Tmt. Basheera v. Tmt. Pattammal & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 4.11.2008CORAM:- The Hon'ble Mr. Justice R. SUDHAKARC.M.A.No.1512 of 2008andM.P. No. 1 of 2008............1. Tmt. Basheera2. The Manager, The New India Assurance Co. Ltd., No. 45 Moore Street, Chennai.1. .. Appellants/ respondents Vs.1. Tmt. Pattammal2. Anupama rep. by her sister Selvi Poornima3. Selvi Poornima ... respondents/ petitioners Appeal filed under Section 173 of the M.V.Act against theaward and decree dated 18.12.2006 in MCOP No. 88 of 2004 on thefile of the Motor Accidents Claims Tribunal, (Subordinate Judge),Tiruvallur. For Appellant : Mr.M. KrishnamoorthyFor Respondents : Mr.G.Karthikeyan--------JUDGMENTOwner and the insurance company have filed this appealchallenging the award dated 18.12.2006 in MCOP No. 88 of 2004 onthe file of the Motor Accidents Claims Tribunal, (SubordinateJudge), Tiruvallur. 2. It is a case of fatal accident. The deceased https://hcservices.ecourts.gov.in/hcservices/ Srinivasan, aged 57 years, working as a Senior Grade Assistant inTamil Nadu State Transport Corporation, Villupuram, was riding amotor cycle when he was hit by a Car owned by the first appellantand insured with the second appellant. In that accident, the saidSrinivasan suffered grievous injuries and was taken to a privatehospital in Chennai and treated from 17.10.2002 to 20.10.2002.Inspite of treatment, he died. The wife aged 54 years, marrieddaughter aged 26 years and another daughter aged 24 years havefiled the claim petition claiming a sum of Rs.9,00,000/- ascompensation. 3. In support of the claim petition, the wife wasexamined as P.W.1. One Sureshkumar, the eye witness, was examinedas P.W.2. One Rajasekar, was examined as P.W.3. Documents Exs. P1to P13 were marked. On behalf of the appellants/ respondentsbefore the Tribunal, the owner of the vehicle was examined as R.W.1and the driver of the car was examined as R.W.2. Documents Exs. R1to R4 were marked. 4. On the question of negligence, the claimants submittedthat the accident happened due to rash and negligent driving onthe part of the driver of the car which caused the fatal accidentby placing reliance on the F.I.R., charge sheet and sketch whichwere marked as exhibits. An independent eye witness was examinedas P.W.2. On the side of the appellants/ respondents before theTribunal, the driver of the car and the owner alone were examined.There is no documentary evidence to support the plea of nonegligence. In view of the oral and documentary evidence filed insupport of the claim to prove the rash and negligent driving on thepart of the driver, who caused the accident in which, the deceasedsuffered serious injuries and died, the finding of the Tribunalstands confirmed. 5. As regards compensation, the same was dealt with bythe Tribunal in paragraph 8. The undisputed fact in this case isthat the deceased was aged 57 years and working as a senior gradeassistant in Tamil Nadu State Transport Corporation, Villupuram.This is supported by the post mortem certificate and the drivinglicence Ex.A10. Therefore, the deceased had only one year ofservice in the department. P.W.3 was examined to state that grosssalary of the deceased was Rs.20,261/- and after deduction, the netincome was Rs.10,940/-. The Tribunal however fixed the income atRs.9,000/- p.m. and after deducting 1/3rd towards personal expensesof the deceased and by applying 8 multiplier, determined the lossof pecuniary benefits in a sum of Rs.5,76,000/- (Rs.6000/- x 12 x 8= Rs.5,76,000/-) In all, the Tribunal granted the following amountas compensation with interest at the rate of 7.5% p.a. https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount granted by theTribunal1Loss of pecuniary benefitsRs.5,76,000/-2Funeral expensesRs. 9,000/-3Loss of consortiumRs. 20,000/-4Loss of love and affection to thechildrenRs. 20,000/-5Medical expensesRs. 25,000/-TotalRs.6,50,000/-6. Learned counsel for the appellant contended that thedeceased had only one more year of service and therefore, theactual loss of income should be taken for the one year of service.After retirement, the income should be determined based on thepensionary benefits and suitable applicable compensation should bedetermined based on a multiplier as applicable to persons, who haveretired from service. 7. Learned counsel for the appellant stated that takinggross income as Rs.20,261/- and after deducting Rs.2,400/- towardsincome tax, the net income will be Rs. 17,861/- rounded of toRs.18,000/-. Out of which, 1/3rd has to be deducted and thecontribution to the family will be Rs.1,44,000/- ( Rs.12,000/- x 12=Rs.1,44,000/-). He stated that based on the retirement benefits,the monthly income should be taken as Rs.4,000/- p.m. (i.e.)Rs.48,000/- p.a. of which 1/3 rd should be deducted towardspersonal expenses. The annual contribution would be Rs. 32,000/-and by adopting multiplier of 6, the total loss of contribution tothe dependents will be Rs.1,92,000/-. Therefore, the compensationwhich is in excess has to be suitably modified. 8. Learned counsel for the respondent on the other handsubmitted that no amount was granted towards pain and sufferingundergone by the deceased during the time of hospitalisation beforedeath. He also pleaded for confirming the award stating that oneof the daughter has to be married and the wife claimant has lostthe companianship of the husband at the old age. The income takenin this case is not in dispute. Admittedly, the deceased had onlyone year of service. Therefore, the contribution to the family forthe 1 year based on income will be Rs.1,44,000/-. On this amount,there is no dispute. Insofar as the compensation based onretirement benefit is concerned, even if half of the amount istaken as income the monthly retirement benefits will be Rs.4,000/-and the annual retirement benefits would be Rs.48,000/-. Afterdeducting 1/3rd towards personal expenses, the contribution to thefamily will be Rs.32,000/-. https://hcservices.ecourts.gov.in/hcservices/

9. In the decision reported in The Managing Director,TNSTC – vs. - Sripriya and others reported in 2007(1) TN MAC 319(SC), the Supreme Court held in paragraph 13 to 15 as follows:-"13. In G.M.Kerala S.R.T.C. v. SusammaThomas, AIR 1994 SC 1631, it was noted that thenormal rate of interest was about 10% andaccordingly the multiplier was worked out. Asthe interest rate is on the decline, themultiplier has to consequently be raised.Therefore, instead of 16 the multiplier of 18as was adopted in U.P. State Road TransportCorpn. v. Trilok Chand, 1996(4) SCALE 22,appears to be appropriate. In fact in U.P.State Road Transport Corpn. v. Trilok Chand,1996(4) SCALE 22, after reference to SecondSchedule to the Act, it was noticed that thesame suffers from many defects. It was pointedout that the same is to serve as a guide, butcannot be said to be invariable readyreckoner. However, the appropriate highestmultiplier was held to be 18. The highestmultiplier has to be for the age group of 21years to 25 years when an ordinary IndianCitizen starts independently earning and thelowest would be in respect of a person in theage group of 60 to 70, which is the normalretirement age. (See:New India Assurance Co.ltd. v. Charlie and Another, 2005(10) SCC 720.(emphasis supplied)14. The above position was highlighted inU.P. State Road Transport Corporation v.Krishna Bala and Ors., 2006(6) SCC 249;Managing Director, TNSTC Ltd., v. K.I. Bindu,2005(8) SCC 473; T.N. State TransportCorporation Ltd. - v. S.Rajapriya, 2005(6) SCC236; Municipal Corpn. Of Greater Bombay v.Lasman Iyer, 2003(8)SCC 731; State of Haryanav. Jasbir Kaur, 2003(7) SCC 484; The New IndiaAssurance Company Ltd. v. Smt. Kalpana andOrs., 2007(2) SCALE 227; New India AssuranceCo. Ltd. v. Satendar & Ors. JT 2006(10) SC 234.15. Considering the age of the deceasedappropriate multiplier would be 12. Theincome fixed by the Tribunal and the deduction https://hcservices.ecourts.gov.in/hcservices/ for personal expenses do not warrant anyinterference. Worked out on that basis, theentitlement of the loss of income isRs.5,76,000/-. The other expenses awardedremain unaltered. In other words, totalentitlement of the claimants is fixed atRs.6,00,000/-. It would be appropriate to fixthe rate of interest at 7.5% instead of 9% asdone by the Tribunal and maintained by theHigh Court."10. In this case, the deceased is at the verge of retirement.Taking into consideration the above decision of the Apex Court, themultiplier that can be taken is 6. Therefore, based on theretirement benefits, the pecuniary loss to the dependents will beRs.1,92,000/- (Rs.32,000/- x 6 = Rs.1,92,000/-) The total pecuniaryloss will be Rs.1,92,000/- + Rs.1,44,000/-=Rs.3,36,000/-). The sunof Rs.74,000/- granted towards conventional heads is confirmed. Theclaimants will be entitled to a further sum of Rs.10,000/- towardspain and suffering undergone by the deceased while he was inhospital before his death. Accordingly, the award of the Tribunalis modified as follows:-Sl.No.HeadAmountgranted bythe TribunalAmountgranted bythis Court 1Loss of pecuniary benefitsRs.5,76,000/-Rs.3,36,000/-Pain and suffering --Rs. 10,000/-Funeral expensesRs. 9,000/-Rs. 9,000/-Loss of consortiumRs. 20,000/-Rs. 20,000/-Loss of love and affection tothe childrenRs. 20,000/-Rs. 20,000/-Medical expensesRs. 25,000/-Rs. 25,000/-TotalRs.6,50,000/-Rs.4,20,000/-11. Since the accident happened in the year 2002 and theaward was passed in the year 2006, the interest granted by theTribunal at 7.5% stands confirmed. 12. In the result, the civil miscellaneous appeal ispartly allowed as follows:-(i) The award of the Tribunal is reduced to Rs. 4,20,000/- fromRs.6,50,000/-.(ii) The interest at 7.5% is confirmed.(iii) Learned counsel for the 2nd appellant seeks eight weekstime to deposit the award amount and the same is allowed. On such https://hcservices.ecourts.gov.in/hcservices/ deposit, the first claimant is entitled to withdraw a sum ofRs.2,20,000/- with interest and costs. Claimants 2 and 3 areentitled to withdraw a sum of Rs.1,00,000/- each with interest. (iv) There shall be no orders as to costs.(v) Consequently, M.P.No.1 of 2008 is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarraToThe Motor Accidents Claims Tribunal, (Subordinate Judge), Tiruvallur. +1cc to Mr.M.Krishnamoorthy, Advocate Sr 67791+1cc to Mr.G.Karthikeyan, Advocate Sr 61355CK(CO)km/12.1. CMA No. 1512 of 2008