IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.08.2010 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE G.M.AKBAR ALI C.M.A.No.1409 of 2007 1.Mangaiyarkarasi 2.Minor V.Sirvesh Ram 3.Minor V.Sarvajith 4.R.Maharasi ..Appellants/ Claimants (minor appellants 2 and 3 are rep. By their mother 1st appellant) Vs. 1.K.Murugan 2.T.Kaveri 3.United India Insurance Company, Kumbarahalli Village, Nethaji By-pass Road, Dharmapuri District. ..Respondents/ Respondents Appeal against the judgment and decree dated 21.06.2006 made in M.C.O.P.No.362 of 2001 on the file of the Motor Accidents Claims Tribunal (Additional District and Special Court (Essential Commodities Act)), Salem. For appellants .. Mr.P.Jagadeesan For respondents .. Mr.N.Vijayaraghavan for R3 R1 & R2 – no appearance JUDGMENT (Judgment of the Court was delivered by R.BANUMATHI, J.) Feeling dissatisfied with the quantum of compensation of Rs.32,50,000/- awarded for the death of Dr.N.Venkateswaran in the road traffic accident on 09.09.1999, the claimants have preferred this appeal seeking for enhancement of compensation. https://hcservices.ecourts.gov.in/hcservices/ 2.The brief facts are that on 09.09.1999, when the deceased Dr.Venkateswaran was travelling in his Maruti Car bearing Registration No.TN 27 M 0505 along with this Assistant, at about 3.15 p.m., near Pottaneri bus stop, the tempo van bearing Registration No.TN 39 F 0203 driven by its driver in a rash and negligent manner, dashed against the car of the deceased, due to which, the deceased sustained severe head injury and died on the spot. A criminal case was registered in Crime No.806 of 1999 on the file of Mecheri Police Station, Salem for the offence under Sections 279, 337 and 304(A) I.P.C. He was getting monthly salary of Rs.14,564/-. That apart, he was also doing private practice. Alleging that the accident was due to the rash and negligent driving of the tempo van, claimants have filed claim petition in M.C.O.P.No.362 of 2001 claiming compensation of Rs.1,39,50,000/-. The insurance company resisted the claim petition contending that the deceased also contributed to the accident and that the quantum of compensation claimed is on the higher side. 3.To substantiate the claim, the first claimant examined herself as P.W.1. First claimant's father-M.Amirthalingam was examined as P.W.2. One Kathirvel, Assistant of the deceased was examined as P.W.3 and the proprietors of medical stores were examined as P.Ws.4 and 5. Dr.S.Sathasivam, colleague of the deceased was examined as P.W.6. Exs.P1 to P31 were marked on the side of claimants. On the side of respondents, R.Ws. 1 to 3 were examined and Exs.R1 and R2 were marked. 4.Upon consideration of the oral and documentary evidence, the Tribunal held that the accident was due to the negligent driving of the van driver. Based upon Ex.P14-salary certificate, the Tribunal has taken the monthly salary of the deceased at Rs.14,564/-. From Ex.P25 income tax return for the assessment year 1999-2000, the Tribunal has taken the income from salary at Rs.1,95,699/- and from private practice at Rs.6,195/- per annum and the total income at Rs.2,01,890/-. The Tribunal has given 50% increase for future prospects i.e. Rs.2,01,890/- + Rs.1,00,945 (50%) and taken the total income at Rs.3,02,835/-. Deducting 1/3rd amount for personal expenses, pecuniary loss/loss of contribution was calculated as Rs.2,01,890/-. The deceased was aged 36 years at the time of accident and adopting multiplier 16, the Tribunal calculated the total loss of dependency at Rs.32,30,240/- (Rs.2,01,890/- x 16 = Rs.32,30,240/-, rounded off to Rs.32,30,000/-). Insofar as conventional damages, the Tribunal has awarded Rs.18,000/- for loss of love and affection, Rs.2,000/- for funeral expenses and the Tribunal has awarded total compensation of Rs.32,50,000/- as under: https://hcservices.ecourts.gov.in/hcservices/ Loss of dependency .. Rs.32,30,000.00 (Rs.2,01,890/- x 16 = Rs.32,30,240/- rounded off to Rs.32,30,000/-) Loss of love and affection .. Rs. 18,000.00 Funeral expenses .. Rs. 2,000.00 = = = = = = = = Total .. Rs.32,50,000.00 = = = = = = = = 5.The manner of accident and fastening of statutory liability upon the Insurance Company are not under challenge. Only the quantum of compensation awarded to the claimants is sought to enhanced. 6.Learned counsel for the appellants contended that the Tribunal ought to have taken into consideration the evidence of P.Ws.4 and 5 and Exs.P29 and P30 for holding that the deceased was running private clinic both in Salem and in Mettur and the income from private practice taken at Rs.6,195/- is very meagre. It was further submitted that the deceased was highly qualified and he was also giving lectures in All India Radio and publishing articles in news papers and while so, the Tribunal erred in fixing the income from private practice at Rs.6,195/-, which is very much on the lower side. It was also submitted that the Tribunal did not keep in view that the income of a doctor would be increasing every year and the quantum of compensation awarded by the Tribunal is to be enhanced and the Tribunal has also awarded less amount for loss of love and affection and funeral expenses and the compensation will have to be enhanced. 7.From the evidence of P.Ws. 1 and 2 and from Ex.P10, it is seen that the deceased was a qualified medical practitioner and the deceased had secured M.D. Degree in Dermatology. From Ex.P11, it is also seen that the deceased has obtained P.G. Diploma in Dermatology during October, 1991. From Exs.P13 and P14, it is seen that the deceased joined the Government service as Assistant Surgeon in 1991. Ex.P14 is the salary certificate, from which, it is seen that the deceased was getting salary of Rs.14,564/-. 8.Ex.P25 is series of Income Tax Returns filed by the deceased. In Form-16 filed by the deceased for the assessment year 1999-2000, the gross salary has been stated as Rs.2,16,599/-. Total income from the profession was calculated at Rs.2,01,890/- as under: https://hcservices.ecourts.gov.in/hcservices/ Income from Salary: Gross Salary 2,16,599/- Less: Deduction U/S 16 Standard deduction 20,000.00 Profession Tax 900.00 - - - - - - - - 20,900/- – - - - - - 1,95,699/- Income from Profession: Net Income from Profession 6,195/- - - - - - - 2,01,894/- -or- 2,01,890/- = = = = = 9.The Tribunal has taken Rs.1,95,699/- as income instead of gross salary of Rs.2,16,599/-. It is fairly well settled that only gross salary has to be taken into account and not the net salary or taxable income. In Raghuvir Singh Matolya and Others Vs. Hari Singh Malviya and Others (2009 ACJ 1580), considering the term "income", the Supreme Court has held as under: "7 (17)............................................... (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: https://hcservices.ecourts.gov.in/hcservices/ 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. AIR 1921 Mad 427 (SB). Ref.124 IC 511:1930 MWN 29: 31 MLW 438: AIR 1930 Mad 626: 58 MLJ 337." (19). 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 profession 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)." 10.In National Insurance Co. Ltd., Vs. Indira Srivastava and Others ((2008) 2 SCC 753), the 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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." 11.Section 168 of the Motor Vehicles Act used the word "just compensation", which should be ascertained in determining the income. It is also fairly well settled that only the gross income has to be taken into account and not taxable income, which is mainly intended for the purpose of income tax. 12.In K.Rengaswamy Vs. Revathi (2009 ACJ 2463), this Court has held that monthly income was arrived at by adding actual gross income at the time of death which the deceased would have otherwise got. In determining the quantum of compensation, it is not the taxable income but only the gross income of the deceased ought to be taken into account. From Ex.P25 series, it is seen that the annual salary income of the deceased is Rs.2,16,599/- whereas after standard deduction and profession tax, taxable income is Rs.1,95,699/-. Instead of taking the gross salary, the Tribunal has taken the taxable income i.e. Rs.1,95,699/- as the actual salary income. In our considered view, the Tribunal ought to have taken the gross salary of Rs.2,16,599/- as the annual income from the salary. Insofar as the income from private practice in the Income Tax Return for the assessment year 1999-2000, the deceased himself had shown the income as Rs.6,195/-. By adding the gross salary Rs.2,16,599/- with the income from the private practice, the total annual income is Rs.2,22,794/-. 13.Mr.N.Vijayaraghavan, learned counsel for the third respondent-insurance company submitted that after calculating the annual income, 20% - 30% should be deducted for income tax and only after deducting income tax, annual income of the deceased should be arrived at. 14.We do agree with the submission that annual income could be arrived at only after deducting 20% - 30% for income tax. But in this case, only an amount of Rs.6,195/- was taken as income from private practice. As pointed out earlier, the deceased has obtained https://hcservices.ecourts.gov.in/hcservices/ M.D. Degree in Dermatology (Ex.P25 series) and was having lucrative practice. From Ex.P16, it is seen that the deceased was giving speeches in All India Radio on health care. From Ex.P17, it seen that he has also published articles in news papers. Likewise from Ex.P18, it is seen that he was also giving guest lectures/speeches in Rotary Club and other Associations. By perusal of the various exhibits (Exs.P16 to P19), it is seen that apart from being employed in Government and doing private practice, the deceased having wider interest, engaged himself in multifarious activities. Having regard to the qualification of the deceased and the wider interest which he was having, we are of the view that the amount of Rs.6,195/- taken towards income from private practice is quite low. Even though we agree with the submission of the learned counsel for the third respondent that appropriate deduction has to be made for income tax, in the facts and circumstances of this case, the deduction for income tax could be made good as against the increase of income in future from private practice. In the facts and circumstances of this case and having regard to the fact that the income from private practice is shown very low in this case, we are of the view that further deduction towards income tax need not be made. 15.It is admittedly well settled that in calculating the multiplicand, the Courts/Tribunals will have to take into account the future prospects. The future prospects had to be taken into account by taking note of the future promotion, increments, revision of pay etc., While assessing the future loss of income, the Courts/Tribunals will have to bear in mind the factors of future promotion, increments, revision of pay etc., In a catena of decisions Reshma Kumari and Others Vs. Madan Mohan and another (2009 AIR SCW 6999) and K.K.Janardhanam Vs. Thiruvalluvar Transport Corporation Limited (2008 ACJ 875), the Supreme Court has held that while calculating the multiplicand, future prospects will have to be taken into account. The Tribunal has taken future prospects and added 50% of the income for future prospects. Having regard to the vocation of the deceased viz., the medical profession and his qualification, we are of the view that 50% taken by the Tribunal for future prospects is quite reasonable and the same is maintained. By taking into account the future prospects at 50%, total annual income is calculated at Rs.3,34,191/- rounded off to Rs.3,34,200/-. Deducting 1/3rd amount for the personal expenses of the deceased i.e. Rs.1,11,400/-, the pecuniary loss/loss of contribution to the family is calculated at Rs.2,22,800/-. From Ex.P12 S.S.L.C. Book, it is seen that the date of birth of the deceased is 10.09.1963 i.e. he was aged 36 years at the time of accident. As per the Second Schedule, the Tribunal has adopted multiplier 16 and the same is maintained. The total loss of income to the family is calculated at Rs.35,64,800/- (Rs.2,22,800/- x 16 = Rs.35,64,800/-) https://hcservices.ecourts.gov.in/hcservices/ 16.Insofar as the conventional damages, for 'loss of love and affection', the Tribunal has awarded Rs.18,000/-. Claimants 2 and 3 were only aged 5 and 3 years respectively at the time of accident. Minor claimants 2 and 3 and the mother of the deceased have lost the love and affection of their father/son respectively. The compensation of Rs.18,000/- for loss of love and affection is enhanced to Rs.75,000/- (Rs.25,000/- each to claimants 2 to 4). The Tribunal has not awarded any compensation for loss of consortium to the first claimant. The first claimant, aged 34 years, has lost consortium of her husband at the very young age. Having regard to the age of the first claimant, an amount of Rs.25,000/- is awarded as compensation for loss of consortium. Insofar as funeral expenses, the Tribunal has awarded Rs.2,000/- and the same is enhanced to Rs.5,000/-. The total compensation awarded to the claimants is enhanced to Rs.36,69,800/- as under: Loss of dependency .. Rs.35,64,800.00 (Rs.2,22,800/- x 16) Loss of love and affection to claimants 2 to 4 .. Rs. 75,000.00 (Rs.25,000/- x 3) Loss of consortium to first claimant .. Rs. 25,000.00 Funeral expenses .. Rs. 5,000.00 = = = = = = = Total .. Rs.36,69,800.00 = = = = = = = 17.The enhanced compensation of Rs.4,19,800/- is payable with interest at the rate of 7.5% per annum from the date of claim petition. The enhanced compensation shall be apportioned amongst the claimants as under: First claimant/wife of the deceased – Rs.3,00,000/-; Claimants 2 and 3/children of the deceased – Rs.50,000/- each and Fourth Claimant/mother of the deceased – Rs.19,800/-. 18.In the result, the compensation amount awarded to the claimant in M.C.O.P.No.362 of 2001 is enhanced to Rs.36,69,800/- and the Civil Miscellaneous Appeal is partly allowed. The enhanced compensation of Rs.4,19,800/- is payable with interest at the rate of 7.5% per annum from the date of claim petition and the same is to be apportioned amongst the claimants as stated in para 17. https://hcservices.ecourts.gov.in/hcservices/ 19.It was stated before us that the third respondent-insurance company has already deposited the entire compensation amount . First and fourth claimants/wife and mother of the deceased are permitted to withdraw the entire compensation amount payable to them along with accrued interest (deducting the amount already withdrawn by them, if any). Insofar as the compensation amount payable to minor claimants 2 and 3, the same shall be invested in a Nationalised Bank, till they attain majority. Insofar as the share of minors, the first claimant/mother is permitted to withdraw the accrued interest. First claimant is also permitted to withdraw the periodical interest on the minors' share of compensation once in six months directly from the Bank. The third respondent-insurance company is directed to deposit the enhanced compensation amount along with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgment. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. mmi To 1.The Additional District and Special Judge (E.C. Act) (Motor Accidents Claims Tribunal), Salem. 2.The Section Officer V.R.Section, High Court, Madras. 1 cc to Mr.P. Jagadeesan, Advocate, Sr. 60693 1 cc to Mr.M.B. Gopalan, Advocate, Sr. 61432 C.M.A.No.1409 of 2007 PVR (CO) kk 19/10 https://hcservices.ecourts.gov.in/hcservices/