IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.11.2011 CORAM: THE HONOURABLE MR.JUSTICE K.MOHAN RAM AND THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI C.M.A.No.3759 of 2010 and M.P.No.1 of 2010 and M.P.No.1 of 2011 and Cross Objection No.178 of 2011 M/s.National Insurance Company Limited II Floor, 81-G, Chetty Street Bus Stand, Tiruchengode Town Tiruchengode, Namakkal District .. Appellant in CMA No. 3759 of 2010 and 1st respondent in Cross Objection No. 178 of 2011./2nd Respondent vs 1. Kannagi 2. Minor Sumathi 3. Minor Srimathi 4. Nallammal .. Respondents 1 to 4 in C.M.A.No.3759 of 2010 and Cross Objectors in Cross Objection No.178 of 2011/Petitioners 1 to 4 5. B.Gunasekaran .. 5th respondent in C.M.A.No.3759 of 2010 and 2nd respondent in Cross Objection No.178 of 2011/1st Respondent Civil Miscellaneous Appeal and Cross Objection against the judgment and decree dated 27.01.2010 passed by the Motor Accidents Claims Tribunal (Principal District Judge), Namakkal in MCOP No.704 of 2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellant ... Mrs.N.B.Surekha in CMA 3759/2010 & for R1 in Cross Objection No.178/2011 For Respondents ... Mr.C.Munusamy for 1 to 4 in CMA No. M/s.C & K Law Firm 3759 of 2010 & for Cross Objectors in Cross Obj.No.178/2011 For R5 in CMA No. 3759 of 2010 & R2 in Cross Obj.No. 178/2011 ... No appearance COMMON JUDGMENT (Judgment of the court was delivered by K.MOHAN RAM,J.,) The second respondent-Insurance Company in MCOP No.709 of 2007 on the file of the Motor Accident Claims Tribunal (Principal District Judge), Namakkal is the appellant in C.M.A.No.3759 of 2010 and the claimants in the said O.P are the Cross Objectors in Cross Objection No.178 of 2011. 2. The brief facts of the case are as follows: a] One Parameswaran, who was working as a Head Master in the Union Primary School at Kandipalayam was driving his Bajaj Boxer Bike bearing Registration No.TN-28-K-0951 at about 4.30 p.m on 12.12.2006 and while crossing the main road at Kalangani, the bus bearing Registration No.TN-30-Y-7161 driven by its driver came in a rash and negligent manner and hit the bike; the said Parameswaran sustained serious injuries and he succumbed to the injuries. Claiming that the driver of the bus was solely responsible for the accident, the claimants, viz., the wife, two minor children and the mother of the deceased approached the Tribunal claiming a total compensation of Rs.25 lakhs. b] The case of the claimants was that the deceased was earning a sum of Rs.20,000/- as salary per month and was also earning about Rs.1 lakh per annum through agricultural operations. Before the Tribunal the owner of the bus remained exparte and the claim was https://hcservices.ecourts.gov.in/hcservices/ contested only by the Insurance company-the appellant herein. c] In the counter affidavit filed by the Insurance Company, it was contended that the accident did not occur in the way as narrated in the claim petition. The bus was proceeding from Salem and driven towards Namakkal by its driver in a slow and diligent manner, keeping on the left side of the road, which is a National Highway; but unmindful of the bus, coming on the National Highway, the deceased Parameswaran, who was riding the two wheeler rashly and negligently, suddenly emerged from a side lane and made a futile attempt to cross the main road from West to East and as a result of the said imprudent act, the deceased dashed his two wheeler against the front side body of the bus and thereby the accident occurred. It was contended that the theory of res ipsa loquitor squarely applies to the facts of the case. The age, income, profession of the deceased had to be proved by the claimants. It was contended that since the accident had occurred due to rash and negligent driving of the two wheeler by the deceased, the Insurance company is not liable to pay any compensation. d] Before the Tribunal, on the side of the claimants, three witnesses were examined and Exs.P1 to P13 were marked. On the side of the respondent, no oral evidence was adduced and Exs.R1 to R3 were marked. e] On a consideration of the evidence, adduced before it, the Tribunal came to the conclusion that the accident had occurred only due to the rash and negligent driving of the bus by its driver and accordingly held, that the owner of the bus and the insurer is liable to pay the compensation. f] Considering the salary certificate and the evidence of P.W.1 and P.W.3, the Tribunal fixed the pecuniary loss at Rs.18 lakhs and awarded other conventional damages. Thus, totally the Tribunal awarded a sum of Rs.18,25,000/- as compensation. g] Being aggrieved by the award passed by the Tribunal, the Insurance Company has filed this appeal and being not satisfied with the quantum of compensation awarded, the claimants have filed the cross objection. 3. We have heard the learned counsel appearing on either side. 4. Mrs.N.B.Surekha, the learned counsel appearing for the appellant, submitted that admittedly, as per the evidence on record, the bus insured with the appellant was proceeding on the National Highway and while it was passing the junction on the National Highway and a side road, the deceased, who was coming from the side road without looking for the vehicles coming on the National Highway suddenly crossed the National Highway without taking proper care and https://hcservices.ecourts.gov.in/hcservices/ thus he has contributed to the accident. 5. The learned counsel for the appellant further submitted that but for the negligence of the deceased, the accident would not have occurred. Alternatively, the learned counsel submitted that since the two wheeler has also contributed to the accident, the Tribunal should have fixed the contributory negligence on the part of the deceased also. 6. As far as the quantum of compensation is concerned, the learned counsel submitted that the Tribunal is not right in coming to the conclusion that the monthly income of the deceased would be fixed at Rs.16,030/- after the revision of pay in accordance with the VI Pay Commission report and after deducting a sum of Rs.4,000/- he would get net monthly salary at Rs.12,000/-. She also further submitted that Ex.P12 clearly shows that the VI Pay commission report was given effect to by the Proceedings in Na.Ka.No.654/2009 dated 04.07.2009 retrospectively w.e.f. 01.01.2006. For computing the pecuniary loss, the actual salary drawn by the deceased as on the date of the accident will alone be taken into consideration but not the salary that he would have received as per the Pay Commission report, which came into force subsequently. The learned counsel further submitted that the net salary alone should have been taken into consideration and appropriate deduction should have been made. 7. The learned counsel for the appellant also submitted that taking into consideration the fact that the deceased was 45 years as on the date of his death, the proper multiplier as per the Sarala Verma's case is only 14 but not 15 as applied by the Tribunal. 8. Countering the said submission, Mr.C.Munusamy, the learned counsel for the claimants/cross objectors submitted that the Tribunal is right in taking into consideration, the monthly salary payable as on 01.01.2006, since the accident had occurred only on 12.12.2006 and he had received the salary of Rs.16,030/- per month even as on 01.01.2006. 9. The learned counsel for the claimants further submitted as the deceased was aged only 45 years, his future prospects of earning should also have been taken into consideration as per Sarala Verma's case; but the Tribunal has not taken that into consideration. He further submitted that the conventional damages awarded by the Tribunal is also on the lower side. 10. We have considered the aforesaid submissions made on either side and perused the materials available on record. 11. As far as the negligence aspect is concerned, to prove the accident and negligence, PW2, who is an eye witness was examined. In https://hcservices.ecourts.gov.in/hcservices/ his evidence, he has clearly spoken to about the manner of the accident and he had deposed that while the deceased was crossing the main road, the bus, which was driven in a rash and negligent manner hit against the two wheeler and the accident occurred; the deceased sustained serious injuries and succumbed to the injuries later. Nothing has been elicited in his cross examination to disbelieve his evidence. 12. A perusal of Ex.R3, the rough sketch drawn by the Investigation Officer, which has been produced as a document by the Insurance company shows that the bus, which was coming from North to South on the National Highway and the deceased, who was coming from West to East, had already crossed the junction and moved over to the South of the junction and he was going on the extreme left of the National Highway. The bus had gone to the extreme left of the National Highway and run over the platform. The evidence of PW2 and the rough sketch Ex.R3 clearly shows that the accident had not occurred on the junction of the National Highway and Chinna Kalangani road; but it has occurred some distance South of the junction and as such we are unable to countenance the contention of the learned counsel for the appellant. When the accident had occurred not due to the fault on the part of the deceased and it has occurred only due to the negligence on the part of the driver of the bus, it cannot be said that the deceased in any way contributed to the accident. Therefore, the contention of the learned counsel for the appellant that contributory negligence should be fixed on the part of the deceased is not sustainable. Therefore, the finding of the Tribunal that the accident had only occurred due to the rash and negligent driving of the bus by its driver is confirmed. 13. As far as the quantum of compensation awarded by the court below is concerned, it has to be pointed out that the Tribunal has taken into consideration Exs.P11 to P13 and has come to the conclusion that the deceased would have earned a sum of Rs.16,030/- as per the VI Pay Commission Report and deducted a sum of Rs.4000/- and arrived at the net income at Rs.12,000/- per month. The Tribunal has also added Rs.3,000/- towards future prospects and fixed the monthly income of the deceased at Rs.15,000/- and applied the multiplier of 15; deducted 1/3rd from it and arrived at the pecuniary loss at Rs.18 lakhs. It has to be pointed out that the Tribunal has erred in observing that the deceased Parameswaran would have earned Rs.16,030/- on the basis of Exs.P11 to P13. A perusal of Ex.P12 shows that the Pay commission report was implemented by the proceedings issued in Na.Ka.No.654/2009 dated 04.07.2009, but, of course with retrospective effect from 01.01.2006. The deceased was not getting the said sum of Rs.16,030/- as his salary. If he had been alive, no doubt, he would have got the enhanced salary as per VI Pay Commission Report. That being so, the Tribunal ought not to have been taken into consideration the said sum of Rs.16030/- as his https://hcservices.ecourts.gov.in/hcservices/ monthly income, simply because the deceased would have obtained such salary in future. 14. It has been laid down in the decision of the Hon'ble Apex Court reported in (2009) 6 SCC 121 [ Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another] as follows: "45. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of accident. 46. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales. 47. If the contention urged by the claimants is accepted, it would lead to the following situation: the claimants could only rely upon the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore, reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of https://hcservices.ecourts.gov.in/hcservices/ determining the income for calculating the compensation." The said principle has also been followed by us in our judgment dated 21.10.2011 passed in C.M.A.No.3789 of 2010. In that order in para No.19 it is held as follows: "19. In Sarla Verma's case referred to supra, the Apex Court has clearly held that the actual future pay revisions cannot be taken into account for the purpose of calculating the income. The revisions in pay scales subsequent to the death cannot be taken into consideration for calculating the compensation. In the aforesaid decision, the Apex Court held that the Tribunal ought not to have taken into consideration the revision of pay subsequent to the recommendation of the VI Pay Commission." 15. Admittedly, the accident had occurred in this case on 12.12.2006. The VI Pay Commission submitted its report on 24.03.2008, i.e., after the death of Parameswaran. Further, it has been pointed out that only thereafter, the State Government has given effect to the VI Pay Commission recommendations though retrospectively from 01.01.2006 in its proceedings in Na.Ka.No.654/2009 dated 04.07.2009. Therefore, as held in Sarla Verma's case, the pay revision pursuant to the VI Pay Commission recommendations ought not to have been taken into consideration by the Tribunal. For the said reasons, the contention of the learned counsel for the Cross Objectors is rejected. 16. It is proved by Ex.P11 that the deceased was getting the monthly salary of Rs.12,207/- at the time of his death and it is also corroborated by the oral evidence of P.W.3, the AEO. The contention of the learned counsel for the appellant, that the gross salary should not be taken into consideration, but his net salary alone should be taken, cannot be countenanced. Admittedly, the deceased was only 45 years of age as on the date of his death and therefore, his future prospects should be taken into consideration as per the decision of the Hon'ble Apex Court reported in (2009) 6 SCC 121 [ Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another]. Therefore, if 30% of Rs.12,207/- is added with the salary, it will come to Rs.15,869/-. Out of that 10% has to be deducted towards Income Tax. If Rs.1,586/- is deducted towards payment of Income Tax, the net salary will come to Rs.14,283/-. Since there are four dependents, ¼ th has to be deducted towards pecuniary loss of the deceased. Accordingly, if a sum of Rs.3,570/- is deducted from 14,283/- the net pecuniary loss comes to Rs.10,713/-. The proper multiplier applicable in this case is only 14%. Hence, the pecuniary loss will be Rs.10,713/- x 12 x 14 = Rs.17,99,784/-. Therefore, the pecuniary loss is fixed at Rs.18,00,000/- (Rupees eighteen lakhs https://hcservices.ecourts.gov.in/hcservices/ only). 17. As far as the conventional damages awarded by the Tribunal is concerned, we are of the considered view that the sum of Rs.5,000/- awarded towards funeral expenses is reasonable; whereas the sum of Rs.5,000/- awarded for loss of consortium to the first claimant is concerned, it is too low and we enhance the same to Rs.10,000/-; towards loss of love and affection to claimants 2 to 4, only a sum of Rs.15,000/- is awarded, which is very low and hence the same is enhanced to Rs.30,000/-. Towards loss of estate, no compensation has been awarded by the Tribunal and we award a sum of Rs.20,000/- under this head. No amount has been awarded towards transportation charges and hence a sum of Rs.5,000/- is awarded under that head. 18. Accordingly, the compensation awarded by the Tribunal is modified as follows: Pecuniary loss - Rs.18,00,000/- Funeral Expenses - Rs. 5,000/- Loss of Consortium - Rs. 20,000/- Towards love and affection to claimants 2 to 4 - Rs. 30,000/- Loss of Estate - Rs. 20,000/- Transportation charges - Rs. 5,000/- ----------------- Total - Rs.18,80,000/- ========== Thus, in total a sum of Rs.18,80,000/- (Rupees eighteen lakhs and eighty thousand only) is awarded as compensation to the claimants and the same will carry interest at 7.5% per annum from the date of petition. 19. For the aforesaid reasons, the appeal fails and the cross objection is partly allowed. No costs. Consequently, the miscellaneous petitions are closed. 20. The learned counsel for the appellant submitted that the entire compensation amount as awarded by the Tribunal has been deposited. Hence the appellant is directed to deposit the balance amount of compensation within a period of eight weeks from the date of receipt of a copy of this order. The claimants 1 to 4 shall be entitled to the compensation amount as apportioned by the Tribunal. The share of the minor respondents 2 and 3 shall be deposited by the Tribunal in a Nationalised Bank initially for a period of three years and thereafter, periodically the same may be renewed till they attain https://hcservices.ecourts.gov.in/hcservices/ majority. As far as respondents 1 and 4 are concerned, they are entitled to withdraw their share of compensation. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vj2 To The Motor Accidents Claims Tribunal (Principal District Judge), Namakkal 1 CC to M/s.C an K Law Firm Advocate, SR.69820 1 CC to Mrs.N.B.Surekha, Advocate, SR.69651 C.M.A.No.3759 of 2010 and Cross Objection No.178 of 2011 KJI(CO) SRA(19/12/2011) https://hcservices.ecourts.gov.in/hcservices/