Madras High Court
G.Ashok Kumar vs K. Subalakshmi on 25 October, 2024
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.M.A.No.2529 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On :13.09.2024
Pronounced On : 25.10.2024
CORAM
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
AND
THE HONOURABLE MRS. JUSTICE R. KALAIMATHI
C.M.A.No.2529 of 2023
1. G.Ashok Kumar
2. Minor A.Amala
3. A.Aswini
4. A.Arthi ...Appellants
vs.
1. K. Subalakshmi
2. M/s.ICICI Lombard General Insurance Company Ltd.,
Legal Department, Arihant Plaza, First Floor,
Walltax Road, Chennai – 600 001
...Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree dated
25.04.2023 made in M.C.O.P.No.1522 of 2020 on the file of the Motor
Accident Claims Tribunal / Court of Small Causes, Chennai.
For Appellants : Ms.G.Balaji Prasad
For Respondents : Mr.A.Salomi for R2
Page No.1/15
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C.M.A.No.2529 of 2023
: R1-Exparte
JUDGMENT
(Judgment was made by Mrs.R.Kalaimathi, J.)
Not being satisfied by the Award dated 25.04.2023 made in
M.C.O.P.No.1522 of 2022 on the file of Motor Accident Claims Tribunal /
Chief Judge, Court of Small Causes, Chennai, claimants herein have
preferred this appeal for enhancement of compensation.
2. Claim petition was filed under Section 166 of the Motor Vehicles
Act, 1988 and Rule 3 of Motor Accident Claims Tribunal Rules, claiming
compensation of Rs.95,00,000/- for the death of Tmt.R.Tamil Selvi in a
road traffic accident that occurred on 19.05.2020.
3. The facts narrated in the claim petition is set out hereunder:
On 19.05.2020 at about 9.45 hours, while the 1st claimant's wife
Tmt.Tamil Selvi was travelling as a pillion in Honda Activa motor cycle
bearing Registration No. TN 11 L 8437 from Perungalathur to
Kanchipuram along Vandalaur-Walajabad road, at the point of Palaniappa
Chettinad Hotel, Banrutti village, the rider of said two wheeler drove the
vehicle in a rash and negligent manner, and the deceased fell down and
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sustained serious injuries. She was taken to Sriperumbudur Government
Hospital, then admitted in Chengalpet Medical College Hospital and
thereafter shifted to SIMS Hospital, Vadapalani, Chennai, where she died
on the same day. She was working as Revenue Officer at Kanchipuram
and earning a sum of Rs.69,211/- per month and she was aged about 55
years. The first and second respondents are the owner and insurer of the
said vehicle. Therefore, they are jointly and severally liable to pay
compensation.
4. On behalf of the second respondent/Insurance Company, it was
contended that the petitioners are put to strict proof of age, avocation and
income of the deceased. As the deceased was not wearing helmet at the
time of accident, 15% has to be fixed as contributory negligence on the
deceased.
5. At trial, on the claimants' side, three witnesses were examined
and 30 documents were marked. Copy of pay slips of the deceased for
the month of February, March and April 2020 is Ex.P15. Copy of service
particulars of the deceased is Ex.P30. On the second respondent side,
neither any oral evidence was let in nor document was marked.
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6. The Tribunal arrived at the compensation as given hereunder:
Sl. Description Amount awarded
No. by the Tribunal
1 For Loss of Income Rs.33,17,630/-
2 For loss of estate Rs.15,000/-
3 For loss of consortium Rs.1,60,000/-
4 For funeral expenses Rs.15,000/-
Total Rs.35,07,630/-
7. The Tribunal fixed the annual income as given below:
Gross Salary Rs.69,211/-
Net Income (after deducting statutory
Rs.58,971/-
deductions)
Annual Income (Rs.58,971 x 12) Rs.7,07,652/-
Actual annual income after deduction
Rs.6,99,368/
of Rs.8,284/- (Income Tax)
-
(Rs.7,07,652 – Rs.8,284)
The Tribunal observed that after her demise, the legal heirs would
receive family pension at 50% of the last pay drawn of the deceased. It
was also observed that there is a chance of one of the family members to
get appointment on compassionate ground. Therefore, 50% of the annual
income towards family pension was deducted and the annual income was
arrived at Rs.3,49,684/-. After adding 15% as future prospects and
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deducting 1/4th towards personal expenses of the deceased, the
compensation towards loss of income was arrived at Rs.33,17,630/-
[Rs.4,02,137/- (Annual Income Rs.3,49,684 + 15%) x 11 x 3/4].
8. As regards the fixation of monthly income, as per Ex.P15 -
Salary slip for the month of April 2020, the gross salary of the deceased
was Rs.69,211/-. As regards the allowances, she received conveyance
allowance (Rs.776/-) which is beneficial to the employee.
9. Salary is the regular payment made by the employer to the
employee for the work performed by him. Whereas, gross salary is
inclusive of bonus, overtime pay, holiday pay and other benefits. Some of
the benefits includes basic salary, house rent allowance, conveyance
allowance, medical allowance, uniform allowance, newspaper allowance,
etc. Net salary is the income that an employee actually takes home after
deducting income tax, provident fund and other deductions subtracted
from it. The moot question in this appeal is that, what is the amount under
the caption of salary has to be taken into account for the purpose of
computing the loss of income.
10. It is relevant to refer to the observations made in A.Lakshimi Vs.
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Arjun Associated Pvt. Ltd., reported in 2005 ACJ 704 in respect of the
deductions. It was observed that General Provident Fund, General
Insurance Scheme and Life Insurance Contributions made by the
deceased shall not be deducted while computing the income of the
deceased. Because, the incomes are beneficial to the employee as well
as his family.
11. Useful reference may be made to the observations made by the
Apex Court in National Insurance Co. Ltd., Vs. Indira Srivastava & Others,
reported in 2008 (2) SCC 763. The Apex Court observed that:
“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 are
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 takes
recourse to payment of contributory Provident Fund, Gratuity
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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 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.”
12. While calculating the compensation, the imponderables namely
the income that the deceased would have earned in toto, the amount he
would have contributed to the family, the chances either the deceased or
the dependents may not have lived, the deceased might have moved to a
better employment, he would have lost his employment. However, we are
reminded of the observations of the Hon'ble Supreme Court in
R.D.Hattangadi Vs. M/s.Pest Control (India) Pvt. Ltd., reported in AIR
1995 SC 755 wherein it was opined that:
"In its very nature whenever a Tribunal or a Court is
required to fix the amount of compensation in cases of
accident, it involves some guess work, some hypothetical
consideration, some amount of sympathy linked with the
nature of disability caused. But all the aforesaid elements
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have to be viewed with objective standards."
13. In yet another decision in Divisonal Controller, KSRTC v.
Mahadeva Shetty and another reported in (2003) 7 SCC 197, it was
observed that:
"Measure of damages cannot be arrived at by precise
mathematical calculations. It would depend upon the
particular facts and circumstances, and attending peculiar or
special features, if any. Every method or mode adopted for
assessing compensation has to be considered in the
background of "just" compensation which is the pivotal
consideration. Though by use of the expression "which
appears to it to be just", a wide discretion is vested in the
Tribunal, the determination has to be rational, to be done by
a judicious approach and not the outcome of whims, wild
guesses and arbitrariness, and non-arbitrariness. If it is not
so, it cannot be just."
14. The deceased Tmt.R.Tamil Selvi was working as Revenue
Officer in the Kancheepuram City Municipal Corporation and drawing
gross salary of Rs.69,211/- per month. The salary slips of the deceased
pertaining to the months of February, March, April, 2020 is Ex.P15. The
salary details are given hereunder:
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Salary Details in Rs.
Basic Pay 55500.00
Grade Pay 0.00
Special Pay 0.00
Dearness Allowances 9435.00
House Rent Allowance 3200.00
CCA 0.00
Conveyance Allowance 776.00
Medical Allowance 300.00
Washing Allowance 0.00
Other Allowance 0.00
Hill Allowance 0.00
Winter Allowance 0.00
Gross Amount 69,211.00
15. Law is well settled that allowances which are granted to the
employee for the personal benefits shall not be added while computing the
monthly income for the purpose of granting compensation.
16. Reverting back to the present case, among the aforestated
allowances, conveyance allowance of Rs.776/- is granted to the benefit of
the employee. Dearness Allowance, House Rent Allowance, Medical
Allowance are also benefited by the members of the family of the
employee. Therefore, based on the aforesaid discussions and judgments,
in our considered opinion, the amount given for conveyance allowance
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has alone to be deducted from the gross salary (Rs.69,211/- – Rs.776/- =
Rs.68,435/-).
17. As per Ex.P30 - Service particulars, date of birth of the
deceased is 28.05.1964. Date of death of the deceased is 19.05.2020.
Therefore, the deceased died at the age of 55 years. As held by the Apex
Court in Sarala Varma -vs- Delhi Transport Corporation and another,
reported in 2009(2) TNMAC 1 (SC), as per the age of the deceased, the
relevant multiplier to be adopted is 11m for the age group of persons
between 51 to 55 years. As regards the deduction for personal and living
expenses, the Apex Court has standardized the details in the abovesaid
case and 1/4th has to be deducted if number of dependent family members
is 4 to 6. The claimants are four in number, then 1/4th has to be deducted
for the personal and living expenses of the deceased.
18. As regards the future prospects, as held in National Insurance
Co. Ltd., v. Pranay Sethi and others reported in 2017 (2) TN MAC 609
(SC), for the age group of persons between 50 to 60 years, 15% has to be
added.
19. As her gross salary was Rs.69,211/-, 10% has to be deducted
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for income tax. Based on the aforesaid details, the income of the
deceased and loss of income is computed, which is given hereunder:
A Monthly Income Rs.68,435/-
B Future Prospects (15% of monthly Rs.10,265/-
income)
C 1/4th Deduction towards Personal Rs.19,675/-
Expenses
D Total Dependency (A + B - C) Rs.59,025/-
E Annual Income (D x 12) Rs.7,08,300/-
F 10% Income Tax Rs.70,830/-
Loss of Income [(E - F) x G] Rs.70,12,170/-
20. We are of the considered view that with regard to other heads,
the compensation granted by the Tribunal appears to be reasonable and
we are not inclined to interfere in the same. After revisit, the
compensation details is tabulated hereunder:
Award
Amount Amount confirmed
Sl. awarded by awarded by or
Description
No. Tribunal this Court enhanced
or granted
or reduced
1 For Loss of Income Rs.33,17,630/- Rs.70,12,170/- Enhanced
2 For loss of estate Rs.15,000/- Rs.15,000/- Confirmed
3 For loss of Rs.1,60,000/- Rs.1,60,000/- Confirmed
consortium
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Award
Amount Amount confirmed
Sl. awarded by awarded by or
Description
No. Tribunal this Court enhanced
or granted
or reduced
4 For funeral Rs.15,000/- Rs.15,000/- Confirmed
expenses
Total Rs.35,07,630/- Rs.72,02,170/- Enhanced
`
21. Thus, the compensation awarded by the Tribunal is enhanced
from Rs.35,07,630/- to Rs.72,02,170/- which would carry interest at the
rate of 7.5% per annum from the date of petition till the date of realisation.
22. In the result,
(i) The Civil Miscellaneous Appeal stands Partly Allowed. No costs.
(ii) The compensation awarded by the Tribunal is enhanced from
Rs.35,07,630/- to Rs.72,02,170/-.
(iii) The Insurance Company is directed to deposit the enhanced
compensation amount now determined by this Court i.e., Rs.72,02,170/-
(less the amount already deposited if any) 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.1522 of 2020 on the file of Motor Accidents
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Claims Tribunal / Court of Small Causes, Chennai, within a period of six
weeks from the date of receipt of a copy of this Judgment.
(iv) Out of the enhanced award amount, the 1st petitioner is entitled
to a sum of Rs.27,02,170/- and petitioners no.2 to 4 are entitled to a sum
of Rs.15,00,000/- each as compensation.
(v) On such deposit being made, the claimants are permitted to
withdraw the amount now determined by this Court along with interest and
costs, after adjusting the amount, if any already withdrawn, by filing
necessary application before the Tribunal.
(vi) The share of the minor/2nd petitioner shall be deposited in any
one of the nationalized bank till the minor attains majority and the 1st
appellant, father of the minor Mr.G.Ashok Kumar is permitted to withdraw
interest once in three months from the said amount.
(vii) The claimants are directed to pay the Court fee for the
enhanced compensation amount, if required.
(viii) The Tribunal below shall disburse the amount upon production
of the certified copy showing proof of payment of Court fee by the
claimants.
(J.N.B.,J.) (R.K.M.,J.)
25.10.2024
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Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
mac
J.NISHA BANU, J.
and
R.KALAIMATHI, J.
mac
To
To
1. The Motor Accident Claims Tribunal,
Court of Small Cause, Chennai.
2. The Section Officer,
VR Section,
High Court, Madras.
Pre-Delivery Judgment made in
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25.10.2024
https://www.mhc.tn.gov.in/judis
