IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.1.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Civill Miscellaneous Appeal No.91 of 2009 and M.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 4 and respondents 1 and 2 Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 7.9.2006 passed in M.C.O.P.No.178 of 2005 on the file of the Motor Accidents Claims Tribunal (Sub Court), Bhavani. For appellant : Mr.S.Arunkumar For respondents 1 to 4 : Mr.Ma.P.Thangavel ----- JUDGMENT The Oriental Insurance Company is on appeal challenging the award dated 7.9.2006 passed in M.C.O.P.No.178 of 2005 on the file of the Motor Accidents Claims Tribunal (Sub Court), Bhavani. https://hcservices.ecourts.gov.in/hcservices/ 2. Mr.Ma.P.Thangavel, learned advocate appears for caveators/respondents 1 to 4, the claimants. By consent of both counsel, the appeal itself is taken up for disposal. 3. It is a case of fatal accident. The brief facts of the case are as follows:- The accident in this case happened on 27.5.2005. The deceased Mohammad Hussain, aged 52 years, Sub Inspector Police at Appakudal Police Station, Bhavani Taluk, was riding a motor bike bearing Registration No.TN 33-T-6748. He was hit by a van bearing Registration No.TN 33-R-6165 insured with the appellant driven by its driver in a rash and negligent manner. In that accident the said Mohammad Hussain sustained grievous injuries and died. The two wives aged 46 and 44 years, daughter aged 28 years and the son aged 24 years filed a claim for compensation in a sum of Rs.27 lakhs stating that the deceased was earning a sum of Rs.13,000/- per month. 4. In support of the claim, the son of the deceased was examined 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 details which 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 dated 27.5.2005, Ex.P-7 is the photocopy of identity card of the deceased, Ex.P-8 is the last pay certificate dated 19.6.2006 and Ex.P-9 is the legal heir certificate dated 16.8.2005. No oral or documentary evidence was let on behalf of the appellant insurance company/3rd respondent before the Tribunal. 5. The finding of negligence on the part of the driver of the van, who caused the accident and the death and the liability fixed on the appellant insurance company to compensate the claimants is not seriously disputed by the counsel for the appellant in the appeal and the same is confirmed. The only contention raised by the learned counsel for the appellant is on the quantum of compensation awarded by 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-7 identification card, fixed the age of the deceased as 53 years. As far as income of the deceased is concerned, the salary certificate Ex.P-8 was marked, in that it is stated that Rs.10,236/- was the total emoluments of the deceased. The Tribunal deducted certain amounts from this amount. The deceased made contributions to provident fund, loan recovery, etc. These amounts have been deducted from the salary and the net income of the deceased was taken as Rs.9,000/- per month for the purpose of compensation. This deduction is 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 fund contribution, loan recovery should not be deducted for fixing the actual income of the person concerned. In this case, the Tribunal by adopting unit method fixed the loss of contribution to the family of the deceased as follows:- Monthly income of the deceased = Rs.9,000/- Total units of the family of the deceased = 10 units Value 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 to the 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 of accident, the Tribunal adopted 11 multiplier and granted a sum of Rs.8,84,400/- towards pecuniary loss. In addition to that, the Tribunal granted compensation under conventional heads. In all, the Tribunal granted the following amounts as compensation with interest at 6% per annum:- Sl. No. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits to the family of the deceased Rs.8,84,400/- 2 Loss of consortium to the two wives at Rs.20,000/- each Rs. 40,000/- 3 Transport expenses to the two wives at Rs.1,000/- each Rs. 2,000/- 4 Funeral expenses to the two wives at Rs.2,500/- each Rs. 5,000/- 5 Loss of love and affection to the son and the daughter at Rs.20,000/- each Rs. 40,000/- Total Rs.9,71,400/- https://hcservices.ecourts.gov.in/hcservices/ 7. In appeal, the counsel for the appellant contended that the multiplier of 11 in a case of death of a 53 years old person, is high as he has only five more years of service. The Tribunal has clearly observed that there is no material to show that the deceased was in the verge of promotion and that there was a possibility of increase in the salary in the near future. Therefore, it was contended that multiplier 5 should be taken considering the period in service. Based on this, the income of the deceased should be fixed. The balance multiplier of 6 should be taken for determining the compensation post retirement and that too not on the basis of the full salary. 8. Heard the learned counsel for the claimants, who stated that since the deceased was in the verge of retirement, there was every possibility that the deceased will get higher salary shortly and that can be taken into consideration. The counsel for the claimants has not, however, disputed the fixation of monthly contribution to the family of the deceased. 9. It is not in dispute that the deceased was a Sub Inspector of Police and was 53 years old at the time of accident. His period of service will be only 5 years. He will get full extent of salary only for five years. After that he will get pensionary benefits. Therefore, the Tribunal was not justified in taking entire salary and the higher multiplier as on the date of accident for determining the compensation. Since the period of service is only for five years, the loss of pecuniary benefits to the family of the deceased has 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/- Total Rs.6,43,200/- Therefore, the total pecuniary loss to the dependents of the deceased will be Rs.6,43,200/- as against Rs.8,84,400/-. The other amounts granted by the Tribunal under conventional heads are not disputed. Accordingly, the award of the Tribunal is modified as follows:- Sl.N o. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits to the family of the deceased Rs.6,43,200/- 2 Loss of consortium to the two wives (Rs.20,000/- each) Rs. 40,000/- 3 Transport expenses to the two wives (Rs.1,000/- each) Rs. 2,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.N o. Head Amount granted by the Tribunal 4 Funeral expenses to the two wives (Rs.2,500/- each) Rs. 5,000/- 5 Loss of love and affection to the son and the daughter (Rs.20,000/- each) Rs. 40,000/- Total Rs.7,30,200/- The interest granted by the Tribunal at 6% is not disputed and the same is confirmed. 10. In the result, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The award of the Tribunal is reduced to Rs.7,30,200/- from Rs.9,71,400/-. (ii) The interest granted by the Tribunal at 6% is confirmed. (iii) The learned counsel for the appellant seeks for eight weeks' time to deposit the award amount as ordered by this Court. (iv) On such deposit, as requested by the learned counsel for the claimants, the claimants are entitled to withdraw the award amount as follows:- The first wife, the 1st claimant Rs.3,21,600/- + Rs.20,000/- + Rs.1,000/- + Rs.2,500/- = Rs.3,45,100/- with proportionate interest and costs The second wife, the 2nd claimant Rs.1,60,800 + Rs.20,000/- + Rs.1,000/- + Rs.2,500/- = Rs.1,84,300/- with proportionate interest and costs The daughter, the 3rd claimant Rs.80,400/- + Rs.20,000/- = Rs.1,00,400/- with proportionate interest and costs The son, the 4rd claimant Rs.80,400/- + Rs.20,000/- = Rs.1,00,400/- with proportionate interest 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 ts To The Subordinate Judge, (Motor Accidents Claims Tribunal) Bhavani. 1 cc To Mr.Ma.P.Thangavel, Advocate, SR.3961 C.M.A.No.91 of 2009 BV(CO) SRA(13/02/2009) https://hcservices.ecourts.gov.in/hcservices/