BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.1660 of 2007 and M.P.(MD)No.2 of 2007 National Insurance Co. Ltd., rep. by its Branch Manager, 112, Anguvilas Building, North Car Street, Nagercoil, Agasteeswaram Taluk, Kanyakumari District. .. Appellant Vs 1.Sumathi 2.Minor Tamilselvan 3.Minor Dinesh (R2 and 3 rep. by their mother R1) 4.Palammal 5.Satheeshkumar 6.Konisekammal .. Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgement and Decree dated 10.11.2006 passed in M.C.O.P.No.195 of 2004 by the learned Motor Accidents Claims Tribunal-cum-the District Judge, Kanyakumari at Nagercoil. !For Appellant ... Mr.A.K.Baskarapandian ^For RR1 to 4 ... Mr.E.Hariharan For RR5 and 6 ... No appearance :JUDGMENT
This appeal is focussed as against the Judgement and Decree dated
10.11.2006 passed in M.C.O.P.No.195 of 2004 by the learned Motor Accidents
Claims Tribunal-cum-the District Judge, Kanyakumari at Nagercoil.
2. Heard the learned counsel appearing for the appellant as well as the
learned counsel for the respondent Nos.1 to 4 and there is no representation on
behalf of the respondent Nos.5 and 6, despite service of notice.
3. The Tribunal vide Judgement dated 10.11.2006 awarded compensation to a
tune of Rs.4,93,750/- (Rupees four lakhs ninety three thousand seven hundred and
fifty only) under the following sub-heads:
For loss of income -Rs.4,89,600/-
For loss of watch -Rs. 400/- For loss of cloth -Rs. 250/- For loss of gold ring -Rs. 1,000/- For funeral expenses -Rs. 2,000/- For transport expenses -Rs. 500/- -------------- Total -Rs.4,93,750/- --------------
4. The challenge in this appeal is on the following grounds:
The Tribunal in the absence of evidence to prove the monthly income of the
deceased should not have simply assessed the monthly income in a sum of
Rs.3600/- (Rupees three thousand and six hundred only). The multiplier applied
is also on the higher side. Accordingly, the appellant/ Insurance Company prays
for modifying the award.
5. The point for consideration is as to whether the Tribunal awarded ‘just
compensation’?
6. On point:
The learned counsel for the appellant/Insurance Company by placing
reliance on the grounds of appeal would develop his arguments to the effect that
the accident took place in the year 2003 and as per the then standard in the
absence of clinching evidence the monthly income of the deceased should have
been taken normally in a sum of Rs.3000/- (Rupees three thousand only) per
month, but the Tribunal without any basis simply had chosen Rs.3600/- (Rupees
three thousand and six hundred only) as the monthly income of the deceased,
whereas the learned counsel for the respondent Nos.1 to 4/claimants placing
reliance on the evidence of PW2, an independent witness, would submit that the
deceased was actually working for three months as an agricultural labourer and
during the rest of the year he was in the habit of selling ice; the Tribunal was
right in fixing the monthly income of the deceased in a sum of Rs.3600/- (Rupees
three thousand and six hundred only).
7. In this context, I would like to refer to the decisions of the Hon’ble
Apex Court in State of Haryana and another v. Jasbir Kaur and others reported in
2004-1-L.W.1 and the decision of this Court in Tamil Nadu State Road Transport
Corporation Limited v. Mayilathal & Others reported in 2004(1)TN MAC 337. The
perusal of the Judgments of the Hon’ble Apex Court as well as this Court would
highlight the fact that in the absence of evidence, it is always just and proper
to choose the figure which would not be unjustifiable. The Hon’ble Apex Court
also highlighted that there should not any bonanza to the claimants and in the
meantime it should not be low as well. PW2 deposed before the Tribunal as to
the income of the deceased. But the fact remains that even as per the arguments
of the learned counsel for the respondent Nos.1 to 4/claimants, the Minimum
Wages Act contemplates the wages of an agricultural coolie in a sum of Rs.120/-
(Rupees one hundred and twenty only) per day. It is common knowledge that
agricultural coolies would not be able to work on all the days in a month and at
the most in a month they could work for 25 days and accordingly if calculated
the monthly income of the deceased would come to Rs.3000/- (Rupees three
thousand only) (120 x 25 = 3000). As such in either way, it is clear that
during the year 2003, the monthly income of the deceased should have been
assessed in a sum of Rs.3000/- (Rupees three thousand only) instead of Rs.3600/-
(Rupees three thousand and six hundred only) and after deducting 1/3rd towards
the expenditure which the deceased would have incurred for maintaining himself
had he been alive irrespective of the fact whether the deceased lead the life of
a Bohemian or that of a Spartan, his monthly contribution to the family would
come to Rs.2,000/- (Rupees two thousand only).
8. Regarding the multiplier chosen by the tribunal, I am of the considered
opinion that no interference is required as the claimants here are the wife and
two minor children along with the mother of the deceased. Taking a cue from the
Second Schedule appended to the Motor Vehicles Act, multiplier 17 is the
appropriate one. I am fully aware of the fact that in all cases the multiplier
as found suggested in the Second Schedule appended to the Motor Vehicles Act
cannot be taken as conclusive. But here, unless the multiplier 17 is chosen,
sizeable compensation could not be arrived at. Anything less than the
multiplier 17 would be detrimental to the claimants in getting just
compensation. While reducing the multiplicand, if the multiplier also is
reduced, then naturally the total compensation would get drastically reduced,
which in my opinion should not be done. By way of striking a balance between
the two, I would like to assess the loss of dependency at Rs.4,08,000/- (Rupees
four lakhs and eight thousand only) (2000 x 12 x 17 = 4,08,000/-).
9. The Tribunal fell into error in not awarding compensation towards loss
of consortium and loss of love and affection. As such considering the age of
the widow as 30, a sum of Rs.15,000/- (Rupees fifteen thousand only) could be
awarded towards loss of consortium. The awarding of compensation under the sub
head loss of consortium would exclude the compensation under the caption loss of
love and affection towards the spouse.
10. In respect of other claimants 2,3 and 4, a sum of Rs.10,000/- (Rupees
ten thousand only) each could be awarded under the caption loss of love and
affection.
11. Under the three sub heads such as loss of watch, loss of cloth and
loss of gold ring the Tribunal awarded Rs.400/- Rs.250/- and Rs.1000/-
respectively. All the three should have brought under the caption loss of
estate. As such no interference is required relating to the compensation
awarded under that caption totally in a sum of Rs.1650/- (Rupees one thousand
six hundred and fifty only).
12. Towards funeral expenses, a sum of Rs.2000/- (Rupees two thousand
only) was awarded in addition to having awarded Rs.500/- (Rupees five hundred
only) towards transport expenses, which also require no interference.
Accordingly, the compensation is modified as under:
For loss of income -Rs.4,08,000/-
For loss of estate -Rs. 1,650/-
For loss of consortium -Rs. 15,000/-
For loss of love and
affection -Rs. 30,000/-
For funeral expenses -Rs. 2,000/-
For transport expenses -Rs. 500/- -------------- Total -Rs.4,57,150/- --------------
13. The Tribunal awarded 12% interest p.a.; considering the prevailing
rate at that time, the interest awarded is reduced to 7.5% p.a.
14. In the result, this Civil Miscellaneous Appeal is partly allowed and
the award of the Tribunal is reduced from Rs.4,93,750/- (Rupees four lakhs
ninety three thousand seven hundred and fifty only) to Rs.4,57,150/- (Rupees
four lakhs fifty seven thousand one hundred and fifty only), which shall carry
interest at the rate of 7.5% from the date of M.C.O.P. till payment.
Proportionately there will be variation in the allotments in favour
of each of the claimants depending upon the variation in the total compensation
awarded herein. No costs. Consequently, connected Miscellaneous Petition is
closed.
smn
To
The Motor Accidents Claims Tribunal cum
the District Judge,
Kanyakumari at Nagercoil.