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Judgment
N. Kirubakaran, J.—The appeal has been preferred by the insurance company against the award of Rs. 6,12,000 to the Respondent Nos. 1 to 3-claimants as against the claim of Rs. 20,00,000. This is a fatal case in which one Rajaram met with an accident on 26.7.2003 while he was riding his motor cycle proceeding from extreme left side of Trichy-Chennai bye-pass road at Senthanirpuram overbridge towards the south to north direction was hit by a bus belonging to the Respondent No. 4 driven in a rash and negligent manner. Due to the impact of the accident, the victim fell down and sustained multiple grievous injuries and was taken to KMC Hospital at Tiruchirappalli and referred to the Government Hospital, Tiruchirappalli where he died.
According to the Respondent Nos. 1 to 3-claimants, the deceased was working as Assistant Seed Officer in the Agriculture Department and was earning Rs. 13,000 per month along with other allowances. The claim application was contested by the Appellant stating that there was no negligence on the part of the driver of the Respondent No. 4.
The learned Tribunal on appreciating the pleadings and evidence found that the driver of the bus alone was responsible for the accident as he drove the vehicle in a rash and negligent manner. To arrive at the aforesaid conclusion, the Tribunal relied upon Exh. P1, F.I.R. and Exh. P5 copy of the judgment in which the driver of the bus was convicted by the learned Vth Judicial Magistrate, Tiruchirappalli in C.C. No. 387 of 2003 and the same was marked as Exh. P3. The finding regarding negligence was not seriously challenged by the Appellant. In any event, the finding in this regard by the learned Tribunal is based on evidence and cannot be disturbed.
Regarding the quantum, the Tribunal relied upon Exh. P5, salary certificate of the deceased, in which it was shown that deceased was drawing about Rs. 12,352 per month and his take-home salary was Rs. 6,200. Hence, Tribunal fixed monthly income of the deceased at Rs. 6,500 and considering the age of the deceased, namely 53 years, multiplier ''11'' was adopted and a sum of Rs. 5,72,000 was arrived at towards loss of income.
Learned Counsel appearing for the Appellant argued that the Tribunal ought not to have adopted the multiplier '' 11'', as the deceased had only five years left in the service and in that event, multiplier ''5'' alone should be adopted for arriving at loss of income. On the other hand, Learned Counsel for the Respondent Nos. 1 to 3-claimants contended that Tribunal adopted right multiplier. Even otherwise, Learned Counsel for the Appellant submitted that if the multiplier ''5'' is adopted taking into consideration the rest of the service of the deceased 50 per cent of his take-out salary should be taken into consideration and the remaining multiplier ''6'' should be adopted based on the judgment in Rajender Kumar and Others Vs. Rambhai and Others, .
As rightly pointed out by the Learned Counsel for the Appellant that the deceased was 53 years at the time of accident and he had only five years period left in the service. Hence, the correct multiplier to be adopted is ''5'' and not ''11'' as adopted by the Tribunal. Regarding the salary, learned Tribunal though relied upon Exh. P5 and found the monthly salary of the deceased at Rs. 12,352, it took Rs. 6,200 as take-home salary and fixed the monthly income as Rs. 6,500. It is patently wrong, when the deceased was earning about Rs. 12,352 that amount should have been Rs. 8,238 after deducting 1/3rd towards his personal expenses. The perks and other amounts cannot be deducted and (sic) the income tax applicable to the salary alone could be deducted. With regard to the deduction of income tax, the Supreme Court has held in National Insurance Company Ltd. Vs. Indira Srivastava and Others, , that income tax has to be deducted. Hence, the monthly income of the deceased should be fixed at Rs. 12,352. Accordingly, loss of income for five years should be calculated as follows:
Rs. 12,352 x 5 x 12 x 2/3 - 10 per cent = Rs. 4,44,600.
Therefore, Rs. 4,44,600 is awarded towards loss of income during pre-retirement.
Regarding post-retirement income, 50 per cent of the salary has to be taken into consideration and the rest of the multiplier ''6'' i.e., out of multiplier ''11'' which is applicable to the age of the deceased i.e., 53 years, has to be applied and the loss of income should be calculated as follows:
Rs. 12,352 + 2 = Rs. 6,176.5 x 1/3 x 6 x 12 = Rs. 2,96,433.52
Therefore, the loss of income after service is arrived at Rs. 2,96,433.52.
The total loss of income would be:
Rs. 4,44,600 + Rs. 2,96,433.52 = Rs. 7,41,033.52.
The Learned Counsel for the Appellant submitted that in the absence of any appeal/cross-appeal by the claimants, the award passed by the Tribunal cannot be enhanced. In support of his submission, he relied upon a judgment of the Apex Court rendered in Oriental Insurance Company Ltd. v. R. Swaminathan 2006 ACJ 1398 (SC), wherein it was held that when the claimant did not file an appeal against the award of the Tribunal or file any cross-objection, there cannot be any enhancement in the appeal filed by the insurance company. He also contended that this Court has got no jurisdiction to enhance the award amount as the Respondents-claimants are not aggrieved and, therefore, this Court cannot enhance it. It is to be seen that an appeal is the continuation of original proceedings and this Court has got jurisdiction and powers under Order 41, Rule 33 read with Section 151 of CPC and u/s 173 of the Motor Vehicles Act to re-appreciate the facts and arrive at a compensation.
A number of judgments of Hon''ble Supreme Court and this Court held that this Court has got jurisdiction to enhance the amount even in the absence of appeal by claimants. This has been held by the Apex Court in T.N.S.T.C. v. Saroja 2008 (1) TN MAC 352, Nagappa Vs. Gurudayal Singh and Others, , in which the Supreme Court has held that in appropriate cases, compensation could be enhanced in the absence of appeal, what should be the criteria in just compensation which is reasonable on the basis of evidence on record. Moreover, the provisions of the Motor Vehicles Act are beneficial in nature and they cannot be viewed narrowly. In any event, the case on hand is decided only based on the appreciation of the pleading and the evidence on record. In view of that, the contention of the Learned Counsel for the Appellant that this Court has got no jurisdiction to enhance the award amount in the appeal filed by the insurance company has to be rejected.
The amounts awarded by the Claims Tribunal under other headings, namely, Rs. 20,000 for loss of consortium to the Respondent No. 1-claimant and Rs. 15,000 for loss of love and affection and Rs. 5,000 for funeral expenses are hereby confirmed.
Accordingly, the award of the Tribunal is enhanced from Rs. 6,12,000 to Rs. 7,81,000 along with interest at the rate of 7.5 per cent as follows:
For loss of income
Rs. 4,44,600.00
For loss of income after service
Rs. 2,96,433.52
For loss of consortium
Rs. 20,000.00
For loss of love and affection
Rs. 15,000.00
For funeral expenses
Rs. 5,000.00
Total
Rs. 7,81,033.52
Accordingly, the appeal is disposed of enhancing the award from Rs. 6,12,000 to Rs. 7,81,033 in the appeal filed by the insurance company. Respondents-claimants are entitled to a sum of Rs. 7,81,033 along with interest at the rate of 7.5 per cent as awarded by the Tribunal which will carry interest from the date of petition till realization. No costs. Consequently, connected miscellaneous petitions are closed.