M/S Bhuvaneswari v. P. Ramalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2021 CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN AND THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI C.M.A.NO.3622 OF 2013 1.Mrs.Bhuvaneswari 2.Nivethitha (Minor) 3.Arun (Minor) 4.Mrs.Gowri 2nd and 3rd minor appellants are represented by their mother and natural guardian the 1st appellant ... Appellants Vs 1.P.Ramalingam 2.Royal Sundaram Alliance Insurance Company Ltd., No.6, L.B.Road, Adyar, Chennai.
... Respondents PRAYER :Civil Miscellaneous Appeal filed under Section 176 of the Motor Vehicles Act, 1988 against the Judgment and decree dated 21.08.2013 made in M.A.C.T.O.P.No.3175/2011 on the file of the Motor Accident Claims Tribunal, III Judge, Small Causes Court, Chennai.
For Appellant : Mrs.Subadra.
For Respondents : R1 - Exparte R2 - No appearance.
J U D G M E N T
(Judgment of the Court was delivered by N.KIRUBAKARAN, J) Courts are there only to do justice, whenever a party knocks the doors of this temple of justice.
2.However, in this case, injustice has been caused to the family of the victim by the award passed by the Trial Court. The age of the 2nd and 3rd appellants were merely 2 years and 5 months
respectively. The children lost their life time opportunity of father's love and affection, care and guidance since they lost their father in the accident occurred on 22.03.2011. No amount of compensation could compensate or substitute the father's role. However, shockingly and surprisingly, the trial Court awarded only a sum of Rs.10,000/- each towards loss of love and affection to the children of the victim viz., 2nd and 3rd appellants, who were hardly 2 years and 5 months old. The provisions of Motor Vehicle Act is only to console, comfort and compensate the victims of road traffic accidents. The approach adopted by the Tribunal is contrary to law that needs to be deprecated. 3.Heard Mr.V.Velu, learned counsel for the appellant. The 1st respondent owner was set exparte before the trial Court itself.
No notice is necessary to the 1st respondent/owner, as per the Full Bench judgment of the Madhya Pradesh High Court rendered in Mrs.Jamuna Bai V. V. Chhote Singh reported in I (2004) Acc. 190 (FB). The 1st respondent did not appear before the trial Court to contest the matter. The 2nd respondent has been served and their name has been shown in the cause list. However, no one entered appearance for the Second Respondent. Therefore, service is complete and this Court proceeds to pass orders on merits.
4.The appeal has been preferred by the claimants aggrieved over the quantum of compensation of Rs.13,98,600/- for the death of one P.Loganathan, aged about 23 years, earning a sum of Rs.10,000/- in a private concern, in the road accident which occurred on 22.03.2011, when the deceased was travelling as a pillion rider in a two wheeler, which was hit down by the car belonging to the 1st respondent and insured with the 2nd respondent, driven rashly and negligently.
5.The claim petition was filed before the Tribunal and the same was contested by the 2nd respondent alone as the 1st respondent set exparte. To prove that the accident occurred because of the rash and negligent driving of the car belonging to the 1st respondent, PW3 eye witness was examined. The Tribunal taking note of the filing of Ex.P.1-FIR, against the driver of the car and evidence of PW3 eyewitness, rightly came to the conclusion that the accident occurred because of the rash and negligent driving of the car. The Tribunal also noted absence of any rebuttal evidence on the side of the respondents. Therefore, the finding with regard to negligence, as found by the Tribunal, is confirmed.
5.Mr.V.Velu, learned counsel for the appellant would submit that in spite of examining PW2, representative from the company, in which the deceased was working and marking Ex.P.4 salary certificate to prove that the deceased was earning about Rs.10,000/- per month, the Tribunal failed to believe the evidence and erroneously fixed the monthly income at Rs.6,000/-. Therefore, he seeks enhancement of monthly income. Further, he would submit that what has been given under other headings are also very low and required to be increased.
6.A perusal of the award would show that the Tribunal fixed Rs.6,000/- as monthly income. The accident occurred on 22.03.2011. The Honourable Supreme Court in the judgment delivered in Syed Sadiq Vs.United India Insurance Company, reported in 2014 (1) TNMAC 459, fixed the monthly income at Rs.6,500/- for a vegetable vendor, who sustained injuries in the accident which occurred in the year 2008 whereas, in this case the accident had occurred in the year 2011. Therefore, the monthly income determined by the Tribunal at Rs.6,000/- is erroneous. Taking into consideration the above judgment, this Court re-determines the monthly income at Rs.10,000/-, since it is difficult to get even a servant maid for less than Rs.10,000/-. As per the Constitution Bench's judgment of the Honourable Apex Court in National Insurance Company Limited V.
Pranay Sethi and others, reported in 2017 (2) TN MAC 609 (SC), 40% has to be added as future prospects as the deceased was aged about 23 years and he was working in a private concern. Along with 40% future prospects, the monthly income would be Rs.14,000/- (Rs.10,000/- + 40% of Rs.10,000/-). 7.The size of the family is 4 and therefore, as per the judgment of the Honourable Supreme Court in Sarla Verma & Others .Vs. Delhi Transport Corporation & another, reported in 2009 (2) TNMAC 1 (SC) 1⁄4th has to be deducted towards personal expenses and after deducting 1⁄4th, the monthly income would be Rs.10,500/- (Rs.14,000/- (-) 1⁄4th of Rs.14,000/-). 8.The appropriate multiplier as per the judgment of the Honourable Supreme Court in Sarla Verma & Others .Vs.
Delhi Transport Corporation & another, reported in 2009 (2) TNMAC 1 (SC) is "18", as the age of the deceased was 23. Therefore, loss of income would be Rs.22,68,000/- (Rs.10,500/- X 12 X 18). 9.
The Tribunal awarded a sum of Rs.50,000/- towards loss of consortium to the 1st appellant and the same has to be reduced to Rs.40,000/- as per the Constitution Bench's judgment of the
Honourable Supreme Court in National Insurance Company Limited V. Pranay Sethi and others, reported in 2017 (2) TN MAC 609 (SC). Accordingly, loss of consortium is reduced to Rs.40,000/-. 10.Loss of love and affection:
As already indicated, the Tribunal awarded only a sum of Rs.10,000/- each to the claimants. Rs.10,000/- each to the children aged 2 years and 5 months, shocks the conscience of the Court. As already indicated, the 5 month old baby did not even see his father's face and the 2 year old child lost the love, affection, care and guidance of father. The emotional and physical agony, which the children would under go in the absence of the father cannot be underestimated and in no way it can be compensated. No one can play the role of father, even though lot of affection could be shown by others. Moreover, it is very difficult for the children to grow like normal children in the absence of any one of the parents. Nowadays, even when both the parents are alive, it is very difficult to bring up the children as normal persons.
In the absence of father, there would be a social stigma on the children. With these problems, the children have to lead their life. However, without considering any of the above factors, the Tribunal shockingly awarded only Rs.10,000/- each of the minors. The approach of the Tribunal needs to be deprecated and we express displeasure with regard to the manner in which the award has been passed by the Tribunal. Therefore, this Court awards a sum of Rs.1,00,000/- each to the 2nd and 3rd respondents. The amount awarded to the children towards loss of love and affection is akin to the amount awarded to the widow towards loss of consortium. Rs.10,000/- awarded to the mother of the deceased towards loss of love and affection is enhanced to Rs.50,000/-.
11.Funeral expenses:
A sum of Rs.20,000/- was awarded by the Tribunal towards funeral expenses. As per the Constitution Bench's judgment in Pranay Sethi's case, the same is reduced to Rs.15,000/- 12.Loss of expectation of life:
A sum of Rs.25,000/- was awarded by the Tribunal towards Loss of expectation of life. The same is reduced to Rs.15,000/- 13.Transportation charges:
No amount was awarded by the Tribunal towards transportation charges and therefore, this Court awards a sum of Rs.15,000/- under this head.
14.Hence, the total compensation payable in this case is Rs.26,03,000/- rounded off to Rs.26,00,000/- Head Amount (Rs.) Total loss of contribution 2268000 Loss of consortium 40000 Loss of love and affection 250000 Loss of expectation of life 15000 Funeral expenses 15000 Transportation 15000 2603000 rounded off to 2600000 15.The interest awarded by the Tribunal at the rate of 7.5% per annum is unaltered. Out of the award amount, the 1st appellant/widow is entitled to get Rs.10,00,000/-, appellants 2 and 3/minor children are entitled to get Rs.6,00,000/- each and the 4th appellant/mother is entitled to get Rs.4,00,000/-. The claimants are directed to pay the requisite court-fee, if any, within a period of one week from the date of receipt of a copy of this order.
16.The insurance company is directed to deposit the entire award amount along with interest and costs, within a period of six weeks from the date of receipt of a copy of this order, after deducting the amount already deposited, if any. On such deposit being made, the Tribunal is directed to transfer the respective shares of the claimants 1 and 4 along with proportionate interest and costs to their respective bank accounts through RTGS within a period of one week thereon. As far as minor claimants 2 and 3 are concerned, their shares shall be deposited in interest bearing Fixed Deposit in any one of the Nationalised Banks, till they attain majority. The 1st claimant/mother is permitted to withdraw interest accruing on such deposit once in three months.
17.Though our Country has got less number of vehicles, comparing to USA, the number of accidents are more than USA and in fact, our Country has got notoriety number one in the road accident. Especially, Tamil Nadu always gets first or second place. It is due to violation of road rules, over speeding, drunk and drive, attending cell phone calls and so on while driving. The loss of life due to road traffic accident is more than the death caused by the disease or natural calamities. When that is the position our citizens have to be very careful when they go out, especially when the number of vehicles getting multiplied day by day. It is being said every day about 75,000
vehicles are added to our Indian roads. Therefore, bounded duty of every citizen in his own interest and in the interest of his family and the interest of innocent third party, who are using the roads, to be careful in road, so that everybody's life is safeguarded.
18.The role of insurance company has become permanent and essential, in view of the number of road accidents. Though insurance sector has been opened for private sector and many private concerns were entered, even though they are discharging the public function, the victims have to be compensated very swiftly, so that they did not feel the absence of bread winner. Without compensation, many road accident victim's family could not suffer. When such is a position, the 2nd respondent though a private company is discharging public function, deliberately avoided appearance before this Court. Therefore, Rs.1,00,000/- awarded as costs to the Insurance company.
19.Accordingly, this appeal is allowed, enhancing the award of the Tribunal from Rs.13,98,600/- to Rs.26,00,000/- with interest.
Sd/- Assistant Registrar (I) //True Copy// Sub Assistant Registrar ay/sai To
1. The Motor Accident Claims Tribunal, III Judge, Small Causes Court, Chennai.
2. Royal Sundaram Alliance Insurance Company Ltd., No.6, L.B.Road, Adyar, Chennai.
(Copy marked for payment of Rs.1,00,000/- as costs) Copy To The Section Officer, VR Section, High Court, Madras-104 (2 Copies) +1cc to Mrs.Subadra, Advocate, S.R.No.39989 C.M.A.No.3622 of 2013 GSM(CO) CS/25/11/2021