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Judgment
Honourable Mr. Justice T. Mathivanan
Challenge is made in this Civil Miscellaneous Appeal to the award dated 31.08.2005 and made in M.C.O.P.No.287 of 2004 on the file of the Motor Accident Claims Tribunal (Principal District Court), Ramanathapuram.
The appellant herein is the Tamil Nadu State Transport Corporation, who is the respondent in the claim petition. The respondents herein are the claimants viz., the wife and children of the deceased Dheenathayalan.
The facts which are absolutely necessary for the disposal of this memorandum of Civil Miscellaneous Appeal may be summarized briefly as follows:-
The deceased Dheenathayalan was working as a Selection Grade Conductor in the appellant Transport Corporation. He had succumbed to severe injuries, when he met with a road traffic accident on 07.02.2000 at the time of travelling as conductor on duty in the passenger bus bearing registration No.TN63 N 0644 belonging to the appellant Corporation. It is alleged that on 07.02.2000 at about 1.00 a.m. near Thambai Village on Trichy -Chennai High way, the deceased Dheenadhayalan had sustained severe injuries and died on the spot itself when the bus, in which he was sitting on his seat on the left side corner, had rammed against the rear side of the lorry which was proceeding in front of it. He was aged about 40 years and he was working as selection grade conductor and getting a sum of Rs.6.606.80 towards his salary. Hence, the respondents 1 to 4 have filed a claim petition claiming a sum of Rs.10,000,00/-on the file of the Motor Accident Claims Tribunal (The Principal District Court), Ramanathapuram. The appellant Transport Corporation has contested the claim petition on various grounds. However, on appreciating the evidences available on record, the Tribunal has awarded a sum of Rs.6,39,200/-under the following heads:
(i) towards loss of income of the family 6,19,000/-
(ii) towards consortium for the first respondent/claimant 5,000/-
(iii) for funeral expenses 5,000/-
(iv) for loss of love and affection 10,000/-
in total a sum of Rs.6,39,200/-was awarded by the Tribunal. Challenging the award, the respondent Transport Corporation has preferred this appeal before this Court.
Mr. D. Sivaraman, learned counsel appearing for the appellant has projected his arguments on two grounds.
(i) The Tribunal ought to have taken the net salary of the deceased for computing the compensation as held by the Apex Court in Asha v. United India Insurance Company Limited reported in 2004 ACJ 448.
(ii) The Tribunal ought to have given 1/3d deduction towards the personal and living expenses of the deceased, which is a mandatory one.
In the given case on hand, the appellant Transport Corporation has produced Ex.R1, salary certificate relating to the deceased Dheenathayalan. Though the appellant Transport Corporation has contended that the net salary has to be taken into consideration to arrive at the quantum, they have not chosen to produce any documentary proof to exhibit the net salary. Instead they have chosen to produce the salary certificate with regard to his gross salary. It is apparent from Ex.R2 that the date of birth of the deceased is 10.06.1951 and the date of his superannuation is 30.06.2009.
In Oriental Insurance Company Limited, Coimbatore vs. 1. Minor Swapnalekha and others reported in 2010 (1) TN MAC 551 (DB), the Division Bench of this Court after placing reliance upon the decision in Asha and Others Vs. United India Insurance Co. Ltd. and Another, has held that:-
It would be appropriate to take, the gross salary of the deceased at the time of his death, into account for determining the compensation.
With regard to future prospects, this Court would like to rely upon the decision in Smt. Sarla Verma & others vs. Delhi Transport Corporation & another reported in 2009 (2) TN MAC 1 (SC).
In this case, the Division Bench of the Hon''ble Supreme Court of India headed by his lordship Honourable Mr. Justice R.V. Ravendran has held that,
Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects.
In Susamma Thomas case, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the Court can take note of the prospects of the future and it will be unreasonable to estimate the Loss of Dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death was Rs.1,032/- per month.
His lordship has also observed that the decision in Susamma Thomas was followed in Smt. Sarla Dixit and another Vs. Balwant Yadav and others, , where the deceased was getting a gross salary of Rs.1,543/-per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3,000/-. This Court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2,200/-per month.
His lordship has also further held that in Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, , as against the actual salary income of Rs.42,000/-per annum at the time of accident, this Court assumed the income as Rs.45,000/-per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.
His lordship further held that:
In susamma Thomas case, this Court increased the income by nearly 100%, in Sarla Dixit case, the income was increased only by 50% and in Abati Bezbaruah case, the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favor of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words ''actual salary'' should be read as ''actual salary less tax'']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision of annual increments, etc.,) the Courts will usually take only the actual income at the time of death. A departure there from should be made only in rare and exceptional cases involving special circumstances."
Besides this, this Court also would like to place reliance upon the decision in National Insurance Co. Ltd., vs. Madhubala and others reported in 2010 ACJ 2774. The learned single Judge of the Delhi High Court has held in the above said case that the Tribunal can take into consideration the future prospects of the deceased for determining his income and consequently amount of compensation.
On coming to the instant case on hand, it is not in dispute that the deceased Dheenathayalan was working as a selection grade conductor and was drawing the gross salary of Rs.6,606.80 as observed earlier in the foregoing paragraphs. The appellant Transport Corporation is not able to produce his actual salary particulars. Since the details with regard to the gross salary alone is available, it may be better to make addition to the extent of 30% towards the future prospects of the deceased as observed in Sarla Verma.
Being dissatisfied with the award of the Tribunal, the respondents/claimants have also filed a Cross-Objection to enhance the award and necessary Court fee also paid.
Accordingly, the addition of 30% comes to Rs.1,982/-, and in total a sum of Rs.8,588/-has been assessed as the monthly income of the deceased and on this basis the annual contribution to his family would be Rs.1,03,056/-(8,588 x 12). Since the deceased was aged about 40 years, as decided in Sarla Verma by the Apex Court, "13" is the appropriate multiplier and applying this multiplier system after giving 1/4th of deduction for personal expenses of the deceased the 3/4th remainder would be Rs.77,292/-. On application of multiplier of 13, the loss of income of the family would be Rs.10,04,796/-. Besides this, the first respondent being the wife of the deceased is entitled to get a sum of Rs.10,000/-towards consortium and the respondents 2 to 4 are also entitled to get a sum of 5,000/-each towards loss of love and affection and for funeral expenses and transportation they are eligible to be awarded Rs.5,000/-and Rs.2,000/-respectively. The respondents are therefore entitled to get a sum of Rs.10,36,796/-with interest at the rate of 7.5% p.a. from the date of petition till the date of realization. The appellant transport corporation is directed to pay this amount with interest at the rate of 7.5% from the date of claim petition. With this observation, the appeal filed by the appellant transport corporation is dismissed and the Cross-Objection filed by the respondents/claimants is allowed. The respondents/cross-objectors are directed to pay the deficit Court fee for the remaining award amount within a period of two weeks from today. The award of the tribunal has been enhanced to Rs.10,36,796/-from Rs.6,39,200/-.
The above said award amount shall have to be apportioned by the respondents/cross objectors in the following manner:
The respondents/cross-objectors 2 to 4 shall each get a sum of Rs.2,00,000/-. The first respondent/cross objector shall get the remaining balance of Rs.4,36,796/-. No costs. Consequently, the connected Miscellaneous Petition is closed.