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UMA MAHESWARI versus TNSTC

High Court of Madras

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Uma Maheswari v. TNSTC - CMA.661 OF 2002 [2007] RD-TN 2326 (13 July 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED :: 13-07-2007

CORAM

THE HONOURABLE MR.JUSTICE S.PALANIVELU

C.M.A.No.661 OF 2002

1.Uma Maheswari

2.Minor Sathya Praveen

3.Thayammal ... Appellants -vs-

Tamil Nadu State Transport Corporation,

represented by its Managing Director,

Ramakrishna Road,

Salem. ... Respondent Appeal against the award and decree, dated 08.03.2002, made in M.C.O.P.No.279 of 1999, on the file of Motor Accident Claims Tribunal (Sub-Court), Mettur. For appellants : Mr.N.Manokaran

For Respondent : No appearance

J U D G M E N T



Claimants, who are wife, son and mother of the deceased, have filed this appeal, not satisfied with the award, made in M.C.O.P.No.279 of 1999, on the file of Motor Accident Claims Tribunal (Sub-Court), Mettur, in awarding a compensation of Rs.2,15,000/-, as against the claim of Rs.5,00,000/-, for the death of one Sivan.

3. On 18.01.1996, at about 14.45 hours, when the deceased was going by his Rajdoot motorcycle bearing registration No.TAN-5423 at Chinnathanda, near Iyyampudur, Sellappa Gounder Garden, a bus, belonging to the respondent Corporation, dashed against him, causing serious injuries, and he was removed to Mettur Government Hospital, where he died.

4. The Tribunal factually found that the accident occurred due to rash and negligent driving of the bus by its driver and, therefore, compensation has to be paid by the respondent.

5. No appeal is filed by the respondent against the said finding of the Tribunal and, hence, the award has become final.

6. Learned counsel for the appellants has submitted that the award of Rs.2,15,000/- in toto under different heads is too low and, hence, the compensation be enhanced.

7. It was stated that the deceased Sivan was working as a Warder in Sub-Jail, Bhavani, and drawing a sum of Rs.2,277/- per month at the time of accident and, since he died, the retiral benefits were made available to first respondent, who is his wife, thereby getting a family pension of Rs.1,800/- per month.

8. The Tribunal fixed dependency at Rs.1,500/- per month and calculated annual loss of income at Rs.18,000/-. Since the deceased was aged 39 years at the time of accident, as seen from the post-mortem certificate, multiplier 16 must be adopted. The Tribunal, considering the II Schedule to Section 163 of the Motor Vehicles Act, assessed the total loss of income at Rs.2,70,000/- and, deducting 1/3 towards personal expenses, fixed the figure at Rs.1,80,000/-, which is wrong, for the reason that as far as the II Schedule is concerned, except the multiplier formula, the other features furnished therein need not be considered.

9. In this context, learned counsel for the appellants draws attention of this Court to a Division Bench decision of this Court in Union of India v. Mrs.Suseela and Others, 2000 (3) L.W.264, wherein, when an individual, who died in a road traffic accident, was a Government employee, the future promotional avenues and future income, to be drawn by him, as per the said prospects, were considered. The gist of the decision, as obtained from a judgment of the Hon'ble Supreme Court, goes thus : "17.....(c) For the proposition that the Court should also take into consideration the future increments and promotional chances, we refer to the rulings in Prema v. Madhya Pradesh State Road Transport Corporation (1993 ACJ 254 = 1993-1-L.W.529), wherein the Apex Court in the concluding paragraph observed thus : "The Tribunal did not give any allowance for the future increments and promotional chances of padmakar." (d) The next ruling that can be usefully referred to is one reported in New India Assurance Co.Ltd. v. Kala Devi (1996 ACJ 16), wherein the Apex Court in the concluding paragraph ruled thus: "The Tribunal awarded a sum of Rs.9780/- as compensation for the death. The claimants preferred an Appeal before the High Court of Delhi. An application was made in the High Court that the compensation be enhanced in view of revision of the pay scales of the post held by the deceased, by the Third Pay Commission. The High Court, taking into account the revision of pay scales by the Third Pay Scales by the Third Pay Commission, awarded a sum of Rs.1,25,000/- as compensation. The contention of the learned counsel for the appellant is that the High Court had allowed the application of the claimants for enhancement of compensation on the basis of Third Pay Commission Report without affording an opportunity of being heard to the appellant. But, it may be noted that the appellant had filed an appeal against the order allowing the application of the claimants for enhancement of the claim on the basis of the report of the Third Pay Commission and the said appeal was dismissed by the High Court. Having regard to the revised pay scale of the post held by the deceased, his age and longevity of life as well as all other facts and circumstances of the case, we do not find any justification to interfere with the quantum of compensation awarded by the High Court. The appeal is, therefore, dismissed."

10. Learned counsel for the appellants, placing reliance upon a decision of the Hon'ble Supreme Court in United India Insurance Co.Ltd. v. Patricia Jean Mahajan, 2002 (6) Supreme Court Cases 281, wherein it has been ruled that only the receipts having some correlation with the accidental death have to be deducted and not the amounts received by the dependants on account of insurance policy of the deceased and amounts received by them under social security system, submits that family pension being received by first appellant is a benefit allowed under social security system, it need not be deducted. The relevant portion of the said judgment is as under : "The principle of balancing between losses and gains, by reason of death, to arrive at the amount of compensation is a general rule, but what is more important is that such receipts by the claimants must have some correlation with the accidental death by reason of which alone the claimants have received the amounts. In the absence of such correlation, the amount received shall not be deducted from the amount of compensation. Thus, the amount received on account of insurance policy of the deceased cannot be deducted from the amount of compensation though no doubt the receipt of the insurance amount is accelerated due to premature death of the insured. So far as the allowances paid to the children and the widow of the deceased under the social security system are concerned, no correlation of those receipts with the accidental death has been shown much less established. Apart from the fact that contribution comes from different sources for constituting the fund out of which payment on account of social security system is made, one of the constituents of the fund is tax which is deducted from income for the purpose. Therefore, it is not possible to allow any deduction as pressed by the Insurance Company on account of receipts of insurance policy and social security benefits received by the claimants."

11. Following the principles laid down in the above said decisions, it has to be held that the family pension available to first appellant need not be deducted, while fixing the compensation in favour of dependants, when an individual died in a road traffic accident.

12. Considering the promotional opportunities and the future income, which would be derived by the deceased family, a sum of Rs.2,700/- may be fixed as monthly income of the deceased. Based on that, if 1/3 is deducted, the monthly dependency comes to Rs.1,800/-, as per which, the annual loss of income shall come to Rs.21,600/-. Applying the multiplier 16, the total loss of income can be fixed at Rs.3,45,600/-, as against Rs.1,80,000/-, awarded by the Tribunal.

13. The conventional damages of Rs.15,000/- to first appellant towards 'loss of consortium', a sum of Rs.8,000/- for 'loss of estate', a sum of Rs.10,000/- for 'loss of love and affection' and a sum of Rs.2,000/- for 'funeral expenses', awarded by the Tribunal, have to be confirmed as such.

14. Thus, award of the Tribunal is enhanced by Rs.1,65,600/-, assessing the total compensation at Rs.3,80,600/-. As such, the respondent is directed to deposit the enhanced amount with the Tribunal, with interest at 7.5 per annum from the date of claim petition till the date of deposit, within a period of eight weeks from the date of receipt of a copy of this order. Out of the enhanced amount, first appellant is entitled to Rs.1,15,600/-, second appellant to Rs.30,000/- and third appellant to Rs.20,000/-. Except second appellant, who is a minor, the other appellants are at liberty to withdraw their shares. As regards second appellant, his share shall be kept in Fixed Deposit until he attains majority. On other aspects, award of the Tribunal stands.

15. With the above modification of the award, this appeal is allowed in part. No costs. dixit

To

The Motor Accident Claims Tribunal

(Sub-Court),

Mettur.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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