IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.10.2012 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CMA.NOS.1 AND 328/2009 The United India Insurance Company Limited Chennai-2 Appellant in CMA.1/09 and R2 in CMA.328/09 Vs 1.S.Arulswamy 2.A.Anbarasi RR1&2 in CMA.1/09 and Appellants in CMA.328/09 3.Tamil Nadu Cooperative Milk Producers Federation Limited, Chennai-51 R3 in CMA.1/09 and R1 in CMA.328/09 Prayer:- These Civil Miscellaneous Appeals are filed against the Judgement and Decree dated 24.04.2008 made in MCOP.No.4497/2003 by the learned Additional District Judge, MACT, FTC-IV, Chennai. For Appellant : Mr.K.S.Narasimhan-CMA.1/09 For Respondent : Mr.M.Swamikkannu-RR1&2-CMA.1/09 JUDGEMENT These Civil Miscellaneous Appeals are filed by the Insurance Company and the claimants respectively against the Judgement and Decree dated 24.04.2008 made in MCOP.No.4497/2003 by the learned Additional District Judge, MACT, FTC-IV, Chennai. 2. By the impugned award, the Tribunal has awarded a sum of Rs.4,50,000/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization to the claimants, who are the parents of the deceased A.Santhana Don Bosco, who died in the motor accident that had occurred on 22.7.2003. In their respective appeals, the claimants seeks for enhancement of compensation, whereas the Insurance Company prays for reduction of compensation. 3. In the claim petition, it is averred that the deceased was 23 years old and was working as an Outdoor Salesman (Marketing) at K.Mart Food Stuff Trading Co., Dubai and had come down to India. Thereafter, he was working as a Sales Executive, Dynavision Associates, Chennai on temporary basis awaiting assignment at Dubai. According to the claimants, he was drawing a monthly salary of Rs.2750/- Dhs equivalent to Rs.28,000/- On the date of the accident, he was working as a Sales Executive and he was getting a monthly salary of Rs.8500/-. The Tribunal found that the accident had occurred only due to the rash and negligent driving of the driver of the offending vehicle. As regards the quantum of compensation, the Tribunal taking the monthly income as Rs.5000/- and after deducting Rs.2000/- towards his personal expenses, arrived at Rs.3000/- towards monthly contribution to the family and arrived at Rs.2,88,000/- for the loss of income for 8 years and at the rate of Rs.1000/- p.m. for 10 years, the loss of dependency was calculated at Rs.1,20,000/- and in total, a sum of Rs.4,08,000/- was awarded for loss of dependency. To this, the Tribunal added Rs.3000/- towards transportation expenses, Rs.4000/- towards funeral expenses and Rs.35,000/- towards loss of love and affection. 4. Mr.M.Swamikkannu, the learned counsel for the Appellants/ claimants has taken me through the pleadings and the documents on record. The learned counsel invited my attention to the salary certificate dated 11.1.2003, which shows that he was drawing a monthly salary of 2500 Dhs working as a Salesman in K-Mart Food Stuff Trading Company. It is evident from Ex.P8 that considering the good performance of the deceased during the last one year, the salary of the deceased was enhanced to 2750 Dhs. According to the claimants, he has come down to India for some personal reason and was working as a Sales Executive in Dynavision Associates, Chennai from November 2001 till the date of death and was drawing a monthly salary of Rs.8500/-. Ex.P9 is the salary certificate issued by the Director of the said Company. 5. The learned counsel for the Appellants/claimants drew my attention to the Passport of the deceased, wherein there are endorsements for his travelling to Dubai on account of his employment. He was a qualified Diploma Holder in Air Conditioning and Refrigeration Maintenance and certificate had been issued by the Tamil Nadu Advanced Technical Training Institute, qualifying him as Air Conditioning and Refrigeration Mechanic. Hence, he is a qualified Technician in Air Conditioning and Refrigeration. The learned counsel would submit that the deceased was also scheduled to go to Dubai on better employment prospects shortly. He pointed out that considering the future prospects he had, the income determined by the Tribunal is on the lower side and contended that the Tribunal has ignored the materials placed on record by the claimants. He would further submit that there was enough evidence to show that the deceased was a qualified Air Conditioning and Refrigeration Technician and that the compensation awarded is grossly inadequate. Relying upon the decision of the Honourable Supreme Court reported in 2003-ACJ-12- SC (Nagappa Vs. Gurudayal Singh), he urged that just compensation be awarded by making calculations in terms of the decision of the Honourable Supreme Court reported in the case of 2009- ACJ-1298-SC (Sarla Verma Vs. DTC ). 6. On the other hand, Mr.K.S.Narasimhan, the learned counsel for the Appellant Insurance Company contended that salary certificates Ex.P7, Ex.P8 and Ex.P9 are not proved by examining the employer or authorised person and therefore, those documents cannot be relied upon to fix the monthly income of the deceased. The learned counsel submitted those documents establish that the deceased was not continuously employed in the foreign country and that the burden was on the part of the claimants to prove the income of the deceased at the time of the accident and they have failed to establish the income. Therefore, he submitted that the compensation awarded by the Tribunal cannot be enhanced and rather it should be reduced. 7. This court heard the learned counsel on either side and perused the materials on record and the impugned judgement and award. 8. It is not necessary to deal with the aspect of negligence, as the Insurance Company has not questioned the findings of the Tribunal fastening negligence on the part of the driver of the offending vehicle and the only challenge in these appeals is to the quantum of compensation. 9. On a careful consideration of the evidence placed on record, I am unable to find any challenge to the certificate issued by the employer, where the deceased was working as Outdoor Salesman (Marketing). In fact, the said document has been marked without any objection. Ex.P8 and Ex.P7 show his last drawn salary as 2750 Dhs in March 2003. According to the claimants, he had left the employment and had come to India and was working as Sales Executive with Dynavision Associates, Chennai from 1.6.2003 onwards. As stated earlier, the said document has been marked without any objection and those certificates contain the signature of the employer and their respective rubber stamps have been affixed. Though he had left the employment in Dubai and has come down to India and was drawing a lesser salary of Rs.8500/-, but according to the claimants, he was expecting better employment in Dubai and was awaiting assignment in UAE. 10. Now the question which remains to be considered is as to what should be income of the deceased to be taken for the purpose computing the multiplicand. The income of the deceased will have to be calculated on the basis of the last drawn salary reflected in Ex.P8 and also the future prospects he had in getting employment in UAE. Considering those aspects, his monthly income can be fixed at Rs.9000/- p.m. 11. As per the decision of the Honourable Supreme Court reported in 2009-ACJ-1298-SC (Sarla Verma Vs. DTC ), 50 per cent has to be deducted in case of a bachelor, when the claimants are the parents of the deceased. The learned counsel for the Insurance Company contended that even in this case, it is appropriate to deduct 50 per cent towards his personal expenses. In this case, there is absolutely no evidence to show that the claimants had no other source of income or there was any other earning member in the family of the deceased. The evidence of PW.1 and PW.3, father and mother of the deceased indicated that they were depending upon the income of the deceased and they had no other source of income. Therefore, deduction of 1/3rd towards his personal expenses is proper in this case and accordingly, after such deduction, Rs.6000/- is taken as the monthly contribution to the family and the annual loss of dependency comes to Rs.72,000/-. There is no dispute that at the time of the accident, the mother of the deceased was aged about 43 years old and therefore, having regard to the age of the mother, 14 is the proper multiplier. By applying the multiplier of 14, the total loss of dependency is computed at Rs.10,08,000/-. In addition to that, a sum of Rs.30,000/- for the loss of love and affection and Rs.5000/- for funeral expenses are awarded. In all, a sum of Rs.10,43,000/- as total compensation is arrived at as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 12. In the claim petition, the claimants claimed a compensation of Rs.36 lakhs, but, in this appeal, the claimants have restricted their claim to Rs.4,00,000/-, apart from the award of Rs.4,50,000/- awarded by the Tribunal. In the case of Nagappa Vs. Gurudayal Singh (2003-ACJ-12-SC), the Honourable Supreme Court has held that in the absence of any bar in the Act, the Tribunal and for that reason any competent is entitled to award higher compensation to the victim of an accident. 13. In Reshma Kumari Vs. Madan Mohan (2009-13-SCC-422) this court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgement are extracted below:- "The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben (2008-ACJ-1097-SC) held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor. (Emphasis supplied)" 14. In Arvind Kumar Mishra Vs. New India Assurance Co. Limited (2010-ACJ-2867-SC), the court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70 per cent disablement in a motor accident. After noticing factual matrix of the case, the court observed:- "We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered." (Emphasis supplied). 17. In Raj Kumar Vs. Ajay Kumar (2011-ACJ-1-SC) the court considered some of the precedents and held:- "The provision of the Motor Vehicles Act, 1988 makes its clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately, restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries and his inability to earn as much as he used to earn or could have earned." 15. The ratio of the above said decision is that the claimants should be given adequate compensation which should be just. The only requirement for determining compensation is that it must be just and reasonable. There is no other limitation or restriction on the court for awarding just compensation. Therefore, in the light of the above said decisions and the settled position of law, I am of the view that the claimants are entitled to enhanced compensation and therefore, it is just and proper to award a compensation of Rs.10,43,000/- as arrived at above to the claimants with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 16. In the result, the Civil Miscellaneous Appeal filed by the Insurance Company is dismissed and the Civil Miscellaneous Appeal filed by the claimants is allowed . The impugned award is enhanced from Rs.4,50,000/- to Rs.10,43,000/- as mentioned above. In all, the claimants are entitled to a total compensation of Rs.10,43,000/- (Rupees ten lakhs forty three thousand only) with interest 7.5% p.a. from the date of the claim petition till the date of realization. In the said sum, the claimants 1 and 2 are entitled to equal shares. The Appellant/Insurance Company is directed to deposit the enhanced award amount with interest at 7.5% p.a. from the date of the claim petition till the date of deposit, within a period of eight weeks from the date of receipt of a copy of this order and on such deposit being made, the claimants are permitted to withdraw their respective award amounts with proportionate interest, after giving credit to the amount already withdrawn by them if any. No costs. 08.10.2012 Index:Yes/No Web:Yes/No Srcm ARUNA JAGADEESAN, J. Srcm To: 1.The Additional District Judge, MACT, FTC-IV, Chennai 2.The Record Keeper, VR Section, High Court, Madras CMA.NOS.1 AND 328/2009 08.10.2012