Madras High Court
The New India Assurance Co. Ltd vs P. Sri Vidhya Devi on 8 February, 2022
C.M.A. No.1160 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.02.2022
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. No.1160 of 2021
and CMP.No.19414 of 2021
The New India Assurance Co. Ltd.,
No.236, VI Floor,
NSC Bose Road, Opp. High Court,
Chennai 1. ...appellant
Vs.
1. P. Sri Vidhya Devi
2. V.S.Kathiravan
3. Minor V.S.Rashmi
[3rd responded being a minor is rep. by her
mother and natural friend the first respondent herein]
4. V.Adhilakshmi
5. S.Suresh Pathiputtu ...respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicle Act, 1988 against the judgment and decree dated 27.07.2020
in MCOP.No.5680 of 2017 on the file of Motor Accident Claims Tribunal,
II Court of Small Causes, Chennai.
For Appellant : Mr.S.Dhakshnamoorthy
For Respondents
for RR1 to 4 : Mr.G.Balaji Prasad
for R5 : Not served
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C.M.A. No.1160 of 2021
JUDGMENT
[Judgment of the Court was delivered K.KALYANASUNDARAM, J]
The appeal is heard through video conferencing.
2. Challenging the quantum of compensation awarded by the Motor
Accident Claims Tribunal, II Court of Small Causes, Chennai in
MCOP.No.5680 of 2017, dated 27.07.2020, the present appeal has been
filed by the Insurance Company.
3. It is the case of the claimants that the deceased V.Subramanian,
who was working as a Head Constable in Tamil Nadu Police service, died in
an accident that occurred on 26.04.2017. The legal heirs, viz., wife, children
and parents of the deceased, approached the Motor Accidents Claims
Tribunal, seeking a compensation of Rs.1 Crore. According to them, the
deceased was riding a Scorpio Car bearing Registration No.TN-63-T-3773
from East to West direction on Chinna Salem National Highways. At that
time, a Lorry bearing Registration No.AP-04-T-1629, came in a high speed
and hit against the Scorpio Car and the deceased sustained fatal injuries and
died on the way to Hospital.
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4. It is their further case that the deceased was earning Rs.38,035/-
per month and since the accident had occurred due to the negligence of the
driver of the Lorry, the owner as well as the insurer are liable to pay the
compensation.
5. The claim petition was resisted by the appellant/Insurance
Company contending that the deceased was responsible for the accident and
the amount claimed is on the higher side.
6. Before the Tribunal, the parties had adduced oral and documentary
evidence. After analysing the evidence, the Tribunal came to the conclusion
that the driver of the Lorry was responsible for the accident and awarded a
compensation of Rs.62,83,370/-. Questioning the same, the present appeal
has been filed by the Insurance Company.
7. The learned counsel appearing for the appellant/Insurance
Company Mr.S.Dhakshnamoorthy would urge that the deceased was
admittedly in the Government service and died in the accident at the age of
49 years and he would have retired from service at the age of 58 years after
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C.M.A. No.1160 of 2021
attaining the age of superannuation. The Tribunal instead of applying split
multiplier, adopted 13 multiplier, to arrive at the Loss of Dependency.
8. Per contra, the learned counsel appearing for the respondents 1 to
4/claimants by placing reliance on the judgment of Supreme Court in the
case of N.Jayasree and others vs. Cholamandalam MS Genral Insurance
Co. Ltd., reported in 2021 (2) TNMAC 639 (SC) submitted that in all the
cases, split multiplier cannot be applied and the Tribunal is justified in
awarding compensation as per the decision of Sarala Varma.
9. In support of this contention, the learned counsel also relied upon
the judgment in K.R.Madhusudan and others vs. Administrative Officer,
reported in 2011 (1) TNMAC 161 (SC), wherein the Apex Court has held
that the High Court without giving any reason is not right in applying split
multiplier. The same view was taken by the Apex Court in Pattamal vs.
K.L.Narayana Reddy reported in 2014 (1) TNMAC 481 (SC) following the
judgment of Madhusudan Case (referred supra).
10. We have heard the submissions of both sides and carefully
perused the materials available on record.
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11. The Tribunal based on the Identity Card issued by the Police
Department, found that the deceased died in the accident at the age of
49 years. PW1 deposed that the deceased was a Head Constable and marked
Ex.P6 Salary Slip, which shows that the deceased was earning Rs.39,669/-
(rounded off to Rs.39,700/-) per month. The Tribunal, having found that the
deceased is entitled for 30% towards additional future prospects, has arrived
at the total monthly income at Rs.51,610/- [39,700 + 11,910]. The annual
income of the deceased is Rs.6,19,320/- [51,610 x 12]. Then by deducting
1/4 of the amount towards personal expenses of the deceased, arrived the
the contribution to the family as Rs.4,64,490/- [6,19,320 - 1,54,830].
12. Now, the only question that arises for consideration in this appeal
is as to whether it is a fit case for applying split multiplier.
13. In the Jayasree Case (referred supra), though the Apex Court
held that the High Court was not justified in applying split multiplier, but,
in that case, the deceased was working as an Assistant Professor and the
evidence produced in that case shows that he was a meritorious man having
the qualifications of M.Sc., M.Phil. Further, the Apex Court found that the
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Teachers are employed even after the retirement in coaching centres and
they may also hold private tuitions and earn the same salary or more than
the salary that they were receiving at the time of death. However, in the case
on hand, there is no averment in the claim petition that, after retirement of
the deceased, there is a possibility of the deceased earning the same or more
income after his employment. Hence, we are of the considered view that, in
this case, we have to apply "split multiplier" method. It is also brought to
the notice of this Court by the learned counsel appearing for the claimants
that the Government of Tamil Nadu, vide G.O.(MS)No.29, Personnel and
Administrative Reforms (S) Department, dated 25.02.2021, increased the
age of the retirement to 60 years for all Government servants. Hence, the
deceased would be entitled for full salary for the period of 10 years and for
the remaining period of 3 years, he is entitled for 50% of the salary.
Therefore, the Loss of Dependency in service comes to Rs.46,44,900/-
[4,69,490 x 10] and for the remaining period, the amount comes to
Rs.7,04,235/- [2,34,745 x 3]. Thus, the total Loss of Dependency comes to
Rs.53,49,135/- [46,44,900 + 7,04,235]. In addition to that, this Court
awards Rs.40,000/- towards Loss of Consortium; Rs.80,000/- towards
Parental Consortium; Rs.40,000/- towards Loss of Filial Consortium;
Rs.15,000/- towards Loss of Funeral Expenses; and Rs.15,000/- towards
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Loss of Estate. In total, the claimants are entitled to Rs.55,39,135/-, which
is rounded off to Rs.55,40,000/- along with interest at the rate of 7.5% per
annum from the date of claim petition till the date of realization. Thus, the
total compensation payable to the claimants is re-calculated and tabulated
below:
S. Heads under which Amount Amount awarded
No. amount is awarded by awarded by the by this Court in
the Tribunal Tribunal in Rs. Rs.
1. Loss of Dependency 60,38,370 53,49,135
2. Loss of Spouse 40,000 40,000
Consortium
3. Parental Consortium 1,50,000 80,000
4. Filial Consortium 25,000 40,000
5. Loss of Estate 15,000 15,000
6. Funeral Expenses 15,000 15,000
Total 62,83,370 55,39,135
rounded off to rounded off to
62,83,400 Rs.55,40,000
14. In view of the above modifications, the Civil Miscellaneous
Appeal is partly allowed. The wife of the deceased/first claimant is entitled
for Rs.20,00,000/-; children of the deceased/claimants 2 and 3, are entitled
for Rs.15,00,000/- each; and mother of the deceased/fourth claimant is
entitled for Rs.5,40,000/-. It is represented by the learned counsel for the
appellant/Insurance Company that the Insurance Company has already
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deposited Rs.40,00,000/- to the credit of the claim petition. Hence, the
balance modified award amount will be deposited with accrued interest and
costs, within a period of six weeks from the date of receipt of a copy of this
judgment. The major claimants 1, 2 and 4 are permitted to withdraw their
respective shares of the award amount, less the amount already withdrawn,
if any, together with proportionate interest and costs. Insofar as the minor
claimant 3 is concerned, her share shall be deposited by the Tribunal in any
Fixed Deposit Scheme in any one of the Nationalised Banks and it shall be
renewed periodically till she attains majority and the interest accrued
thereon shall be withdrawn by the first claimant /mother once in three
months. There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
[M.K.K.S, J] [V.S.G., J]
08.02.2022
Index : Yes / No
Speaking order: Yes/No
pvs
To
1. II Court of Small Causes,
Motor Accident Claims Tribunal, Chennai
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. No.1160 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
pvs
C.M.A. No.1160 of 2021
08.02.2022
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