M/S. New India Assurance Co v. Tmt. R. Deepalakshmi
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.08.2017
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE M.GOVINDARAJ C.M.A.NO.1120 OF 2017 AND CMP NOS.5558 AND 7071 OF 2017 AND CROS.OBJ.NO.33 OF 2017 M/s.New India Assurance Co. Ltd., Motor Third Party Cell No.45, Moore Street, Chennai - 600 001.
... Appellant
Versus
1.R.Deepalakshmi 2.Minor Tamil Selvan 3.Minor Roshini (Minors rep. by 1st respondent Guardian) T.Munusamy (Died) 4.M.Suriyaganthi 5.Dhayalan 6.The Managing Director M/s.P.R.M. Roadways (Pvt) Ltd., No.5, V.R.P.Chathiram, Bangalore High Road, Sriperumbudur, Kancheepuram (Dist) - 631 606.
... Respondents
PRAYER: Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 30.09.2015 passed in M.C.O.P.No.2359 of 2013 by the Motor Accident Claims Tribunal (II Judge - Small Causes Court) Chennai.
For Appellant :
Mr.J.Chandran For Respondents :
Mrs.Vijaya 1 to 5
J U D G M E N T
(JUDGMENT OF THE COURT WAS MADE BY M.GOVINDARAJ, J.) Challenging the award dated 30.09.2015, in M.C.O.P.No.2359 of 2013, by the Motor Accidents Claims Tribunal (II Court of Small Causes) Chennai, M/s.New India Assurance Company Limited, has preferred the above appeal, on the grounds of liability and quantum.
2. The respondents 1 to 5 / claimants have preferred a Cross Objection in Cros.Obj.No.33 of 2017 for enhancement of compensation. Both are taken up and dispose of by a common order.
3. The main ground of attack by the appellant / insurance company is that there is discrepancy in respect of describing the
offending vehicle and the owner of the vehicle. The claimants have mentioned Foxconn India Pvt. Ltd., as the owner of the vehicle and the appellant / insurance company, as the insurer. But according to the appellant, as per the records of the appellant / insurance company, M/s.Foxconn India Pvt. Ltd., was not insured. Therefore, it is the contention of the appellant that they are not liable to pay the compensation.
4. We have perused the counter statement filed by the appellant / insurance company before the Tribunal. Para 8 of the counter statement reads as follows: - "8. The petitioner has to prove that whether the offending vehicle running in the name of The Managing Director, M/s.PRM Roadways Pvt. Ltd., or The Managing Director, M/s.Foxconn India Pvt. Ltd., as per the insurance company records, Form of Certificate of Registration vehicle was registered in the name of The Managing Director, PRM Roadways Pvt. Ltd., only in the year 22.11.2011 The Managing Director of M/s.Foxconn India Pvt. Ltd., entered into the fresh lease agreement."
5. From a bare reading of para 8 of the counter statement,
it is evident that the appellant / insurance company has insured the offending vehicle, in the name of "The Managing Director, PRM Roadways Pvt. Ltd.," only in the year 22.11.2011. Therefore, it is clear that the offending vehicle was insured with the appellant / insurance company, in the name of PRM Roadways Pvt. Ltd., and not as Foxconn India Pvt. Ltd. Later on, the claimants have amended the name of the owner of the vehicle, as PRM Roadways Pvt. Ltd. The insurance company has not objected to the amendment. In fact, the offending vehicle was very much insured with the appellant / insurance company, at the relevant period. Therefore, we have no hesitation to hold that the finding of the Tribunal that the appellant / insurance company is liable to pay compensation is correct.
6. The second point raised by the appellant is that there is no proof for the income of the deceased. P.W.3 has claimed that, as a fleet owner, he has paid a sum of Rs.20,000/- as monthly salary to the deceased. Even though P.W.3 - employer has been examined, no document was produced before the Tribunal, supporting his avocation, as transport operator. Therefore, it was contended that no credence can be given to testimony of P.W.3 and the salary certificate issued him, as employer. However, the Tribunal has fixed the income of the
deceased only, as Rs.10,000/-.
7. P.W.1 has deposed before the Tribunal that her deceased husband was a Driver. From Ex.P4 - driving license of the deceased, it could be seen that the deceased was holding a valid license for driving a vehicle. Even though the monthly income was disputed as not substantiated by any documentary evidence, avocation of the deceased, as Driver, was not seriously disputed. There is no contra evidence to that effect. In that event, we can safely assume that the deceased was working as a Driver. Taking into account the Consumer Price Index, a person, having a family with four members, we are of the considered view that he would have earned a minimum of Rs.300/- to 400/- per day. Judicial notice can be taken that even a call Driver, charges Rs.200/- to Rs.300/- for few hours, and that he would earn Rs.12,000/- per month.
Based on the evidence of P.W.1 - wife and P.W.3 - employer, the Tribunal has fixed the monthly income at Rs.10,000/. Going through the award, we find that the Tribunal has not considered awarding any amount under the head future prospects. Considering the age of the deceased and following the judgment of the Hon'ble Supreme Court in SARLA VERMA (SMT) AND OTHERS VS.
TRANSPORT CORPORATION AND ANOTHER [2009 (6) SCC 121] we deem it fit to award 50% under the head future prospects, as the deceased was 35 years of age. Adding 50 % of the income determined by the Tribunal and affirmed by us and Rs.15,000/- for the purpose of computing the loss of contribution to the family. Taking into account the daily wages of a Driver, we are of the view that the Tribunal is correct in fixing Rs.10,000/- as the monthly income of the deceased. In the light of the above, the decision of the Tribunal fixing the monthly income as Rs.10,000/-, does not require any interference.
8. After having verified the death report - Ex.P3, Ex.P4 - driving license and Ex.P5 - salary certificate, the Tribunal has fixed the age of the deceased as 35. Driving license is issued after verifying all particulars and documents including age. Therefore, the Tribunal has rightly fixed the age of the deceased as 35.
9. There are six legal representatives, including brother of the deceased. In the evidence of P.W.1, she would categorically state that all of them were living, as a joint family and were dependents on the income earned by the deceased. The Tribunal deducted 1/3rd
towards personal expenses. Since the annual income is arrived at Rs.1,80,000/- (Rs.15,000/- X 12), which is well within the taxable limit under Income Tax Act. Hence, we do not propose to deduct any amount towards income tax. As per the judgment of the Hon'ble Supreme Court in SARLA VERMA's case (cited supra) for a family consisting of 4 to 6 members, 1/4th should be deducted towards personal and living expenses. Deduction of 1/3 of the income by the Tribunal is not correct.
10. Applying multiplier 16 and after deducting 1/4th of the monthly income towards personal and living expenses, loss of dependency is calculated as under:
Monthly income - Rs. 15,000.00 Less 1/4th share - Rs. 3,750.00 Monthly Income - Rs. 11,250.00 (Rs.11,250/- X 12 X 16) - Rs.21,60,000.00 Thus, loss of dependency is reworked as Rs.21,60,000.00.
11. The Tribunal has awarded a sum of Rs.1,00,000/- towards loss of love and affection to wife, minor children, parents and brother as a whole. We consider the amount awarded by the Tribunal is very meagre. There is no award under the head "loss of consortium" to
wife. Therefore, we consider it fit to modify the award accordingly. As per the judgment of the Hon'ble Supreme Court in RAJESH VS. RAJBIR SINGH [2013 (9) SCC 54] loss of consortium has to be given to the wife considering the age. In the present case, the wife of the deceased is aged about 25 years. Therefore, we award a sum of Rs.1,00,000/- towards loss of consortium.
12. There are two minor children aged about four years and three months, respectively. They have lost their father at their tender age and they are deprived of love and affection of their father. Therefore, a sum of Rs.1,00,000/- each is awarded, towards loss of love and affection, in favour of the minors. The parents and the brother of the deceased have lost the love and affection of their beloved son and supporting elder brother. Therefore, a sum of Rs.50,000/- each is awarded to them towards loss of love and affection.
13. The Tribunal has awarded a sum of Rs.2,00,000/- towards loss of expectation to life, which we disallow, as it is not sustainable in the case of death.
14. The Tribunal has awarded a sum of Rs.12,000/- as funeral expenses, which we increase to Rs.25,000/-. The Tribunal has
also awarded a sum of Rs.50,000/- for loss of estate. The children are at very tender age and it cannot be said that they have lost the guidance of their father. However, considering the younger brother who has lost the valuable guidance of elder brother, we consider it fit to award a sum of Rs.30,000/-. Accordingly, the award under this head is reduced to Rs.30,000/-.
15. The Tribunal has failed to award any compensation for transportation and damages. We award a sum of Rs.10,000/- towards transportation and Rs.2,000/- towards damages. Accordingly, the compensation is reworked as under:- Loss of dependency - Rs.21,60,000.00 Loss of consortium to wife - Rs. 1,00,000.00 Loss of love and affection to the minor children (Rs.1,00,000/- each) - Rs. 2,00,000.00 Loss of love and affection to the parents and brother (Rs.50,000/- each) - Rs. 1,50,000.00 Funeral expenses - Rs.
25,000.00 Loss of estate - Rs.
30,000.00 Transportation - Rs.
10,000.00 Damages - Rs. 2,000.00 Total compensation - Rs.26,77,000.00 Thus, the total compensation is reworked as Rs.26,77,000/- by increasing the amount awarded by the Tribunal by Rs.10,67,000/-.
16. The appellant / insurance company is directed to deposit entire amount, now determined by this Court, with proportionate interest at the rate of 7.5% per annum and costs, less the amount already deposited, if any, from the date of petition, till deposit, within a period of six weeks from the date of receipt of a copy of this order, to the credit of MCOP No.2359 of 2013 on the file of Motor Accidents Claims Tribunal (II Court of Small Causes) Chennai.
17. On such deposit being made, the respondent Nos.1 to 5/ claimants, except the minors are permitted to withdraw their respective shares, on filing proper applications before the Tribunal.
18. In so far as the share apportioned to the minors is concerned, the same should be deposited in favour of the minors viz., respondent nos.2 and 3, in a Nationalised Bank, proximate to the residence of the first respondent, in a reinvestment scheme, till they attain majority. The first respondent / mother is entitled to withdraw the interest accrued thereon, once in three months, for the welfare of the minors. The apportionment given by the Tribunal is confirmed.
19. In the result, C.M.A.No.1120 of 2017 filed by the appellant / insurance company is dismissed. Cros.Obj.No.33 of 2017 filed by the respondents / claimants is allowed. No costs. Consequently, connected civil miscellaneous petitions are closed. [S.M.K., J.] [M.G.R., J.] 17.08.2017 Index : Yes/No Internet : Yes/No TK To The Motor Accident Claims Tribunal (II Court of Small Causes) Chennai.
S.MANIKUMAR, J.
AND M.GOVINDARAJ, J.
TK C.M.A.NO.1120 OF 2017 17.08.2017