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Judgment
M.M. Sundresh, J.—Considering the fact that all these appeals have arisen from the same award passed in M.C.O.P. No. 567 of 2000 and the parties are one and the same, they have been taken up together and a common judgment is passed. For the same brevity, the parties as arrayed in C.M.A. No. 1060 of 2004 and M.C.O.P. No. 567 of 2000 have been taken up for deciding that appeals.
C.M.A. No. 1060 of 2004 has been filed by the claimants seeking enhancement of compensation. C.M.A. Nos. 1603 of 2003 and 441 of 2004 have been filed by the Insurance Company and the Tamil Nadu State Transport Corporation Ltd., who are the respondent Nos. 3 and 1 respectively in C.M.A. No. 1060 of 2004, challenging the liability fixed by the Tribunal by apportioning the award. Since, in these two appeals, quantum has not been challenged, we inclined to go into the same only in the appeal filed in C.M.A. No. 1060 of 2004, seeking enhancement by the claimants. It is also seen that a memo has been filed by the appellants stating that the 5th appellant, who is the mother of the deceased and the memo filed is also recorded.
Brief Facts : the appellants being the claimants are the wife and children and the mother of the deceased. The 4th appellant was minor at the time of filing the application for compensation. The accident occurred on 2nd May, 1999, while the deceased was travelling in an Ambassador Car, resulting in the collusion with the bus owned by the respondent No. 1. The deceased was working as an Assistant Manager, in the State Bank of India at the time of the accident. Considering the evidence of P.W. 2, who is an eye-witness coupled with the other material evidence including Ext P.1--F.I.R. the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the car, in which the deceased was travelling as well as the driver of the bus owned by the respondent No. 1. Therefore, the Tribunal has apportioned the award between the respondent Nos. 1 and 3.
Insofar as the quantum of compensation payable is concerned, the Tribunal has awarded a sum of Rs. 9,50,800/- with 9% interest per annum. The age of the deceased was fixed by the Tribunal at 51 years with the monthly salary of Rs. 16,800/- as per the evidence of P.Ws. 1 and 3 on the date of death i.e., 5th May, 1999. The Tribunal adopted a multiplier of 7 and fixed a sum of Rs. 9,50,800/- as loss of income after deducting 1/3rd income towards personal expenses. A sum of Rs. 10,000/- was granted towards the conventional heads i.e., loss of love and affection, consortium and also towards funeral expenses.
The learned Counsel for the appellants in C.M.A. No. 1060 of 2004 submitted that the Tribunal has committed an error in fixing the multiplier at 7'' instead of ''11'' as per the schedule provided under the Motor Vehicles Act. The learned Counsel relied on the decision of the Hon''ble Apex Court in K.R. Madhusudan v. Administrative Officer, 2011 (1) T.N. M.A.C. 161 (S.C), in support of his contention for relying upon the multiplier of 11 for the death of 53 years old man and submitted that the compensation will have to be enhanced. Further, reliance have also been made upon the judgment of the Hon''ble Apex Court in Sarla Varma (Smt.) and others v. Delhi Transport Corporation and another, 2009 (6) S.C.C. 121 : 2009 (2) T.A.C. 677 (S.C), for taking into consideration of the future income of the deceased.
The learned Counsel appearing for the respondent No. 1 has contended in his appeal in C.M.A. No. 441 of 2004 that it is the 3rd respondent, who is responsible for the entire accident. The bus was plying in the main road and the car was taking a turn and reached the main road. It is further submitted that merely because the driver of the vehicle was dismissed, it cannot be a ground to hold that the first respondent is responsible for the accident.
The learned Counsel appearing for the respondent No. 3 who has also filed an appeal in C.M.A. No. 1603 of 2003 submitted that even the negligence on the part of the respondent No. 1 and the fact that the driver of the bus has been dismissed itself an ample proof to hold that the negligence was on his part. The driver of the vehicle has not been examined, but only the conductor has been examined. Therefore, the Appeal filed by it will have to be allowed.
In so far as the negligence fixed by the Tribunal is concerned, the relevant materials available on record have been taken into consideration by the Tribunal, especially the evidence of P.W. 2 and the evidence of the conductor of the bus. The Tribunal also took into consideration of the fact that the driver of the bus was coming at a very high speed and the driver of the car has in fact was taking a turn. The evidence of P.W. 2 has not been relied upon fully, because it has been stated by him that at the time of accident, he was sleeping. The mere fact that the driver of the bus has been dismissed cannot be a ground to fix the entire liability on the respondent No. 1. The evidence of P.W. 2 also shows that he says the accident could have been avoided if the driver of the car had been more careful. Admittedly, both the Car and the Bus dashed against each other directly. Therefore, taking into consideration the above said facts, a clear factual finding has been given by the Tribunal, which in our considered view does not warrant any interference, more so, when the respondents have not produced any material to substantiate their case. Hence, the negligence fixed by the Tribunal equally on the respondent Nos. 1 and 3 is hereby confirmed.
The other question for consideration is as to whether the claimants are entitled for enhanced compensation or not? Considering the age of the 53 years old man and after considering the ratio laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the Hon''ble Apex Court in K.R. Madhusudan v. Administrative Officer, 2011 (1) T.N. M.A.C. 161 (S.C), has fixed the multiplier of 11. The passage dealing with the said issue is apposite :
In view of this evidence, the Tribunal should have considered the prospect of future income while computing compensation but the Tribunal has not done that. In the appeal, which was filed by the appellants before the High Court the High Court instead of maintaining the amount of compensation, granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier of 11, which is specified in the II Column in the II Schedule in the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6.
We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method.
Therefore, applying the ratio in the judgment referred to supra, we feel that justice would require that the multiplier of 11 will have to be adopted for fixing the loss of income caused due to the death of the deceased. Hence, by adopting a multiplier of 11 for the salary of Rs. 16,734.61/- per month received by the deceased at the time of death and after making 1/3rd deduction we fix the loss of income at Rs. 14,72,592/-(Rupees Fourteen Lakhs Seventy Two Thousand Five Hundred and Ninety two only).
Even though we find considerable force in the submissions made by the learned Counsel for the appellants that the evidence of P.Ws. 2 and 3 is very clear and specific regarding the future income of the deceased and even at the time of the deposition, the salary has been enhanced for the similarly placed persons, who worked in the same capacity as that of the deceased, considering the facts of the case, we feel that no amount need to be given for the future enhanced income. This we feel for the reason that we are not proposed to make deduction towards the income tax payable, had the deceased been alive. Therefore, we take the sum of Rs. 14,72,592/- as the loss of income that would arise after deducting 1/3rd income towards that personal expenses of the deceased.
In so far as the conventional heads are concerned, the Tribunal has awarded a paltry sum of Rs. 10,000/- towards loss of consortium to the wife and love and affection to the claimants as well as funeral expenses. By adopting a conservative approach, we quantify the compensation amount by taking note of the amount payable under the conventional head at Rs. 15,00,000/-. Since, the 5th appellant has died, her share is also entitled to be received by the other claimants.
Accordingly, we hold that the appellants are entitled to enhanced compensation of Rs. 15,00,000/- (Rupees Fifteen Lakhs only) as against the sum of Rs. 9,50,800/- with interest at 9% p.a. The first appellant is entitled to a sum of Rs. 5,00,000/- and the other claimant Nos. 2 to 4 are entitled to equal shares in the remaining sum of Rs. 10,00,000/-. It is open to the appellants/claimants to file appropriate application and in the event of the said application being allowed, they are permitted to withdraw their respective shares. Respondent Nos. 1 and 3 are directed to deposit the amount payable by them before the Tribunal within a period of 8 weeks from the date of receipt of a copy of this order. In fine, C.M.A. No. 1060 of 2004 is allowed by modifying the award passed in M.C.O.P. No. 567 of 2000 by fixing compensation payable by the respondent Nos. 1 and 3 at Rs. 15,00,000/- (Rupees Fifteen lakhs) with 9% interest per annum proportionately. The appeals in C.M.A. Nos. 1063 of 2003 and 441 of 2004 are hereby dismissed. No costs.