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Judgment
P.R. Shivakumar, J.—The claimants in MCOP. No. 887 of 2010 before the Motor Accident Claims Tribunal (III Additional District and
Sessions Judge), Salem, are the appellants in the present Civil Miscellaneous Appeal filed u/s 173 of the Motor Vehicles Accident Act, 1988 and
they have filed the appeal challenging the award in respect of the quantum alone, contending that the amount awarded by the Tribunal is grossly
inadequate. As this Court was of the view that the appeal could be disposed of even before admission if the respondent would enter appearance,
notice before admission was given and the records of the Tribunal were also summoned. The respondent, namely Tamil Nadu State Transport
Corporation, Dharmapuri Division has entered appearance through counsel.
The arguments advanced by Mr. S. Kalyanaraman, learned counsel for the appellants and by Mr. D. Venkatachalam, learned counsel for the
respondent Transport Corporation are heard. The materials available on record are also perused.
As there is no Cross Appeal or Cross Objection challenging the finding of the Tribunal regarding the question of negligence and consequently,
the liability of the respondent Transport Corporation and since the respondent Transport Corporation has also chosen to refrain from challenging
the award on quantum seeking reduction, the only question that arises for consideration in this appeal is:
Whether the amount awarded by the Tribunal as compensation is inadequate as contended by the appellants? If so, whether the appellants are
entitled to a decree directing the payment of enhanced compensation? If so, to what extent?
The first appellant, Madaiyan is the husband of the deceased Vasanthakumari, who died in the accident concerned in this appeal that took place
on 22.12.2009 at 9 a.m. at K.N. Halli Branch Road on Dharmapuri-Krishnagiri Main Road. The appellants 2 and 3 are, respectively, the daughter
and son of the deceased Vasanthakumari. According to the appellants, on 22.12.2009 at about 9 a.m., while the deceased was travelling as a
pillion rider in a two wheeler bearing registration No. TN-27 C-7785 driven by one Xavier Selvanathan, a town bus bearing registration No. TN-
29N-1714 belonging to the respondent herein came there driven by its driver in a rash and negligent manner and dashed against the said two
wheeler and dragged them along it for a distance, resulting in serious injuries to the deceased for which she was given first aid treatment at
Government Hospital, Dharmapuri, and then treated at Kurinchi Hospital, Salem, as an inpatient for five days. When her condition deteriorated
further, she was shifted to Manipal Hospital, Bangalore, where she succumbed to the injuries on 27.12.2009 at 8.30 p.m.
The appellants contended that the accident took place solely due to the rash and negligent driving of the bus belonging to the respondent
Transport Corporation by its driver. In support of the said contention, Ex. P1 - copy of the First Information Report, Ex. P2 copy of the
Postmortem Certificate, Ex. P3 and Ex. P4 - Copies of the reports of the Motor Vehicle Inspector, Ex. P5 Rough sketch prepared by the
Investigating Officer and Ex. P7 copy of the Final Report submitted by the Investigating Officer accusing the driver of the bus for commission of
offences punishable under Sections 279, 337, 338 and 304-A IPC were marked. In addition to the above said documentary evidence, the above
said rider of the motor cycle, namely Xavier Selvanathan was examined as PW. 2. In his evidence, he has given a clear account of the accident in
which the deceased Vasanthakumari sustained injuries, which ultimately proved to be fatal.
As against the said evidence, one Arumugam alleged to be the driver in charge of the offending vehicle, namely the bus bearing registration No.
TN-29N-1714, was examined as the sole witness (RW. 1) on the side of the respondent. Though he would have ventured to state in the chief
examination in the form of proof affidavit that immediately after the accident, he made arrangements for sending the injured to the hospital and
thereafter went to the police station and gave the information to the police, during the cross examination he has admitted that he did not lodge any
complaint with the police. Though in the chief examination, he contended that the rider of the motor cycle lost his balance and ran the motor cycle
into the bus, which had then become stationary as he had applied brakes on seeing the rider of the motor cycle with pillion rider loosing his balance
and that the accident took place due to the negligence on the part of the rider of the motor cycle, he had admitted during the cross examination that
the criminal case was registered by the police against him and after investigation final report was filed against him. Though he had chosen to state
that the said criminal case was pending as on the date of his examination, he made an admission that in the departmental proceedings, he was
punished with one month without specifying whether it was suspension. The same will show that RW. 1 was found to be a delinquent in the
departmental proceedings initiated against him in respect of the accident concerned in this appeal.
The Tribunal, on proper appreciation of evidence, came to a correct conclusion that the fault was on the part of the driver of the town bus
bearing registration No. TN-29N-1714 and that the accident took place solely due to the rash and negligent driving of the said bus belonging to
the respondent Transport Corporation. Accordingly, the Tribunal mulcted the liability on the respondent Transport Corporation to pay
compensation to the appellants. As pointed out supra, the said finding of the Tribunal is not challenged by the respondent Transport Corporation.
Even though the respondent Transport Corporation does have a chance of relying on Order 41 Rule 22 to contend that such a finding should have
been in favour of the respondent, the respondent has not chosen to raise such a contention. Perhaps convinced with the correctness of the finding
recorded by the Tribunal regarding the question of negligence, the respondent Transport Corporation has refrained from advancing any such
argument. This Court also, after reappraising the evidence, comes to the conclusion that the said finding of the Tribunal regarding negligence is well
founded and the same does not warrant any interference by this Court. Accordingly, the finding of the Tribunal regarding negligence holding the
driver of the bus belonging to the respondent Transport Corporation to be at fault is hereby confirmed.
The appellants had filed the MCOP claiming a sum of Rs. 25,00,000/- as compensation for the death of Vasanthakumari. The appellants had
furnished her age and monthly income to be 48 years and Rs. 19,000/- respectively. Admittedly, she was a teacher in the Government Higher
Secondary School, K.N. Halli, Dharmapuri District. Ex. P8 is the salary certificate issued by the Pay Disbursing Officer, namely the Head Master
of the above said Government Higher Secondary School. As per the said certificate, her monthly basic pay was Rs. 10,930/- and she was in
receipt of Rs. 4,300/- as Grade Pay, Rs. 4,112/- as Dearness Allowance, Rs. 1,120/- towards House Rent Allowance and Rs. 100/- towards
Medical Allowance. The Gross Pay of the deceased Vasanthakumari was Rs. 20,562/-. A total deduction of Rs. 11,072/- has also been shown
with the result that the net pay she was carrying home came down to Rs. 9,490/-. The Tribunal chose to take the net pay as the income of the
deceased. The learned counsel for the appellants would submit that that said procedure adopted by the Tribunal is erroneous as most of the
deductions should be taken as accretion to the savings. The deductions are as follows:-
GPF (Subscription) : Rs. 3, 000/-
GPF (loan recovery) : Rs. 5, 500/-
SPF : Rs. 20/-
FBF : Rs. 30/-
NHIS : Rs. 25/-
PLI : Rs. 657/-
Recovery of excess : Rs. 1, 840/-
Payment made as arrears
Total : Rs. 11, 072/-
As rightly pointed out by the learned counsel for the appellants, the GPF (subscription) and even the GPF loan repayment will be the accruals to
GPF accumulation and hence the recoveries should not be taken as the amount lost and they should be taken as the amount invested. So far as
SPF, FBF, NHIS and PLI are concerned, they are all in a way premium paid under various schemes. In any event, either she or his legal
representatives would have received the accumulated amount and the assured amount. Therefore, deduction of those amounts from the gross
salary shall be justified. The total amount, thus, to be deducted shall be Rs. 732/-. So far as the recovery of excess pay is concerned, it is obvious
from the pay certificate that already recoveries were made for five months and the balance recoveries to be made were only five instalments of Rs.
1,840/-. As per the particulars found in the pay certificate, excess payment made as arrears of pay was to be recovered in 10 equal monthly
instalments of Rs. 1,840/-. The said deduction can be equated to a deduction towards loan availed. Hence the said deduction can be ignored. If it
is done, then the pay without deduction towards income tax can be taken as Rs. 19,830/- x 12 = Rs. 2,37,960/-.
The copy of the Transfer Certificate and copy of the Diploma in Teacher Education produced and marked as Exs. P14 and P19 provide proof
of the date of birth of the deceased Vasanthakumari. As per the said documents, she was born on 07.09.1961. Therefore, as on the date of death,
she had completed 48 years of age and she fell in the age group of 46 to 50 years. For persons aged in the age group of 46 to 50 years, the
appropriate multiplier as per the guidelines issued by the Hon''ble Supreme Court in Sarla Verma Case, which was also confirmed in Reshma
Kumari case shall be ''13''. The Tribunal wrongly chose to apply the multiplier ''10'' on the premise that the deceased would have retired at the age
of 58. Such a calculation of the actual length of service is totally against the principles laid down by the Hon''ble Supreme Court. Hence, the
multiplier adopted by the Tribunal is to be held erroneous and inappropriate and inspite of ''10'', ''13'' should have been adopted as appropriate
multiplier.
Again for future prospects, in respect of persons in the time of scale with provision for periodical increment, certain percentage has to be
added. In Rajesh and Others Vs. Rajbir Singh and Others, , the Hon''ble Supreme Court has recommended addition of 50% of the actual annual
income of the deceased towards future prospects while computing the income of the deceased for the purpose of assessment of compensation, if
the deceased was below 40 years, 30% addition for the deceased, who was in the age group of 40 to 50 years and for the deceased who were in
the age group of 50 to 60 years, an addition of 15% is to be made for future prospects and for those who have crossed the age of 60, no addition
will be made. Applying the said principle laid down by the Hon''ble Supreme Court in ""Rajesh and Others vs. Rajbir Singh and others"" while
computing the income of the deceased Vasanthakumari, an addition at the rate of 30% ought to have been made as she was in the age group of 40
to 50 years. Such an addition shall be Rs. 71,388/- per annum. If the same is added to the above said annual income, it will come to Rs.
3,09,348/-. Such an amount computed shall be reduced by the tax implication to fix the annual income of the deceased for the purpose of
computation of compensation. The tax implication for the amount upto Rs. 1,90,000/-, there is nil and the income tax for the amount exceeding Rs.
1,90,000/- but upto Rs. 3,00,000/- is 10% and tax on income exceeding Rs. 3,00,000/- is 20%. The tax implication for the said amount shall be
approximately Rs. 12,870/-. If the said amount is deducted, the annual income of the deceased can be fixed at Rs. 2,96,478/- rounded to Rs.
2,96,000/-.
Since the second appellant is a married daughter and she was not a dependent on the deceased and the third appellant is also a married son of
the deceased, for the purpose of deciding the percentage of deduction towards personal and living expenses, the first appellant alone shall be taken
as a member of the family and in such a case, liberal deduction of 60% can be adopted. If 60% of Rs. 2,96,000/- i.e., Rs. 1,77,600/- is deducted,
the balance shall be Rs. 1,18,400/-, and the same shall be the amount, which is to be multiplied by the selected multiplier ''13''. The product (Rs.
1,18,400/- x 13 = Rs. 15,39,200/-) shall be the amount that can be awarded as reasonable compensation for the loss of contribution to the family
from the income of the deceased. The Tribunal has awarded only a sum of Rs. 10,000/- as compensation for funeral expenses. As per ""Rajesh and
Others vs. Rajbir Singh and others"" case, it must be not less than Rs. 25,000/-. The appellants have also produced medical bills to the tune of Rs.
1,31,917/- under Ex. P16. The said amount shall also be added. Considering the age of the appellants, the award of Rs. 30,000/- towards loss of
love and affection can be justified. If such calculations are made, the reasonable amount that can be awarded as compensation will come to Rs.
17,26,117/- (Rupees seventeen lakhs twenty six thousand one hundred and seventeen only).
Though the appellants could have made a claim for the above said amount, they have chosen to restrict their claim in the appeal to the extent of
Rs. 4,00,000/- alone over and above the amount awarded by the Tribunal. It is obvious that the appellants have chosen to restrict their claim to
Rs. 4,00,000/- alone over and above the amount awarded by the Tribunal in an attempt to confine their claim below Rs. 15,00,000/- since
otherwise the appeal would have been listed before a Division Bench. A party to a proceeding is entitled to restrict the claim so as to bring the
claim within the jurisdiction of a particular Court or in the case of the High Court, a single Judge rather than a Division Bench. In view of such
restriction, this Court comes to the conclusion that though the appellants could have made a claim for a higher amount, since they have restricted
their claim to Rs. 13,31,157/-, the said claim has to be upheld as prayed for. So far as the rate of interest is concerned, the Tribunal''s award fixing
it as 7.5% per annum deserves to be confirmed. In the result, the appeal succeeds and the appeal is allowed modifying the award of the Tribunal
by enhancing the amount of compensation from Rs. 9,31,157/- to Rs. 13,31,157/- (Rupees thirteen lakhs thirty one thousand one hundred and
fifty seven only) and directing the respondent Transport Corporation to pay the said amount with interest at the rate of 7.5% per annum from the
date of filing of MCOP till deposit and also costs. The appellants shall also be entitled to recover their costs of litigation in the appeal from the
respondent Transport Corporation. So far as the apportionment is concerned, this Court deems it appropriate to restrict the share of the appellants
2 and 3 to the amounts allowed by the Tribunal and allowing the first appellant to get the entire amount of enhanced compensation with
proportionate interest.