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Monday, September 1, 2014

Accident claim - trial court awarded Rs.37 lacs and odd where as High court reduced the same to Rs.15 lacs and odd - Apex court held that deceased aged 58 years, his salary Rs.50000 and odd - multiplication by 8 and 1/4 th deduction - and other benefits granted - where as high court unnecessarily deducted the same under contributory negligence as the offender vehicle driver was acquitted in criminal case and reduced the compensation by raising personal deduction to one third and also not granted other benefits and also reduced the annual income with unnecessary deductions against law = CIVIL APPEAL NO.7158 OF 2014 (Arising out of SLP(C) NO. 4333 OF 2014) SARALADEVI & ORS. ………APPELLANTS Vs. DIVISIONAL MANAGER, M/S ROYAL SUNDARAM ALLIANCE INS. CO. LTD. & ANR. …RESPONDENTS = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41857

Accident claim - trial court awarded Rs.37 lacs and odd where as High court reduced the same to Rs.15 lacs and odd - Apex court held that deceased aged 58 years, his salary Rs.50000 and odd - multiplication by 8 and 1/4 th deduction - and other benefits granted - where as high court unnecessarily deducted the same under contributory negligence as the offender vehicle driver was acquitted in criminal case  and reduced the compensation by raising personal deduction to one third and also not granted other benefits and also reduced the annual income with unnecessary deductions against law  =
The  prosecution  has
failed to prove  the  case  against  the  driver  beyond  reasonable  doubt,
therefore, the learned Judicial Magistrate had acquitted the driver  of  the
vehicle from the charge framed against him vide order dated 31.05.2010.

3.  The appellants - the widow, two daughters and bed-ridden aged mother  of
the deceased-Vasanthan  approached  the  Motor  Accidents  Claims  Tribunal,
Vellore (for short “MACT”) by filing claim petition  under  Section  166  of
the Motor Vehicles Act, 1988 (for short “the Act”) claiming compensation  of
Rs.45,00,000/- on account of death of their sole bread earner,  against  the
owner as well as the insurer of the vehicle. The  said  claim  petition  was
registered as M.C.O.P. No. 138 of 2009.=
At the time of death, Vasanthan  was  58
years  old  and  was  earning  a  salary  of  Rs.50,809/-  per  month   i.e.
Rs.6,09,708/- annually. By applying the appropriate multiplier of 8 as  laid
down under Kerala Road Transport Corporation v. Susamma Thomas[3], the  loss
of dependency comes to Rs.48,77,708/-.=

we are of the view that  where  the  deceased  was  married,  the  deduction
towards personal and living expenses of the deceased,  should  be
one-third
(1/3rd) where the number of dependent family members is 2 to  3,
one-fourth
(1/4th) where the number of dependent family members is 4  to  6,  and
one-
fifth (1/5th) where the number of dependent family members exceeds six.”

      The High Court failed to follow the above judgement and  committed  an
error in law in deducting 1/3rd amount  towards  personal  expenses  of  the
deceased.
Therefore, as per the above judgement the deduction  ought  to  be
1/4th only as correctly calculated by the Tribunal.
Thus,  after  deducting
1/4th  i.e.  Rs.12,19,416/-  towards  personal   expenses;   the   loss   of
dependency would be Rs.36,58,248/.
Further, we affirm  the  sum  granted  by
the Tribunal as Rs.5,000/- for funeral expenses, under the head of  loss  of
estate at Rs.10,000/-, loss of consortium  at  Rs.10,000/-  and  Rs.50,000/-
for loss of love and affection of the deceased.

12.     Further, the High Court has erred in not following the  decision  of
Rajesh and Ors. v. Rajbir Singh and Ors.[4]  by  awarding  only  Rs.10,000/-
for loss of consortium, instead of Rs.1,00,000/-.
Towards  loss  of  estate,
the High Court awarded Rs.10,000/- instead of  Rs.1,00,000/.
Therefore,  to
this extent there is loss caused to the appellants in not being  compensated
correctly under different  heads  such  as,  loss  of  consortium,  loss  of
estate,  and  loss  of  love  and  affection.
 Further,  as  per   Municipal
Corporation of Delhi v. Uphaar Tragedy Victims Association  &  Ors.[5],  the
appellants are entitled for  9%  interest  per  annum  on  the  compensation
awarded from the date  of  filing  of  the  application  till  the  date  of
payment.
Thus, there will be a difference of 1.5%  interest  amount  payable
on the total compensation awarded by both the Tribunal and  the  High  Court
as they have awarded at  7.5%  interest.
Therefore,  if  the  less  awarded
difference of interest amount @ 1.5%  by both  the  Tribunal  and  the  High
Court is taken into consideration  on  the  total  compensation  awarded  in
favour of the appellants,  it  would  take  care  of  the  amount  that  was
required to be  deducted towards income tax out of the gross salary  of  the
deceased for determining the compensation  under  the  heading  of  loss  of
dependency.
13.      Since,  the  High  Court  has  erred  in  not  correctly   awarding
compensation under the above heads  and  having  regard  to  the  facts  and
circumstances of the case, we affirm the Award of the Tribunal and the  same
is restored.
     Therefore,  the  determination  of  compensation  under  the  loss   of
dependency under other heads as indicated  in  the  following  paragraph  is
perfectly legal and valid as the said compensation is  just  and  reasonable
keeping in view the monthly income at Rs.50,809/-  as  per  the  documentary
evidence (Ex.P-7), the salary certificate.
14.   In the result, the impugned judgment and order of the  High  Court  is
liable to be set aside and accordingly  set  aside  and  the  Award  of  the
Tribunal is  affirmed.  Therefore,  the  appellants  shall  be  entitled  to
compensation under the following heads:

Loss of Dependency                      Rs.36,58,248/-
Funeral Expenses                      Rs.    5,000/-
Loss of love and affection                   Rs.   50,000/-
Loss of estate                               Rs.   10,000/-
Loss of consortium                           Rs.   10,000/-
Total:                                                        Rs.37,33,248/-


   Thus, the total compensation payable to the appellants/claimants will  be
Rs.37,33,248/- with interest  @ 7.5% per annum  from the date of  filing  of
the  application  till  the  date  of  payment.  The  apportionment  of  the
compensation in favour of  the  appellants  is  as  per  the  Award  of  the
Tribunal.
15.  Accordingly, we allow this appeal in the above terms.  The  respondent-
Insurance Company shall  either  pay  the  compensation  by  way  of  demand
draft/drafts in favour of the appellants or deposit the same  with  interest
as awarded by the Motor Accidents Claims Tribunal within six weeks from  the
date of receipt of the copy of this judgment,  after  deducting  the  amount
already deposited.

2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41857


|NON-REPORTABLE      |


                         IN THE SUPREME COURT OF INDIA
                         CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.7158 OF 2014
                  (Arising out of SLP(C) NO. 4333 OF 2014)


SARALADEVI & ORS.                                 ………APPELLANTS

                                     Vs.

DIVISIONAL MANAGER, M/S ROYAL
SUNDARAM ALLIANCE INS. CO. LTD. & ANR.    …RESPONDENTS




                               J U D G M E N T


  V. GOPALA GOWDA, J.

     This appeal has been filed by the appellants  being  aggrieved  by  the
judgment dated 12.09.2012 passed in C.M.A. No.  690  of  2011  by  the  High
Court of Madras whereby the High Court reduced the compensation  awarded  at
Rs.37,33,248/- by the Motor Accidents Claims Tribunal and  re-determined  at
Rs.15,84,750/-.
2.  The necessary relevant facts are  stated  hereunder  to  appreciate  the
case of the appellants with a view and to ascertain whether  the  appellants
are entitled for the enhancement of compensation as prayed in this appeal.
     The deceased met with an accident on 28.01.2009 on account of rash  and
negligent driving of the motor vehicle bearing  registration  No.  TN-23-AF-
0048, which hit the back side of the deceased’s motor  cycle.  The  deceased
sustained grievous injuries and succumbed to the  same.  A  post-mortem  was
conducted on 29.01.2009 and inspection report was filed in CC.No.55 of  2009
before the Court of Judicial Magistrate No. II, Walajahpet by the  Inspector
of Police against the driver of the offending vehicle. The  prosecution  has
failed to prove  the  case  against  the  driver  beyond  reasonable  doubt,
therefore, the learned Judicial Magistrate had acquitted the driver  of  the
vehicle from the charge framed against him vide order dated 31.05.2010.
3.  The appellants - the widow, two daughters and bed-ridden aged mother  of
the deceased-Vasanthan  approached  the  Motor  Accidents  Claims  Tribunal,
Vellore (for short “MACT”) by filing claim petition  under  Section  166  of
the Motor Vehicles Act, 1988 (for short “the Act”) claiming compensation  of
Rs.45,00,000/- on account of death of their sole bread earner,  against  the
owner as well as the insurer of the vehicle. The  said  claim  petition  was
registered as M.C.O.P. No. 138 of 2009.
4.  The Insurance Company filed  its  counter  statement  stating  that  the
accident occurred only due to the negligent riding  of the  two  wheeler  by
the deceased-Vasanthan and that they are not liable to pay the  compensation
amount as claimed by the appellants.
5.  The MACT has conducted an  enquiry  by  giving  an  opportunity  to  the
parties to adduce evidence in  support  of  their  respective  claim.  Three
witnesses (PW-1 to PW-3) were examined on behalf of the appellants  and  the
exhibits were marked as  Exs. P-1 to  P-15. On  behalf  of  respondents  two
witnesses RW-1 and RW-2 were examined and exhibits were marked as  Exs.  R-1
and R-2.  The Tribunal on appreciation of pleadings and  legal  evidence  on
record came to the right conclusion and held that the accident occurred  due
to the negligence of the driver of the offending  vehicle.   Thereafter,  on
the basis of legal evidence on record the MACT  determined  the  quantum  of
compensation. For this purpose, the Tribunal has taken  the  monthly  salary
of the deceased at  Rs.50,809/-  as  per  the  salary  certificate  Exh.P-7.
Therefore, his annual income was fixed at Rs.6,09,708/-.  The  deceased  was
aged 58 years at the time of the accident and the  Tribunal  has  taken  the
multiplier as 8.   Therefore, the total  loss  of  income  of  the  deceased
would be Rs.48,77,664/-.  1/4th  of  this  amount  i.e.  Rs.12,19,416/-  was
deducted towards his  personal  expenses  as  his  dependents  are  four  in
number. Hence, the loss of dependency of the appellants  was  calculated  at
Rs.36,58,248/-. For funeral expenses, a sum of Rs.5,000/- was  awarded.  For
loss of estate Rs.10,000/- and for loss of consortium to the 1st  appellant,
a sum of Rs.10,000/- was granted. For loss of love and affection, a  sum  of
Rs.50,000/- was granted to the appellants. Thus, the Tribunal  has  assessed
the total compensation under different heads as mentioned above  and  passed
an award for a sum of Rs.37,33,248/- to the appellants with interest @  7.5%
from  the  date  of  petition  i.e.  08.06.2009  and  further  directed  the
Insurance Company to pay the said amount by indemnifying the  owner  of  the
vehicle as the same was insured with it.
6. The insurer i.e. the Royal Sundaram Alliance Insurance Company  Ltd.  had
challenged the correctness of the award passed by the Tribunal in favour  of
the appellants by filing an appeal before the High Court  of  Judicature  at
Madras seeking for the modification of the compensation  awarded  in  favour
of the appellants by the Tribunal contending that  the  same  is  excessive,
urging various grounds in support of its appeal.
7.  The High Court, after examining the facts,  evidence  and  circumstances
of the case, has held that as per the judgement in Sarla Verma  &  Ors.  vs.
Delhi Transport Corporation & Anr.[1]  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/- x 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/- x  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.
           Thus, the High Court reduced the total compensation  and  awarded
under the following heads:
Loss of Dependency                            Rs.15,09,750/-
Funeral Expenses                         Rs.    5,000/-
Loss     of     Estate                                    Rs.       10,000/-

Loss      of      Consortium                            Rs.         10,000/-

Loss of love and affection               Rs.   50,000/-
Total   :                                     Rs.15,84,750/-


8.  Thus, the High Court  while  partly  allowing  the  Civil  Miscellaneous
Appeal of the Insurance Company, directed  it  to  deposit  the  above  said
amount with an interest at the rate of 7.5% per annum from the date  of  the
petition, within a period of six weeks before the Tribunal  after  deducting
the amount already deposited.
9.  Aggrieved by the impugned judgement and  final  Order  dated  12.09.2012
passed by the High Court, the  appellants  filed  this  appeal  before  this
Court urging various tenable grounds namely, as to whether  the  High  Court
was justified in holding that there is  a  contributory  negligence  on  the
part of the deceased contrary to the evidence of the  eye  witness;  whether
the High Court was justified in fixing the ratio of contributory  negligence
as 25% on the part of the deceased on the basis  of  an  erroneous  finding;
whether the High Court was justified in reducing the amounts awarded by  the
Tribunal from Rs.37,33,248/- to Rs.15,84,750/- and lastly, whether the  High
Court was justified in deducting 1/3rd amount towards personal  expenses  of
the deceased contrary to  the  law  laid  down  by  this  Court  in  various
judgements?
10.  In our considered view, the High Court has  erred  in  not  considering
the principles laid down in the case of Sarla Verma &  Ors.  (supra)  in  so
far as deduction of 1/4th of the monthly income of the  deceased  to  arrive
at the multiplicand and reducing the compensation by adopting the  split  up
multiplier.  Further, recording the finding of  contributory  negligence  on
the part of the deceased in the  absence  of  evidence  on  record  in  this
regard rendered the finding erroneous in law and error in law  as  the  same
is contrary to the decision of this Court  reported  in  Jiju  Kuruvila  and
Ors. v. Kunjujamma Mohan & Ors.[2]. At the time of death, Vasanthan  was  58
years  old  and  was  earning  a  salary  of  Rs.50,809/-  per  month   i.e.
Rs.6,09,708/- annually. By applying the appropriate multiplier of 8 as  laid
down under Kerala Road Transport Corporation v. Susamma Thomas[3], the  loss
of dependency comes to Rs.48,77,708/-.
11.  Further, deduction towards personal expenses of  the  deceased  out  of
the annual income would be 1/4th  as held by  this  Court  in  the  case  of
Sarla Verma & Ors.(supra), the relevant portion of the judgment  reads  thus
: –
“30. Though in some cases the deduction to be  made  towards  personal   and
living expenses is calculated on   the   basis   of   units   indicated   in
Trilok Chandra,   the   general   practice   is   to   apply    standardised
deductions. Having considered several subsequent decisions  of  this  Court,
we are of the view that  where  the  deceased  was  married,  the  deduction
towards personal and living expenses of the deceased,  should  be  one-third
(1/3rd) where the number of dependent family members is 2 to  3,  one-fourth
(1/4th) where the number of dependent family members is 4  to  6,  and  one-
fifth (1/5th) where the number of dependent family members exceeds six.”

      The High Court failed to follow the above judgement and  committed  an
error in law in deducting 1/3rd amount  towards  personal  expenses  of  the
deceased. Therefore, as per the above judgement the deduction  ought  to  be
1/4th only as correctly calculated by the Tribunal.  Thus,  after  deducting
1/4th  i.e.  Rs.12,19,416/-  towards  personal   expenses;   the   loss   of
dependency would be Rs.36,58,248/. Further, we affirm  the  sum  granted  by
the Tribunal as Rs.5,000/- for funeral expenses, under the head of  loss  of
estate at Rs.10,000/-, loss of consortium  at  Rs.10,000/-  and  Rs.50,000/-
for loss of love and affection of the deceased.

12.     Further, the High Court has erred in not following the  decision  of
Rajesh and Ors. v. Rajbir Singh and Ors.[4]  by  awarding  only  Rs.10,000/-
for loss of consortium, instead of Rs.1,00,000/-. Towards  loss  of  estate,
the High Court awarded Rs.10,000/- instead of  Rs.1,00,000/.  Therefore,  to
this extent there is loss caused to the appellants in not being  compensated
correctly under different  heads  such  as,  loss  of  consortium,  loss  of
estate,  and  loss  of  love  and  affection.  Further,  as  per   Municipal
Corporation of Delhi v. Uphaar Tragedy Victims Association  &  Ors.[5],  the
appellants are entitled for  9%  interest  per  annum  on  the  compensation
awarded from the date  of  filing  of  the  application  till  the  date  of
payment. Thus, there will be a difference of 1.5%  interest  amount  payable
on the total compensation awarded by both the Tribunal and  the  High  Court
as they have awarded at  7.5%  interest.  Therefore,  if  the  less  awarded
difference of interest amount @ 1.5%  by both  the  Tribunal  and  the  High
Court is taken into consideration  on  the  total  compensation  awarded  in
favour of the appellants,  it  would  take  care  of  the  amount  that  was
required to be  deducted towards income tax out of the gross salary  of  the
deceased for determining the compensation  under  the  heading  of  loss  of
dependency.
13.      Since,  the  High  Court  has  erred  in  not  correctly   awarding
compensation under the above heads  and  having  regard  to  the  facts  and
circumstances of the case, we affirm the Award of the Tribunal and the  same
is restored.
     Therefore,  the  determination  of  compensation  under  the  loss   of
dependency under other heads as indicated  in  the  following  paragraph  is
perfectly legal and valid as the said compensation is  just  and  reasonable
keeping in view the monthly income at Rs.50,809/-  as  per  the  documentary
evidence (Ex.P-7), the salary certificate.
14.   In the result, the impugned judgment and order of the  High  Court  is
liable to be set aside and accordingly  set  aside  and  the  Award  of  the
Tribunal is  affirmed.  Therefore,  the  appellants  shall  be  entitled  to
compensation under the following heads:

Loss of Dependency                      Rs.36,58,248/-
Funeral Expenses                      Rs.    5,000/-
Loss of love and affection                   Rs.   50,000/-
Loss of estate                               Rs.   10,000/-
Loss of consortium                           Rs.   10,000/-
Total:                                                        Rs.37,33,248/-


   Thus, the total compensation payable to the appellants/claimants will  be
Rs.37,33,248/- with interest  @ 7.5% per annum  from the date of  filing  of
the  application  till  the  date  of  payment.  The  apportionment  of  the
compensation in favour of  the  appellants  is  as  per  the  Award  of  the
Tribunal.
15.  Accordingly, we allow this appeal in the above terms.  The  respondent-
Insurance Company shall  either  pay  the  compensation  by  way  of  demand
draft/drafts in favour of the appellants or deposit the same  with  interest
as awarded by the Motor Accidents Claims Tribunal within six weeks from  the
date of receipt of the copy of this judgment,  after  deducting  the  amount
already deposited.

                                                    …………………………………………………………J.
                              [DIPAK MISRA]



                                                    …………………………………………………………J.
                                   [V. GOPALA GOWDA]


New Delhi,
August 20, 2014

-----------------------
[1]
      [2] (2009) 6 SCC 121
[3]
      [4] (2013) 9 SCC 166
[5]
      [6] AIR 1994 SC 1631
[7]
      [8] (2013) 9 SCC 54
[9]
      [10] (2011) 14 SCC 481

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