs.25,000/- for funeral expenses; Rs.2,00,000/- under the head loss of expectancy to life; and Rs.5,000/- for transportation. Altogether, for the death of Vinoth Kumar, the Tribunal awarded Rs.14,83,000/-, as compensation, with interest at the rate of 7.5% per annum, from the date of claim till deposit.
10. As regards compensation for the death of K.Kapil Anand, (M.C.O.P.No.398 of 2010) based on the the entry in Ex.P12 - transfer certificate issued by Bharath Polytechnic College, the Tribunal fixed the age of the deceased as 18 years. Based on Exs.P12 and P13, the Tribunal found that at the time of accident, Kapil Anand was a First Year Diploma student in Electronics and Communication Engineering, in Bharath Polytechnic College. Relying on the decision of the Hon'ble Supreme Court in MEGALA VS. MALATHY AND OTHERS [CIVIL APPEAL NO. 4880 OF 2014 decided on 25.04.2014] the Tribunal fixed Rs.10,000/- as the notional monthly income. Applied multiplier 18 and added 50% of income under the head future prospects. As the deceased was a Bachelor, 50% has been deducted. Thus, the Tribunal computed the loss of contribution to the family as Rs.16,20,000/-. That apart, the Tribunal awarded Rs.25,000/- for funeral expenses, Rs.2,00,000/- under the head loss of expectancy of life, Rs.2,00,000/- for love and affection and Rs.5,000/- for transportation. Altogether, the Tribunal awarded Rs.20,50,000/- with interest, at the rate of 7.5% per annum from the date of claim, till deposit and costs to the parents of Kapil Anand.
11. Being aggrieved by the finding fixing negligence on the driver of the Van bearing Registration No.TN07-U-3440 and consequently liability fastened to pay compensation, Reliance General Insurance Company Limited, has filed instant appeals. Quantum of compensation awarded to the legal representatives of the deceased in each of the claim petitions is also challenged on the grounds that the Tribunal has fixed a higher notional income for the purpose of computing the loss of contribution to the family. Award under the head loss of expectancy to live is also challenged.
12. Heard the learned counsel appearing for both parties and perused the materials available on record.
13. As regards the finding fixing negligence on the driver of the Van bearing Registration No.TN07-U-3440, it is the categorical evidence of P.W.1., father of Vinoth Kumar, that on 14.11.2008 about 21.10 hours, when Vinoth Kumar, was riding his motorcycle bearing Registration No.TN09-R-4082, from Velacherry to Guindy, along Velacherry Main Road, south to north direction, with Kapil Anand, on the pillion, near Kannikapuram 6th Street, a Van bearing Registration No.TN07-U-3440, driven by his driver, in a rash and negligent manner, while attempting to overtake a lorry, came to the wrong side of the road, dashed against the motorcycle, resulting in fatal injuries, to both the rider and pillion, causing instantaneous death. A case in Crime No.552/S3/08, has been registered against the driver of the Van, on the file of J3 Guindy Traffic Police Investigation Wing, under
Sections 279 and
304(a) IPC. Substantiating the above, P.W.2 - mother of the another victim Kapil Anand and P.W.3 - eyewitness, have also adduced evidence. Corroborating the same, legal representatives of the deceased have marked Ex.P1 - First Information Report, Ex.P2 - rough sketch and Ex.P5 - charge sheet. There is no rebuttal evidence. Driver of the van has not been examined. Considering the cumulative effect of evidence adduced, the Tribunal has rightly concluded that Driver of the Van bearing Registration No.TN07-U-3440, was negligent in causing the accident. There is no perversity in the finding. Hence, it is sustained.
14. In so far as the quantum of compensation awarded to the legal representatives in M.C.O.P.No.397 of 2010 is concerned, determination of monthly income on the basis of Ex.P7 - salary certificate, cannot be said to be erroneous. On the aspect of future prospects, in a recent judgment in M/S.ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., SALEM VS. TMT.VENNILA (C.M.A.NOS.3273 OF 2014, 723 AND 2386 OF 2015, DATED 13.10.2015) a Division Bench of this Court, to which, one of us (SMKJ), is a party, after considering the ''Per Capita Income'', ''Gross Domestic Product'' and ''Consumer Price Index'' etc., at paragraphs 54 to 68, held as follows:-
"54.Taking into consideration the above illustrative cases of some of the employees, engaged by the Government, on daily rated basis and being revised periodically, we wish to state that the factors taken into consideration or the reasons stated by the Central Government or the District Collector, as the case may be, while revising the wages, from time to time, whether a person is employed in an organised or unorganised sector, would remain the same and consequently, decide the living conditions of different classes of persons, whether engaged in organised or unorganised sectors, as the case may be, to meet out the day to day expenditure and basic amenities. The difference in the rates of wages between the persons employed in a salaried structure, revisable periodically, though not, in strict sense, be applied with the same percentage to those, engaged in unorganised sectors, but it cannot be contended that there will not be any change in the earning or income.
55.The government servants have an expectation of periodical revision. So also, the employees working in Public Sector, Boards, Corporation, Companies owned and controlled by the Government. In respect of Private Limited Companies, it is more on the basis of terms and conditions of the contract, in which, they are governed. But in the case of self-employed or those, engaged in unorganised sectors, revision of wages or salary or in the case of self-employed, though may not be on par with the salaried structure in organised sectors or on the terms and conditions of the contracts in limited companies, still the important factor, Consumer Price Index, the deciding factor, would be the same, for a change in the earning of the self-employed or revision of salary or wage, even in unorganized sectors and that the expectation of a future event, ie., possibility of a change in wage or financial expectation, cannot be ruled out, for the simple reason that nothing has remained static, in this country.
56.As tabulated in the foregoing paragraphs, it should be noted that Consumer Price Index, Gross Domestic Product and Per Capita Income, have increased. One cannot disown the fact that the percentage of those in unorganized sectors is more than the organised sectors. While that be so, would it be appropriate for the Insurance Companies and Transport Corporations, to contend that there is absolutely no chance of any upward revision in wages or salary of those, employed in unorganised sectors or for that matter in the earnings of self-employed. If the contentions of the Insurance Companies and Transport Corporations have to be accepted, whether the self-employed or those engaged in unorganised sectors, can never have any expectation of an event in future, ie., increase in earnings or wages? With the basic study of the statistics, we are of the considered view that the answer should be a clear 'No'. When the Consumer Price Index is applicable uniformally to rich or raff, it cannot be contended that those who are engaged in unorganized sectors or self-employed, would continue to earn the same income, for years together.
57.For the abovesaid reasons, we are of the considered view that the word, prospects should not be read and understood, only in plural sense, meaning thereby, its prospects or an apparent probability of advancement in employment, in organised sectors alone. Narrowing down the meaning of the words, future prospects only to the employment prospects and consequently, more possibility of earning income, only in the case of organised sector and not in unorganised sector or selfemployed, would affect the majority and therefore, the meaning of the word, prospect used in singular, meaning thereby, expectation, possibility or probability, chances of earning more income in future, depending upon the factors, stated supra, should also be considered.
58.Thus, from the above particulars, extracted supra, it is evident that both the Central and State Governments have periodically revised the minimum wages across the country. It has been raised taking into consideration the Consumer Price Index. In respect of scheduled employments, for skilled, semi-skilled, unskilled, construction workers, labourers, etc., wages, are fixed in various scheduled employments, right from Agarbathi Industry to Woolen Carpet and Shawl wearing machinery.
59.While that be the position in organised sectors, it cannot be contended that insofar as unorganised sectors or self-employed, is concerned, there would not be any revision in the wages or salary or earning. When the minimum wages of an employee in the organised sector, is revised periodically, taking into consideration the Consumer Price Index and Variable Dearness Allowance, the living conditions, then the others, in a unorganised sector may expect more or less the same wage, and if there are more number of persons, there may be chances of lesser wage, on account of surplus human resources and in such cases, the bargaining power of certain class of employees, depending upon the field, for revision of wages or earning, may be less.
60. If a non-salaried domestic worker sells a piece of any article, which he or she manufacturers and if the customer bargains the rate, he or she would immediately reply, as to how much amount, he/she has to spend for buying the basic materials, other materials used, compare the erstwhile travel expenses and the cost of labour. Can anyone in this Country can say that the electricity charges, water charges, rent, fee received by the Government, cost of education, price of commodities, etc., have remained the same, without any change. Cost of tea sold in a ordinary tea stall is the same for any person, whether engaged in organised or unorganised. Contenting inter alia that there would not be any increase in wages or earning for those engaged in unorganised sectors, for years to come, can it be said that he would never take a cup of tea, outside?
61. At this juncture, it should be borne in mind that Consumer Price Index is fixed, taking into consideration that the majority consumers are from unorganised sectors. Thus, with reference to Gross Domestic Product, Per Capita Income, Consumer Price Index and such other economic factors, determined on the basis of participation and contribution of both organised and unorganised sectors, the classification that those engaged in unorganised sectors, should be totally denied of any addition of income under the head, future prospects, would in our humble view, would affect
Article 14 of the Constitution of India. When the majority of persons, in unorganised sectors, also decide the economic factors, stated supra, it would be unjust and unreasonable to contend that there would not any prospect or addition in the earning of those engaged in unorganised sector, forever. If there is addition of Variable Dearness Allowance to the basic wages, in the case of organised sector, depending upon the Consumer Price Index, applicable for a particular period, one would reasonably expect the same factor of variable Dearness Allowance, to be a relevant factor, for determining the variation in the wage in case of unorganised sector also, as Consumer Price Index is common to all, whether engaged in organised or unorganised sector.
62. At this juncture, we deem it fit to consider, what Dearness Allowance means? Dearness Allowance is a cost of living adjustment allowance paid to Government employees, Public sector employees (PSU)and pensioners. Dearness Allowance is calculated as a percentage of an Indian's basic salary to mitigate the impact of inflation. Variable Dearness Allowance is always linked to Consumer Prince Index. The notifications of Minimum wages by the Central and State Government reflects how much is the Variable Dearness in each field.
63. In the light of what we have tabulated above, judicial notice can also be taken that the cost of labour, whether it is in agricultural field or manufacturing or services, has increased. Thus, focusing on the increase in wages or earning, in almost all the fields of operation, right from agricultural or industrial or manual labourers, tea shop or road side vendor, the Consumer Price Index, being the same to rich or raff and therefore, correspondingly to meet out the living conditions, atleast for providing the basic amenities, like food, shelter and clothing, and not to add up the expenditure towards health, education, certainly, there would be revision of wages or earning, even in unorganised sectors also. Future is the period of time that will come after the present or things that will happen. Having regard to the consistent and periodical revision of wages by the Governments, it cannot be contended by the Insurers or Transport Corporations that a person in unorganised sector, has no future at all, in the matter of revision of wages or earning.
64. In R.K.Malik's case (cited supra), the Hon'ble Supreme Court considered the quantum of compensation, payable to the legal representatives of the deceased children, aged between 10 and 18 years. Referring to the inflation, price rise, etc., the Hon'ble Supreme Court, by observing that the there would be a future prospects, for the children also, granted a sum of Rs.75,000/- under the head, future prospects, though as on the date of accident, they were children, studying in a school. In V.Mekala's case (cited supra), the injured was a student studying in 11th Standard. While determining the monthly income of the injured as Rs.10,000/-, the Hon'ble Supreme Court added 50% of the income, under the head, future prospects. In the recent decision in Munna Lal Jain's case (cited supra), the Hon'ble Supreme Court added 50% under the head, future prospects.
65. Thus, from the line of judgments, it could be noticed that the Hon'ble Supreme Court has considered the addition of a quantified sum, under the head, future prospects, in effect, indicating that there is a prospect or chance or possibility of earning more income, after a passage of time, though not periodically, as done in the case of Government or Public Sector Undertakings or Boards or Corporations, Companies owned and controlled by the Government or Limited Companies.
66. We have already extracted the orders of the Chief Labour Commissioner, Ministry of Labour and Employment, Government of India, New Delhi and taken into consideration a sample case, City of Chennai. Wage revision may vary in rural or urban areas or metropolitan cities. At the risk of repetition, as observed earlier, the number of persons, engaged in unorganized sectors, agriculture or industrial, or home based or self-employment, etc., are more in number, than those employed in organised sectors.
67. Income from the organised sector alone, is not the deciding factor, for determining Gross Domestic Product, Consumer Price Index or Per Capita Income. Thus, from a basic study of the factors, taken into consideration by the Governments for revision of wages, to the enumerated categories of employees, one cannot lose sight of the fact that the said factors, would also have an indeligible effect on those, engaged in unorganized sectors also. In the light of our discussion and the details considered, we are of the considered view that addition of certain percentage of income under the head, future prospects, has to be done in the case of those engaged in unorganized sector or self-employed also, otherwise, they would be deprived of just compensation. Addition of income under the head,future prospects, should not be restricted to only salaried persons, with stable jobs.
68. Though it is the case of the Insurance Companies and Transport Corporation that in the case of persons engaged in unorganised sector or salaried or persons, who do not have any permanent job, addition of certain percentage of income, under the head, future prospects, to the income drawn, at the time of death, should not be made, for computation loss of dependency compensation, we are not inclined to accept the same, for the reason that the expression future prospects should not be confined only to the prospects of the deceased in the career, progress or upgradation of position, in which, he was engaged, prior to death, but the expression future prospects should also be extended to the likelihood of increase in wages/salary, earned by either a skilled or semi-skilled person, clerical and others, considering the upward increase in the cost price, inflation and such other factors.''
15. In the light of the above decision, addition of future prospects cannot be said to be erroneous. Considering the number of dependants, deduction of 1/3rd in M.A.C.T.O.P.No.397 of 2010 is justified. Deceased in M.A.C.T.O.P.No.397 of 2010, a bachelor, deduction of 50% towards personal expenses is justifiable. Compensation of Rs.2,00,000/- awarded under the head loss of love and affection is reasonable. Funeral expenses Rs.25,000/- is reasonable. However, award of Rs.2,00,000/- under the head loss of expectancy to life cannot be accepted for the reason that nobody can predict the death of another. Merely because son died, it cannot be presumed that there would be loss of expectation of life, to the parents. Therefore, we are inclined to deduct Rs.2,00,000/- from the total compensation. Rs.5,000/- awarded for transportation is less. Considering the cost in the year 2008, we deem it fit to award Rs.10,000/-. Parents who have lost their son entitled to compensation under the head loss of estate. A sum of Rs.25,000/- is awarded. There is no award under conventional damages. Rs.2,000/- would be reasonable, for the same. Thus, the compensation due and payable to the legal representatives of the deceased in M.C.O.P.No.397 of 2010 (CMA NO.742 OF 2016) is determined as under:
16. In M.C.O.P.No.397 of 2010, the Tribunal has awarded compensation of Rs.14,83,000/- with interest, at the rate of 7.5% per annum, from the date of claim till deposit. On appeal, we now determine the amount due and payable as Rs.13,15,000/-. Consequently, there will be a reduction in the quantum of compensation to the tune of Rs.1,68,000/-.
17. Mr.P.Suresh, learned counsel appearing for the insurance company limited submitted that consequent to the directions issued by this Court in CMP No.5995 of 2016 in CMA No.742 of 2016, dated 05.04.2016, a sum of Rs.10,00,000/-, has been deposited to the credit of M.C.O.P.No.397 of 2010.
18. In view of the reduction in the quantum of compensation, Reliance General Insurance Company is directed to deposit the proportionate interest, at the rate of 7.5% per annum, for Rs.10,00,000/- already deposited, from the date of claim and the balance amount with proportionate interest, less the statutory deposit, already made to the credit of M.C.O.P.No.397 of 2010, on the file of Motor Accident Claims Tribunal, VI Small Causes Court, Chennai, within a period of four weeks from the date of receipt of a copy of this order.
19. On such deposit being made, respondents 1 and 2 / claimants in CMA No.742 of 2016, are permitted to withdraw their respective shares, by filing of proper applications before the Tribunal.
20. In so far as the quantum of compensation of Rs.20,50,000/-, with interest at 7.5% per annum, and costs, awarded in M.C.O.P.No.398 of 2010 is concerned, determination of monthly income as Rs.10,000/- is slightly excessive. Accident has occurred on 14.11.2008. Deceased was a first year student in Diploma in Electronics and Communication Engineering, in Bharath Polytechnic College. Perusal of the award shows that based on the decision in MEENU TOGNATTA VS. NATIONAL INSURANCE COMPANY LIMITED [MAC APP NOS.238 OF 2012 DECIDED ON 20.04.2012] the Tribunal has adopted the entry level salary fixed by the Government and determined the same, as notional income of the deceased Kapil Ananda, as Rs.10,000/-. We are not inclined to accept the said reasoning. Considering the price index, which prevailed in those days, it would be just and reasonable to fix the monthly income as Rs.8,000/- for the purpose of computing loss of contribution to the family.
21. After reworking, the compensation due and payable to the legal representatives of the deceased in M.C.O.P.No.398 of 2010 (CMA NO.1019 OF 2016) is determined as under:
Loss of income (Salary Rs.8,000/- + 50% Future prospects Rs.4,000/-
(Rs.12,000 X 12 X 18 / 2) - Rs.12,96,000.00 Loss of love and affection - Rs. 2,00,000.00 Transportation - Rs. 10,000.00 Loss of estate - Rs. 25,000.00 Funeral expenses - Rs. 25,000.00 Conventional damages - Rs. 2,000.00 Total - Rs.15,58,000.00 Compensation awarded by the Tribunal - Rs.20,50,000.00 On appeal, compensation determined by this Court- Rs.15,58,000.00 Reduction - Rs. 4,92,000.00
22. Mr.P.Suresh, learned counsel appearing for the insurance company submitted that in so far as M.C.O.P.No.398 of 2010 (C.M.A.No.1019 of 2016) is concerned, the entire award amount with proportionate interest and costs, has already been deposited.
23. The respondents 1 and 2 / claimants in CMA No.1019 of 2016 are permitted to withdraw their respective shares, on filing of proper applications before the Tribunal.
24. Consequent to the reduction in the quantum of compensation, Reliance General Insurance Company is permitted to seek for refund of the balance amount with proportionate interest.
25. In the result, both the Civil Miscellaneous Appeals are allowed in part. No costs. Consequently, connected civil miscellaneous petitions are closed.
[S.M.K., J] [M.G.R., J] 27.03.2017 Index : Yes/No Internet : Yes/No TK S.MANIKUMAR, J. AND M.GOVINDARAJ, J. TK To The Motor Accidents Claims Tribunal VI Small Causes Court Chennai. CMA NOS.742 AND 1019 OF 2016 27.03.2017 http://www.judis.nic.in