Bharathi v. M.Thulasiraman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.04.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE C.M.A.No.51 of 2016
1. Bharathi
2. Minor M.Malar rep.by.her mother and next friend 1st Petitioner
3. Kokila ...
Appellants/Petitioners
Versus
1. M.Thulasiraman
2. The Bharti AXA General Insurance Co. Ltd., No.162, 2nd Floor, Metro Plaza, Anna Salai, Chennai - 2.
...
Respondents/Respondents (The 1st respondent exparte in lower Court, hence notice may be dispense with) Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the decree and judgment dated 04.08.2015 made in M.C.O.P. No.743 of 2013 on the file of Motor Accident Claims Tribunal (III Additional District Court), Poonamallee.
For Appellants :
Mr.K.Varadha Kamaraj For Respondents :
Mr.S. Arun Kumar for R2 R1 - Exparte
JUDGMENT
This appeal has been filed by the claimants seeking enhancement of compensation under the impugned award dated
04.08.2015 passed by the Motor Accident Claims Tribunal (III Additional District Court), Poonamallee in MCOP No.743 of 2013 .
2. Mr.Murugavel died as a result of an accident on 23.05.2013 caused by a vehicle owned by the first respondent and insured with the second respondent. The first appellant is the wife of the deceased; the 2nd respondent is the daughter of the deceased and the 3rd appellant is the mother of the deceased. They preferred a claim before the Motor Accident Claims Tribunal seeking compensation for the death of B.Murugavel. The Tribunal under the impugned award directed the second respondent to pay a compensation of Rs.34,19,600/- together with interests and costs as detailed hereunder :- Heads Amount awarded by the Tribunal (Rs.) Pecuniary loss of the deceased Rs.25,454/- - 1/3 = 16970 x 12 x 15 30,54,600 Mental Agony 1,00,000 Funeral expenses 15000 Pain and suffering to the 1st petitioner 1,00,000 Pain and suffering to the 2nd petitioner 1,00,000 Pain and suffering to the 3rd petitioner 50000 34,19,600/-
3. The appellants / claimants unsatisfied with the quantum of compensation awarded by the Tribunal have preferred this appeal seeking for enhancement.
4. Heard Mr.K.Varadhakamaraj, learned counsel for the appellants and Mr.S.Arunkumar, learned counsel for the second respondent / Insurance Company. The first respondent was set ex-parte before the Tribunal, hence notice to the first respondent is dispensed with.
5. This Court has perused and examined the impugned award
before the Tribunal.
6. The deceased was a Police Head Constable at the time of the accident. Before the Tribunal, the appellants / claimants have filed eight documents, which were marked as Exs.A1 to 8 and two witnesses were examined on their side viz., the first appellant / first claimant as PW1 and an eye witness to the accident as PW2. On the side of the second respondent / Insurance Company ten documents were filed, which were marked as Exs.P1 to P10 and two witnesses were examined on their side viz., RW1 and RW2.
7a. The appellants / claimants have filed the salary slip of the deceased, who was a police Head Constable at the time of accident, which was marked as Ex.P7 and the Tribunal has rightly accepted the same and fixed the monthly income of the deceased at Rs.25,454/-. The deceased was aged 45 years at the time of the accident which is an undisputed fact. For a person aged 45 years, the Tribunal ought to have awarded a compensation at the rate of 30% towards loss of future prospects as per the decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi reported in 2017 16 SCC 680, which the Tribunal failed to award.
The Tribunal has observed that since the first appellant / first claimant is the wife of the deceased has applied for Compassionate appointment, she is not entitled for loss of future prospects which in the considered view is not a ground for rejection. Hence, this Court awards the same to the appellants / claimants. Thus the total income of the deceased per annum is Rs.3,97,080/- (Rs.25,454/- + Rs.7,636/- = Rs.33,090/- x 12). Out of this amount, income tax payable by the deceased has to be deducted. During 2013, i.e., the year of the accident, the income tax payable is shown hereunder :- For earning upto Rs.2,50,000/- : Nil For earning between Rs.2,50,001/- and Rs.5,00,000/- (10%) : Rs.19,708 ------------ Rs.19,708/- ------------ Therefore, after deduction of income tax payable by the deceased, the yearly income works out to Rs.
3,77,374/- (Rs.3,97,082/- Less Rs.19708/-).
7b. However, the Tribunal has adopted a wrong multiplier of 15 instead of 14 for a person aged between 41 to 45 years, as per the decision of the Hon'ble Supreme Court in the case of
Sarala Verma & Ors vs Delhi Transport Corporation & Another reported in 2009 6 SCC 121. Thus by taking into account the age of the deceased at 45 years, this Court modifies the multiplier to 14 instead of 15, fixed by the Tribunal. 7c. The Tribunal has also rightly deducted 1/3rd towards personal expenses of the deceased since the dependants of the deceased are three in number. Thus the compensation under the head Pecuniary loss works out to Rs.35,22,157/- (Rs.25,454/- (salary p.m.) + 30%(Future prospects) x12 = Rs.3,97, 082/- Less 10%( Income Tax) = Rs.3,77,374/- per annum x 14 x 1/3)
8. The Tribunal has instead of awarding loss of future prospects to the appellants / claimants has erroneously awarded compensation towards mental agony, pain and suffering of the first appellant /first claimant, pain and suffering of the second appellant / second claimant and pain and suffering of the third claimant / third claimant which has to be set aside by this Court as it is not in accordance with law and the same is set aside.
9. However, the Tribunal failed to award any compensation towards loss of consortium to the first appellant / first claimant and loss of love and affection to the second and third appellants who are the daughter and the mother of the deceased. In accordance with Pranay Sethi's case of the Hon'ble Supreme Court referred to supra, this Court awards a compensation of Rs.40,000/- towards loss of consortium to the first appellant and Rs.80,000/- towards loss of love and affection to the second and third appellants / second and third claimants (Rs.40,000/- each), which the Tribunal failed to award.
10. The Tribunal has also failed to award any compensation towards loss of estate which the appellants / claimants are legally entitled to as per the settled law and this Court awards the same at Rs.15,000/-.
11. Insofar as compensation of Rs.15,000/- awarded by the Tribunal towards funeral expenses is concerned, the same is confirmed as it is in accordance with the settled law.
12. For the foregoing reasons, the award of the Tribunal is hereby modified in the following manner :
Heads Amount awarded by the Tribunal (Rs.) Amount awarded by this Court (Rs.) Pecuniary loss of the deceased 30,54,600 35,22,157 Mental Agony 1,00,000 - Funeral expenses 15000 15000 Pain and suffering to the 1st petitioner 1,00,000 - Pain and suffering to the 2nd petitioner 1,00,000 - Pain and suffering to the 3rd petitioner 50000 - Loss of consortium to the 1st petitioner - 40000 Loss of love and affection to 2nd and 3rd petitioners(Rs.40000 x 2) 80000 Loss of estate - 15000 34,19,600/- 36,72,157/-
13. In the result, the appeal filed by the appellants / claimants, stands partly allowed by enhancing the compensation from Rs.34,19,600/- to Rs.36,72,157/- as indicated above. No costs.
14. The second respondent / Insurance Company is directed to deposit the entire award amount as assessed by this Court together with interest at 7.5% p.a. from the date of claim petition till the date of realization, less the amount, if any, already deposited to the credit of M.C.O.P. No.743 of 2013 on the file of Motor Accident Claims Tribunal (III Additional District Court), Poonamallee, within a period of four weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the Tribunal is directed to transfer the award amount directly to the bank account of the appellants 1 and 3 / major claimants, as per the same ratio of apportionment made by the Tribunal through RTGS, within a period of two weeks thereafter. Insofar as the share of the second appellant / minor claimant is concerned, the same shall be deposited in Fixed deposit in any one of the Nationalised Banks, till she attains the age of majority and the interest accrued thereon shall be withdrawn by the guardian of the minor claimant once in
three months, directly from the Bank. If the second claimant / minor claimant attained the age of majority, it is open to her to file formal petition before the Tribunal to get her share of apportionment is concerned. The requisite Court fee, if any has to be paid by the appellants before receiving the copy of this Judgment.
Sd/- Assistant Registrar(CS-VII) //True Copy// Sub Assistant Registrar vsi2 To
1. The III Additional District Judge, Motor Accident Claims Tribunal (III Additional District Court), Poonamallee.
2. The Section Officer, V.R. Section, High Court of Madras, Chennai - 104.
+1cc to Mr.K.Varadha Kamaraj, Advocate, S.R.No.25748 +1cc to Mr.S.Arunkumar, Advocate, S.R.No.25718 C.M.A.No.51 of 2016 CA(CO) SU(04/10/2021)