Madras High Court
The Oriental Insurance Company ... vs Kaleeswari on 28 January, 2022
C.M.A.(MD)No.825 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.01.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD)No.825 of 2021
and
C.M.P.(MD)No.7547 of 2021
The Oriental Insurance Company Ltd.,
Rep. by its Branch Manager,
Door No.127/8, Madurai Road,
Bhuvaneshwari Complex,
Virudhunagar Town,
Virudhunagar District. ...Appellant/Respondent No.2
Vs.
1.Kaleeswari
2.Arputharani
3.Jeyalakshmi
4.Karthiga
5.Arumugathai ...Respondents 1 to 5/
Petitioners 1 to 5
6.Santhi M.Vannan
7.Servarathevar ...Respondents 6 & 7/
Respondents 1 & 3
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988, to set aside the order of the Motor Accidents Claims
Tribunal Cum Principal Sub Court, Srivilliputhur made in M.C.O.P.No.9 of
2016, dated 15.10.2019.
1/11
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
For Appellant :Mr.C.Jawahar Ravindran
For R1 to R5 & R7 :Ms.S.Mahalakshmi
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside the order
of the Motor Accidents Claims Tribunal Cum Principal Sub Court,
Srivilliputhur made in M.C.O.P.No.9 of 2016, dated 15.10.2019.
2.It is a case of fatal accident. On 27.08.2015 at about 06.00 a.m.,
while the deceased Nallamuthu was riding his TVS XL Heavy Duty, bearing
Registration No.TN-67-AS-6636 from M.Puthupatti, when the motorcycle
reached near periyapalam, west side of Naduvapatti, a bus bearing
Registration No.TN-67-AJ-6366 belonging to the first respondent came on
the same road from south to north, in a rash and negligent manner hit the
motorcycle. Immediately, he was taken to the Government Hospital,
Sivakasi, but he succumbed due to his injuries.
3.The claimants have filed a petition in M.C.O.P.No.9 of 2016 on the
file of the Motor Accident Claims Tribunal cum Principal Sub Court,
Srivilliputhur, seeking compensation of Rs.25,00,000/-.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
4.Before the Tribunal, on the side of the claimants, one witness was
examined as P.W.1 and marked seventeen documents as Exs.P.1 to P.17. On
the side of the respondents, no one was examined and no document was
marked.
5.The Tribunal, after considering the pleadings, oral and documentary
evidences and the arguments of the counsel for the claimants and the
respondents and also on appreciating the evidences on record, held that the
accident occurred only, due to the rash and negligent driving of the driver of
the first respondent and directed the appellant herein to pay a sum of
Rs.25,27,612/- as compensation. Against which, the appellant/second
respondent has filed this present appeal to set aside the award of
compensation passed by the Tribunal.
6.Heard Mr.C.Jawahar Ravindran, learned counsel appearing for the
appellant and Ms.S.Mahalakshmi, learned counsel appearing for the
respondents 1 to 5 and 7 and perused the materials available on record.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
7.The learned counsel for the appellant/Insurance company contended
that since the age of the deceased was 56 years, the retirement age for the
conductor is 58, the Tribunal fixed the monthly income as regular income for
the entire period. The Tribunal has failed to consider the judgment of this
Court reported in 2017 (1) TNMAC 423 wherein, this Court has fixed 15%
contributory negligence for not wearing helmet. He further contended that
the Tribunal has wrongly applied multiplier as '9' and excessively awarded
Rs.24,57,612/- on the head of loss of income. Hence, it requires
modification.
8.A perusal of records would show that the deceased was working as a
conductor and earning a sum of Rs.27,000/- per month. But his age was 56
years and he got retirement only in the age of 58. This Court in the decision
made in C.M.A(MD)No.751 of 2018 in the case of Lakshmi and others
vs.Joseph Methew and others, in paragraph Nos.7 & 14 held as follows:-
''7.In support of his submissions, the learned counsel
appearing for the appellants relied on the following
decisions:-
(i) 2014 (2) TN MAC 546 (SC) [Saraladevi and others Vs.
Divisional Manager, Royal Sundaram Alliance Insurance
Company Ltd. and another], wherein at Paragraph 7, it has
been held as follows:-
''7.The High Court, after examining the facts, evidence
and circumstances of the case, has held that as per the
judgment in Sarla Verma and Others. Vs. Delhi Transport
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
Corporation and another, 2009 (2) TN MAC 1 (SC): (2009) 6
SCC 121, the correct Multiplier between the age group of
56-60 should have been 9 since the deceased was 58 years at
the time of his death. Further, the High Court held that if the
actual salary of Rs.50,809/- is taken into consideration, the
annual loss of income of the deceased works out to Rs
6,09,708/- and 10% of the amount is liable to be deducted
towards Income Tax deduction. 10% in the sum of Rs
6,09,708/- comes to Rs.60,970.80 and the same can be
rounded off to Rs.61,000/-. If so, the balance amount works
out to Rs.5,48,708/- (Rs.6,09,708/- minus Rs.61,000/-),
rounded off to Rs.5,49,000/- as the annual income of the
deceased. Hence, annual loss of income could be fixed at Rs.
5,49,000. For the first two years, the Loss of Income would be
Rs.10,98,000/- (Rs.5,49,000 2 years). For the balance 7 years,
only 50% annual income has to be taken into consideration as
Notional Income, which comes to Rs.19,21,500/- (Rs.
2,74,500/- 7 years). Therefore, the total Loss of Income works
out to Rs.30,19,500/-. Further, the High Court was of the
opinion that 1/3rd amount is liable to be deducted towards
Personal Expenses of the deceased. If this amount is deducted
out of the annual income of the deceased, the balance amount
works out to Rs.20,13,000/- which amounts to a total Loss of
Dependency (Rs.30,19,500/- minus Rs.10,06,500/-). The High
Court further held that there is Contributory Negligence on
the part of the deceased which was assessed at 25% which
amount would be Rs.5,03,250/-. When this amount was
deducted out of Rs.20,13,000/-, the High Court held that the
Legal Heirs of the deceased are entitled to Rs.15,09,750/-
towards Loss of Dependency. .....''
(ii) 2016 (1) TN MAC 269 [Managing Director, TNSTC
(Kumbakonam Division - III) Vs. G.Saroja and others],
wherein at Paragraph 17, it has been held as follows:-
''17.The contention of the learned counsel for the
appellant that the Tribunal ought to have applied split
multiplier method in arriving at compensation under the
heading loss of income, is untenable and unsustainable. In the
present case, admittedly the deceased was having 8 years of
service. He would have got increment, promotion of
service,revision of pay, etc. Taking into consideration the
deceased was having 8 years of further service and would
have got increase in salary, I hold that split multiplier method
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
is not applicable in the present case. For this reasons, I hold
that the Judgment relied on by the learned counsel for the
appellant, is not applicable to the facts of the present case, as
the deceased in that case, had only one year of service.
Whereas in the present case, the deceased had 8 years of
service.''
(iii) 2017 (1) TN MAC 652 (DB) [Oriental Insurance
Co. Ltd Vs. S.Venkateswari and others], wherein at
Paragraphs 24 and 25, it has been held as follows:-
''24.The judgments relied on by the learned Counsel for the
appellant/Insurance Company would speak about the split
multiplier concept. However, in the judgment rendered by the
Honourable Supreme Court in Puttamma and others v.
K.L.Narayana Reddy and another, 2014 (1) TN MAC 481
(SC), at paragraph 34, it has been held that "We, therefore,
hold that in absence of any specific reason and evidence on
record the Tribunal or the Court should not apply Split
Multiplier in routine course and should apply Multiplier as
per decision of this Court in the case of Sarla Verma v. Delhi
Transport Corporation, 2009 (2) TN MAC 1 (SC), as affirmed
in the case of Reshma Kumari v. Madan Mohan, 2013 (1) TN
MAC 481 (SC)".
25.The Honourable Supreme Court in the above cited
judgment, in Paragraph 64 held that the judgment of the High
Court of Karnataka is perverse and contrary to the evidence
on record and while setting aside the same observed that
future prospects of the deceased and adoption of split
multiplier method is against law laid down by the Honourable
Supreme Court.''
14.From the materials on record, it is seen that the deceased
was aged about 57 years and 10 months on the date of
accident. His retirement age is 58 years. Based on the above
facts, the Tribunal following the judgments of the Division
Bench of this Court, applied split multiplier method. The
Tribunal has calculated the loss of income for two months
based on the salary received by the deceased. After deducting
10% towards income tax and 1/3rd towards his personal
expenses, the Tribunal has calculated the loss of income for
the further period of 106 months [9 x 12 = 108 ? 2], applying
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
multiplier '9', based on 50% of the monthly income received by
the deceased at the time of death and deducted 10% towards
income tax and also 1/3rd towards personal expenses. The
method adopted by the Tribunal is correct, but calculation is
not correct. Applying the method, the amount payable to the
appellants/claimants for loss of income as follows:-
Last drawn salary Rs.40,200/-
Less:10% deduction for income tax Rs. 4,020/-
-------------
Rs.36,180/-
Less : 1/3rd towards personal expenses Rs.12,060/-
-------------
Rs.24,120/-
-------------
Hence, for two months, the loss of income is Rs.48,240/-
[Rs.24,120/- x 2]. For the balance period, 50% of the salary
[Rs.40,200 / 2] has to be taken into consideration, which
works out to Rs.20,100/-. After deducting 10% towards income
tax i.e., Rs.2,010/- and 1/3rd towards personal expenses
[Rs.6,030/-], the monthly income is arrived at Rs.12,060/- and
therefore, the loss of income comes to Rs.12,78,360/-
[Rs.12,060/- x 106] and after adding loss of the income for
two months, i.e., Rs.48,240/-, the loss of income would be
Rs.13,26,600/-.''
So for three years, full monthly income of Rs.27,000/- to be calculated.
For remaining period half of the monthly salary has to be calculated. Thus,
the loss of annual income would come to Rs.27,000/- x 12 = Rs.3,24,000/-.
Further, 15% added for future prospectus, it would come to Rs.3,72,600
(Rs.3,24,000/- + Rs.48,600/-) and 1/4th deduction towards his personal
expenses would come to Rs.93,150/- (48,600/- x 1/4th deduction). Further,
the multiplier '3' adopted by the Tribunal is also hereby confirmed. So loss
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
of income would come to Rs.2,79,450/- x 3 = Rs.8,38,350/-. After retirement
loss of income Rs.1,39,725/- (50% of Rs.2,79,450/-) and multiplier '6' has to
be adopted would come to Rs.8,38,350/-. Thus, total loss of income would
come to Rs.16,76,700/-. Further, this Court awarded Rs.40,000/- each of the
claimants towards loss of consortium and Rs.15,000/- towards transportation.
Except the above, all other terms of the award passed by the Tribunal is
confirmed.
9.Accordingly, the claimants are entitled for compensation as follows:
Sl. Compensation heads Details of amount
No.
1. Loss of Income Rs.16,76,700/-
2. Loss of Consortium Rs. 2,00,000/-
3. Loss of Estate Rs. 15,000/-
4. Funeral Expenses Rs. 15,000/-
5. Transport Charges Rs. 15,000/-
Total Rs. 19,21,700/-
Thus, the compensation awarded by the Tribunal is reduced from
Rs.25,27,612/- to Rs.19,21,700/- and rounded as Rs.19,25,000/-, with
interest at 7.5% p.a., as awarded by the Tribunal, from the date of claim
petition till the date of realization.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
10. In the result,
(i) The Civil Miscellaneous Appeal is partly allowed.
(ii) The quantum of compensation awarded by the Tribunal is reduced
from Rs.25,27,612/- to Rs.19,25,000/- with interest at the rate of 7.5% per
annum.
(iii) The appellant/Insurance Company is directed to deposit the
compensation amount i.e., Rs.19,25,000/- (Rupees Nineteen lakhs twenty
five thousand only), less the amount already deposited, together with interest
at the rate of 7.5% per annum from the date of claim petition till the date of
deposit to the credit of M.C.O.P.No.9 of 2016 on the file of the Motor
Accidents Claims Tribunal Cum Principal Sub Court, Srivilliputhur, within a
period of six weeks from the date of receipt of a copy of this order.
(iv) On such deposit being made, the first claimant is entitled to
withdraw Rs.9,25,000/- and 2 to 4 claimants are entitled to withdraw
Rs.3,00,000/- each and fifth claimant is entitled to withdraw Rs.1,00,000/- by
filing necessary application before the Tribunal. No costs. Consequently
connected miscellaneous petition is closed.
28.01.2022
Index :Yes/No
Internet:Yes/No
vsd
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
To
1.The Motor Accidents Claims Tribunal Cum
Principal Sub Court,
Srivilliputhur.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.825 of 2021
S.ANANTHI, J.
vsd
Judgment made in
C.M.A.(MD)No.825 of 2021
and
C.M.P.(MD)No.7547 of 2021
28.01.2022
https://www.mhc.tn.gov.in/judis
