IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.11.2008 CORAM:- The Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No.1512 of 2008 and M.P. No. 1 of 2008 ............ 1. Tmt. Basheera 2. The Manager, The New India Assurance Co. Ltd., No. 45 Moore Street, Chennai.1. .. Appellants/ respondents Vs. 1. Tmt. Pattammal 2. Anupama rep. by her sister Selvi Poornima 3. Selvi Poornima ... respondents/ petitioners Appeal filed under Section 173 of the M.V.Act against the award and decree dated 18.12.2006 in MCOP No. 88 of 2004 on the file of the Motor Accidents Claims Tribunal, (Subordinate Judge), Tiruvallur. For Appellant : Mr.M. Krishnamoorthy For Respondents : Mr.G.Karthikeyan -------- JUDGMENT Owner and the insurance company have filed this appeal challenging the award dated 18.12.2006 in MCOP No. 88 of 2004 on the file of the Motor Accidents Claims Tribunal, (Subordinate Judge), Tiruvallur. 2. It is a case of fatal accident. The deceased https://hcservices.ecourts.gov.in/hcservices/ Srinivasan, aged 57 years, working as a Senior Grade Assistant in Tamil Nadu State Transport Corporation, Villupuram, was riding a motor cycle when he was hit by a Car owned by the first appellant and insured with the second appellant. In that accident, the said Srinivasan suffered grievous injuries and was taken to a private hospital in Chennai and treated from 17.10.2002 to 20.10.2002. Inspite of treatment, he died. The wife aged 54 years, married daughter aged 26 years and another daughter aged 24 years have filed the claim petition claiming a sum of Rs.9,00,000/- as compensation. 3. In support of the claim petition, the wife was examined as P.W.1. One Sureshkumar, the eye witness, was examined as P.W.2. One Rajasekar, was examined as P.W.3. Documents Exs. P1 to P13 were marked. On behalf of the appellants/ respondents before the Tribunal, the owner of the vehicle was examined as R.W.1 and the driver of the car was examined as R.W.2. Documents Exs. R1 to R4 were marked. 4. On the question of negligence, the claimants submitted that the accident happened due to rash and negligent driving on the part of the driver of the car which caused the fatal accident by placing reliance on the F.I.R., charge sheet and sketch which were marked as exhibits. An independent eye witness was examined as P.W.2. On the side of the appellants/ respondents before the Tribunal, the driver of the car and the owner alone were examined. There is no documentary evidence to support the plea of no negligence. In view of the oral and documentary evidence filed in support of the claim to prove the rash and negligent driving on the part of the driver, who caused the accident in which, the deceased suffered serious injuries and died, the finding of the Tribunal stands confirmed. 5. As regards compensation, the same was dealt with by the Tribunal in paragraph 8. The undisputed fact in this case is that the deceased was aged 57 years and working as a senior grade assistant in Tamil Nadu State Transport Corporation, Villupuram. This is supported by the post mortem certificate and the driving licence Ex.A10. Therefore, the deceased had only one year of service in the department. P.W.3 was examined to state that gross salary of the deceased was Rs.20,261/- and after deduction, the net income was Rs.10,940/-. The Tribunal however fixed the income at Rs.9,000/- p.m. and after deducting 1/3rd towards personal expenses of the deceased and by applying 8 multiplier, determined the loss of pecuniary benefits in a sum of Rs.5,76,000/- (Rs.6000/- x 12 x 8 = Rs.5,76,000/-) In all, the Tribunal granted the following amount as compensation with interest at the rate of 7.5% p.a. https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits Rs.5,76,000/- 2 Funeral expenses Rs. 9,000/- 3 Loss of consortium Rs. 20,000/- 4 Loss of love and affection to the children Rs. 20,000/- 5 Medical expenses Rs. 25,000/- Total Rs.6,50,000/- 6. Learned counsel for the appellant contended that the deceased had only one more year of service and therefore, the actual loss of income should be taken for the one year of service. After retirement, the income should be determined based on the pensionary benefits and suitable applicable compensation should be determined based on a multiplier as applicable to persons, who have retired from service. 7. Learned counsel for the appellant stated that taking gross income as Rs.20,261/- and after deducting Rs.2,400/- towards income tax, the net income will be Rs. 17,861/- rounded of to Rs.18,000/-. Out of which, 1/3rd has to be deducted and the contribution to the family will be Rs.1,44,000/- ( Rs.12,000/- x 12 =Rs.1,44,000/-). He stated that based on the retirement benefits, the monthly income should be taken as Rs.4,000/- p.m. (i.e.) Rs.48,000/- p.a. of which 1/3 rd should be deducted towards personal expenses. The annual contribution would be Rs. 32,000/- and by adopting multiplier of 6, the total loss of contribution to the dependents will be Rs.1,92,000/-. Therefore, the compensation which is in excess has to be suitably modified. 8. Learned counsel for the respondent on the other hand submitted that no amount was granted towards pain and suffering undergone by the deceased during the time of hospitalisation before death. He also pleaded for confirming the award stating that one of the daughter has to be married and the wife claimant has lost the companianship of the husband at the old age. The income taken in this case is not in dispute. Admittedly, the deceased had only one year of service. Therefore, the contribution to the family for the 1 year based on income will be Rs.1,44,000/-. On this amount, there is no dispute. Insofar as the compensation based on retirement benefit is concerned, even if half of the amount is taken as income the monthly retirement benefits will be Rs.4,000/- and the annual retirement benefits would be Rs.48,000/-. After deducting 1/3rd towards personal expenses, the contribution to the family will be Rs.32,000/-. https://hcservices.ecourts.gov.in/hcservices/ 9. In the decision reported in The Managing Director, TNSTC – vs. - Sripriya and others reported in 2007(1) TN MAC 319 (SC), the Supreme Court held in paragraph 13 to 15 as follows:- "13. In G.M.Kerala S.R.T.C. v. Susamma Thomas, AIR 1994 SC 1631, it was noted that the normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequently be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in U.P. State Road Transport Corpn. v. Trilok Chand, 1996(4) SCALE 22, appears to be appropriate. In fact in U.P. State Road Transport Corpn. v. Trilok Chand, 1996(4) SCALE 22, after reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian Citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age. (See:New India Assurance Co. ltd. v. Charlie and Another, 2005(10) SCC 720. (emphasis supplied) 14. The above position was highlighted in U.P. State Road Transport Corporation v. Krishna Bala and Ors., 2006(6) SCC 249; Managing Director, TNSTC Ltd., v. K.I. Bindu, 2005(8) SCC 473; T.N. State Transport Corporation Ltd. - v. S.Rajapriya, 2005(6) SCC 236; Municipal Corpn. Of Greater Bombay v. Lasman Iyer, 2003(8)SCC 731; State of Haryana v. Jasbir Kaur, 2003(7) SCC 484; The New India Assurance Company Ltd. v. Smt. Kalpana and Ors., 2007(2) SCALE 227; New India Assurance Co. Ltd. v. Satendar & Ors. JT 2006(10) SC 234. 15. Considering the age of the deceased appropriate multiplier would be 12. The income fixed by the Tribunal and the deduction https://hcservices.ecourts.gov.in/hcservices/ for personal expenses do not warrant any interference. Worked out on that basis, the entitlement of the loss of income is Rs.5,76,000/-. The other expenses awarded remain unaltered. In other words, total entitlement of the claimants is fixed at Rs.6,00,000/-. It would be appropriate to fix the rate of interest at 7.5% instead of 9% as done by the Tribunal and maintained by the High Court." 10. In this case, the deceased is at the verge of retirement. Taking into consideration the above decision of the Apex Court, the multiplier that can be taken is 6. Therefore, based on the retirement benefits, the pecuniary loss to the dependents will be Rs.1,92,000/- (Rs.32,000/- x 6 = Rs.1,92,000/-) The total pecuniary loss will be Rs.1,92,000/- + Rs.1,44,000/-=Rs.3,36,000/-). The sun of Rs.74,000/- granted towards conventional heads is confirmed. The claimants will be entitled to a further sum of Rs.10,000/- towards pain and suffering undergone by the deceased while he was in hospital before his death. Accordingly, the award of the Tribunal is modified as follows:- Sl.No . Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of pecuniary benefits Rs.5,76,000/- Rs.3,36,000/- Pain and suffering -- Rs. 10,000/- Funeral expenses Rs. 9,000/- Rs. 9,000/- Loss of consortium Rs. 20,000/- Rs. 20,000/- Loss of love and affection to the children Rs. 20,000/- Rs. 20,000/- Medical expenses Rs. 25,000/- Rs. 25,000/- Total Rs.6,50,000/- Rs.4,20,000/- 11. Since the accident happened in the year 2002 and the award was passed in the year 2006, the interest granted by the Tribunal at 7.5% stands confirmed. 12. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the Tribunal is reduced to Rs. 4,20,000/- from Rs.6,50,000/-. (ii) The interest at 7.5% is confirmed. (iii) Learned counsel for the 2nd appellant seeks eight weeks time to deposit the award amount and the same is allowed. On such https://hcservices.ecourts.gov.in/hcservices/ deposit, the first claimant is entitled to withdraw a sum of Rs.2,20,000/- with interest and costs. Claimants 2 and 3 are entitled to withdraw a sum of Rs.1,00,000/- each with interest. (iv) There shall be no orders as to costs. (v) Consequently, M.P.No.1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To The Motor Accidents Claims Tribunal, (Subordinate Judge), Tiruvallur. +1cc to Mr.M.Krishnamoorthy, Advocate Sr 67791 +1cc to Mr.G.Karthikeyan, Advocate Sr 61355 CK(CO) km/12.1. CMA No. 1512 of 2008 https://hcservices.ecourts.gov.in/hcservices/