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Judgment
R. Banumathi, J.—Challenge in this appeal is the award passed by the Motor Accident Claims Tribunal/Additional District Judge/Fast Track
Court No. IV, Chennai in M.C.O.P. No. 2791 of 2001 awarding compensation of Rs. 35,12,000/- for the death of a Mathematics teacher - Late
R.Ravi in road traffic accident on 08.11.2000.
On 8.11.2000, at 5.30 p.m at Poonamallee High Road in Maduravoil opposite to Petrol Bunk run by a Cooperative Society, the deceased was
proceeding in his motor cycle - T.V.S. Suzuki bearing Regn. No. TN-20A 350 with his colleague Krishnamurthy [PW3] as a pillion rider. The
Motor cycle was proceeding from east to west. At that time, light goods vehicle bearing Regn. No. KA-01 -8506 came in the opposite direction
i.e., west to east in Poonamallee High Road and came to the southern side of the road and hit against the motorcycle. Due to the accident, the
deceased sustained grievous injuries and he was immediately taken to Government General Hospital, Chennai, where he was declared dead.
Regarding the accident, a criminal case was registered against the van driver in Crime No. 1404 of 2000 of E4, Maduravoil Police Station. At the
time of accident, the deceased was employed as a Mathematics teacher at Chinmaya Vidhyalaya School, Virugambakkam, Chennai - 92 and was
earning a salary of Rs. 10,108/- per month. Alleging that the accident was due to the rash and negligent driving of the light goods vehicle, wife,
daughter and mother of deceased Ravi have filed the Claim Petition claiming compensation of Rs. 60,70,932/-.
Denying the negligent driving of light goods vehicle, the Appellant-Insurance Company has filed counter contending that the alleged accident
occurred only due to the negligent riding of the motor cycle and that the driver of the goods vehicle was not responsible for the alleged accident.
Appellant-Insurance Company also denied the age of the deceased and also the salary which he was earning as teacher and his alleged income
from tuition. Contending that the accident was due to the negligence of the deceased, who was riding the motor cycle, the Appellant-Insurance
Company prayed for dismissal of the Claim Petition.
Before the Tribunal, the 1st Claimant - wife of the deceased was examined as P.W.1. Manager of Chinmaya Vidhyalaya School was examined
as P.W.2. Krishnamurthy, who was pillion rider in the motor cycle was examined as P.W.3. No oral or documentary evidence was adduced by
the Appellant-Insurance Company.
Upon consideration of oral and documentary evidence and with reference to evidence of P.W.3 -eyewitness, the Tribunal held that the accident
was due to rash and negligent driving of the driver of the goods vehicle bearing registration No. KA-01 -8506. Based upon Ex.P8-salary
certificate and evidence of P.W.2, the Tribunal has taken the salary of the deceased at Rs. 10,000/-. Based upon the evidence of P.W.1 and
Ex.P17-income tax return (31.3.2001), the Tribunal has observed that the deceased Ravi was earning around Rs. 1,55,000/- per annum from
tuition and has taken his income from tuition at Rs. 10,000/- per month. Taking the total income of the deceased at Rs. 20,000/- per month
(Rs.10,000/- from salary and Rs. 10,000/- from tuition) and after deducting one-third for personal expenses, taken the income of deceased at Rs.
13,400/- per month. Based on the age of the deceased and also age of 1st Claimant and adopting the multiplier ""17"", the Tribunal has calculated
the loss of dependency at Rs. 27,33,000/-. For future prospects and inflation, Tribunal has awarded Rs. 7,14,000/- and adding the conventional
damages, awarded total compensation of Rs. 35,12,000/-, the details of which are as under:
Loss of dependency : Rs. 27,33,600.00 (Rs. 13,400/-x 12 x
17)
Future Prospects : Rs. 7,14,000.00 (Rs. 3,500/-x 12 x 170
Funeral Expenses : Rs. 5,000.00
Loss of consortium : Rs. 20,000.00
Loss of love and affection : Rs. 40,000.00
Rs. 35,12,000.00
PW3-Krishnamurthy who was traveling as pillion rider has spoken about the negligence of the driver of the Eicher van and PW3 being the eye-
witness, his evidence is unassailable. In the grounds of appeal, even though grounds were raised regarding the negligence contending that the
accident was due to rash and negligent driving of the rider of the motorcycle/deceased, during arguments the said ground was not urged. Only the
quantum of compensation awarded by the Tribunal is under challenge.
Mr. S. Arun Kumar, learned counsel for Appellant-Insurance Company has submitted that Tribunal ought not to have taken the income from
tuition and the monthly income of the deceased fixed by the Tribunal is on the higher side. Learned counsel would further submit that there is no
basis for awarding ""future prospects"" and the total compensation awarded by the Tribunal is excessive.
Mr. Bijay Sundar, learned counsel for Respondents 1 to 3 has contended that the deceased was a P.G. Teacher in Mathematics and was
getting salary of Rs. 10,000/- and also running a tuition centre and earning good income by taking tuition. Placing reliance upon Exs.P14 to P17, it
was contended that based on the said documents, Tribunal has rightly taken the income from tuition at Rs. 10,000/-. Insofar as ""future prospects"",
learned counsel would contend that over the years the deceased Ravi would have earned more salary and the Tribunal was right in awarding
compensation of Rs. 7,14,000/- towards ""future prospects"".
Upon consideration of rival contentions, the following points arise for consideration in this appeal:
(1) Whether the compensation of Rs. 27,33,000/- awarded to the Claimants for ""loss of dependency"" is just and reasonable?
(2) Whether the compensation of Rs. 7,14,000/- awarded to the Claimants for ""future prospects"" is sustainable?
(3)What is the just and reasonable compensation to be awarded to the Claimants?
Points No. 1 to 3:-
Salary Income - Deceased Ravi was Post Graduate in Mathematics and also M.Phil graduate and was working in Chinmaya Vidhyalaya,
Virugambakkam, Chennai. As is seen from Ex.P8-salary certificate and the evidence of PW2-Prema, Manager of Chinmaya Vidhyalaya School,
deceased was getting the salary of Rs. 10,108/-. After deduction towards Provident Fund, his take home salary was Rs. 9,015/-. Ex.P6 is the
Xerox copy of Service Register of the deceased Ravi. PW2-Manager from Chinmaya Vidhyalaya School has also stated that deceased was
getting the salary of Rs. 1,00,698/- per annum. Tribunal has taken the monthly salary at Rs. 10,000/- per month. As per Ex.P8-salary certificate of
the deceased, his monthly income is taken as Rs. 10,108/-, rounded off to Rs. 10,110/-.
Income from tuition - In her evidence, PW1-Padmavathy has stated that her husband Ravi was taking tuition and was running a tuition centre in
the name and style ""Sun Maths Coaching Centre"" and was taken tuition for plus two students and from tuition, her husband Ravi was earning more
than Rs. 20,000/- per month. PW1 would further state that at the time when her husband started tuition centre there were 10 - 15 students and in
2000-2001, there were 70 students and that her husband Ravi was earning substantial income from tuition.
Ex.P17 is the Income Tax return for the year 2000-2001 filed on 31.03.2001 in which the income of the deceased is stated as Rs. 2,03,973/-
[Income from salary Rs. 48,973/; Income from other sources Rs. 1,55,000/- ]. The date of accident was on 08.11.2000. Admittedly, Ex.P17-
Income tax return was filed after the death of deceased Ravi. Based on the evidence of PW1 and Ex.P17-Income tax return, Tribunal has taken
the income from tuition at Rs. 10,000/- per month.
Learned counsel for Appellant has contended that the Claims Tribunal failed to note the evidence of PW2 who has categorically stated that the
deceased was not permitted to take private tuition. It was further argued that if really the deceased was earning such a huge amount through private
tuition, he would have paid the income tax separately and maintained proper accounts and the Tribunal erred in taking into account the income
from private tuition at Rs. 10,000/- per month and the quantum of compensation awarded is very much on the higher side.
In her evidence, PW2-Manager of Chinmaya Vidhyalaya School has stated that the School is not conducting any paid tuition and at times they
only render free tuition. PW2 has also stated that as per the Rules, teachers are not permitted to take separate tuition. Contention of Appellant-
Insurance Company is that as per the Rules, when the deceased was not permitted to take private tuition, the Tribunal failed to consider the
evidence of PW2 in proper perspective and erred in taking the income at Rs. 10,000/- per month from tuition. Per contra, learned counsel for
Respondents has drawn our attention to various documents - Exs.P14 to P17 to substantiate the Claimants'' contention that the deceased Ravi was
earning substantial income from private tuition.
Ex.P14-series are the application forms of the students for joining in the tuition. Ex.P15 is the Account Note Book maintained by the Coaching
Centre for the receipt of fees. Ex.P16-series are the counter-foils of the receipts issued to the students for receiving tuition fees. Exs.P14 to P16
would show that deceased Ravi was conducting private tuition for the students from IX to XII standard and was collecting tuition fees from Rs.
500/- to Rs. 1000/- per student. We find no reason to disbelieve the evidence of PW1 and also the documents - Exs.P14 to P17.
Contention of Appellant is that Ex.P17 is the Income tax return for the year 2000-2001 filed after the demise of the deceased with an intention
to make untenable claim. As pointed out earlier, Ex.P17 is the Income tax return for the year 2000-2001 filed subsequent to the death of the
deceased Ravi. We need to consider the evidentiary value of Ex.P17-Income tax return for the year 2000-2001 filed after the death of deceased
Ravi.
Contending that no evidentiary value could be attached to Ex.P17-Income tax return, learned counsel for Appellant has placed reliance upon
The Oriental Insurance Co. Ltd., Regional Office, 8, Esplanade Road, Chennai-108 Vs. Kousalya Kawar and 7 others, In the said case,
statement of account was prepared after the demise of the deceased and before the the filing of Claim Petition. In the said decision, Division Bench
held that mere filing of the statement and challan is of no assistance without proof and they cannot be presumed to be correct, especially when it is
a document prepared after the accident in reference to an earlier period. It was further held that the statement is with a mind to show the income
and therefore, the Tribunal ought to have appraised it judicially. Under those facts and circumstances, in the said decision, the Division Bench of
this Court held that ""no reliance could be placed upon the statement of account prepared after the demise of the deceased"".
In the case on hand also Ex.P17-Income tax return for the year 2000-2001 was prepared after the demise of the deceased. Apart from the
evidence of PW2, no such witnesses were examined to speak about the tuition centre and that the deceased was earning Rs. 1,55,000/- per
annum as stated in Ex.P17-Income tax return. Previously, deceased was not an Income tax assessee. Since previously the deceased was not an
Income tax assessee, we are not inclined to place reliance upon Ex.P17-Income tax return. As discussed earlier, Exs.P14 to P16 would show that
deceased was taking tuition and was getting the income from tuition. Tribunal has taken the income from tuition at Rs. 10,000/- per month. Even
though Rule prohibits the teachers from taking private tuition, it is a matter of common knowledge that teachers taking private tuition not only for
earning the money; but also for helping the students. Normally, in view of the Rule banning private tuition we would not have taken any income
from tuition. But in this case, Claimants have produced Exs.P14 to P16 documents evidencing that the deceased was running tuition centre where
number of students taking tuition and deceased was getting income. Therefore, we deem it appropriate to maintain the income fixed by the Tribunal
from tuition at Rs. 10,000/- per month.
Future prospects - Tribunal has taken the ""future prospects"" at Rs. 5000/- per month and after deducting one-third for personal expenses,
Tribunal has taken the contribution at Rs. 3500/- per month. Adopting multiplier ""17"", the Tribunal has awarded Rs. 7,14,000/- for ""future
prospects"". We do not find any rationale for awarding Rs. 7,14,000/- for ""future prospects"" and also inflation.
Future prospects could only be in accordance with the ratio laid down by the Supreme Court in Smt. Sarla Verma and Others Vs. Delhi
Transport Corporation and Another, In Sarla Verma case, the Supreme Court observed that suitable addition should be made for ""future
prospects"" and in Paragraph (24) it was held as under:
In General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, this Court increased the
income by nearly 100%, in Smt. Sarla Dixit and another Vs. Balwant Yadav and others, the income was increased only by 50% and in Abati
Bezbaruah (2003) 2 SCC 148 the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of
adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the
deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words ""actual salary"" should be
read as ""actual salary less tax""). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition,
where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to
standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was
self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time
of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
Deceased was working as Post Graduate Teacher in Chinmaya Vidhyalaya School and was getting salary of Rs. 10,110/-. There is nothing to
suggest that his employment in Chinmaya Vidhyalaya School was not a permanent job. At the time of accident, the deceased was aged 36 years.
Applying the ratio of Sarla Verma case, for ""future prospects"" giving addition of 50% income of the deceased, the salary of the deceased is taken
as Rs. 25,165/- [Rs.10,110 (monthly salary) + Rs. 5055 (50% addition) + Rs. 10,000 (income from tuition) = Rs. 25,165/- ]. Since, deceased
was getting more income, it would be appropriate to deduct 10% towards Income tax i.e. Rs. 2516/-, rounded off to Rs. 2500/- and thus the
monthly income of the deceased is taken as Rs. 22,665/-.
Deduction towards personal expenses - It has been held by the Supreme Court in number of decisions that one-third amount has to be
deducted towards personal expenses. In Oriental Insurance Co. Ltd. Vs. Deo Patodi and Others, , the Supreme Court held that ""deduction of
one-third towards personal expenses is the ordinary rule in India"". Like wise in Fakeerappa and Another Vs. Karnataka Cement Pipe Factory and
Others, the Supreme Court deducted one-third towards personal expenses from the income of the bachelor. Similar view was taken by the
Supreme Court in Bilkish Vs. United India Insurance Co. Ltd. and Another, and MG. Dir., Bangalore Metropolitan Tpt. Corp. Vs. Sarojamma
and Another, . Applying the ratio of the above decisions, for personal expenses deducting one-third from Rs. 22,665/- i.e. Rs. 7,555/- [Rs.22,665
/ 3 = Rs. 15,110/- ], the monthly contribution of the deceased to the family is calculated at Rs. 15,110/-.
Multiplier - At the time of accident the deceased was aged 36 years. As per Second Schedule to M.V. Act, for the age group of 36 - 40
years, the multiplier to be adopted is ""16"". As per the decision of Sarla Verma case, the proper multiplier is ""15"". 1st Claimant is aged 31 years.
Based on the age of the 1st Claimant, Tribunal has adopted the multiplier ""17"". Tribunal was not right in adopting the multiplier based on the age of
the 1st Claimant. In 2008 AIR SCW 1238 [Ramesh Singh and another v. Satbir Singh and another], the Supreme Court held that ""choice of
multiplier would depend upon the age of the deceased or of the Claimant whichever is higher"", When the choice of multiplier would depend upon
the age of the deceased or Claimant whichever is higher, Tribunal was not right in adopting the multiplier ""17"" based on the age of the 1st Claimant.
Applying the ratio of Sarla Verma case, since we have given addition of 50% for ""future prospects"", it would be appropriate to adopt multiplier
15"" as per the decision of Sarla Verma case. Applying multiplier ""15"", the ""loss of dependency"" is calculated at Rs. 27,19,800/- [Rs.15110 x 12 x
15 = Rs. 27,19,800/- ].
Insofar as conventional damages, the Tribunal has awarded Rs. 5,000/- for ""funeral expenses"" and the same is maintained. 1st Claimant has
lost her husband at her young age of 31. For ""loss of consortium"", Tribunal has awarded Rs. 20,000/- and the same is increased to Rs. 30,000/-.
For ""loss of love and affection"", Tribunal has awarded Rs. 20,000/- each to 2nd and 3rd Claimants who are minor daughter and mother of the
deceased and the same is increased to Rs. 25,000/- each.
In modification, the total compensation of Rs. 35,12,000/- awarded by the Tribunal is reduced to Rs. 27,84,800/- as under:-
Loss of dependency
(Rs. 15110 x 12 x 15) : Rs. 27,19,800.00
Funeral expenses : Rs. 5,000.00
Loss of consortium : Rs. 20,000.00
Loss of love and affection : Rs. 50,000.00
(Rs. 25,000/- to each of Claimants 2 & :
3)
Total : Rs. 28,04,800.00
The compensation amount of Rs. 28,04,800/- is to be apportioned amongst the Claimants proportionately in the ratio as ordered by the
Tribunal.
Tribunal has awarded interest at the rate of 9% per annum from the date of filing of Claim Petition. Normally, the rate of interest to be awarded
is 7.5% per annum. Since the rate of interest is not seriously challenged in this appeal, the rate of interest awarded by the Tribunal at 9% per
annum is maintained.
In the result, the compensation of Rs. 35,12,000/- awarded by the Tribunal in M.C.O.P. No. 2791 of 2001 dated 24.11.2004 on the file of
Additional District and Sessions Judge [Fast Track Court No. IV), Chennai is reduced to Rs. 28,04,800/- payable with interest at the rate of 9%
per annum from the date of Petition till the date of deposit and the appeal is partly allowed.
It was stated before us that as per the order in C.M.P. No. 8705 of 2005 dated 26.07.2005, Appellant-Insurance Company has deposited
Rs. 10,00,000/- and as per the direction, Claimants 1 and 3 are said to have withdrawn the their respective share along with accrued interest and
the share in respect of minor 2nd Claimant was ordered to be invested in Indian Bank Extension Counter, High Court, Madras.
Appellant-Insurance Company is directed to deposit the balance compensation i.e. Rs. 18,04,800/- along with accrued interest from the date
of Petition till the date of deposit within a period of eight weeks from the date of receipt of copy of this judgment. On such deposit, the Claimants 1
and 3 are entitled to withdraw their respective share along with accrued interest thereon. The share in respect of minor-2nd Claimant shall be
invested in Indian Bank Extension Counter, High Court, Madras till the 2nd Claimant attains majority. 1st Claimant is permitted to withdraw the
accrued interest on the deposit amount of 2nd Claimant once in three months directly from the Bank. Consequently, connected M.P. is closed.
Both parties are directed to bear their own cost in this appeal.