M.Malathy, v. The Managing Director

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24.08.2016

CORAM

THE HON'BLE MR. JUSTICE T.MATHIVANAN C.M.A.Nos.896 of 2012 & 964 of 2016 & M.P.No.1 of 2014 and C.M.P.No.7377 of 2016 C.M.A.No.896 of 2012 1.M.Malathy 2.M.Shalini 3.M.Deepthi(Minor), Minor rep.by her Mother M.Malathy 4.A.Janakiraman ... Appellants/Petitioners Vs.

The Managing Director Tamil Nadu State Transport Corporation Limited Villupuram Division IV Thiruvannamalai Region Thiruvannamalai ... Respondent/Respondent Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 08.04.2011 and made in M.C.O.P.No.352 of 2009 on the file of the Motor Accident Claims Tribunal (Additional District Judge, Fast Track Court-I), Poonamallee.

For Appellant : Mr.P.Natarajan For Respondent : Mr.P.Paramasivadoss C.M.A.No.964 of 2016 The Managing Director Tamil Nadu State Transport Corporation Limited Villupuram Division IV Thiruvannamalai Region Thiruvannamalai ... Appellant/Respondent

Vs.

1.M.Malathy 2.M.Shalini 3.M.Deepthi(Minor), Minor rep.by her Mother M.Malathy 4.V.Janakiraman ... Respondents/Petitioner Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 08.04.2011 and made in M.C.O.P.No.352 of 2009 on the file of the Motor Accident Claims Tribunal (Additional District Judge, Fast Track Court-I), Poonamallee.

For Appellant : Mr.P.Paramasivadoss For Respondents : Mr.P.Natarajan for R1 to R4

JUDGMENT

Having been not satisfied with the award passed by the Tribunal, the claimants have filed the appeal in C.M.A.No.896 of 2012 under Section 173 of the Motor Vehicles Act, 1988.

2. Questioning the quantum of compensation awarded by the Tribunal to the extent of Rs.21,40,000/- as against the claim of Rs.25 Lakhs, the Tamil Nadu State Transport Corporation, who is the respondent in the claim petition M.C.O.P.No.352 of 2009 has filed the appeal in C.M.A.No.964 of 2016.

3. With the issue involved in both the appeals is identical in nature and the parties to the appeal are also one and the same, both the appeals have been clubbed together, heard jointly and disposed of in this common judgment.

4. For easy reference the appellants/claimants in the appeal C.M.A.No.896 of 2012 be referred to as the claimants, whereas the appellant in C.M.A.No.964 of 2016 be referred to as the Transport Corporation, wherever the context so require.

5. The claimants being the wife, children and father of the deceased J.Mani, had moved the Motor Accident Claims Tribunal with a claim petition in M.C.O.P.No..352 of 2009 claiming totally a sum of Rs.25,00,000/- for the death of the deceased J.Mani in a road traffic accident said to have been taken place on 03.01.2009 involving a passenger bus bearing Registration No.TN23-N-1604 belonging to the Tamil Nadu State Transport Corporation. Since the appeal in C.M.A.No.964 of 2016 has been filed by the Transport Corporation on the ground of quantum

alone, the other facts with reference to negligence and liability need not be traversed in detail.

6. As it is manifested from the records, the said accident was taken place on 03.01.2009. At the time of the accident, the deceased was aged about 48 years. According to the claimants, the deceased was working as a Post Graduate School Teacher in Mathematics at Government Higher Secondary School, Alampoondi and thereby earned a sum of Rs.19,860/-. It is to be noted that the Tribunal had determined the monthly income of the deceased at Rs.19,360/-. The Tribunal had included an additional pay of Rs.640/- as the deceased was working as Post Graduate Teacher and thereby made the monthly income of the deceased at Rs.20,000/- per mensem. Indeed the fixing of additional salary of Rs.640/- was not justified by the Tribunal. As per the above calculation, the Tribunal had quantified the annual dependency of the family at Rs.2,40,000/-.

After giving 1/3rd deduction, the 2/3rd remainder was calculated at Rs.1,60,000/-. Since the deceased was aged about 48, the multiplier of 13 was selected and accordingly, the pecuniary loss of the family was calculated at Rs.20,80,000/. Apart from this, the Tribunal has awarded a sum of Rs.10,000/- towards the loss of consortium to the first claimant and apart from this, a sum of Rs.40,000/- (each Rs.10,000/-) was awarded towards loss of love and affection. Besides this, the Tribunal had also awarded another sum of Rs.10,000/- towards the funeral expenses. In total, the Tribunal had awarded a sum of Rs.21,40,000/- and directed the Transport Corporation to pay the amount to the claimants with interest at the rate of 7.5% per annum.

7. Mr.P.Natarajan, learned counsel appearing for the claimants, while advancing his arguments, has drawn the attention of this Court to Ex.P13 and Ex.P17. Ex.P13 is the Salary Certificate and Ex.P17 is the attested copy of the Service Register of the deceased. As per Ex.P13, which seems to have been issued by the Head Master of the Government Higher Secondary School, Alampoondi on 05.10.2009, as on 01.01.2009, the deceased was drawing a gross salary of Rs.19,860/-. It is pertinent to note here that the accident was taken place on 03.01.2009. As per Column 13 of the Service Register, the deceased was getting a sum of Rs.14,543/- per month. The breakup particulars are given as under: PAY : Rs. 6500/- DAPAY : Rs. 3250/- DA : Rs. 4583/- HRA : Rs. 160/- MA : Rs. 50/-

PAY : Rs. 6500/- Gross : Rs. 14,543/-

8. The Service Register would further reveal that the new revised basic pay of the deceased was Rs.16,690/-. On the basis of these two documents, Mr.P.Natarajan, learned counsel has submitted that the Tribunal had failed to determine the monthly income based on the revised salary of the deceased. The above said details appears to have been furnished by the Head Master of the Government Higher Secondary School, Alampoondi on 10.09.2009.

9. However, Mr.P.Paramasivadoss, learned counsel appearing for the Transport Corporation has vehemently objected to determine the monthly income of the deceased as per the new revised salary. In this connection, he would submit that the salary, which was obtained by the deceased at the time of this death, alone could be taken into account for calculating the pecuniary loss of the family and that the salary which was revised after his death could not be taken into account. In support of his contention, the learned counsel has placed reliance upon the following decision of the Apex Court:

1. Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121; and

2. Oriental Insurance Company Ltd., Vs.Jashuben & Ors reported in 2008 (1) TNMAC 338 (SC).

10. In Sarla Verma's case cited first supra, Paragraph No.46 is very much relevant and it is extracted as under: "46. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales.

In the above cited case, while speaking on behalf of a Division Bench, Hon'ble Mr.Justice R.V.Ravindran has observed that the

compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales.

11. In Oriental Insurance Company Ltd., case cited second supra, Hon'ble Mr.Justice S.B.Sinha while penning down the judgment in Paragraph No.12 has observed as under: "12. It is not a case where, as on the date of death, the salary of the deceased was revised with retrospective effect from 1994. Salary would be revised or not was not known at that part of time. Only because such salary was revised at a later point of time, the same by itself would not have been a factor which could have been taken into consideration for determining the amount of compensation. The Tribunal, therefore, committed a serious illegality in taking into consideration the latter aspect."

12. As it is observed by his Lordship's at Paragraph 12 above, it is also not the case of the claimants in the present case that as on the date of death, the salary of the deceased was revised with retrospective effect. In this case also the deceased was not known that his salary would be revised in future. Therefore, as correctly observed by his Lordship, the salary which was drawn by the deceased at the time of his death alone could be considered for quantifying the compensation. 13.At the time of hearing the appeal, both the learned counsels have jointly suggested that the salary of the deceased could be determined at Rs.15,000/-. As observed by the Supreme Court in Sarla Verma's case, since the deceased was aged about 48 years, 30% of the monthly income could be added towards future prospects. Accordingly, it comes to Rs.4500/.

Adding this amount with the determined monthly income of Rs.15,000/-, the total monthly income comes to Rs.19,500/- and the annual income of the deceased is Rs.2,34,000/-. As on the date of death i.e., during the year 2009, for calculating income tax, the nontaxable income is Rs.1,20,000/-. The remaining taxable income is Rs.1,14,000/-. If 20% is deducted towards income tax, the remaining balance would be Rs.2,11,200/-. Since the deceased was aged about 48 years, 13 is the appropriate multiplier. Apart from this, since there are 5 dependants, this Court deems it appropriate to deduct 1/4th towards personal and living expenses. Then, the pecuniary loss of the family could be arrived at Rs.20,59,200/-. Since the first claimant was aged about 36 years at the time of the death of her husband, it may be better to grant a sum of Rs.

50,000/- towards consortium. Since the claimants 2 and 3 have lost their father and the fourth claimant has lost his son, a sum of Rs.45,000/- (each Rs.15,000/-) is awarded towards loss of love and affection.

sum of Rs.10,000/- awarded by the Tribunal under the head of funeral expenses appears to be meagre and the same is hereby increased to Rs.15,000/-. That apart, the Tribunal has not awarded any amount towards transportation. Hence, a sum of Rs.6000/- is awarded under the head of Transportation. Accordingly, the compensation awarded by the Tribunal to the extent of Rs.21,40,000/- is hereby increased to Rs.21,75,000/- as detailed hereunder:

Pecuniary loss of the family :

Rs.20,59,200/- (Rs.19,500/-*1/4) *12*18 Loss of consortium to 1st Claimant :

Rs. 50,000/- Loss of Love and Affection to Claimants 2 to 4 :

Rs. 45,000/- (Rs.15,000/- each) Funeral Expenses :

Rs. 15,000/- Transportation :

Rs.

5,800/- ------------------- Total Rs. 21,75,000/- ------------------- In the result, i) C.M.A.No.896 of 2012 is allowed and the amount awarded by the Tribunal is enhanced to Rs.21,75,000/- from Rs.21,40,000/-.

Out of the award amount of Rs.21,75,000/-, the first appellant/claimant is entitled to get Rs.9,00,000/- with accrued interest, appellants 2 and 3/ claimants are entitled to get Rs.4,87,500/- each with accrued interest and the fourth appellant/claimant is entitled to get Rs.3,00,000. The Transport Corporation is directed to pay the award amount with 7.5% interest from the date of petition till the date of realisation. The Transport Corporation shall deposit a sum of Rs.10,00,000/- initially to the credit of the M.C.O.P No.352 of 2009 within a period of four weeks from the date of receipt of a copy of this order. The remaining balance with accured interest shall have to be paid to the claimants within a period of four weeks thereafter.

On such deposit being made, the Claimants 1,2 and 4 are entitled to withdraw their shares with accrued interest without actually filing an application. The shares of the third minor claimant shall be kept in Fixed Deposit in any one of the Nationalized Banks till she attains majority and the first claimant is entitled to withdraw the interest accrued thereon once in three months. ii. CMA No.964 of 2016 is dismissed.

No costs. Consequently, the connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar gpa To

1. The Motor Accident Claims Tribunal, (Additional District Judge, Fast Track Court-I), Poonamallee.

2. The Managing Director, Tamil Nadu State Transport Corporation Limited, Villupuram Division IV, Thiruvannamalai Region, Thiruvannamalai.

C.M.A.Nos.896 of 2012 & 964 of 2016 & M.P.No.1 of 2014 and C.M.P.No.7377 of 2016 ca[co] srg 09/12/2016