BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/04/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A(MD)No.244 of 2005 and M.P(MD)No.1 of 2010 and CMP(MD)No.1564 of 2005 The New India Assurance Co. Ltd., PPK Complex, Ts.No.3548/2 and 3549/1,2, Pudukkottai. ... Appellant Vs 1. Ayyanar 2. Jegathambal 3. Ganesan ... Respondents PRAYER Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1998 against the judgment and decree dated 26.10.2004 made in M.A.C.O.P.No.199 of 2002, on the file of the Motor Accidents Claims Tribunal- cum-Sub-Court), Pudukkottai. !For Appellants ... Mr.R.Sundar Srinivasan ^For Respondent ... Mr.N.Balakrishnan :JUDGMENT
The first and second respondents have unfortunately, lost their only son
in a road accident that took place on 12.10.2001. At the time of accident, the
deceased was studying in 9th standard and he was aged 13 years. The parents
claimed Rs.5 lakhs as compensation. The Tribunal awarded Rs.3,72,000/- as
compensation based on the decision of the Honourable Supreme Court in Lata
Wadhwa and others .vs. STate of Bihar and others reported in 2001 ACJ 1735. The
appellant Insurance company questions on the quantum of compensation alone.
2. The learned counsel for the appellant submits that the judgment relied
on by the Tribunal could not be applied to the facts of the present case. It is
submitted that the children died in the case was children of the employees of
TISCO. They belong to an affluent family. The TISCO had a principle that every
employee could get one of their children got employed in the company. In that
context, the compensation was awarded in the said case. According to him,
Rs.15,000/- is to be taken as annual earnings as provided under the Second
Schedule of the Motor Vehicles Act arriving at the pecuniary loss. According to
him, the proper multiplier is ’15’. After providing one third deduction towards
personal expenses, he submits that the appellants are entitled to Rs.1,50,000/-
towards pecuniary loss. He also suggests that Rs.75,000/- could be awarded
towards non-pecuniary loss. As far as the future prospects is concerned, the
learned counsel submits that there is no evidence regarding the capabilities of
the children who lost its life. Therefore, he is opposing for granting any
amount towards future prospects.
3. On the other hand, the learned counsel for the appellants submits that
the accident took place in October 2001 and that therefore, the monthly earnings
would be at least fixed at Rs.2000/-p.m.,notionally. He relies on the decision
of the Honourable Supreme Court in R.K.Mallik and another .vs. Kiran Pal and
others reported in 2009(1)TNMAC 593(SC),in support of his submission. Taking
into account the fact that the accident took place much after 1994, it is
submitted that Rs.3000/- has to be taken as the monthly earnings for computing
compensation. The learned counsel further submits that at least a sum of Rs.1
lakh could be awarded towards loss of non-pecuniary loss, since, the deceased
was the only son. Though no evidence was let in towards educational career of
the child, the learned counsel submits that at least a sum of Rs.60,000/- should
be awarded towards future prospects.
4. I have considered the submissions made by the learned counsel
appearing on either side and perused the records.
5. The Tribunal awarded Rs.3,72,000/- as compensation under various heads
as follows:
S.No. Description of heads Amount
in Rs.
1. for loss of life Rs. 3,60,000/-
2. for loss of love and affection Rs. 10,000/--
3. for funeral expenses Rs. 2,000/-
4. total Rs. 3,72,000/-
6. The Tribunal took Rs.24,000/- towards annual earnings for calculating
the compensation and applied multiplier ’15’. There is no quarrel over
application of ’15’ as multiplier. Therefore, it has to be seen whether the
Tribunal was correct in fixing Rs.24,000/- as annual income. I am of the view
that there is no infirmity in fixing Rs.24,000/- as annual earning. As rightly
submitted by the learned counsel for the appellants, the Honourable Apex Court
in the following judgments has held that at least a sum of 3,000/- could be
taken as monthly earnings, if the monthly earnings would not be established by
sufficient materials and those judgements are as follows:
1. Ishwar Chandra and others .vs. The Oriental Insurance Company Limited
and others reported in 2007 (1) TN MAC 343(SC.
2. Ram Babu Tiwari .vs. United Indian Insurance Company Limited and others
reported in 2008 (3) TLNJ 312(Civil).
3. National Insurance Company Limited .vs. Kusum Rai and others reported
in 2006 (1) TN MAC 9(SC).
Those judgments were rendered taking into account the fact that Rs.15,000/- as
annual income was fixed in the second schedule of the Motor Vehicles Act in the
year 1994. Hence, Rs.3,000/- was taken as monthly earnings by the Honourable
Apex Court, taking into account the inflationary trend. In fact in R.K.Mallik
and another .vs.Kiral Pal and others reported in 2009(1)TNMAC 593(SC), the
Honourable Apex Court took only Rs.15,000/- as the annual income and refused to
take enhanced annual income as the accident took place in the year 1997, while,
the second schedule of the Motor Vehicles Act came into existence in 1994. The
Honourable Apex Court held that the time gap was short and that therefore, the
Court was not inclined to take higher rate and para 18 of the aforesaid
judgement is extracted hereunder:
“18. Therefore, keeping in view of the Second Schedule of the Act, his
Court do not see any reason to differ with the view taken by the Tribunal as
well as the High Court in so far as award of Pecuniary Compensation to the
dependants/claimants is concerned. We must point out that the learned counsel
for the appellants had argued that the notional sum of Rs.15,000/- should be
enhanced and increased as the legislature has not amended the Second Schedule
and the same continues to be in existence since it was enacted on 14.11.1994. We
are not examining and going into this aspect as the accident had taken place in
the present case nearly three years after the enactment of the Second Schedule.
The time difference between the date of the enactment and the date of accident
is not substantial.”
7. In this case, accident took place on October 2001. Therefore, there is
nothing wrong in taking Rs.3000/-p.m. as monthly earnings and Rs.36,000/- as
annual earnings in the light of the aforesaid decisions cited by the learned
counsel for the claimants. After providing one third amount towards personal
expenses, the annual loss of income to the family comes to Rs.24,000/-. If the
annual loss of income is taken as Rs.24,000/- before providing one third
deduction, the compensation works out to Rs.24,000/-x15x2/3= Rs.2,40,000/-.
8. The parents lost their only son and that was not disputed. In fact, the
Tribunal has recorded relevant findings in para 14 of the award and the
relevant portion of the para 14 of the judgement reads as follows:
“14. …………….No other family member is show in the family Card.
The deceased Samuel is the only son of the petitioners……………”
9. The award of non-pecuniary loss depends on various circumstances. The
loss of only son is a relevant circumstance for grant of non-pecuniary loss. The
learned counsel for the appellant suggests Rs.75,000/- towards non-pecuniary
loss. I am inclined to award Rs.1 lakh for non-pecuniary loss, since, the
parents lost their only son.
10. As rightly contended by the learned counsel for the appellant, no
evidence was let in by the appellant to establish about the educational career
of their child. In R.K.Mallik and another .vs.Kiral Pal and others reported in
2009(1)TNMAC 593(SC), the Honourable Apex Court confirmed Rs.75,000/- awarded by
the High Court towards future prospects, wherein, there was evidence that the
deceased child had better skills. Since there is lack of materials, I intend to
award Rs.50,000/- towards future prospects. In these circumstances the
compensation awarded by the Tribunal could not be termed as excessive and
unjust and therefore, I find no infirmity in the award of the Tribunal and the
same stands confirmed. In view of the foregoing discussions, the appeal fails
and the same deserves to be dismissed.
11. In the result, the Civil Miscellaneous Appeal is dismissed.
Consequently, connected Miscellaneous Petitions are dismissed. No costs.
vsn
To
The Motor Accidents Claims Tribunal
-cum-Sub-Court,
Pudukkottai.