(Prayer:- Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicle Act, 1988, to set aside the Judgment and decree made in M.C.O.P. No. 1651 of 2015 dated 06.11.2019 on the file of the Motor Accidents Claims Tribunal, Special Subordinate Court Dealing with MCOP Cases, Tirunelveli and allow the appeal with costs and thus render justice.)
1. The second respondent in M.C.O.P. No.1651 of 2015, on the file of the Motor Accidents Claims Tribunal, Special Sub Court dealing with MCOP cases, Tirunelveli, has filed the present C.M.A.(MD).No.631 of 2020, challenging the award dated 06.11.2019 passed in M.C.O.P.No.1651 of 2015.
2. Facts of the cases:
2.1.According to the claimant, She is the legal dependant of the deceased Ghana Mary. On 17.05.2014 at about 5.20 p.m., the deceased and claimant were travelling in a Maruti Swift Dzire Car bearing Registration No. TN-72- AU-3961, insured with the appellant-Insurance Company. When the vehicle was proceeding near an unmanned railway level crossing, it was hit by the Nagercoil–Bangalore Express Train, resulting in the death of the deceased.
2.2.The legal representative of the deceased filed M.C.O.P. No.1651 of 2015 claiming compensation. Another claim petition was also filed in respect of the personal injuries sustained in the occurrence.
2.3.The appellant-Insurance Company filed its counter disputing its liability. According to the Insurance Company, the accident occurred at an unmanned railway crossing and the driver of the car entered the crossing without noticing the approaching train. It was therefore contended that the railway authorities alone were responsible and that the Insurance Company was not liable to pay compensation. The quantum of compensation was also disputed.
2.4.Before the Tribunal, On the side of the claimant, the claimant was examined as PW1 and another witness was examined as PW2 and Ex.P.1 to Ex.P.7 were marked. On the side of the respondents, there is no oral or documentary evidence adduced.
3. Findings of the Tribunal:
3.1.Upon consideration of the evidence, the Tribunal found negligence on the part of the driver of the car and fastened liability upon the appellant- Insurance Company. The Tribunal thereafter awarded compensation of Rs. 57,52,136/-.
| Sl.No. | Heads | Amounts in Rs. |
| 1 | Loss of Income | 57,22,136/- |
| 2 | Loss of Estate | 15,000/- |
| 3 | Funeral Expenses | 15,000/- |
| Total Compensation Awarded | 57,52,136/- | |
4. Submissions of the learned counsel appearing for the appellant/Insurance Company:
4.1.The learned counsel appearing for the appellant-Insurance Company submitted that the deceased was a married person and that there was only one claimant/dependent. Therefore, according to the learned counsel, the deduction towards the personal and living expenses of the deceased ought to have been 1/2, and not 1/3.
4.2.Placing reliance upon the principles stated in Sarla Verma (Smt.) v. Delhi Transport Corporation, it was contended that the deduction of 1/3rd is applicable where the number of dependants is more than two, whereas, where there is only one dependent, 1/2 of the income ought to be deducted towards the personal expenses of the deceased. Hence, the learned counsel sought reduction of the compensation towards loss of dependency.
5. Submissions of the learned counsel appearing for the respondents/Claimant:
5.1.Per contra, the learned counsel appearing for the claimant submitted that the contention of the Insurance Company is based upon an incorrect interpretation of the principles laid down in Sarla Verma. According to him, the deceased was a married person and therefore the appropriate deduction is 1/3rd.
5.2.The distinction between 1/3rd and 1/2 deduction cannot be applied merely on the basis of the number of claimants.
5.3.The learned counsel further relied upon the subsequent decision of the Hon’ble Supreme Court in SLP (Civil) Nos.5776 and 5777 of 2023, including the decision relied upon by the claimant, wherein the principle regarding deduction of 1/3rd in the case of a married deceased was reiterated.
6. Point for Determination: The following question arises for consideration:
6.1.Whether, in the case of a married deceased having only one claimant/dependent, 1/2 of the income has to be deducted towards personal and living expenses, or whether the deduction of 1/3rd is applicable?
7. This Court has considered the rival submissions and perused the materials available on record.
8. Discussions and Findings:
8.1.The contention of the learned counsel appearing for the appellant / Insurance Company proceeds on the premise that the deduction towards personal expenses has to be determined solely with reference to the number of dependants. However, the principle laid down by the Hon’ble Supreme Court in Sarla Verma (Smt.) v. Delhi Transport Corporation has to be understood in its proper context.
8.2.In paragraph 30 of Sarla Verma, the Hon’ble Supreme Court has laid down the general principles governing the deduction towards personal and living expenses, having regard to the marital status of the deceased and the number of dependants. The relevant distinction is between a bachelor and a married deceased. In the case of a bachelor, ordinarily 50% is deducted towards personal expenses, whereas, in the case of a married deceased, ordinarily 1/3rd is deducted, subject to the circumstances of the case.
8.3.The mere fact that only one person has approached the Tribunal as the claimant does not, by itself, convert the case of a married deceased into that of a bachelor for the purpose of applying the deduction.
8.4.The subsequent decisions of the Hon’ble Supreme Court have also reiterated the principle that, in the case of a married deceased, the normal deduction towards personal and living expenses is 1/3rd. The fact that there is only one claimant cannot, by itself, justify applying the 50% deduction applicable to a bachelor.
8.5.It is relevant to refer to the judgment rendered by the Hon'ble Supreme Court in the case of Ved Kanwar & ORS. vs. Babulal & ORS. [@ SLP (c) Nos.5776-5777/2023].
“Thus, in the case of Sarla Verma Vs. DTC, reported in (2009) 6 SCC 121, as approved in pranay Sethi (supra), this Court has clearly held that "where the deceased was married, the deduction towards personal and living expenses of the deceased, should be 1/3rd (one-third) meaning thereby that where the deceased was married and left behind his widow only, the deduction should be 1/3rd (one-third). The next part of deduction is where the number of dependent family members is 2-3, deduction should be 1/4th (one-fourth) and where the number of dependent family members is 4-6, the deduction is 1/5th (one-fifth). Thus, even if the second and third claimants, who are employed sons of the deceased, are not considered to be dependents on the deceased, the minimum deduction where the deceased was married should be 1/3rd (onethird). Neither in Pranay Sethi (supra) nor in Sarla Verma (supra), this Court allowed the deduction of more than 1/3rd (onethird), where the deceased was married. It is in cases where the deceased was a bachelor, the deduction of 50% or 1/2 (one-half) is permissible. Thus, the Tribunal and the High Court as well have committed serious error of law by allowing deduction of one-half towards personal and living expenses of the deceased who was a married person. Accordingly, we set aside this part of the award and direct that the amount compensation awarded to the claimants shall be recalculated by allowing 1/3rd (one-third) deduction towards personal and living expenses of the deceased.”
8.6.Therefore, the contention of the learned counsel for the appellant- Insurance Company that 1/2 of the income ought to have been deducted merely because there is only one claimant is not acceptable.
8.7.The Tribunal has applied the deduction of 1/3rd towards the personal and living expenses of the deceased. This Court finds that the said approach is consistent with the principles laid down by the Hon’ble Supreme Court.
8.8.It is also relevant to note that the appellant has not challenged the finding regarding negligence or its liability to satisfy the award. The challenge in the present appeal is confined to the quantum and, particularly, the deduction towards personal expenses. Since the Tribunal has correctly applied the applicable principle, no interference is warranted.
9. Result:
9.1.In the result, the C.M.A.(MD). No.631 of 2020 is dismissed.
9.2.The award dated 06.11.2019 passed by the Motor Accidents Claims Tribunal, Special Sub Court dealing with MCOP cases, Tirunelveli, in M.C.O.P. No.1651 of 2015 is hereby confirmed.
9.3.The appellant-Insurance Company is directed to deposit the entire award amount, together with interest as awarded by the Tribunal, after giving credit to the amount, if any, already deposited, within a period of six weeks from the date of receipt of a copy of this judgment.
9.4.On such deposit, the claimant is entitled to withdraw the amount in accordance with the apportionment made by the Tribunal.
There shall be no order as to costs.