The New India Assurance v. Parvati Alias Smt Jammana

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 28.09.2016

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA C.M.A. Nos.1310 and 1445 of 2016 The New India Assurance Co. Ltd., No.45, Moore Street, Chennai. .. Appellant in C.M.A. No.1310 of 2016/2nd Respondent ...2nd Respondent in CMA 1445/2016/2nd Respondent

Versus

1.Parvati @ Jammana Parvati 2.Padmavati @ Vandana Padmavati 3.Durgamma (minor) @ Jammana Durga 4.Saikrishna (minor) @ Jammana Saikrishna (minor respondent 3 and 4 are represented by their mother and natural guardian Parvati @ Jammana Parvati)

...Respondents 1 to 4

in CMA 1310/2016/ Claimants 1 to 4 ...Appellants 1 to 4 in CMA 1445/2016/Claimants 1 to 4 5.S.Sudalai ... 5th Respondent in C.M.A. No.1310 of 2016/ 1st respondent/ 1st respondent ...1st Respondent in CMA 1445/2016 (5th respondent called absent and set exparte) (cause title amended in respect of 2nd respondent vide order of court dated 24/8/2016 made in CMP 13728/16 in CMA 1310/16) Prayer in both cases: Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 22.02.2016 made in M.C.O.P.No.1354/2012 on the file of the Motor Accidents Claims Tribunal, (Chief Judge, Small Causes Court), Chennai.

For Appellant in C.M.A.

No.1310 of 2016 and for 2nd Respondent in C.M.A.1445/2016 : Mr.G.Udaya Sankar

For Respondents 1 to 4 in C.M.A.

No.1310 of 2016 and for appellants 1 to 4 in CMA1445/16 : Mr.N.M.Elumalai for R1 to R4/caveators

J U D G M E N T

The Civil Miscellaneous Appeals have been filed, challenging the correctness of the impugned award dated 22.02.2016 made in M.C.O.P.No.1354/2012 on the file of the Motor Accidents Claims Tribunal, (Chief Judge, Small Causes Court), Chennai. 2.It is the case of the claimants that on 05.02.2011, at about 19.40 hours, when the deceased was crossing at the pedestrian line on East Coast Road at Uthandi from West to East direction, while reaching the Eastern side of the platform, a motor cycle bearing Registration No.TN 07 AE 8931, came from North to South direction in a rash and negligent manner, dashed against the deceased. Due to the impact, the deceased sustained grievous injuries and subsequently died on 06.02.2011.

According to the claimants, the accident had happened due to the rash and negligent driving of the driver of the motor cycle. 3.Learned counsel appearing for the claimants would submit that the learned Tribunal has awarded only a sum of Rs.50,000/- towards loss of consortium to the wife of the deceased, which is not a reasonable compensation, as the first claimant/wife is suffering mentally and also financially due to the death of her husband. As per the ratio laid down by the Hon'le Apex Court in the case of Rajesh and others vs. Rajbir Singh and others reported in 2013(2) TN MAC 55 (SC), it is reasonable to fix a sum of Rs.1,00,000/- towards loss of consortium. But a sum of Rs.50,000/- alone has been fixed. Therefore, as per the above said case, a sum of Rs.1,00,000/- has to be fixed towards loss of consortium.

Learned counsel appearing for the claimants also has relied upon the ratio laid down by this Court in the case of Universal Sompo General Insurance Company Limited vs. Uma and others reported in 2015 (2) TN MAC 721 (DB) and drawn the notice of this Court to para 24 of the said judgment and submitted that when the wife of the deceased lost her companion and as a result she has been put to loss of love and affection etc., the learned Tribunal has erroneously awarded only a sum of Rs.50,000/-, which is also against the ratio laid down by this Court and therefore a sum of Rs.1,00,000/- should be awarded under the said head 'loss of consortium'.

3.1.Learned counsel for the claimants would further submit that with regard to the head 'loss of love and affection', only Rs.50,000/- has been awarded by the learned Tribunal for two daughters and one son. Hence, he prayed for fixing Rs.3,00,000/- towards loss of love and affection namely Rs.1,00,000/- each. In support of his submission, he has heavily relied upon the judgment of this Court in the aforementioned case of Universal Sompo General Insurance Company Limited vs. Uma and others reported in 2015 (2) TN MAC 721 (DB) wherein the Division Bench of this Court, following various judgments of the Supreme Court and this Court, more particularly relying upon the case of Dangir vs. Madan Mohan, reported in AIR 1988 SC 54 and Managing Director and Pallavan Transport Corporation Ltd. vs.

Kalavathi, 1998 (1) ACJ 151, has held that this Court has got enough power to enhance the compensation and a meagre compensation of Rs.50,000/- awarded to two minor children and parents under the head 'Loss of Love and Affection' requires to be enhanced and accordingly enhancing Rs.50,000/- to Rs.3,00,000/- of which Rs.1,00,000/- each has been awarded to the two minor children and Rs.50,000/- each to the parents. In this regard, learned counsel appearing for the claimants would submit that a sum of Rs.50,000/- towards loss of love and affection, awarded by the learned Tribunal is not in consonance with the law laid down by the Hon'ble Division Bench of this Court in the aforementioned case and the same needs enhancement.

4.Opposing the above contentions, learned counsel appearing the Insurance Company would submit that when the deceased was projected as a Senior Mason, earning a sum of Rs.15,000/- per month for which there was no supporting documents produced on the side of the claimants to establish the regular monthly income of the deceased at Rs.15,000/-, the learned Tribunal, accepting the claim with regard to the monthly income of the deceased, has wrongly fixed Rs.15,000/- as a notional monthly income of the deceased. After fixing Rs.15,000/- as a notional monthly income of the deceased, which is on the higher side, has committed yet another mistake in making addition of 30% of the actual salary towards future prospects. This is contrary to the ratio laid down by the Hon'ble Apex Court in the case of Sarla Verma and others vs.

Delhi Transport Corporation and another reported in 2009 (2) TN MAC 1 (SC). Therefore, the wrong addition of 30% of the actual salary of the deceased towards future prospects, is required to be set aside. 5.But this Court is not able to find any substance on the contention made by the learned counsel for the Insurance Company. Firstly, the claimants have pleaded that the deceased was working as a Senior Mason in M/s.Shelter Solutions, T.Nagar, Chennai and was earning a sum of Rs.

firm has been examined as P.W.2., who deposed that the said company is a Partnership Firm and the deceased was working as a Senior Mason in the said Firm from 02.01.2008 till the date of accident and he was paid Rs.15,000/- as salary. In support of his evidence, P.W.2 has also produced Summon, Partnership Deed, Salary Certificate of the deceased, Copy of rental agreement, Registration Certificate of the Company, Telephone Bill, Pan Card copy of the company, Income Tax Returns from 2009 to 2013 and 2013 to 2015, which were marked as Exs.P.16 to P.24 respectively. Therefore, a mere contention made by the learned counsel for the Insurance Company that the learned Tribunal has committed serious error in accepting the claim of the claimants with regard to the monthly income of the deceased, is untenable and cannot be acceptable.

As I mentioned above, when P.W.2 one of the Partners of the Partnership namely M/s.Shelter Solutions, T.Nagar, Chennai, has come into the witness box and deposed that the deceased was working as a Senior Mason and he was paid a sum of Rs.15,000/- per month as his salary and the salary certificate was also marked as Ex.P18, it would be unreasonable on the part of the Insurance Company to say that the learned Tribunal has wrongly fixed Rs.15,000/- as monthly salary of the deceased.

6.Secondly, while coming to the contention made by the Insurance Company with regard to the adoption of age, there was a close controversy between the claimants and the Insurance Company. The claimants have pleaded in the claim petition that the age of the deceased was 44 years on the date of accident. However, when occasion came to the Tribunal to decide the age of the deceased, the claimants also had produced Voter Identity Card of the deceased, marked as Ex.P13. In the Voter Identity Card, the date of birth of the deceased was mentioned as 1971. As there was no mention with regard to the month or date in the Voters Identity Card, the learned Tribunal has travelled beyond the Voters Identity Card to a copy of Post Mortem Certificate and a copy of Report of death, which were marked as Exs.P.6 and P.7.

It has been mentioned both in the Post Mortem Certificate and in the Report of death that the age of the deceased was 53 years. Again there was a difference of opinion even in the Post Mortem Certificate, Report of death and in the Accident Register copy, which was marked as Ex.P10, indicating the deceased age as 55 years. In view of no definite proof, the learned Tribunal, considering the age mentioned in the Voters Identity Card, marked as Ex.P.13, as merely mentioning the year '1971' without the month or day, as shown in the Post Mortem Certificate as 53 and Death Certificate as 44 and again in the Accident Register as 55, has reasonably fixed 50 years as the age of the deceased for the purpose of determining the compensation.

Therefore, this Court finds no infirmity in fixing the age of the deceased as 50 years on the date of accident.

7.Thirdly, although the ratio laid down by the Hon'ble Apex Court in the case of Sarla Verma holds in favour of the contention made by the Insurance Company that no addition for future prospects can be made if the deceased is an employed or on a fixed salary, the said ratio laid down, has been modified by two subsequent judgments of the Apex Court. 7.1.Firstly, the ratio laid down by the Hon'ble Apex Court in the case of Santosh Devi v. National Insurance Company Ltd. and others reported in 2012 (2) TN MAC 1 (SC), has modified the portion of reaching addition of 30% of actual salary, on the basis that the said Sarla Verma judgment has not intended to lay down an absolute rule that there will be no addition with regard to future prospects.

Therefore, it would be reasonable to say that a person, who is self employed or he has engaged on fixed wages, will also get 30% increase in his total income over a period of time and if he/she becomes victim of accident, then the same formula deserves to be applied for calculating the amount of compensation. It is relevant to extract para 14 of the said judgment, which has been held as follows: "14. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma v.

(2) TN MAC 1 (SC), judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person, who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 30% increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation"

7.2.Secondly, in the ratio laid by the Hon'ble Apex Court in the case of Rajesh and others v. Rajbir Singh and others reported in 2013 (2) TN MAC 55 (SC), it has been held as follows: "11.Since the Court in Santhosh Devi v. National Insurance Company Limited and others, 2012 (2) TN MAC 1 (SC), actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (2) TN MAC 1 (SC) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be

an addition of 50% to the actual income of the deceased while computing Future Prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years. 12.In Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (2) TN MAC 1 (SC), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."

8.Therefore, the law is clear from Santhosh Devi's Case, which is reiterated in Rajesh and others case that 50% of the actual salary of the deceased can be taken towards future prospects, if the deceased is below 40 years and 30% of the actual salary, if the deceased is 40 to 50 years. 9.In the present case, the age of the deceased having been fixed at 50 years, this Court finds no more infirmity in making 30% of the actual salary of the deceased towards future prospects. While fixing 50 years as the age of the deceased, the learned Tribunal has rightly adopted '13' as multiplier to work out the pecuniary benefits. After adopting '13' as right multiplier, by making deduction of 1/4th towards personal expenses and making addition of 30% of the actual salary, has rightly arrived at a sum of Rs.22,81,500/- as loss of pecuniary benefits, which in my considered view, cannot be found fault with.

10.However, while going to the arguments advanced by the learned counsel appearing for the claimants in enhancement on the ground that the learned Tribunal has invariably fixed Rs.50,000/- towards loss of consortium and another Rs.50,000/- fixed towards loss of love and affection to the children of the deceased, this Court finds merit on his submissions. What should be the reasonable amount to be fixed towards loss of consortium, has been succinctly laid down by the Hon'ble Apex Court in the aforesaid case Rajesh stating that the English Courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. In the present case, as laid down by the Hon'ble Apex Court in the said judgment to

award atleast a sum of Rs.1,00,000/- towards loss of consortium, a sum of Rs.50,000/- awarded by the learned Tribunal under the said head 'loss of consortium' is enhanced to Rs.1,00,000/-. 11.Similarly, under the head 'loss of love and affection', as the Division Bench of this Court in the case mentioned supra, while considering the meagre compensation of Rs.50,000/- awarded to two minor children, has enhanced a sum of Rs.1,00,000/- each to the two minor children, this Court, keeping in mind that the deceased, who was earning a sum of Rs.15,000/- as a monthly income to the family, had passed away in view of the sudden accident took place at the age of 50 years, as a result, both the children could have not only lost the better amenities of life, good education and also love and care from the deceased, fixes Rs.1,00,000/- each to the children namely Rs.3,00,000/- towards loss of love and affection. The compensation awarded by the learned Tribunal under the other heads are confirmed. The modified compensation as per the above discussions are as follows:

Pecuniary loss ...

Rs.22,81,500/- Loss of love and affection ...

Rs. 3,00,000/- Loss of consortium ...

Rs. 1,00,000/- Transportation and funeral expenses...

Rs. 30,000/- Medical expenses ...

Rs. 700/- --------------------- Total ... Rs.27,12,200/- --------------------- 12.With the above modifications, the Civil Miscellaneous Appeal in C.M.A. No.1445 of 2016 filed by the claimants, is allowed for the reasons mentioned above and the Civil Miscellaneous Appeal in C.M.A. No.1310 of 2016 filed by the Insurance Company, is dismissed. No costs.

13.Learned counsel appearing for the Insurance Company submitted that a sum of Rs.16,48,700/- with interest has already been deposited by the Insurance Company. Therefore, the balance amount with interest at the rate of 7.5%, shall be deposited within a period of four weeks from the date of receipt of a copy of this order.

14.On such deposit, the claimants are entitled to get equal shares, as apportioned by the learned Tribunal. Claimants 1 and 2 are entitled to withdraw their respective shares with interest. As claimants 3 and 4 are minors, their shares shall be deposited in a Fixed Deposit in a Nationalised Bank, until they

attain majority. However, the interest accrued on the minor shares shall be withdrawn by their guardian mother, once in three months.

Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar To The Motor Accidents Claims Tribunal, (Chief Judge, Small Causes Court), Chennai.

+1cc to M/S.N.M.Elumalai, Advocate Sr.55761 +1cc to M/S.G.Udayasankar, Advocate Sr.56117 C.M.A. Nos.1310 and 1445 of 2016 vd[co] srg 01/11/2016