IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.03.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE M.VENUGOPAL C.M.A.NO.1583 of 2006 Oriental Insurance Company Limited, Coimbatore .... Appellant / III Respondent Vs. 1.Minor Swapnalekha 2.Minor Srilekha 3.Arumugam 4.Mariyayee 5.Bakthavatchalam 6.The Executive Officer Kuniyamuthur Town Panchayat Kuniyamuthur Post, Coimbatore Coimbatore District. 7.Murugan 8.Sundar 9.National Insurance Co.Ltd., Branch Office 2, United Shopping Complex 94/34, Dr.Nanjappa Road Coimbatore District. .... Respondents/ Petitioners & 1st, 2nd, 4th to 6th Respondent Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 17.8.2005 made in M.C.O.P.No.1629 of 2001 on the file of Motor Accident Claims Tribunal (Subordinate Judge, Dharapuram.) For Appellant : Mr.Arunkumar For Respondents : Mr.C.Anandaramani for R.5 Mr.G.Sankaran for R.6 Mr.N.Vijayaraghavan for R.9 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT R.BANUMATHI,J. In this appeal, Appellant/Insurance Company challenges the quantum of compensation of Rs.16,95,680/- awarded in M.C.O.P.No.1629 of 2001 on the file of Motor Accident Claims Tribunal (Subordinate Judge, Dharapuram) to the Claimants for the death of Balasubramanian in the road traffic accident on 17.1.2001 to the Claimants – daughters and parents. 2. The brief facts are that on 17.1.2001 at about 9.15 A.M, the deceased - Balasubramanian was riding his scooter TN 37B 4032 and his wife Shanmugasumathi Suganya was travelling as a pillion rider. They were proceeding towards east on the northern edge of the east west Coimbatore to Palakkad main road near Kuniamuthur Aruna Theatre in a minimum speed. At that time, the fifth Respondent drove the mini lorry bearing Registration No.T.N 33 T 2296 owned by the 6th Respondent -Kuniyamuthur Town Panchayat in a rash and negligent manner. The fifth respondent lost the control of the mini lorry and suddenly came to the main road and dashed against the Tata Sumo TN 38 C 4449 which was coming in the main road and then came to the edge of the road and dashed against the scooter of the deceased with great force. The deceased and his wife were thrown off and sustained grievous injury all over their body. Shanmugasumathi Suganya – wife of the deceased died on the spot itself. The deceased was immediately taken to the C.M.C.Hospital at Coimbatore and then to K.G.Hospital and was admitted as in-patient. In spite of intensive treatment, Balasubramanian succumbed to injuries on 30.1.2001. A criminal case was registered in Crime No.31 of 2001 of Podanur Police Station under Sections 337 and 304(A) IPC. Balasubrmanian was working as Clerk cum Shroff in Indian Bank, Coimbatore and he was getting salary of Rs.14,238/-. Alleging that the accident was due to rash and negligent driving of mini lorry driver, Claimants have filed Claim Petition - M.C.O.P.No.1629 of 2001 before the Sub- Court, Dharapuram claiming compensation of Rs.30,00,000/-. Before the Tribunal, the Insurance Company resisted the Claim Petition denying the manner of accident, age, income and status of the deceased. 3. Before the Tribunal, 4th Claimant- mother – A.Mariyayee was examined as P.W.1. Eye witness Arumugam was examined as P.W.2 and the Manager from Indian Bank was examined as P.W.3 and salary certificate of deceased Balasubramanian was marked as Ex.P.8. Another witness - P.W.4 was also examined. On Claimants' side, Exs.P.1 to P.10 were marked. No oral and documentary evidence was adduced by the Respondents. https://hcservices.ecourts.gov.in/hcservices/ 4. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of mini-lorry owned by the 6th Respondent -Kuniyamuthur Town Panchayat and the Appellant – Insurance Company, owner and driver of the mini-lorry are jointly and severally liable to pay the compensation. Insofar as the quantum of compensation, based upon Ex.P.8, Tribunal has taken pecuniary loss to the family at Rs.13,964/- and after deducting 1/3rd for personal expenses and adopting multiplier 15, Tribunal has calculated loss of dependency/pecuniary loss at Rs.16,75,680/-. Tribunal has awarded Rs.5,000/- for funeral expenses and Rs.15,000/- for loss of love and affection and awarded total compensation of Rs.16,96,680/-. 5. Challenging the quantum of compensation, by placing reliance upon (2004) 1 ACJ 448, (ASHA AND OTHERS VS. UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER ) the learned counsel for Appellant – Insurance Company Mr.Arunkumar submitted that the Tribunal ought to have taken net salary received by the deceased for the purpose of arriving compensation and erred in taking gross salary for arriving compensation. It was further contended that the Tribunal also erred in applying 15 years multiplier without following the judgment reported in 2005 AIR SCW 2542 = (2005) 6 SCC 236 (T.N. State Transport Corpn. Ltd. v. S. Rajapriya). 6. It is not necessary for us to elaborate upon the facts as to the manner of accident, who was responsible for the accident and the coverage of policy and liability fastened upon 6th Respondent - Kuniyamuthur Town Panchayat and the Appellant – Insurance Company. It is for the reason that the above aspects were recorded in favour of the Claimants by the Tribunal and the above findings are not under challenge in this Appeal. Only the quantum of compensation awarded to the Claimants is challenged. 7. At the time of accident, deceased Balsubramanian, aged 41 years was working as a Clerk cum Shroff at Indian Bank, Coimbatore and he was getting monthly salary of Rs.14,238/-. Sethuraman – Manager of the Indian Bank, who was examined as P.W.3, has stated that in January, 2001, Balasubramnaian was getting Rs.13,965/- as salary. Ex.P.8 is the salary certificate to show that Balasubramanian was getting gross salary of Rs.13,965/-. The Tribunal has taken gross salary of Rs.13,965/- for arriving at the compensation. Main contention of the Appellant - Insurance Company is that the Tribunal was not right in taking gross salary, but after taking into account the deductions, Tribunal ought to have taken net salary – take home salary for arriving the compensation. 8. After the view taken by the Supreme Court in (2004) 1 ACJ 448, (ASHA AND OTHERS VS. UNITED INDIA INSURANCE COMPANY LIMITED https://hcservices.ecourts.gov.in/hcservices/ AND ANOTHER), now the consistent view taken by the Supreme Court is that the annual gross income at the time of death has to be taken into account for determining the compensation. In (2005) 10 SCC 720 (NEW INDIA ASSURANCE CO.LTD. VS. CHARLIE.), the Supreme Court has held that the expression "net income" would ordinarily mean gross income minus the statutory deductions like any tax,etc. In the said judgment, it was held as under: "11. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self- maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of a year’s purchase." 9. Section 2(vi) of the Payment of Wages Act, 1936 defines wages as under: "'wages' means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment...." 10. Section 2(rr) of the Industrial Disputes Act defines 'wage" as meaning "all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment and includes – (i) such allowances (including dearness allowance) as the workman is for the time-being entitled to...." 11. In 2008 ACJ 367 (NEETABEN HASMUKHBHAI KUBERBHAICHAUDHARY & OTHERS Vs. SHAKRABHAI RAIMALBHAI RABARI & OTHERS, after referring to Section 2(vi) of the Payment of Wages Act and Section 2(rr) of the Industrial Disputes Act, the Gujarat High Court has held that dearness allowance, and provident fund would all form part of salary and no deduction need be made from salary towards provident fund, dearness allowance, etc., 12. Holding that income is not confined to pay-packet only in National Insurance Company Limited Vs. Indira Srivatsava and others (2008) 2 SCC 763, Supreme Court has held as under: "9. The term “income” has different connotations for different purposes. A court of law, having regard to the https://hcservices.ecourts.gov.in/hcservices/ 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 are 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 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 for 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." 13. Holding that the dearness allowance received by the deceased form part of his income while computing compensation to the claimants and upon the term "income" in Raghuvir Singh Matloya and Others Vs. Hari Singh Malviya and Others (2009 ACJ 1580), the Supreme Court has held as under: "7. Dearness allowance, in our opinion, should form part of income. House rent allowance is paid for the benefit of the family members and not for the employee alone. What would constitute an income albeit in a different fact situation, came up for consideration before this Court in National Insurance Co.Ltd. V. Indira Srivatsava, 2008 ACJ 614 (SC), wherein it was held: (17) 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 https://hcservices.ecourts.gov.in/hcservices/ as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for 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. (18) The term “income” in P. Ramanatha Aiyar’s Advanced Law Lexicon (3rd Edn.) has been defined as under: “The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture.” It has also been stated: “ ‘Income’ signifies ‘what comes in’ (per Selborne, C., Jones v. Ogle, 42 LJ Ch. 336, ‘It is as large a word as can be used’ to denote a person’s receipts (per Jessel, M.R., In re: Huggins, 51 LJ Ch 938), income is not confined to receipts from business only and means periodical receipts from one’s work, lands, investments, etc. Secy. to the Board of Revenue, Income Tax v. Al. Ar. Rm. Arunachalam Chettiar & Brothers AIR 1921 Mad 427.Ref. Vulcun Insurance Co. Ltd. v. Corpn. of Madras (AIR 1930 Mad 626)” 21. If the dictionary meaning of the word “income” is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income tax or professional tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. To the same effect is the decision of this Court in Oriental Insurance Co.Ltd. v. Ram Prasad Varma, 2009 ACJ 1006 (SC)" 14. In the instant case, the Tribunal has taken more than the salary of Rs.13,965/- for arriving at the compensation. Applying the ratio of the above decisions, we are of the view that the Tribunal was right in taking gross salary of Rs.13,965/- for calculating the compensation. https://hcservices.ecourts.gov.in/hcservices/ 15. The Tribunal has deducted 1/3rd for personal expenses. In (2008) 4 SCC 259, Bilkish Vs. United India Insurance Company Limited, the Supreme Court has taken the view that deceased would have spent 1/3rd towards personal expenses and would have contributed 2/3rd of his income to the family. Deduction of 1/3rd towards personal expenses is the ordinarily rule adopted by the Courts/Tribunal. Tribunal has rightly determined 1/3rd for personal expenses. 16. As held in 2008 ACJ 329 and Sarla Verma case (2009) 6 SCC 121, future prospects will have to be taken note of. Generally, actual income of the deceased less any tax should be the starting point for calculating the compensation. As held by the Supreme Court in Sarla verma case, (2009) 6 SCC 121 it is necessary to give increase towards future prospects to the actual income at the time of death. Deceased Balasubramanian was working as Cashier cum Shroff and was aged only 41 years at the time of accident. Over the years, the deceased would have had further chances of promotion and with increased salary and perks deceased Balasubramanian would have drawn more salary. In fact, the Tribunal had not taken into account the future prospects. In such circumstances, it cannot be said that the Tribunal has committed an error in taking the gross salary of RS.13,964/- as the basis for determining the compensation. Coming to the choice of multiplier, at the time of accident, deceased was aged 41 years. As per the Second Schedule, Tribunal has adopted 15 multiplier, which is well in accordance with the Second Schedule and the same is maintained. The interest at the rate of 7.5 percent awarded by the Tribunal is also in order with the consistent view taken by the Supreme Court and the same is maintained. 17. In the result, the compensation amount awarded by the Tribunal in M.C.O.P.No.1629 of 2001 on the file of Motor Accident Claims Tribunal (Subordinate Judge, Dharapuram.) is confirmed and the Civil Miscellaneous Appeal is dismissed. However, there is no order as to costs. 18. By the order dated 28.04.2006, this Court has directed the appellant insurance company to deposit half of the amount due under the Award. It was stated before us that the said conditional order was complied with. The appellant insurance company is directed to deposit the balance 50% of the compensation amount along with accrued interest within a period of six weeks from the date of receipt of a copy of this judgment. It appears that the first claimant has attained majority. The first claimant is permitted to withdraw the entire compensation amount payable to her on obtaining necessary orders from the Tribunal, declaring her as major. Insofar as the minor second claimant, the compensation amount payable to the minor second claimant shall be invested in a https://hcservices.ecourts.gov.in/hcservices/ Nationalised Bank till she attains majority. Immediately on attaining majority, the second claimant is also permitted to withdraw the compensation amount payable to her on obtaining necessary orders from the Tribunal. Insofar as claimants 3 and 4, they are permitted to withdraw the entire compensation amount along with accrued interest apportioned to them. On receipt of a copy of this order, the Tribunal is directed to serve notice upon the claimants and ensure the compliance of the directions and issuance of cheques at an early date. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. usk Copy to: 1. The Motor Accident Claims Tribunal - Subordinate Judge, Dharapuram 2. The Section Officer VR Section, High Court, Madras (Records to be sent forthwith to the tribunal) 1 cc to Mr.N. Vijayaraghavan, Advocate, Sr. 20229 1 cc to Mr.S. Arunkumar, Advocate, SR. 20032 C.M.A.No.1583 of 2006 KA (CO) kk 31/3 https://hcservices.ecourts.gov.in/hcservices/