IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.01.2010 CORAM THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH C.M.A.Nos.3882 of 2004 & 2246 of 2005 1.Mrs.S.Rhama 2.S.Sudharshana (Minor) 3.S.Swathi (Minor) (Minor petitioners 2 and 3 rep. by mother and next friend Mrs.S.Rhama) ... Appellants in C.M.A.No.3882 of 2004/Petitioner & ... Respondents in C.M.A.No.2246 of 2005 ..vs.. Tamil Nadu State Transport Corporation (Kumbakonnam Division-I) Limited rep by its Managing Director, Railway Station Road Kumbakonam .. Respondent in C.M.A.No.3882 of 2004/Respondent & ... Appellant in C.M.A.No.2246 of 2005 Prayer: Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act 1988, against the judgment and decree dated 29.09.2004 made in MACT.O.P.No.940 of 2001, on the file of the Chief Court Small Causes (Motor Accidents Claims Tribunal), Chennai. Mr.V.Mohan Choudary : For appellants in CMA.No.3882/04 and for Respondents CMA No.2246/ 2005. Mr.M.Krishnamoorthy : For Appellants in CMA No.2246/05 and for Respondents in CMA No. 3882/04 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT Being aggrieved by the award of compensation and also quantum of compensation, State Transport Corporation has filed C.M.A.No.2246 of 2005. Being dissatisfied with quantum of compensation, wife and minor daughters of deceased Sundara Rajan have filed C.M.A.No.3882 of 2004. Since both the appeals arise out of same judgment, both the appeals were taken up together and shall stand disposed of by this common judgment. 2.The deceased aged 42 years was employed as General Manager in Deltatec Solutions Limited, Pycrofts Garden Road and he was earning a monthly salary of Rs.60,500/- per month. The accident happened on 22.12.2000 at about 5.00 a.m, when the deceased was driving the motor car bearing Regn No. TN-01-Q-6716 in GST Road, from north to south. When the car was proceeding near Karunguzhi check post in Maduranthagam Taluk, the driver of the respondent Transport Corporation bus bearing Regn No.TN-49-N-1142 drove the bus in a rash and negligent manner from the opposite direction and proceeded to the extreme right side of the road and dashed against the car and caused the accident. The deceased sustained multiple injuries and subsequently died of injuries. Regarding the accident, criminal case was registered in Cr.No.1050/2000 in Maduranthagam police station. Alleging that the accident was due to rash and negligent driving of the bus driver of Transport Corporation, wife and minor daughters of deceased Sundara Rajan have filed the claim petition under Section 166 of the Motor Vehicles Act. 3.Denying the accident, Respondent Corporation filed counter stating that car bearing Regn.No.TN-01-Q-6716 proceeding from the opposite direction in a rash and negligent manner in an uncontrollable speed, dashed against the drums kept at check post and then dashed against the right side corner of the bus by proceeding to the wrong side of the road and caused the accident and the driver of the bus is not responsible for the alleged rash and negligent driving. 4.To prove the rash and negligent driving of the bus driver, an eye witness – Auto Driver was examined as PW4. To prove the income of the deceased, representative of the employer was examined as PW3. Exs.P1 to P.27 were marked on claimants' side. On behalf of Respondent Corporation, driver of the bus was examined as RW1 and one Annadurai was examined as RW2 and Exs.R1 (series) and Ex.R2 (series) were marked. 5.Upon consideration of oral and documentary evidence and relying upon the evidence of eye witness PW4, Tribunal held that the accident was due to rash and negligent driving of the bus driver. In so far as defence plea of denial of accident, Tribunal held that drums were kept on the side of the road only to restrict the traffic https://hcservices.ecourts.gov.in/hcservices/ and no negligence could be attributed to Sundara Rajan who was driving the car. Pointing out that the check post was at a distance of 20 feet from the site of the accident, the Tribunal faulted the Respondent Corporation for not examining the police on duty in the check post. Pointing out filing of charge sheet against the bus driver (Ex.P9), Tribunal held that the accident was due to rash and negligent driving of the bus driver. Taking Ex.P15, form XVI submitted by the employer to the Income Tax Department and taking the 'gross salary' at Rs.2,79,674/- per annum. Adopting multiplier 15, Tribunal has awarded total compensation of Rs.26,32,100/-. 6.Respondent Corporation challenges the findings of Tribunal denying rash and negligent driving of bus driver. Denying the accident in the manner alleged by the claimants, learned counsel for Respondent Corporation inter alia raised the following contentions: ●Deceased was solely responsible for the accident as he was driving the car in an uncontrollable speed and in a rash and negligent manner. Tribunal overlooked the fact that car driver overtook PW4's auto and after negotiating check post barrels kept in the road hit against the bus and only car driver was solely responsible for the accident. ●PW4- eye witness had neither lodged any complaint to the police nor did he accompany the victim to the hospital and while so, Tribunal erred in placing reliance upon evidence of PW4 – Auto driver to hold that accident was due to negligent driving of bus driver. 7. Auto-driver who witnessed the accident was examined as PW4. In his evidence PW4 has stated that on 22.12.2000 at about 5.00am, he was proceeding the auto-rickshaw from Chingleput towards Maduranthagam in G.S.T.Road and near the check post at Karunkuzhi the motor car overtook the above auto-rickshaw and at a distance of 50 feet, he saw the bus bearing Regn.No.TN-49-N-1142 coming in the opposite direction hit against the car. In his evidence PW4 has stated that the accident was due to negligent driving of the bus driver. 8.PW4 being an auto-driver has explained his presence near the check post at Karunkuzhi on the date of accident on 22.12.2000. It is pertinent to note that the check post at Karunkuzhi is at a short distance of about 20 feet from the scene of accident. PW4 being an auto driver cannot be expected to spend his time in taking the trouble of going to the police station and lodging the complaint. PW4's evidence cannot be doubted on the ground that he has not lodged the complaint before the police. Perhaps PW4 might have orally informed the police at Check post about the accident and thereafter might have proceeded in his own way. https://hcservices.ecourts.gov.in/hcservices/ 9.On the side of respondents, excepting bus driver on duty (RW4) no other evidence was adduced. As pointed out by the Tribunal, no investigation was undertaken by the Respondent Corporation or that the investigation report was not filed before the Tribunal. If really the car was coming in an uncontrollable speed and after dashing against the drums hit against the bus, nothing prevented the Respondent Corporation from adducing independent evidence. As pointed out by the Tribunal, the Respondent Corporation has not chosen to examine the police officials or other eye witnesses to substantiate their plea in the counter statement. It is relevant to note that the charge sheet has been filed against the driver on wheels. Filing of charge sheet in criminal case is a prima facie indication of rash and negligent driving of the bus driver. Upon analysis of evidence and the site plan, Tribunal rightly held that the bus was proceeding in the opposite direction and suddenly came in the wrong side and had head on collision with the motor car and that the accident happened at a distance of 20 feet from the police check post. The conclusion of the Tribunal holding the bus driver responsible for the accident is based upon evidence and materials on record and we do not find any reason to take a different view. 10.As seen from Ex.P3 S.S.L.C Certificate, Sundara Rajan was born on 17.03.1958 and that he was aged 42 years on the date of the accident. The deceased Sundara Rajan was a graduate in Bachelor of Science and he was also a graduate in Bachelor of Technology in Electronics Engineering and he passed in first class during the year 1981. He was employed as a General Manager in M/s.Deltatec Solutions Limited, which is a sister concern of Indian Express Newspaper Limited and was getting monthly income of Rs.60,500/- and that the deceased would have been promoted to the higher post and his income would have been increased in future. 11.Ex.P15 is the form XVI submitted by the employer to Income Tax Department for the period April 2000 to December 2000, in which the gross salary has been mentioned as Rs.2,79,674/-. Based upon Ex.P15, the Tribunal has taken the actual monthly salary as Rs.20,492/-. The Tribunal has arrived the future salary by fixing 10% more income than existing net salary and fixed salary at Rs.22,541/- and thereafter, Tribunal has fixed the monthly salary at Rs.21,517/- by taking the average of present net salary and future income – Rs.20492 + 22541 = Rs.430332=Rs.21516.50, rounded to Rs.21,517/-. By taking the monthly income as Rs.21,517/-. Tribunal adopted 1/3rd deduction for the personal expenses. Adopting the multiplier 15, Tribunal has awarded total compensation of Rs.26,32,100/- as under: Lost of Dependency (14,345 x 12 x 15) :: Rs. 25,82,100.00 Loss of Consortium :: Rs. 20,000.00 Loss of Expectation of life :: Rs. 10,000.00 https://hcservices.ecourts.gov.in/hcservices/ Loss of Love and Affection :: Rs. 10,000.00 Funeral Expenses :: Rs. 10,000.00 --------------------- Rs. 26,32,400.00 --------------------- 12.The grievance of the claimants is that when Sundara Rajan was getting salary of Rs.60,500/- including all allowances, Tribunal was not justified in taking Ex.P15, From XVI submitted by the employer to the Income Tax Department and fixing monthly salary at Rs.21,517/-. Placing reliance upon 2009 (2) TN MAC 1 (SC)[Smt.Sarla Verma & Ors Vs. Delhi Transport Corporation & Anr], the learned counsel further contended that in the case of deceased aged 42 – 50 years, increase of 30% is required for calculating the future salary but the Tribunal erred in giving only 10% increase for calculating the future salary. The main grievance of the appellants is that Tribunal erred in not taking into account various allowances paid to Sundara Rajan, which were meant for benefit of the family members and appellants seek enhancement of compensation in C.M.A.3882 of 2004. 13.The learned counsel for Respondent Corporation submitted that the compensation of Rs. 26,32,400.00 awarded is exorbitant. It was further submitted that the conventional damages awarded was also very much on the higher side. 14.Expressing concern over lack of uniformity and consistency in awarding the compensation in 2009 (2) TN MAC 1 (SC)[Smt.Sarla Verma & Ors Vs. Delhi Transport Corporation & Anr], Supreme Court has held as under: "Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the Loss of Dependency are: (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the Personal Living Expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standarized, there will be uniformity and consistency in the decisions." 15.The deceased was graduate in Bachelor of Technology in Electronics Engineering and he was employed as General Manager in M/s.Deltatec Solutions Limited, which is a sister concern of Indian Express Newspaper Limited. In his evidence PW1 has stated that her husband Sundara Rajan was earning monthly income of Rs.60,500/- per month and he had further chances of promotion to the higher post and his income would have been increased in future. Regarding income of the deceased, representative of M/s.Deltatec Solutions Limited was https://hcservices.ecourts.gov.in/hcservices/ examined as PW3. In his evidence PW3 has stated that deceased has joined as Senior Manager (Communications) on 05.07.1995 and subsequently in August 1998, he was promoted as General Manager (net works and system integration). In his evidence PW3 has stated that on the date of accident, the deceased was paid Rs.60,500/- as under: Earnings Amount Deductions Amount Basic Pay Rs 21000.00 Provident Fund Rs 2520.00 House Rent Allowance Rs 8400.00 Income Tax Rs 5500.00 Personal Allowance Rs 2475.00 Housing Loan Rs 5781.00 Transport Allowance Rs 6955.00 Professional Tax Rs 100.00 Allowance for purchase of periodicals Rs 2500.00 Other Expenses Rs 1000.00 Business Development Rs 5569.00 Maintenance of Motor Car Rs 2000.00 Other Allowances Rs 8083.00 Employers Contribution towards PF Rs 2520.00 Total Rs 60502.00 Rs 13901.00 16.Holding that income is not confined to pay-packet only in (2008) 2 SCC 763 [National Insurance Co. Ltd., Vs. Indira Srivastava and Others], Supreme Court has held as under:- "9.The term "income" has different connotations for different purposes. A Court of law, having regard to the change in societal conditions must consider the question not only having regard to pay-packet the employee carries home at the end of the month but also other perks which were beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. 10.Section 168 of the Act uses the word "just compensation" which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private https://hcservices.ecourts.gov.in/hcservices/ sector companies in place of introducing a pension scheme take recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard-working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. ..... 19.The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were of his benefit. We may however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted." 17.Even though Sundara Rajan was getting monthly income of Rs.60,500/-, as we pointed out earlier, based upon Exs.P15 and P13, Tribunal has observed that the net salary of Rs.17,972/- was paid to the deceased. Adding Provident Fund contribution of the employer Rs.2520/- with the net salary, Tribunal has taken the monthly income at Rs.20,492/-. After giving increase by 10% for future increase in salary, Tribunal has fixed monthly income of the deceased at Rs.21,517/-. The main point falling for consideration is whether the Tribunal was justified in not taking into account various allowances paid to Sundara Rajan. 18.It is fairly well settled that the compensation awarded by the Tribunals must be just compensation to mitigate hardship that has been caused due to death of bread winner of the family, legal representatives are entitled to receive just compensation. 19.Section 168 of the Act uses the word just compensation which should be ascertained in determining the income. Court cannot loose sight of various allowances/perks paid by private sector companies for the benefit of the entire family. 20.In their evidence, PWs 1 and 3 have stated that deceased Sundara Rajan was getting monthly salary of Rs.60,500/- including allowances. As seen from evidence of PW3, salary and allowance of Sundara Rajan is under:- https://hcservices.ecourts.gov.in/hcservices/ Per Month Basic : Rs. 21000.00 HRA : Rs. 8400.00 Personal Allowance : Rs. 2473.00 Sub-Total Rs. 31873.00 Conveyance : Rs. 6955.00 Books & Periodicals : Rs. 2500.00 Attire Allowances : Rs. 1000.00 Business Promotion : Rs. 5569.00 Vehicle Maintenance : Rs. 2000.00 Provident Fund Contribution-Employers : Rs. 2520.00 Other Allowances : Rs. 8083.00 Sub Total Rs.28627.00 Total Rs.60,500.00 (per month) 21.For future prospects salary to be increased by 10-20%. So increase in salary to be adjusted with the deduction of 10-20% towards income tax and therefore, there need not be any further increase towards salary. As Sundara Rajan was a General Manager (net works and system integration) getting higher salary, he must have been paid 10-20% increase in salary and deduction to be made to the extent of 10-20%. 22.In so far as the allowances, Conveyance Allowance, Vehicle Maintenance, Attire Allowance and Business Promotion Allowance are exclusively meant for deceased Sundara Rajan for his conveyance and for promoting business. There is no evidence to show the nature of other allowance of Rs.8083/- paid under the caption 'Other Allowances'. Therefore, the allowances paid towards Conveyance, Attire Allowance, Business Promotion, Vehicle Maintenance and Other Allowances, were meant only for the deceased employee and were not meant for benefit of the family and cannot be included in the salary. 23.Allowance of Rs.2500/- paid towards Books and Periodicals and Contribution of Employer towards Provident Fund Rs.2520/- is to be added to the salary. The monthly salary of Sundara Rajan is fixed at Rs.37,000/- as under:- Basic : Rs. 21,000.00 (per month) HRA : Rs. 8,400.00 (per month) Personal Allowance : Rs. 2,473.00 (per month) https://hcservices.ecourts.gov.in/hcservices/ Books & Periodicals : Rs. 2,500.00 (per month) Contribution by Employers towards Provident Fund : Rs. 2,520.00 (per month) Rs.36,895.00 (Rounded off to Rs.37,000/-) 24.Next question to be considered is choice of multiplier. Date of Birth of deceased Sundara Rajan is 17.3.1958 and at the time of accident, he was aged 42 years. Going by II Schedule, Tribunal has adopted multiplier 15. In 2005 ACJ 1441 SC, S.Rajapriya's Case Supreme Court has adopted multiplier 12. In a number of decisions Supreme Court has adopted multiplier provided in the II Schedule of the Act, where the actual loss of dependency was assessed below Rs.40,000/- and slightly a higher amount. Barring exceptional circumstances, where there is huge amount of multiplicand, the trend has been to adopt a lower multiplier. 25.In 2009 (2) TN MAC 1 (SC), Sarla Verma's Case, Supreme Court expressed concern for the lack of uniformity and consistency in awarding compensation. Referring to Susamma Thomas, Trilok Chandra and Sarla Verma's case vis-a-vis II Schedule of M.V.Act, Supreme Court has laid down the principles in adopting multiplier. Holding that the multiplier to be used as mentioned in Column No.4 of the table, Supreme Court has laid down the principles in adopting the multiplier as under:- Age of the Deceased Multiplier scale as envisaged in Susamma Thomas Multiplie r scale as adopted by Trilok Chandra Multiplie r scale in Trilok Chandra as clarified in Charlie Multiplier specified in second column in the Table in II Schedule to MV Act Multiplier actually used in Second Schedule to MV Act (as seen from the quantum of Compensatio n (1) (2) (3) (4) (5) (6) Upto 15 yrs. - - - 15 20 15 to 20 yrs. 16 18 18 16 19 21 to 25 yrs. 15 17 18 17 18 26 to 30 yrs. 14 16 17 18 17 https://hcservices.ecourts.gov.in/hcservices/ Age of the Deceased Multiplier scale as envisaged in Susamma Thomas Multiplie r scale as adopted by Trilok Chandra Multiplie r scale in Trilok Chandra as clarified in Charlie Multiplier specified in second column in the Table in II Schedule to MV Act Multiplier actually used in Second Schedule to MV Act (as seen from the quantum of Compensatio n 31 to 35 yrs. 13 15 16 17 16 36 to 40 yrs. 12 14 15 16 15 41 to 45 yrs. 11 13 14 15 14 46 to 50 yrs. 10 12 13 13 12 51 to 55 yrs. 09 11 11 11 10 56 to 60 yrs. 08 10 09 08 08 61 to 65 yrs. 06 08 07 05 06 Above 65 yrs. 5 5 5 5 23 26.Both going by II Schedule as well as the principles laid down in Sarla Verma's case, in the present case multiplier 14 to be adopted for deceased Sundara Rajan aged 42 years. For personal expenses 1/3rd deduction is adopted i.e., approximately Rs.12,000/- (Rs.37,000/- - Rs.25,000/-). Deducting Rs.12,000/- for personal expenses, contribution of Sundara Rajan to the family is calculated at Rs.25,000/- per month. Loss of dependency per annum is calculated at Rs.3,00,000/- (Rs.25,000/- x 12). Adopting multiplier of 14, the loss of dependency is calculated at 25,000 x 12 x 14=Rs.42,00,000/-. 27.In so far as conventional damages, Tribunal has awarded Rs.15,000/- for loss of consortium, Rs.15,000/- for loss of expectation of life and Rs.10,000/- for loss of love and affection and Rs.10,000/- for funeral expenses. In our considered view, the quantum of conventional damages awarded under various heads is reasonable warranting no interference. Total compensation payable to the claimants is calculated at Rs.42,50,000/- as under:- https://hcservices.ecourts.gov.in/hcservices/ Loss of dependency (Rs.25,000 x 12 x 14) : Rs.42,00,000.00 Loss of Consortium : Rs. 15,000.00 Loss of Expectation of Life : Rs. 15,000.00 Loss of Love and Affection : Rs. 10,000.00 Funeral Expenses : Rs. 10,000.00 Rs.42,50,000.00 Claimants are entitled for apportionment in the same rate as awarded by the Tribunal i.e., 50% payable to first claimant, wife of Sundara Rajan and another 50% to claimants 2 and 3, daughters of Sundara Rajan. 28.Tribunal has awarded interest payable at the rate of 9% per annum from the date of filing of petition. Following the consistent view taken by the Supreme Court, the rate of interest is reduced from 9% to 7.5% p.a. C.M.A.No.3882 of 2004 29.In the result, the compensation amount awarded in MACT.O.P.No.940 of 2001 on the file of Motor Accidents Claims Tribunal is increased to Rs.42,50,000/- and the C.M.A.No.3882 of 2004 preferred by claimants is partly allowed. Respondent Tamil Nadu State Transport Corporation is directed to deposit balance compensation within a period of 8 weeks from the date of receipt of a copy of this order. Interest of 9% p.a ordered by the Tribunal is reduced to 7.5% p.a. The claimants are entitled to the same rate as awarded by the Tribunal i.e., 50% payable to the first claimant wife of Sundara Rajan and 50% to claimants 2 and 3, daughters of Soundra Rajan. 30.Earlier by order dated 04.08.2005, Bench has granted interim stay on condition of deposit of Rs.10,00,000/-. Out of which first claimant was permitted to withdraw Rs.5,00,000/- and the remaining shares of claimants 2 and 3 was ordered to be invested. First claimant is permitted to withdraw the entire balance amount (50%) of the modified compensation along with accrued interest. It appears that 2nd claimant has already attained age of majority. After obtaining necessary orders declaring 2nd claimant as major, the 2nd claimant is also entitled to withdraw entire compensation amount i.e., 25% of modified compensation along with accrued interest. The share of compensation amount of modified compensation payable to 3rd claimant along with accrued interest shall be invested in https://hcservices.ecourts.gov.in/hcservices/ nationalised Bank on reinvestment plan till 3rd claimant attains majority. CMA.No.2246 of 2005: 31.In view of our conclusion of enhancing the compensation, the C.M.A preferred by the Corporation is dismissed. In the circumstances of the case, there is no order as to cost in both the CMAs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar gpa To 1.The Registrar, Courts of Small Causes. 2.The Motor Accidents Claims Tribunal, Court of Small causes, Madras. 3.The Section Officer, V.R.Section, High Court, Madras-104. 2 cc to Mr.V.Mohan Choudary, Advocate, Sr.No.4803 2 cc to Mr.M.Krishnamoorthy, Advocate, Sr.No.4777,4778 C.M.A.Nos.3882 of 2004 & 2246 of 2005 KSK {CO} TP/19.2.2010. https://hcservices.ecourts.gov.in/hcservices/