BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.866 of 2007 and M.P.(MD)Nos.1 and 2 of 2007 1.Padmavathy 2.Subbulakshmi alias Brindha 3.Saravanan 4.Gurusamy 5.Mahalakshmi .. Appellants Vs 1.Narasimman 2.The Divisional Manager, Divisional Office III, The United India Insurance Co. Ltd., E.P. Building, 24.Mill Road Coimbatore. .. Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgement and Decree dated 29.01.2007 passed in M.C.O.P.No.86 of 2006 by the learned Motor Accidents Claims Tribunal-cum-the Chief Judicial Magistrate, Thoothukudi. !For Appellant ... Mr.U.Minnavadi ^For Respondent No.2 ... Mr.AS.Mathiyalagan For Respondent No.1 ... No appearance :JUDGMENT
This appeal is focussed as against the Judgement and Decree dated
29.01.2007 passed in M.C.O.P.No.86 of 2006 by the learned Motor Accidents Claims
Tribunal-cum-the Chief Judicial Magistrate, Thoothukudi.
2. Heard the learned counsel appearing for the appellants as well as the
learned counsel for the second respondent and notice to R1 is dispensed with as
he remained ex-parte before the Tribunal.
3. The Tribunal vide Judgement dated 29.01.2007 awarded compensation to a
tune of Rs.1,80,500/- (Rupees one lakh eighty thousand and five hundred only)
under the following sub-heads:
For death of the deceased
(loss of dependency) -Rs.1,56,000/-
For funeral expenses -Rs. 2,000/-
For loss of consortium -Rs. 5,000/-
For loss of love and
affection -Rs. 10,000/-
For loss of estate -Rs. 2,500/- For transport of dead body -Rs. 5,000/- -------------- Total -Rs.1,80,500/- --------------
4. The challenge in this appeal is relating to the inadequacy of
compensation awarded by the Tribunal. The grievance of the appellants/claimants
as found set out in the memorandum of appeal is that despite the fact that the
deceased died at the age of 48, working as manager in a hotel, earning a sum of
Rs.3000/- (Rupees three thousand only), for which necessary pay certificate also
filed, which remains unchallenged and unimpugned, the Tribunal fell into error
in simply taking the monthly income of the deceased as Rs.1500/- (Rupees one
thousand and five hundred only), which by any standard cannot be countenanced as
correct or appropriate; under other sub heads also, the Tribunal awarded only
meagre amounts, which warrants interference of this Court.
5. The point for consideration is as to whether the Tribunal awarded ‘just
compensation’?
6. On point:
The learned counsel for the appellants/ claimants would convincingly and
correctly highlight the fact that before the Tribunal Ex.P9, the pay certificate
was marked and in order to prove it, the owner of the hotel concerned viz., the
employer of the deceased also deposed as P.W.2; but ignoring all these clinching
facts, the Tribunal simply of its own accord without any basis arrived at the
conclusion that the deceased was earning only a sum of Rs.1500/- (Rupees one
thousand and five hundred only) per month, whereas the learned counsel for the
second respondent/Insurance Company would try to torpedo the arguments of the
learned counsel for the appellants/claimants by pointing out that there was no
clinching evidence to show that the deceased was actually earning a sum of
Rs.3000/- (Rupees three thousand only) and he was also taking free meals under
his employer.
7. Be that as it may, even assuming that there is no clinching evidence to
the satisfaction of the respondent/Insurance Company, yet the following
decisions of the Hon’ble Apex Court as well as this Court would come to the
rescue of the appellants/ claimants:
(i) State of Haryana and another v. Jasbir Kaur and others reported in
2004-1-L.W.1.
(ii) Tamil Nadu State Road Transport Corporation Limited v. Mayilathal &
Others reported in 2004(1)TN MAC 337.
8. It is therefore clear that during the year 2002, the deceased, a
healthy man of 48 years old, might have certainly worked and earned not less
than Rs.3000/- (Rupees three thousand only) per month, at the rate of Rs.100/-
(Rupees hundred only) per day. Taking into account the cost of living
prevailing during the year 2003, without earning a sum of Rs.100/- (Rupees one
hundred only) per day, the deceased could not have maintained his wife, two
children and his parents. Hence, the Tribunal fell into error in choosing the
monthly income of the deceased in a sum of Rs.1500/- (Rupees one thousand and
five hundred only). I am having no hesitation to hold that the deceased, at the
relevant time of the accident, was earning a sum of Rs.3000/- (Rupees three
thousand only) per month and accordingly the calculation has to be computed. 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 learned counsel for the appellants/ claimants would have no
grievance relating to the multiplier 13 chosen by the Tribunal. The deceased at
the relevant time of his death was 48 years old. Taking a cue from the Second
Schedule appended to the Motor Vehicles Act, the multiplier 13 chosen is
correct. 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, I am of the considered opinion that the
multiplier 13 is the appropriate one because the widow, the unmarried daughter
and the young son are the claimants along with the parents of the deceased. As
such unless multiplier 13 is chosen significant compensation cannot be computed,
which would be of some succour to the claimants. Hence, the compensation under
the head ‘loss of income’ shall be re-fixed at Rs.3,12,000/- [ 3000 X 12 X 13 X
2/3 =3,12,000/- ] (Rupees three lakhs and twelve thousand only).
10. The learned counsel for the appellants/ claimants would also
convincingly submit that for loss of consortium only a sum of Rs.5000/- was
awarded, which in my opinion is meagre and at least a sum of Rs.15,000/- (Rupees
fifteen thousand only) could be awarded under that caption.
11. Towards loss of love and affection, the Tribunal awarded totally a sum
of Rs.10,000/- (Rupees ten thousand only), even though as many as four other
claimants are there. For 2,3-claimants a sum of Rs.10,000/- (Rupees ten
thousand only) each could be awarded and relating to the parents a sum of
Rs.5000/- (Rupees five thousand only) each could be awarded. As such under the
caption loss of love and affection totally a sum of Rs.30,000/- (Rupees thirty
thousand only) could be awarded.
12. Towards transport expenses, a sum of Rs.5000/- (Rupees five thousand
only) was awarded, which in my opinion, could be confirmed, as there is no
evidence to prove that over and above much amount, the claimants might have been
incurred expenditure for transporting the dead body from Bavani to the place of
the deceased.
13. Towards funeral expenses, only a sum of Rs.2000/- (Rupees two thousand
only) was awarded, which could be enhanced to Rs.5000/- (Rupees five thousand
only) as during the year 2002, certainly that much amount would be required for
performing the funeral ceremonies.
14. Towards loss of estate, the Tribunal awarded a sum of Rs.2,500/-
(Rupees two thousand and five hundred only), which in my opinion has to be
deleted as there is no evidence to prove the same. Accordingly, the
compensation is modified as under:
For death of the deceased
(loss of dependency) -Rs.3,12,000/-
For funeral expenses -Rs. 5,000/-
For loss of consortium -Rs. 15,000/-
For loss of love and
affection -Rs. 30,000/-
For transport of dead body -Rs. 5,000/-
————–
Total -Rs.3,67,000/-
————–
15. In the result, this Civil Miscellaneous Appeal is partly allowed and
the award of the Tribunal is enhanced from Rs.1,80,500/- (Rupees one
lakh eighty thousand and five hundred only) to Rs.3,67,000/- (Rupees three lakhs
and sixty seven thousand only), which shall carry interest at the rate of 7.5%
as directed by the Tribunal 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, connected Miscellaneous Petitions are closed.
smn
To
The Motor Accidents Claims Tribunal cum
the Chief Judicial Magistrate,
Thoothukudi.