R. Chamundeeswari & Ors. v. Metropolitan Transport Corporation Ltd.,rep.by its Managing Director, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06..08..2009CORAMTHE HON'BLE Mr. JUSTICE S.PALANIVELUC.M.A.No.2721 of 2004 1.R. Chamundeeswari2.R. Anitha3.R. Sathishkumar4.R. Kumadhavalli5.R. A.V. Rangiah Naidu ... Petitioners/AppellantsVs.Metropolitan Transport Corporation Ltd.,rep.by its Managing Director, Chennai... Respondent/RespondentThis Civil Miscellaneous Appeal has been filed under Section173 of the Motor Vehicles Act, 1988 against the Judgment and Decreedated 28.04.2004 made in M.C.O.P.No.4719 of 2002 on the file of theMotor Accident Claims Tribunal, Chief Judge, Court of Small Causesat Madras. For Appellant: Mr. S.Gangaram PrasadFor Respondent : Mr. G. Munirathinam J U D G M E N T The following have been stated in the claim petition:On 25.9.2002 at about 1.00 p.m. when the deceased was walkingfrom west to east on Perambur High Road (Opposite to FriendsBakery), the driver of the respondent bus bearing Registration No.TN-01-N-3560 drove the same in a rash and negligent manner in thesame direction, knocked down the deceased, ran over him and he diedon the spot. The bus further proceeded in a rash manner, hit ascooterist, ran over him and he also died. A case inCr.No.231/P3/2002 was registered with G.3 Kilpauk Police Station.The deceased was aged about 52 years who was employed as a driver inMetropolitan Transport Corporation, Perambur Depot and was earningRs.8,700/- per month including daily collection batta and annualbonus. The said accident took place only due to the rash andnegligent driving of respondent's bus driver. The first claimantis wife, 2nd and 3rd cliamants are their children and 4th and 5thclaimants are parents of the deceased. The claimants prayed forRs.11,00,000/- as compensation. https://hcservices.ecourts.gov.in/hcservices/

2.In the counter filed by the respondent corporation, themanner of accident is denied. The accident took place only due tothe negligence on the part of the deceased. The petitioners shallprove the income of the deceased. The compensation claimed by thepetitioners is excessive. The petitioners 1 to 3 are not thedependents on the income of the deceased. The petitioners shallprove that they are the legal heirs and legal representatives of thedeceased. The amount claimed is exorbitant. Hence the petition hasto be dismissed.3.After considering the evidence on record, the Tribunalconcluded that the respondent's bus driver was negligent at the timeof accident and he was liable for the same.4.Mr.S.Gangaram Prasad, learned counsel for the appellant wouldsubmit that the quantum of compensation as fixed by the Tribunal ison the lower side. The arguments of the learned counsel are threepronged. (i) that the Tribunal has taken into consideration the netincome of the deceased which is not sustainable and the gross incomeshould have been considered, (ii) that the lumpsum payment ofRs.1,00,000/- sanctioned by the Government to the family of thedeceased employee has been deducted from the compensation amountwhich is not permissible and (iii) that the Tribunal has adoptedmultiplier 6 alone instead of 11, as prescribed in the Schedule IIof the Motor Vehicles Act. It is his further submission that theTribunal should have followed the principles laid down on the abovesaid features and awarded more compensation to the claimants. 5.The first ground raised by the learned counsel for theappellant is that the tribunal has considered only net income of thedeceased for arriving at the compensation. It is not at allsustainable in the eye of law and as per the settled preposition,the gross income of a salaried employee has to be taken forconsideration. In support of his contention, he placed muchreliance upon the decision of the Hon'ble Supreme Court reported in2008 ACJ 614, National Insurance Co. Ltd. V. Indira Srivastavaand others wherein Their Lordships have referred earlier decisionof the Court and other High Courts as well and held that the grossincome minus statutory deductions have to be taken for calculationto reach the loss of income of the deceased. 6.One of the unreported decisions of this High Court inC.M.A.No.114 of 2006 decided on 29.01.2007, Manager, NationalInsurance Co. Ltd. v. Padmavathy is also referred in the SupremeCourt decision where it was held that income tax, professional taxwhich are deducted from the salaried persons go to the coffers ofthe Government under specific head and there is no return, thatwhereas the general provident fund, special provident fund andL.I.C. contribution are amounts paid under specific heads and thecontribution is always repayable to an employee at the time ofvoluntary retirement, death or for any other reason, that the ApexCourt as well as the various High Courts have held that thecompensation payable under the Motor Vehicles Act is statutory and https://hcservices.ecourts.gov.in/hcservices/ that the deferred payments made to the employee are contractual.Concluding, this High Court has observed as follows, which has beenextracted in the Supreme Court judgment."In view of the view, the Tribunal can make onlystatutory deductions such as income tax and professionaltax and any other contribution, which is not repayable bythe employer, from the salary of the deceased person whiledetermining the monthly income for computing the dependencycompensation. Any contribution made by the employee duringhis lifetime, form part of salary and they should beincluded in the monthly income, while computing dependencycompensation."7.In the above said Indira Srivastava case, the followingportions are also contained which show that gross income of thesalaried employee minus the statutory deductions have to be takenfor consideration to assess the compensation.What would be 'just compensation' must be determinedhaving regard to the facts and circumstances of each case.The basis for considering the entire pay packet is what thedependants have lost due to death of the deceased. It isin the nature of compensation for future loss towards thefamily income.17. The amounts, therefore, which were required to bepaid to the deceased by his employer by way of perks,should be included for computation of his monthly income aswhat would have been added to his monthly income by way ofcontribution to the family as contradistinguished to theones which were for his benefit. We may, however, hastento add that from the said amount of income, the statutoryamount of tax payable thereupon must be deducted. 22.Yet again in New India Assurance Co.Ltd. v.Charlie, 2005 ACJ 1131 (SC), the same view was reiterated.However, therein although the words 'net income' has beenused but the same itself would ordinarily means grossincome minus the statutory deductions. We must also noticethat the said decision has been followed in New IndiaAssurance Co. Ltd. v. Kalpana, 2007 ACJ 825 (SC).8.Following the guidelines contained in the above saiddecisions of the Apex Court, it is to be held that the considerationof the Court should be concentrated on the gross salary of adeceased salaried employee, but not on net income, ofcourse withstatutory deductions.9.The next limb of contention of the learned counsel for theappellant is that the tribunal has deducted Rs.1,00,000/- which waspaid to the claimants of the deceased on his death which cannot besustained. For this possession of law, he draws attention of this https://hcservices.ecourts.gov.in/hcservices/ Court to a decision rendered by this Court in 1988 ACJ 196,K.Vasantha v. Venugopal Achari, wherein earlier Division Benchdecision of this Court in CMA 21 of 1981 in Pallavan TransportCorpon. Ltd. (Metro) rep. By Mg. Director v. Visalakshmi has beenfollowed in which it is stated as follows -"On the question whether the Tribunal was right indeducting Rs.10,000/- paid towards Family Benefit Scheme,V. Ramaswami, J., speaking for the Division Bench has ruledas follows :"The Court in arriving at the compensation hasdeducted a sum of Rs.10,000/- which is payable to the legalrepresentatives of the deceased under the Family BenefitScheme and this is one of the claims in the cross-objections. That amount should not have been deducted,because that is an ex gratia payment made by the Governmentand should not be taken into account in calculating thecompensation payable, which is on different principles.Even if the deceasd is a rich man, that could not deprive aperson of the entitlement for compensation. Thedisallowance of that sum of Rs.10,000/- is, therefore,incorrect."10.In view of the consistent opinion expressed by this Court,deduction of Rs.1,00,000/- which was granted to the claimants by theTransport Corporation on the death of the employee cannot bededucted in the compensation assessed under the provisions of MotorVehicles Act. 11.Yet another leaf of contention of the learned counsel forthe appellant is that the tribunal has adopted multiplier 6 and 5which are not sustainable but multiplier 11 has to be adopted as perthe decision of the Supreme Court. He garnered support from adecision of the Supreme Court in 2008 ACJ 2032, Savitha Sharma v.Union of India/Chandigarh Administration wherein Their Lordships hadan occasion to assess the compensation of a deceased who wasemployed as Ayurvedic Doctor aged 53 years drawing Rs.11,615/- permonth holding that adopting multiplier 12 would be appropriate. Thetribunal had applied multiplier 11 and on appeal, the High Courtreduced the same to 8 but the Apex Court adopted multiplier 11 andrestored the award passed by the tribunal. The above said decisionsquarely applies to the facts of the present case. Here, thedeceased was 52 years, working as driver in the MetropolitanTransport corporation. Hence, adopting multiplier 11 would be moreappropriate in this case.12.Conversely, Mr.G.Munirathinam, the learned counsel for therespondent would submit that the Tribunal has quantified thecompensation in a fair manner and the conclusion of the Tribunalwith regard to the quantum is more reasonable. https://hcservices.ecourts.gov.in/hcservices/

13.Ex.P.22 is the service particulars of the deceased Rajaram,who was selection grade driver working in Metropolitan TransportCorporation Ltd., Chennai, which shows that his gross salary isRs.7,961.80 and after recovery of Rs.993, net salary paid to him wasRs.6,968/-. The Tribunal has also deducted Rs.50/- towardsprofessional tax and took consideration of Rs.6,918/- per month. Hewas aged 52 years and was having six more years of service andapplied multiplier 6. The dependency has been assessed atRs.3,32,064/-.14.The tribunal has also entered into another calculation bytaking a decision that if the deceased was gainfully employed afterretiring from his service, he would be getting a minimum income ofRs.4,500/- per month, after deducting 1/3rd, Rs.1,500/-, theremaining amount is Rs.3,000/-. Adopting multiplier 5, it hasreached Rs.1,80,000/- and the total dependency for a period of 11years at Rs.3,32,064/- + Rs.1,80,000/- = Rs.5,12,064/-. Rs.5,000/-each has been granted for loss of consortium, loss of love andaffection, expectation of life and funeral expenses. It hasdeducted Rs.1,00,000/-, the family benefit fund paid on the death ofthe employee from the said amount and directed payment ofRs.4,32,064/- to the claimants.15.In view of this court, the above said calculation could notbe countenanced in view of the decision of the Supreme Court. Afterdeducting the professional tax, the gross salary could be fixed atRs.7900/- per month. Annual loss of income is Rs.93,600/- in which1/3rd of Rs.31,200/- is deducted and the remaining amount isRs.62,400/-. If it is multiplied by 11, the dependency could befixed at Rs.6,86,400/-. The conventional damages as fixed by thetribunal at Rs.20,000/- shall also be added. In total, a sum ofRs.7,06,400/- has to be made available to the claimants.15.In fine, the Civil Miscellaneous Appeal is allowed in partenhancing the compensation to Rs.7,06,400/- from Rs.4,32,064/- andthe enhanced amount shall be taken by the first claimant, wife ofthe deceased. The enhanced compensation shall carry interest @ 7.5%per annum from the date of filing of the petition till the date ofdeposit, which shall be deposited within a period of eight weeksfrom the date of receipt of copy of this order. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rgrToThe Registrar,Court of Small Causes,Chennai.Copy toThe Section Officer,VR Section, High Court,Madras.+1cc to Mr.G.Muniratnam, Advocate Sr 36230+1cc to Mr.S.Gangaram Prasad, Advocate Sr 36356LA(CO)km/7.9.C.M.A.No.2721 of 2004