BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09/03/2010
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
C.M.A(MD)No.987 of 2006
and
C.M.A(MD)No.988 of 2006
C.M.A(MD)No.987 of 2006
1. V.Thangammal
2. Aravind Nath Tagore
3. A.Vijila
4. A.Sheeba
5. A.Sarath Babu
6. A.Arunkanth ... Appellants
Vs
1. M.Omana Kumar
2. The Branch Manager,
United India Insurance Company,
No.60-2/607/1, First Floor,
Main Road, Marthandam,
Kanyakumari District.
3. The Branch Manager,
National Insurance Company Limited,
Angu Vilas Building,
North Car Street,
Nagercoil -629 001.
4. Padma Subramanian
5. Vellammal ... Respondents
C.M.A(MD)No.987 of 2006
1. Tmt. Seethamma
2. Miss. Sumeetha
3. Ajay Kumar,minor,
represented by his mother and natural
guardian, the first appellant herein
(Third Appellant declared as major and
guardian is discharged vide order of this Court
made in M.P(MD)No.1 of 2009 in C.M.A(MD)No.988 of 2006, dated
11.12.2009).
... Appellants
1. M.Omana Kumar
2. The Branch Manager,
United India Insurance Company,
No.60-2/607/1, First Floor,
Main Road, Marthandam,
Kanyakumari District.
3. The Branch Manager,
National Insurance Company Limited,
Angu Vilas Building,
North Car Street,
Nagercoil -629 001.
4. Padma Subramanian ...Respondents
PRAYER IN C.M.A.NO.987 OF 2006
Civil Miscellaneous Appeal filed under Section
173 of Motor Vehicles Act, 1998 against the judgment and decree dated 30.04.2004
made in M.C.O.P.No.1697 of 2001, on the file of the Motor Accidents Claims
Tribunal (Principal District Court), Tirunelveli.
PRAYER IN C.M.A.NO.988 OF 2006
Civil Miscellaneous Appeal filed under Section
173 of Motor Vehicles Act, 1998 against the judgment and decree dated 30.04.2004
made in M.C.O.P.No.1698 of 2001, on the file of the Motor Accidents Claims
Tribunal (Principal District Court), Tirunelveli.
!For Appellants ... Mr.N.Dilip Kumar
in both cases
^For Respondent-2 ... Mr.A.K.Baskara Pandian
in both cases for Mr.R.Srinivasan
For Respondents ... No appearance
1,3 and 4 in both
cases
* * *
:COMMON JUDGMENT
C.M.A.No.987 of 2006 is preferred against the judgment and decree dated
30.04.2004 made in M.C.O.P.No.1697 of 2001, on the file of the Motor Accidents
Claims Tribunal (Principal District Court), Tirunelveli.
2. C.M.A.No.988 of 2006 is preferred against the judgment and
decree, dated 30.04.2004 made in M.C.O.P.No.1698 of 2001, on the file of the
Motor Accidents Claims Tribunal (Principal District Court), Tirunelveli.
3. On the fateful day 29.10.2001, an accident took place involving two
jeeps bearing Registration Nos. TN 74C 0126 and TN 74Z 8734 and due to the
accident, out of the four persons travelled in the jeep TN 74C 0126, three died
and one received grave injuries. The Jeep TN 74C 0126 was owned by the fourth
respondent and the jeep was insured with the third respondent. Mr.Ayyavu and
Mr.Ayyappan were the two persons among the three who died in the accident. The
first respondent is the owner of the jeep TN 74Z 8734 and the jeep was insured
with the second respondent/Insurance Company.
4. The legal heirs of the deceased Ayyavu i.e., his wife, three sons, two
daughters, and his mother, filed M.C.O.P.No.1697 of 2001, claiming a sum of
Rs.10 lakhs as compensation.
5. The legal heirs of the deceased Mr.Ayyappan, i..e, his wife, his minor
son and his minor daughter, filed M.C.O.P.No.1698 of 2001. The other deceased
person and also the injured person also filed claim petitions and all the four
cases were tried together and a common order was passed on 30.04.2004,
directing the second respondent Insurance Company to pay compensation. As
stated above, the appeals are preferred only against the order made in
M.C.O.P.Nos. 1697 and 1698 of 2001.
6. In M.C.O.P.No.1697 of 2001, the Tribunal awarded compensation of
Rs.1,60,000/- under the following heads:
1. for loss of income - Rs.1,44,000/-
2. for loss of consortium - Rs. 10,000/-
3. for funeral expenses - Rs. 6,000/-
--------------
total - Rs.1,60,000 ---------------
7. In M.C.O.P.No.1698 of 2001, the Tribunal awarded compensation of
Rs.1,80,000/- under the following heads:
1. for loss of income - Rs.1,68,000/- 2. for loss of consortium - Rs. 10,000/- 3. for funeral expenses - Rs. 2,000/- --------------- total - Rs.1,80,000/- ---------------
8. In both the cases, the Tribunal awarded 9% interest from the date of
the application along with costs. The appeals are filed seeking enhancement of
compensation for the disallowed portion of the claim.
9. Heard Mr.N.Dilip Kumar, the learned counsel for the appellants and
Mr.K.Baskara Pandian, the learned counsel for the second respondent/Insurance
Company, representing the learned counsel, Mr.R.Srinivasan.
10. The Tribunal found that the accident was due to the rash and
negligent driving of the driver of the jeep owned by the first respondent.
Hence, the Tribunal directed the second respondent/Insurance Company to pay the
compensation. The Insurance Company did not have any grievance over the award
and had complied with the award and they did not choose to file any appeal
against the said awards.
11. The learned counsel for the appellants submits that, in the joint
trial, P.W.6, a partner of one Sree Devi Finance Company was examined and he
categorically deposed that both the deceased persons, namely, Mr.Ayyavu and
Mr.Ayyappan were the Commission Agents of the Finance Company. It is submitted
that the original Ledger was produced before the Tribunal, wherein, the
Commission paid to the Commission Agents were recorded and the Xerox copy of
some of the paper of the Ledger regarding the payment of Commission for the
period from April 2000 to March 2001 was marked as Ex.P20. The details of
payment of commission paid to both the deceased persons were recorded in Ex.P20.
Ex.P18 is the statement of payment of commission paid to Mr.Ayyavu and Ex.P18
was prepared based on Ex.P20. Likewise, Ex.P19 is the statement relating to the
payment of Commission made to the deceased Ayyappan and Ex.P19 was prepared
based on Ex.P20. As per Ex.P18, the average earning of Mr.Ayyavu was
Rs.8957.50/- p.m. The average earning of the deceased Ayyappan as per Ex.P19 was
Rs.7292.50/-. But, the Trial Court refused to accept the evidence given by
P.W.6 on the earnings of the deceased. The Tribunal fixed the monthly earnings
at Rs.1500/-p.m. and thereafter, after making one third deduction towards their
personal expenses, arrived at Rs.1000/- as loss of dependency to the claimants
in both the cases.
12. The learned counsel for the appellants submits that the reason given
by the Tribunal for disbelieving the commission paid to the deceased persons was
that in Ex.P20, the names of the commission agents were not stated, while it is
stated that the commissions were paid. The other reason is that when the
Commission amount was paid through vouchers, those vouchers were not produced.
13. The learned counsel for the appellants submits that when P.W.6, a
partner of the finance company deposed before the Tribunal and stated that
Ex.P20 was a xerox copy of the Ledger recording payment of commission and also
produced the original Ledger, the Tribunal was not correct in stating that the
names of the commission agents were not recorded and therefore, it could not be
taken as the earnings of the deceased persons namely, Ayyavu and Ayyappan. No
such technical approach could be adopted in cases relating to Motor Accident
Claims.
14. It is further submitted that the Tribunal was not in doubt about the
employment of the deceased persons as commission agents in the finance company.
According to the Tribunal, the earnings of the commission agents were not
satisfactorily established. The learned counsel for the appellants submits that
when P.W.6 was examined and Ex.P18,19 and 20 were marked, the Tribunal was not
correct in not accepting the commission amount that was paid to the deceased as
per those records.
15. The learned counsel further submits that taking Rs.1500/- as monthly
earnings is on the lower side and admittedly, these persons travelled in the
jeep of the finance company and the finance company was involved in lending
money and was involved in large scale money transactions.
16. The learned counsel for the appellants further submits that when
there were seven dependants in the case of Mr.Ayyavu, the Tribunal was not
correct in making one third deduction and it should have made one fifth
deduction towards personal expenses for arriving at the loss of dependency.
17. On the other hand, the learned counsel for the second
respondent/Insurance Company seeks to sustain the awards and submits that the
Tribunal gave a reasoned award that could not be disturbed in the appeals.
18. I have considered the submissions made on the learned counsels
appearing on either side and perused the records.
19. The submissions made by the learned counsel for the appellants are
well founded. The learned counsel for the appellants submits that while
ascertaining the income of the deceased persons from the records that was
available on record, the Tribunal has to undertake an exercise to estimate the
income of the deceased persons and it may even make a conjecture in determining
the income. It is well
accepted that the income of the deceased could not be accurately ascertained and
the Tribunal could not insist on strict proof to establish the income. For this
purpose, the learned counsel for the appellants relies on the following
decisions of the Honourable Apex Court:
1. Uttar Pradesh State Road Transport Corporation .vs. Shanthi Devi and
others reported in (2009) 4 SCC 355
(2) Syed Basheer and others .vs. Mohammed Jameel and another reported in
(2009) 2 SCC 225: and
(3) Ashwani Kumar Mishra .vs. P.Muniam Babu and others reported in (1999)
4 scc 22 .
20. In my view, the Tribunal could not have totally rejected the evidence
of P.W.6 r/w Ex.P18,Ex.P19 and Ex.P20 and proceeded to take only Rs.1500/- as
the monthly earnings. I have perused those records and there is large variations
in the payment of commission. As stated above, in Ex.P18, the payment of
commission for every month from April 2000 to March 2001 is stated and the
payment received by the deceased Ayyavu in February 2001 was Rs.12,450/-, while
he received only Rs.930/- in October 2000. Hence, the average payment of
commission for 12 months was arrived at Rs.8927.50/-. Likewise, the average
of the payment of commission paid to Mr.Ayyappan was Rs.7292.50/-, as per
Ex.P19. Since the variation is large, it may not be safe also to take the
average.
21. The learned counsel for the appellants further submits that in New
India Assurance Company Limited .vs. Smt.Kalpana and others reported in 2007
(1) TNMAC 1(SC), the Honourable Apex Court fixed Rs.3000/- as monthly income
after deductions as the loss of dependency in cases where the monthly earnings
was not able to be established. In such cases, it was taken that Rs.100/- could
be earned by a coolie. By adopting similar approach, the Tribunal at least
could have taken Rs.3000/- as the loss of dependency after deductions.
22. In fact, the learned counsel for the second respondent/Insurance
Company has no serious dispute in taking Rs.3000/- as the loss of dependency,
after deductions. However, the learned counsel for the second
respondent/Insurance Company has objection for taking the earnings from Ex.P18
and Ex.P19. In these circumstances, I am inclined to take Rs.3000/- as the loss
of monthly dependency. The whole controversy in the appeals are relating only
to earnings of the deceased and in the case of Ayyavu, the Tribunal adopted
multiplier ’12’ and in the case of deceased Ayyappan, the Tribunal adopted ’14’
as multiplier. Hence, by applying the same multiplier, in the case of deceased
Ayyavu, the loss of income would be Rs.3000x12x12= Rs.4,32,000/-. In the case of
Mr.Iyyappan, it would be Rs.3000x12x14=Rs.5,04,000/-
23. The learned counsel for the appellants submits that while Rs.10,000/-
was awarded as loss of consortium to the wife, nothing was awarded towards loss
of love and affection to other claimants. The learned counsel for the
appellants submits that each claimants in both the appeals should be given at
least Rs.10,000/- each towards loss of love and affection.
24. The learned counsel for the second respondent/Insurance company has
not seriously disputed for granting the said amount towards loss of love and
affection, particularly when Rs.10,000/- was given to the wife alone. Hence,
each claimant is awarded a sum of Rs.10,000/- towards loss of love and affection
in both M.C.O.P.No.1697 and 1698 of 2001.
26. Hence the following compensation is fixed in M.C.O.P.No.1697 of 2001
and 1698 of 2001.
M.C.O.P.No.1697 of 2001(C.M.A.No.987 of 2006-In the case of deceased Ayyavu)
1. for loss of income – Rs.4,32,000/-
2. for loss of consortium - Rs. 10,000/-
3. for loss of love and - Rs. 60,000/-
affection at the rate
of Rs.10,000/-for each
claimants
4. for funeral expenses - Rs. 6,000/-
----------------
total - Rs.5,08,000/-
----------------
M.C.O.P.No.1698 of 2001(C.M.A.No.988 of 2006-In the case of deceased Ayyappan)
1. for loss of income – Rs.5,04,000/-
2. for loss of consortium – Rs. 10,000/-
3. for loss of love and affection - Rs. 20,000/- 4. for funeral expenses - Rs. 2,000 ---------------- total - Rs.5,36,000/- ----------------
26. The enhanced amount of compensation in M.C.O.P.No.1697 of 2001
comes to Rs.3,48,000/-(Rs.5,08,000 – Rs.1,60,000/-) and in M.C.O.P.No.1698 of
2001, comes to Rs.3,56,000/-(Rs.5,36,000/–Rs.1,80,000/-). The second
respondent/Insurance Company is directed to deposit the enhanced award amount
with 9% interest from the date of the application before the Tribunal, within a
period of six weeks from the date of receipt of a copy of this order. The
enhanced amount would be apportioned among the claimants in the same rate as
apportioned by the Tribunal. The appeal is disposed of in the above terms. No
costs.
vsn
To
The file of the Motor Accidents Claims Tribunal
(Principal District Court),
Tirunelveli.