BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A(MD)Nos.309 of 2004 C.M.A(MD)Nos. 310, 312, 315, 317 of 2004 C.M.A(MD)Nos. 318 of 2004 C.M.A(MD)No.309 of 2007 The Managing Director, Tamil Nadu State Transport Corp.Ltd., Madurai Division I, Office at No.37, Mettupalayam Road, Madurai. .. Appellant Vs 1.M.Mahendran 2.M.Maruthupandian 3.New India Assurance Co., Ltd., rep. by its Branch Manager, Sathur. .. Respondents Prayer Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgement and Decree dated 31.10.2003 passed in MCOP.No.196 of 2002 by the Motor Accidents Claims Tribunal-cum-the Fast Track Court No.I, Tirunelveli. !For Appellant ... Mr.D.Sivaraman for Mr.Rajnish Pathiyil ^For Respondent No.1 ... Mr.T.Selvakumaran For Respondent No.2 ... No appearance For Respondent No.3 ... Mr.K.Elangovan C.M.A(MD)No.310 of 2007: #The Managing Director, Tamil Nadu State Transport Corp. Ltd., Madurai Division I, Office at No.37, Mettupalayam Road, Madurai. .. Appellant Vs $1.Issakithai alias Rani 2.Subhaalakshmi (R2 represented by her mother R1) 3.Shanmugadevar 4.M.Maruthupandian 5.New India Assurance Co., Ltd., rep. by its Branch Manager, Sathur. .. Respondents Prayer Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgement and Decree dated 31.10.2003 passed in MCOP.No.464 of 2002 by the Motor Accidents Claims Tribunal-cum-the Fast Track Court No.I, Tirunelveli. !For Appellant ... Mr.D.Sivaraman for Mr.Rajnish Pathiyil ^For RR1 to 3 ... Mr.T.Selvakumaran For Respondent No.4 ... No appearance For Respondent No.5 ... Mr.K.Elangovan C.M.A(MD)No.312 of 2007: #The Managing Director, Tamil Nadu State Transport Corp.Ltd., Madurai Division I, Office at No.37, Mettupalayam Road, Madurai. .. Appellant Vs $1.V.Subramaniapillai 2.S.Gomathi 3.M.Maruthupandian 4.New India Assurance Co., Ltd., rep. by its Branch Manager, Sathur. .. Respondents Prayer Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgement and Decree dated 31.10.2003 passed in MCOP.No.199 of 2002 by the Motor Accidents Claims Tribunal-cum-the Fast Track Court No.I, Tirunelveli. !For Appellant ... Mr.D.Sivaraman for Mr.Rajnish Pathiyil ^For RR1 and 2 ... Mr.T.Selvakumaran For Respondent No.3 ... No appearance For Respondent No.4 ... Mr.K.Elangovan C.M.A(MD)No.315 of 2007: #The Managing Director, Tamil Nadu State Transport Corp.Ltd., Madurai Division I, Office at No.37, Mettupalayam Road, Madurai. .. Appellant Vs $1.R.Sankaran Pillai 2.S.Vembu 3.M.Maruthupandian 4.New India Assurance Co., Ltd., rep. by its Branch Manager, Sathur. .. Respondents Prayer Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgement and Decree dated 31.10.2003 passed in MCOP.No.196 of 2002 by the Motor Accidents Claims Tribunal-cum-the Fast Track Court No.I, Tirunelveli. !For Appellant ... Mr.D.Sivaraman for Mr.Rajnish Pathiyil ^For RR1 and 2 ... Mr.T.Selvakumaran For Respondent No.3 ... No appearance For Respondent No.4 ... Mr.K.Elangovan C.M.A(MD)No.317 of 2007: #The Managing Director, Tamil Nadu State Transport Corp.Ltd., Madurai Division I, Office at No.37, Mettupalayam Road, Madurai. .. Appellant Vs $1.S.Shanmuganathan 2.Kaliammal 3.M.Maruthupandian 4.New India Assurance Co., Ltd., rep. by its Branch Manager, Sathur. .. Respondents Prayer Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgement and Decree dated 31.10.2003 passed in MCOP.No.197 of 2002 by the Motor Accidents Claims Tribunal-cum-the Fast Track Court No.I, Tirunelveli. !For Appellant ... Mr.D.Sivaraman for Mr.Rajnish Pathiyil ^For RR1 and 2 ... Mr.T.Selvakumaran For Respondent No.3 ... No appearance For Respondent No.4 ... Mr.K.Elangovan C.M.A(MD)No.318 of 2007: #The Managing Director, Tamil Nadu State Transport Corp.Ltd., Madurai Division I, Office at No.37, Mettupalayam Road, Madurai. .. Appellant Vs $1.A.Shanmugavadivu 2.Minor Petchiammal 3.Minor Vanitha 4.Minor Pandi 5.Minor Thenmozhi (R2 to R5 represented by their mother R1) 6.M.Maruthupandian 7.New India Assurance Co., Ltd., rep. by its Branch Manager, Sathur. .. Respondents Prayer Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgement and Decree dated 31.10.2003 passed in MCOP.No.200 of 2002 by the Motor Accidents Claims Tribunal-cum-the Fast Track Court No.I, Tirunelveli. !For Appellant ... Mr.D.Sivaraman for Mr.Rajnish Pathiyil ^For RR1 to 5 ... Mr.T.Selvakumaran For Respondent No.6 ... No appearance For Respondent No.7 ... Mr.K.Elangovan :COMMON JUDGMENT These Civil Miscellaneous Appeals have been filed to get set aside the judgment and decree passed in M.C.O.P.Nos.196, 197, 198, 199, 200 and 464 of 2002 by the Motor Accidents Claims Tribunal-cum-the Fast Track Court No.I, Tirunelveli. 2. These cases form part of a batch cases, a part which were decided by this Court on 20.12.2007. However, these cases were separated from that batch purely for the purpose of deciding on the quantum of compensation as in these cases decided on 20.12.2007 as the quantum of compensation was not in dispute but only the apportionment of negligence of the drivers of the two vehicles was dealt with and decided. As such the common Judgment dated 20.12.2007 in C.M.A.(MD)No.1320 of 2007 batch cases shall form part of this common Judgment relating apportionment of negligence and the liability to pay the compensation. 3. Heard the learned counsel appearing for the appellant Transport Corporation, the learned counsel appearing for the claimants as well as the learned counsel appearing for the New India Assurance Co., Ltd., Sathur and notice to the owner of the van i.e., M.Maruthupandian is dispensed with as he remained ex-parte before the Tribunal. 4. The learned counsel for the claimants would pray that the compensation might be enhanced even though no cross objections have been filed by the claimants, placing reliance on Order 41 Rule 33 of C.P.C. and the various decisions emerged thereunder, whereas the learned counsel for the appellant Transport Corporation would cite the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R.Swaminathan & Ors. reported in II(2006)ACC 701(SC) and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R.Swaminathan & Ors. reported in II(2006)ACC 701(SC). An excerpt from it would run thus: "Apparently the first respondent claimant was satisfied with the Tribunal's Award as he did not file any appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge's judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs.7,44,000/- under different heads with a direction for payment of interest at 18% from the date of petition. The appellant- Insurance Company is aggrieved thereby and is in appeal before us. The issue that arises in this case is, whether the Division Bench of the High Court was justified in increasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is: "In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an appeal, provided the circumstances of the case warrants the same". To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention the judgment of this Court in Banarsi v. Ram Phal, reported in II(2003)SLT258=(2003)9 SCC 606, which supports the proposition that in an appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an appeal on his own or had not taken any cross- objection. In the present appeal it would appear that the claimant neither appealed against the award of compensation passed by the Tribunal, nor filed any cross-objection in the first appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the appeal filed by the Insurance Company". 5. A mere perusal of the excerpt from the said decision would clearly show that the Hon'ble Apex Court in that decision has not laid down as a universal rule of interpretation under Order 41, Rule 33 of C.P.C. Taking into consideration, the method and manner in which the Division Bench of this Court in Letters Patent Appeal and that too without citing adequate reasons and precedents enhanced the compensation amount to an extent of Rs.7,44,000/- with 18% interest from that of Rs.3,00,000/- awarded by the Single Bench of the same Court, the Hon'ble Apex Court found fault with it. 6. Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon'ble Apex Court wanted a precedent in that regard, the learned counsel for the appellant therein cited only the decision of the Hon'ble Apex Court in Banarsi v. Ram Phal, reported in II(2003)SLT258=(2003)9 SCC 606. As such, that perculiar facts and circumstances of the case, the Hon'ble Apex Court felt that the power under order 41, Rule 33 of C.P.C. invoked by the High Court and that too in a case where such an enhancement was not at all warranted, looked askance as if. As such it is clear that the Hon'ble Apex Court in the said decision has not laid down the law that even in a fit case, the High Court should invoke Order 41, Rule 33 of C.P.C. in the absence of filing cross appeal. Furthermore under Order 41, Rule 33, there are earlier decisions of the Hon'ble Apex Court, which could be cited as under: (i) Municipal Board, Mount Abu v. Hari Lal reported in 1988 ACJ 281. (ii) Dangir v. Madan Mohna reported in AIR 1988 SC.54. (iii) M.D. Pallavan Transport Corporation Ltd., v. Kalavathi reported in 1998(1)ACJ-151. (iv) State of Punjab v. Bakshish Singh reported in 1998(8)S.C.C.222. 7. The perusal of the aforesaid Judgments of the Hon'ble Apex Court would clearly show that without filing cross appeal, the respondents in the appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon'ble Apex Court held that under Order 41, Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in Managing Director, Thanthai Periyar Transport Corp., Villupuram v. Sundari Ammal and four Others reported in 1999(II)CTC 560 would run thus: "Unfortunately, in the instant case, there is no cross-objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross-objection by the claimants. In Dangir v. Madan Mohan, AIR 1988 S.C. 54 and M.D., Pallavan Transport Corporation Ltd., v. Kalavathi, 1998(1)A.C.J 151, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate. As pointed out by the Apex Court in State of Punjab v. Bakshish Singh, 1998(8) S.C.C.222, the reading of the provision would make it clear that the appellate court has got wide power to do complete justice between the parties and which enables this Court to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objection. The Apex Court in Dhangir v. Madan Mohan, A.I.R.1988 S.C.54, be referring Order 41, Rule 33, would make the following observation: "The appellate court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co- respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The words 'as the case may be require' used in Rule 33 Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find many. we are giving any liberal interpretation. The rule itself is liberal enough. the only constraints that we could see may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It is true that the power of the appellate court under S.33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities". 8. And then the Division Bench of this Court in the decision in the Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri v. Janardhanam and 7 others reported in 2000(II) CTC 272 placing reliance on the decision of the Hon'ble Apex Court held a similar view that without cross appeal Order 41, Rule 33 of C.P.C. could be invoked in appropriate cases. An excerpt from it would run thus: "At this stage, learned counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the Judgment and not from the date of the petition. The learned counsel for the respondents/claimants would submit that even though no appeal has been filed by the respondents/claimants or no cross objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme court in Dhangir v. Madan Mohan, AIR 1988 SC 54 to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the appellate Court is discretionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v. Narendra Pandurang Kadam and others, 1995(1) SCC 320 has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the Judgment". 9. Over and above that 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 under relating to Motor Accidents Cases. 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". 10. It is therefore clear that in the interest of awarding just compensation when the High Court is seized of the matter, irrespective of any cross objection filed in appropriate and deserving cases, which fact I would like to stress, can interfere by invoking Order 41, Rule 33 of C.P.C. 11.C.M.A.(MD)No.309 of 2004: The Tribunal awarded compensation to a tune of Rs.33,000/- (Rupees thirty three thousand only) under the following sub-heads: For permanent disability -Rs.10,000/- For loss of earning capacity -Rs. 4,000/- For extra nourishment -Rs. 3,000/- For pain and sufferings -Rs.15,000/- ------------
Total -Rs.32,000/-
————
(However the Tribunal mistakenly calculated it at Rs.33,000/- (Rupees thirty
three thousand only)
12. So far this case is concerned, the learned counsel for the first
respondent/claimant would pray for enhancing the compensation. The learned
counsel for the appellant Transport Corporation as well as the learned counsel
for the third respondent/ Insurance company would oppose the prayer on the
ground that for 10% permanent disability and that too for the claimant having
sustained fracture of his nasal loop, the awarding of compensation at the rate
of Rs.1000/- (Rupees one thousand only) for each percentage of permanent
disability was very much reasonable that that was the rate applied by the
Tribunals uniformly at that time and that the compensation should not be fixed
taking into account the prevailing rate, when the appeal is heard by the High
Court. I could see considerable force in his submission, but the claimant
herein sustained such fracture during the year 2001 and he was a young man of 19
years old. In such a case, awarding Rs.2000/- (Rupees two thousand only) for
each percentage of permanent disability would meet the ends of justice and
awarding of Rs.1000/- (Rupees one thousand only) for each percentage of
permanent disability would be very much on the lower side.
13. However, under the caption pain and sufferings for 10% of permanent
disability, Rs.15,000/- (Rupees fifteen thousand only) was awarded, which could
be reduced to Rs.10,000/- (Rupees ten thousand only).
14. Towards loss of income for the treatment period and the convalescent
period, a sum of Rs.4,000/- awarded by the Tribunal is confirmed.
15. Relating to taking nutritious food, a sum of Rs.3,000/- (Rupees three
thousand only) was awarded, which also could be confirmed. Accordingly, the
compensation is modified as under:
For permanent disability -Rs.20,000/-
For loss of earning
capacity -Rs. 4,000/-
For extra nourishment -Rs. 3,000/-
For pain and sufferings -Rs.10,000/-
————
Total -Rs.37,000/-
————
16.C.M.A.No.310 of 2004:
The Tribunal awarded compensation to a tune of Rs.3,23,600/- (Rupees three
lakhs twenty three thousand and six hundred only) under the following sub-heads:
For loss of income -Rs.2,85,600/-
For funeral expenses -Rs. 3,000/-
For loss of love and
affection and future
guidance -Rs. 10,000/-
For mental agony and shock -Rs. 10,000/-
For loss of consortium -Rs. 15,000/-
————–
Total -Rs.3,23,600/-
————–
17. The learned counsel for the respondent Nos.1 to 3/claimants would
contend that the compensation amount may be enhanced significantly as the
Tribunal did choose a sum of Rs.2,000/- (Rupees two thousand only) as the
monthly income of the deceased aged about 22 years old, who was working as a
mason; whereas the learned counsel for the appellant Transport Corporation as
well as the learned counsel appearing for the fifth respondent/Insurance Company
in unison would contend that the Tribunal has chosen the appropriate amount as
the earning capacity of the individual.
18. I could see that the Tribunal has assessed the correct amount as the
income of the deceased for the reason that during the year 2001, a young man of
22 years old could not have become a fulfledged mason and at the most he could
have been only an assistant mason earning not more than Rs.2,000/- (Rupees two
thousand only) per month. Hence, in these circumstances, I do not consider that
any variation is required in assessing the monthly income of the deceased at
Rs.2,000/- (Rupees two thousand only).
19. Towards funeral expenses, Rs.3,000/- (Rupees three thousand only) was
awarded and towards loss of consortium a sum of Rs.15,000/- (Rupees fifteen
thousand only) was awarded, which could be confirmed.
20. Towards loss of love and affection and future guidance, a sum of
Rs.10,000/- (Rupees ten thousand only) was awarded which could be taken as the
one for the minor child of the deceased. So far the father of the deceased is
concerned, no compensation towards loss of love and affection, was awarded and
hence a sum of Rs.10,000/- (Rupees ten thousand only) could be awarded towards
loss of love and affection for the father of the deceased.
21. The Tribunal erroneously awarded a sum of Rs.10,000/- (Rupees ten
thousand only) under the caption mental agony and shock, where there was no
treatment taken by the deceased before his death and the compensation awarded
under the caption mental agony and shock has to be deleted and accordingly
deleted.
22. Towards transport expenses, no compensation was awarded and that
Rs.2,000/- (Rupees two thousand only) could be awarded under that sub-head.
For loss of income -Rs.2,85,600/-
For funeral expenses -Rs. 3,000/-
For loss of love and
affection and future
guidance for R2 -Rs. 10,000/-
For loss of love and
affection for
R3(father) -Rs. 10,000/-
For loss of consortium -Rs. 15,000/-
For transport expenses -Rs. 2,000/-
————–
Total -Rs.3,25,600/-
————–
23.C.M.A.No.312 of 2004:
The Tribunal awarded compensation to a tune of Rs.2,75,000/- (Rupees two
lakhs and seventy five thousand only) under the following sub-heads:
For loss of income -Rs.2,52,000/-
For funeral expenses -Rs. 3,000/-
For loss of love and
affection -Rs. 10,000/-
For mental agony -Rs. 10,000/-
————–
Total -Rs.2,75,000/-
————–
24. The learned counsel for the appellant Transport Corporation as well as
the learned counsel for the fourth respondent/Insurance Company in unison would
submit that the awarding of compensation of Rs.2,75,000/- (Rupees two lakhs and
seventy five thousand only) by the Tribunal in favour of the parents of the
deceased unmarried lad of 23 years old, is on the higher side; whereas the
learned counsel for the respondent Nos.1 and 2/claimants would submit that as
per G.O.(2)No.102, Dt.22.09.1999 relating to the minimum wages, a driver should
have been paid Rs.3,000/- (Rupees three thousand only) per month. However, the
learned counsel for the appellant Transport Corporation would highlight that in
this case the evidence is to the effect that the deceased was working as a
mechanic.
25. It is a well known fact that a young man of 23 years old, working in a
mechanic shop during the year 2001 might have got a sum of Rs.2,000/- (Rupees
two thousand only) per month and nothing more as correctly assessed by the
Tribunal. No contrary argument based on any evidence is forthcoming from the
claimants’ side that the deceased was earning more than that.
26. The Tribunal also deducted only a sum of Rs.600/- (Rupees six hundred
only) towards the expenditure which the deceased would have incurred for
maintaining himself had he been alive and has taken the monthly dependency as a
sum of Rs.1,400/- (Rupees one thousand and four hundred only) and according
worked out the annual dependency at Rs.16,800/- (Rupees sixteen thousand and
eight hundred only).
27. The multiplier 15 was chosen by the Tribunal, even though the parents
were aged about 52 and 45. As such in my opinion the appropriate multiplier
would be 13 and not 15 as the Hon’ble Apex Court in various cases, has chosen
the multiplier as 13 only. Here the decedents are not the claimants, but only
the parents and hence the multiplier 13 is the appropriate one. Hence, the
compensation under the head loss of income shall be re-fixed at Rs.2,18,400/-
(Rupees two lakhs eighteen thousand and four hundred only) (16,800 x 13 =
2,18,400).
28. Towards funeral expenses a sum of Rs.3,000/- (Rupees three thousand
only) was awarded, which could be confirmed.
29. Towards mental agony a sum of Rs.10,000/- (Rupees ten thousand only
was awarded, which has to be deleted as it is a mere case of death at the spot.
30. The Tribunal awarded only a sum of Rs.10,000/- (Rupees ten thousand
only) towards loss of love and affection, even though there are two claimants.
As such in favour of each claimant, a sum of Rs.10,000/- (Rupees ten thousand
only) should be awarded.
31. Towards transport expenses a sum of Rs.2,000/- (Rupees two thousand
only) has to be awarded, which was not awarded by the Tribunal. Accordingly,
the compensation is modified as under:
For loss of income -Rs.2,18,400/-
For funeral expenses -Rs. 3,000/-
For loss of love and
affection -Rs. 20,000/-
For transport expenses -Rs. 2,000/-
————–
Total -Rs.2,43,400/-
————–
32.C.M.A.No.315 of 2004:
The Tribunal awarded compensation to a tune of Rs.1,20,000/- (Rupees one
lakh and twenty thousand only).
33. The learned counsel for the respondent Nos.1 and 2/claimants would
submit that for the death of a boy of 16 years old, the Tribunal awarded the
total compensation of Rs.1,20,000/- (Rupees one lakh and twenty thousand only),
whereas the learned counsel appearing for the Transport Corporation as well as
the Insurance Company in unison would submit that the compensation awarded by
the Tribunal need not be interfered with as he was a non-earning person so to
say a student at the relevant time of his death.
34. At this juncture, I would like to refer to the decision of the Hon’ble
Apex Court in Kaushlya Devi v. Karan Arora & Ors. reported in AIR 2007 Supreme
Court 1912. An excerpt from the said decision would run thus:
“In case of young children of tender age, in view of uncertainties abound,
neither their income at the time of death nor the prospects of the future
increase in their income nor chances of advancement of their career are capable
of proper determination on estimated basis. The reason is that at such an early
age, the uncertainties in regard to their academic pursuits, achievements in
career and thereafter advancement in life are so many that nothing can be
assumed with reasonable certainty. Therefore, neither the income of the
deceased child is capable of assessment on estimated basis nor the financial
loss suffered by the parents is capable of mathematical computation”.
35. However, the aforesaid decision has to be read harmoneously with the
earlier decision of the Hon’ble Apex Court in Manju Devi and another v. Musafir
Paswan and another reported in 2005(1)TAC.609(S.C.). An excerpt from it would
run thus:
“In the case of U.P. State Road Trans. Corpn. v. Trilok Chandra, 1996
A.C.J. 831 : 1996 (2) T.A.C.286 (S.C.), it has been held by this Court that
there should be no departure from the multiplier method on the ground that
payment being made is just compensation. It has been held that the multiplier
method must be accepted method for determining and ensuring payment of just
compensation as it is the method which brings uniformity and certainty to awards
made all over the country. In view of this authority, it will have to be held
that the award of compensation had to be made by the multiplier method.
As set out in the Second Schedule to the Motor Vehicles Act, 1988, for a
boy of 13 years of age, a multiplier of 15 would have to be applied. As per the
Second Schedule, he being a non-earning person, a sum of Rs.15,000/- must be
taken as the income. Thus, the compensation comes to Rs.2,25,000/-“.
(emphasis supplied)
36. The cumulative reading of the aforesaid two decisions of the Hon’ble
Apex Court would show that the multiplier has to be applied even in the case of
death of a boy, who is a non-earning person. Taking a cue from the second
schedule appended to the Motor Vehicles Act relating to non-earning person a sum
of Rs.15,000/- (Rupees fifteen thousand only) can be taken as notional income.
37. I would like to point out that taking a cue from the Second Schedule
appended to the Motor Vehicles Act relating to a non-earning person a sum of
Rs.15,000/- (Rupees fifteen thousand only) could rightly be taken as the annual
income of the deceased boy as it has been done in various other cases also.
38. At this juncture I would like to highlight as to how to construe the
ratio-decidendi of a decision of the Honourable Apex Court. If the Honourable
Apex Court render a judgment on a contentious issue certainly that would
constitutes ratio-decidenti, which would be binding on all the Courts below.
However in Manju Devi v. Musafir Paswan reported in 2005(1) T.A.C. 609 (S.C.)
the Honourable Apex Court without deciding any specific issue relating to
deduction of 1/3rd towards expenditure which the deceased would have incurred
for maintaining himself, awarded compensation. In U.P. State Road Transport
Corporation v. Trilok Chandra reported in (1996) 4 Supreme Court Cases 362 the
Honourable Apex Court mandates that such 1/3rd of the income should be deducted.
Now catena of the latest decisions of the Honourable Apex Court mandate
deduction of such 1/3rd from the income of the deceased. Hence, for the
aforesaid reasons I disagree with the argument that 1/3rd amount should not be
deducted towards the expenditure which the deceased would have incurred for
maintaining himself had he been alive. Even though Motor Vehicles Act is a
benevolent legislation, yet the principles relating to interpretation of statues
should be necessarily followed and evidence should be demanded by the Court
before awarding compensation under any sub-head. To point out one such decision
I would like to refer to the decision in Oriental Insurance Co. Ltd. v. Meena
Variyal reported in (2007)5 Supreme Court Cases 428. Hence, I am of the
considered opinion that out of the notional income 1/3rd amount has to be
deducted towards the expenditure which the deceased would have incurred for
maintaining himself had he been alive.
39. Deducting 1/3rd out of Rs.15,000/- (Rupees fifteen thousand only) the
annual dependency comes to Rs.10,000/- (Rupees ten thousand only). Here the
claimants are the parents and as such the multiplier has to be chosen taking
into account their average age. The father happened to be 39 years old and the
mother was 38 years old and as such their average age comes above 35 and below
40. They are not elderly people but for the untimely death of their son, they
would have got support during the rest of their long lives. Hence, the
multiplier 16 could rightly be chosen. 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 need not be taken as conclusive. But, here in this case, the
learned counsel for the respondents/ claimants would convincingly and correctly
argue that the parents of the deceased were made to suffer from mental agony and
torture because of the untimely bereavement of their son. It is obvious and
axiomatic that but for their son’s demise, he would have been a significant
source of support to them in their old age. Hence, I do not incline to vary the
multiplier 16. The compensation, therefore under the head ‘loss of income’
shall be re-fixed at Rs.1,60,000/- (Rupees one lakh and sixty thousand only)
(Rs.10,000 x 16 = 1,60,000).
40. Relating to loss of love and affection a sum of Rs.15,000/- (Rupees
fifteen thousand only); towards funeral expenses a sum of Rs.3,000/- (Rupees
three thousand only); towards transport expenses a sum of Rs.2,000/- (Rupees two
thousand only) could be awarded. Accordingly, the compensation is modified as
under:
For loss of income -Rs.1,60,000/-
For loss of love and
affection -Rs. 15,000/-
For funeral expenses -Rs. 3,000/-
For transport expenses -Rs. 2,000/-
————–
Total -Rs.1,80,000/-
————–
41.C.M.A.No.317 of 2004:
The Tribunal awarded compensation to a tune of Rs.1,96,400/- (Rupees one
lakh ninety six thousand and four hundred only) under the following sub-heads:
For loss of income -Rs.1,73,400/-
For funeral expenses -Rs. 3,000/-
For loss of love and
affection -Rs. 10,000/-
For mental agony -Rs. 10,000/-
————–
Total -Rs.1,96,400/-
————–
42. The learned counsel for the appellant Transport Corporation and the
learned counsel for the third respondent/Insurance Company in unison would
submit that the Tribunal awarded exorbitant compensation of Rs.1,96,400/-
(Rupees one lakh ninety six thousand and four hundred only) for the death of a
young man of 21 years old, whereas the learned counsel for the respondent Nos.1
and 2/claimants would submit that the compensation awarded itself is on the
lower side.
43. The perusal of the records would reveal that the Tribunal took into
account the notional income of the deceased at Rs.15,000/- (Rupees fifteen
thousand only) and applied the multiplier 17 taking into account the age of the
parents as 52 and 46.
44. In this case, since the Tribunal has chosen only a notional income of
Rs.15,000/- (Rupees fifteen thousand only) and ultimately arrived at the
compensation amount, I do not like to modify either way. No doubt, the
multiplicand if enhanced certainly the multiplier has to be reduced and if
worked out almost it will come to the same result. In such a case there would
be marginal difference, which does not require any interference.
45.C.M.A.No.318 of 2004:
The Tribunal awarded compensation to a tune of Rs.3,23,000/- (Rupees three
lakhs and twenty three thousand only) under the following sub-heads:
For loss of income -Rs.2,85,600/-
For funeral expenses -Rs. 3,000/-
For loss of love and
affection -Rs. 10,000/-
For mental agony -Rs. 10,000/-
For loss of consortium -Rs. 15,000/-
————–
Total -Rs.3,23,600/-
————–
46. The learned counsel for the appellant Transport Corporation as well
as the learned counsel for the respondent No.7/Insurance Company in unison would
submit that the Tribunal awarded a total compensation of Rs.3,23,600/- (Rupees
three lakhs twenty three thousand and six hundred only) for the death of a man
of 33 years old, whereas the learned counsel for the respondent No.1 to
5/claimants would submit that the compensation awarded by the tribunal is
moderate.
47. The Tribunal took into account the monthly income of the deceased at
Rs.2,000/- (Rupees two thousand only), taking into consideration the deceased
was a loadman and multiplier 17 was chosen taking into consideration the fact
that the wife and the four children are the claimants. In such case, I am of
the considered opinion that no interference is required. Nothing has been
pointed that there is any glaring defect in the compensation awarded by the
Tribunal.
48. In all cases, the Tribunal awarded 9% interest p.a., hence, the
interest awarded is reduced to 7.5% in commensurate with the decisions of the
Hon’ble Apex Court in Tamil Nadu State Transport Corporation Ltd. vs.S.Rajapriya
& Others reported in 2005(2)TAC 297 SC and in New India Assurance Co. Ltd. vs.
Charlie and another reported in 2006(1)TAC 1 (SC).
49. C.M.A.(MD)No.309 of 2004:
In the result, this Civil Miscellaneous Appeal is dismissed and the award
of the Tribunal is enhanced from Rs.33,000/- (Rupees thirty three thousand only)
to Rs.37,000/- (Rupees thirty seven thousand only) which shall carry interest at
the rate of 7.5%. The common Judgment of this Court dated 20.12.2007 in
C.M.A.(MD)No.1320 of 2007 batch cases shall form part of this Judgment relating
to the apportionment of negligence and the liability to pay compensation. No
costs. Consequently, the connected M.Ps. are also dismissed.
50. C.M.A.No.310 of 2004:
In the result, this Civil Miscellaneous Appeal is dismissed and the award
of the Tribunal is enhanced from Rs.3,23,600/- (Rupees three lakhs twenty three
thousand and six hundred only) to Rs.3,25,600/- (Rupees three lakhs twenty five
thousand and six hundred only) which shall carry interest at the rate of 7.5%.
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. The common Judgment of this Court dated 20.12.2007 in C.M.A.(MD)No.1320
of 2007 batch cases shall form part of this Judgment relating to the
apportionment of negligence and the liability to pay compensation. No costs.
Consequently, the connected M.Ps. are also dismissed.
51. C.M.A.No.312 of 2004:
In the result, this Civil Miscellaneous Appeal is party allowed and the
award of the Tribunal is reduced from Rs.2,75,000/- (Rupees two lakhs and
seventy five thousand only) to Rs.2,43,400/- (Rupees two lakhs forty three
thousand and four hundred only) which shall carry interest at the rate of 7.5%.
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. The common Judgment of this Court dated 20.12.2007 in C.M.A.(MD)No.1320
of 2007 batch cases shall form part of this Judgment relating to the
apportionment of negligence and the liability to pay compensation. No costs.
Consequently, the connected M.Ps. are closed.
52.C.M.A.No.315 of 2004:.
In the result, this Civil Miscellaneous Appeal is dismissed and the award
of the Tribunal is enhanced from Rs.1,20,000/- (Rupees one lakh and twenty
thousand only) to Rs.1,80,000/- (Rupees one lakh and eighty thousand only) which
shall carry interest at the rate of 7.5%. 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. The common Judgment of
this Court dated 20.12.2007 in C.M.A.(MD)No.1320 of 2007 batch cases shall form
part of this Judgment relating to the apportionment of negligence and the
liability to pay compensation. No costs. Consequently, the connected M.Ps. are
also dismissed.
53.C.M.A.No.317 of 2004:
I, therefore do not find any merit in this Appeal and accordingly it is
dismissed. The award of the Tribunal is confirmed. The common Judgment of this
Court dated 20.12.2007 in C.M.A.(MD)No.1320 of 2007 batch cases shall form part
of this Judgment relating to the apportionment of negligence and the liability
to pay compensation. No costs. Consequently, the connected M.Ps. are also
dismissed.
54.C.M.A.No.318 of 2004:
I, therefore do not find any merit in this Appeal and accordingly it is
dismissed. The award of the Tribunal is confirmed. The common Judgment of this
Court dated 20.12.2007 in C.M.A.(MD)No.1320 of 2007 batch cases shall form part
of this Judgment relating to the apportionment of negligence and the liability
to pay compensation. No costs. Consequently, the connected M.Ps. are also
dismissed.
55. The Insurance Company is expected to calculate the total awarded
compensation relating to higher twelve awards in these six cases and
C.M.A.(MD)No.1320 of 2007 batch cases and divide the total amount
proportionately among the claimants/awardees in respect of all awards
accordingly deposit those amounts in the respective Tribunals. Regarding the
remaining amounts the claimants/awardees have to proceed against the owner of
the vehicle.
56. I also make it clear that the Insurance Company is liable only to the
extent of 70% even in respect of paying such higher twelve awards. The
Government Transport Corporation is concerned to the extent of 30% of the awards
in all matters, it has to bear its liability and accordingly deposit the
amounts.
smn
To
The Motor Accidents Claims Tribunal-cum-
the Fast Track Court No.I,
Tirunelveli.