Oriental Insurance Co. Ltd.,Office situated at Divisional Office,91, E.V.N. Road, Parimalam Complex, 2nd Floor, Erode-11 v. Gowher Jan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.1.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARCivill Miscellaneous Appeal No.91 of 2009andM.P.No.1 of 2009 Oriental Insurance Co. Ltd.,Office situated at Divisional Office,91, E.V.N. Road, Parimalam Complex, 2nd Floor, Erode-11. ... Appellant/3rd Respondent vs.1.Gowher Jan,2.N.Zaheera,3.Nisha Parveen,4.Syed Thathagir,5.N.Eswaramurthy,6.M/s.S.S.P.E. Cotton Mills (P) Ltd., Office situated at 139, Old S.F.No.660/3, Periya Vettuvapalayam Road, Olagadam Road, Perundurai Taluk, Erode District. ... Respondents/Petitioners 1 to 4and respondents 1 and 2 Civil Miscellaneous Appeal is filed under Section 173 of MotorVehicles Act, 1988 against the award and decree dated 7.9.2006passed in M.C.O.P.No.178 of 2005 on the file of the Motor AccidentsClaims Tribunal (Sub Court), Bhavani.For appellant : Mr.S.ArunkumarFor respondents 1 to 4 : Mr.Ma.P.Thangavel-----JUDGMENT The Oriental Insurance Company is on appeal challenging theaward dated 7.9.2006 passed in M.C.O.P.No.178 of 2005 on the file ofthe Motor Accidents Claims Tribunal (Sub Court), Bhavani. https://hcservices.ecourts.gov.in/hcservices/

2. Mr.Ma.P.Thangavel, learned advocate appears forcaveators/respondents 1 to 4, the claimants. By consent of bothcounsel, the appeal itself is taken up for disposal.3. It is a case of fatal accident. The brief facts of thecase are as follows:- The accident in this case happened on27.5.2005. The deceased Mohammad Hussain, aged 52 years, SubInspector Police at Appakudal Police Station, Bhavani Taluk, wasriding a motor bike bearing Registration No.TN 33-T-6748. He was hitby a van bearing Registration No.TN 33-R-6165 insured with theappellant driven by its driver in a rash and negligent manner. Inthat accident the said Mohammad Hussain sustained grievous injuriesand died. The two wives aged 46 and 44 years, daughter aged 28years and the son aged 24 years filed a claim for compensation in asum of Rs.27 lakhs stating that the deceased was earning a sum ofRs.13,000/- per month. 4. In support of the claim, the son of the deceased wasexamined as P.W.1. One K.Kaliannan, the eye witness to the accident,was examined as P.W.2. Exs.P-1 to P-9 were marked, the detailswhich are as follows:-Ex.P-1 is the certified copy of F.I.R. dated 27.5.2005, Ex.P-2 is the certified copy of rough sketch dated 27.5.2005,Ex.P-3 is the certified copy of observation mahazar dated 27.5.2005,Ex.P-4 is the certified copy of Motor Vehicle Inspector's Inspection Report dated 27.5.2005,Ex.P-5 is the certified copy of charge sheet dated 17.6.2005,Ex.P-6 is the certified copy of post-mortem certificate dated27.5.2005,Ex.P-7 is the photocopy of identity card of the deceased, Ex.P-8 is the last pay certificate dated 19.6.2006 andEx.P-9 is the legal heir certificate dated 16.8.2005. No oral or documentary evidence was let on behalf of the appellantinsurance company/3rd respondent before the Tribunal.5. The finding of negligence on the part of the driver of thevan, who caused the accident and the death and the liability fixedon the appellant insurance company to compensate the claimants is notseriously disputed by the counsel for the appellant in the appeal andthe same is confirmed. The only contention raised by the learnedcounsel for the appellant is on the quantum of compensation awardedby the Tribunal.6. As far as the compensation is concerned, the same was dealt https://hcservices.ecourts.gov.in/hcservices/ with in paragraphs 7 onwards in the award in answer to point No.2.The Tribunal based on Ex.P-6 post-mortem certificate and Ex.P-7identification card, fixed the age of the deceased as 53 years. Asfar as income of the deceased is concerned, the salary certificateEx.P-8 was marked, in that it is stated that Rs.10,236/- was thetotal emoluments of the deceased. The Tribunal deducted certainamounts from this amount. The deceased made contributions toprovident fund, loan recovery, etc. These amounts have been deductedfrom the salary and the net income of the deceased was taken asRs.9,000/- per month for the purpose of compensation. This deductionis not correct. Only statutory dues or tax like, income-tax, S.P.F.,F.S.F., P.F. can be deducted from the income. The provident fundcontribution, loan recovery should not be deducted for fixing theactual income of the person concerned. In this case, the Tribunal byadopting unit method fixed the loss of contribution to the family ofthe deceased as follows:-Monthly income of the deceased = Rs.9,000/-Total units of the family of the deceased = 10 unitsValue of one unit = Rs.900/-Deduction from the income:2 units plus Rs.5,000/- (Rs.900 x 2 + Rs.5,000/-) = Rs.2,300/-Total deduction = Rs.2,300/-Loss of income to the family of the deceased = Rs.6,700/-Accordingly, the Tribunal fixed the annual loss of contribution tothe family of the deceased at Rs.80,400/- (Rs.6,700 x 12 =Rs.80,400/-). Since the deceased was 53 years old at the time ofaccident, the Tribunal adopted 11 multiplier and granted a sum ofRs.8,84,400/- towards pecuniary loss. In addition to that, theTribunal granted compensation under conventional heads. In all, theTribunal granted the following amounts as compensation with interestat 6% per annum:-Sl.No.HeadAmount granted bythe Tribunal1Loss of pecuniary benefits to the family ofthe deceasedRs.8,84,400/-2Loss of consortium to the two wives atRs.20,000/- eachRs. 40,000/-3Transport expenses to the two wives atRs.1,000/- each Rs. 2,000/-4Funeral expenses to the two wives atRs.2,500/- eachRs. 5,000/-5Loss of love and affection to the son and thedaughter at Rs.20,000/- each Rs. 40,000/-TotalRs.9,71,400/- https://hcservices.ecourts.gov.in/hcservices/

7. In appeal, the counsel for the appellant contended that themultiplier of 11 in a case of death of a 53 years old person, ishigh as he has only five more years of service. The Tribunal hasclearly observed that there is no material to show that the deceasedwas in the verge of promotion and that there was a possibility ofincrease in the salary in the near future. Therefore, it wascontended that multiplier 5 should be taken considering the period inservice. Based on this, the income of the deceased should be fixed.The balance multiplier of 6 should be taken for determining thecompensation post retirement and that too not on the basis of thefull salary.8. Heard the learned counsel for the claimants, who stated thatsince the deceased was in the verge of retirement, there was everypossibility that the deceased will get higher salary shortly and thatcan be taken into consideration. The counsel for the claimants hasnot, however, disputed the fixation of monthly contribution to thefamily of the deceased. 9. It is not in dispute that the deceased was a Sub Inspector ofPolice and was 53 years old at the time of accident. His period ofservice will be only 5 years. He will get full extent of salaryonly for five years. After that he will get pensionary benefits.Therefore, the Tribunal was not justified in taking entire salaryand the higher multiplier as on the date of accident for determiningthe compensation. Since the period of service is only for fiveyears, the loss of pecuniary benefits to the family of the deceasedhas to be fixed as follows:-Rs.80,400/- x 5 (during service)Rs.4,02,000/-Rs.40,200/- x 6 (post retirement)Rs.2,41,200/-TotalRs.6,43,200/-Therefore, the total pecuniary loss to the dependents of the deceasedwill be Rs.6,43,200/- as against Rs.8,84,400/-. The other amountsgranted by the Tribunal under conventional heads are not disputed.Accordingly, the award of the Tribunal is modified as follows:-Sl.No.HeadAmount granted bythe Tribunal1Loss of pecuniary benefits to the family ofthe deceasedRs.6,43,200/-2Loss of consortium to the two wives(Rs.20,000/- each)Rs. 40,000/-3Transport expenses to the two wives(Rs.1,000/- each) Rs. 2,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount granted bythe Tribunal4Funeral expenses to the two wives(Rs.2,500/- each)Rs. 5,000/-5Loss of love and affection to the son and thedaughter (Rs.20,000/- each) Rs. 40,000/-TotalRs.7,30,200/-The interest granted by the Tribunal at 6% is not disputed and thesame is confirmed. 10. In the result, the Civil Miscellaneous Appeal is allowed inpart as follows:-(i) The award of the Tribunal is reduced to Rs.7,30,200/- fromRs.9,71,400/-.(ii) The interest granted by the Tribunal at 6% is confirmed. (iii) The learned counsel for the appellant seeks for eightweeks' time to deposit the award amount as ordered by this Court.(iv) On such deposit, as requested by the learned counsel for theclaimants, the claimants are entitled to withdraw the award amount asfollows:-The first wife, the 1st claimant Rs.3,21,600/- + Rs.20,000/- +Rs.1,000/- + Rs.2,500/- =Rs.3,45,100/- with proportionateinterest and costsThe second wife, the 2nd claimantRs.1,60,800 + Rs.20,000/- +Rs.1,000/- + Rs.2,500/- =Rs.1,84,300/- with proportionateinterest and costs The daughter, the 3rd claimant Rs.80,400/- + Rs.20,000/- =Rs.1,00,400/- with proportionateinterest and costsThe son, the 4rd claimant Rs.80,400/- + Rs.20,000/- =Rs.1,00,400/- with proportionateinterest and costs (v) There will be no order as to costs. https://hcservices.ecourts.gov.in/hcservices/ (vi) Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar tsToThe Subordinate Judge, (Motor Accidents Claims Tribunal) Bhavani. 1 cc To Mr.Ma.P.Thangavel, Advocate, SR.3961C.M.A.No.91 of 2009BV(CO)SRA(13/02/2009)