BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/04/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.No.1094 of 2001 and C.M.P.No.13853 of 2001 and 649 of 2002 M/s.United India Insurance Co. Ltd., Branch Office at Door No.50-1, S.N.High Road, Tirunelveli rep. by its Branch Manager .. Appellant Vs 1.Kanagamani 2.Jebaseeli 3.Sipti Renuka 4.Minor Jenitta Roset 5.Minor Yogannal Mebal (R4 and R5 rep. by their mother R1) 6.R.Jebaraj .. Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgement and Decree dated 30.01.2001 passed in M.C.O.P.No.4 of 2000 by the learned Motor Accidents Claims Tribunal cum I Additional Subordinate Judge, Tirunelveli. !For Appellant ... Mr.Joseph Jawahar ^For RR1 to 5 ... Mr.T.Selvakumaran :JUDGMENT
This appeal is focussed as against the Judgement and Decree dated
30.01.2001 passed in M.C.O.P.No.4 of 2000 by the learned Motor Accidents Claims
Tribunal cum I Additional Subordinate Judge, Tirunelveli.
2. Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondent Nos.1 to 5 and notice to R6 is
dispensed with as he remained ex-parte before the Tribunal.
3. The Tribunal vide Judgement dated 30.01.2001 awarded compensation to a
tune of Rs.2,69,500/- (Rupees two lakhs sixty nine thousand and five hundred
only) under the following sub-heads:
For loss of income -Rs.2,60,000.00
For funeral expenses -Rs. 2,000.00
For loss of consortium -Rs. 5,000.00
For loss of estate -Rs. 2,500.00
—————
Total -Rs.2,69,500.00
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4. Anim adverting upon the liability as well as the quantum of
compensation awarded by the Tribunal, this appeal has been filed on the
following main grounds:
The multiplier 13 chosen by the Tribunal is on the higher side and the
monthly income of the deceased building contractor aged about 50 years old,
taken as Rs.2500/- (Rupees two thousand and five hundred only) is also on the
higher side and accordingly he prayed for reduction of the compensation.
5. At the time of arguments, the learned counsel for the
appellant/Insurance Company would submit that even though the appeal was
focussed on the ground that the driver of the offending vehicle was not having
driving licence; yet on subsequent investigation it was found that the driver of
the offending vehicle had proper driving licence and accordingly the appellant
is not pressing for that ground and he presses only for reducing the quantum of
compensation.
6. The point for consideration is as to whether the Tribunal awarded ‘just
compensation’?
7. On point:
The learned counsel for the appellant/Insurance Company would pray for
reducing the quantum of compensation on the ground that the deceased might not
have earned a sum of Rs.2500/- (Rupees two thousand and five hundred only) per
month as during the year 1999, a building contractor could not have earned that
much amount and the multiplier chosen 13 also is on the higher side, whereas the
learned counsel for the respondent Nos.1 to 5/claimants would echo the cri de
coeur of the claimants and submit that the quantum of compensation awarded by
the Tribunal is on the lower side; for the loss of consortium a meagre sum of
Rs.5000/- (Rupees five thousand only) was awarded instead of awarding a sum of
Rs.10,000/- (Rupees ten thousand only) and under the caption loss of love and
affection no compensation at all was awarded.
8. The Tribunal in my opinion correctly assessed the monthly income of the
deceased building contractor, in a sum of Rs.2500/- (Rupees two thousand and
five hundred only) during the year 1999. The deceased aged about 50 years years
old, without even earning a sum of Rs.2500/- (Rupees two thousand and five
hundred only) per month, so to say at the rate of Rs.85/- (Rupees fifty only)
per day, might not have been able to maintain his family and as such no
interference with such finding is warranted. It is a trite proposition of law
that 1/3 of the income should be deducted 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.
9. The multiplier 13 chosen in my opinion warrants no interference for the
reason that here the wife and the children of the deceased are the claimants and
unless such multiplier is chosen, a significant compensation cannot be computed,
which would be of some succour to the claimants. 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 in this
case the multiplicand is low and unless the multiplier is in parimateria with
the Second Schedule appended to the Motor Vehicles Act, the claimants would not
be able to get succour throughout their life. Hence, the compensation under the
caption loss of dependency awarded by the Tribunal in a sum of Rs.2,60,000/-
(Rupees two lakhs and sixty thousand only) is confirmed.
10. Towards funeral expenses, a sum of Rs.2000/- (Rupees two thousand
only) was awarded, which could be confirmed.
11. The learned counsel for the respondent Nos.1 to 5/claimants appositely
and appropriately highlighted that the compensation under the caption loss of
consortium could be enhanced to Rs.10,000/- (Rupees ten thousand only) because
the first claimant is a young widow and hence she deserves compensation of
Rs.10,000/- (Rupees ten thousand only) under the caption loss of consortium.
12. Towards loss of love and affection, no compensation was awarded, in my
opinion for each children at least a sum of Rs.5000/- (Rupees five thousand
only) could be awarded and it comes to Rs.20,000/- (Rupees ten thousand only).
13. Under the caption loss of estate Rs.2500/- (Rupees two thousand and
five hundred only) was awarded, which is not based on evidence and hence that
stands deleted. Accordingly, the compensation is modified as under:
For loss of income -Rs.2,60,000.00
For funeral expenses -Rs. 2,000.00
For loss of consortium -Rs. 10,000.00
For loss of love and
affection -Rs. 20,000.00
—————
Total -Rs.3,92,000.00
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14. Even though, no cross appeal has been filed, nonetheless considering
the fact that the Tribunal failed in awarding just compensation, I am of the
view that it could be enhanced by invoking Order XLI, Rule 33 of C.P.C. and
enhance the compensation amount. At this juncture, my mind is redolent with the
decision of the Hon’ble Three Judges’ Bench of the Hon’ble Apex Court, in
Nagappa v. Gurudayal Singh and others reported in 2003 ACJ 12 could be cited
here. An excerpt from it would run thus:
“Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter
referred to as ‘the M.V. Act’), there is no restriction that compensation could
be awarded only up to the amount claimed by the claimant. In an appropriate
case where from the evidence brought on record if Tribunal/court considers that
claimant is entitled to get more compensation than claimed, the Tribunal may
pass such award. Only embargo is-it should be ‘just’ compensation, that is to
say, it should be neither arbitrary, fanciful nor unjustifiable from the
evidence. This would be clear by reference to the relevant provisions of the
M.V. Act. Section 166 provides that an application for compensation arising out
of an accident involving the death of, or bodily injury to, persons arising out
of the use of motor vehicles, or damages to any property of a third party so
arising, or both, could be made (a) by the person who has sustained the injury;
or (b) by the owner of the property; or (c) where death has resulted from the
accident, by all or any of the legal representatives of the deceased; or (d) by
any agent duly authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be. Under the proviso to sub-
section(1), all the legal representatives of the deceased who have not joined as
the claimants are to be impleaded as respondents to the application for
compensation. Other important part of the said section is sub-section (4) which
provides that “the Claims Tribunal shall treat any report of accidents forwarded
to it under sub-section (6) of section 158 as an application for compensation
under this Act”. Hence, Claims Tribunal in appropriate case can treat the
report forwarded to it as an application for compensation even though no such
claim is made or no specified amount is claimed”.
15. The Tribunal awarded 12% interest p.a.; considering the prevailing
rate at that time, the interest awarded is reduced to 9% p.a.
16. In the result, this Civil Miscellaneous Appeal is dismissed and the
award of the Tribunal is enhanced from Rs.2,69,500/- (Rupees two lakhs sixty
nine thousand and five hundred only) to Rs.2,92,000/- (Rupees two lakhs and
ninety two thousand only), which shall carry interest at the rate of 9% from the
date of M.C.O.P. till deposit. 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, the connected
M.Ps. are also dismissed.
smn
To
The Motor Accidents Claims Tribunal cum
the I Additional Subordinate Judge,
Tirunelveli.