Govindammal, v. B.Thangarasu,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.01.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.BASKARAN C.M.A.No.3166 of 2017
1. Govindammal
2. Saraswathy
3. Revathy
4. Rajaram
5. Valliammai Maruthaveeran (died) (Cause title accepted vide order of Court dated 13.07.2017 by SVJ made in CMP.No.9665/17 in C.M.A.Sr.No.52662 of 2016) .. Appellants/Petitioners
Versus
1.B.Thangarasu 2.TATA AIG General Insurance Company Ltd., Branch Office.No.1057, Jaya Enclave, 3rd Floor, Avinashi Road, Coimbatore.
.. Respondents/Respondents (The 1st respondent remained ex-parte before Tribunal, hence notice is dispensed with in this appeal) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to enhance the quantum of compensation awarded in the the judgment and decree dated 26.10.2015 made in M.C.O.P.No.587 of 2013 on the file of the Motor Accident Claims Tribunal/Principal District Judge, Namakkal.
For Appellants : Mr.MA.P.Thangavel For Respondents : Mr.N.Vijayaraghavan for R2
JUDGMENT
The petitioners/claimants have come forward with the appeal seeking enhancement of award passed by the Tribunal in M.C.O.P.No.587 of 2013 on the file of the Motor Accident Claims Tribunal/Principal District Judge, Namakkal.
2. For the sake of convenience, the parties will be referred to hereunder according to their litigative status before the Tribunal.
3. The petitioners state that on 11.03.2012 at about 7.00 p.m in front of Perumpatti Tasmac Shop in Namakkal to Thuraiyur main road, while the deceased Govindan was walking on the left side of the road from east to west, a two wheeler bearing Regn.No.TN-28-AL-0694 was coming from back side, which is owned by the first respondent and insured with the second respondent driving in a rash and negligent manner, hit the deceased causing the instant death on the spot itself. The accident occurred only due to the negligence of the rider of the two wheeler and Ex.P.1 F.I.R was registered against him. The vehicle was insured with the second respondent as per Ex.P.4 Copy of Insurance Policy. Further, after investigating the complaint, the police laid Ex.P.5 charge sheet against the first respondent only. Thus the petitioner contends that the accident occurred only due to the negligence of the rider of the first respondent's motorcycle and as such both the respondents as owner and insurer of the vehicle are responsible to bear the compensation.
4. The petitioner sought for a compensation of Rs.10,00,000/- claiming that the deceased was aged about 43 years old and he was earning a sum of Rs.9,000/- per month. The petitioner produced Ex.P.7 legalheir certificate to prove that they are the dependents of the deceased.
5. On the other hand, opposing the petition, the second respondent/ insurer contends that the owner of the vehicle who is the first respondent voluntarily allowed his son to drive the said two-wheeler without any driving licence and the same amounts to violation of policy condition. Hence, the insurance company contends that they are not liable to pay any compensation. Further, the second respondent disputes the nature of occurrence and states that F.I.R. was fabricated one. According to the second respondent, the accident occurred only due to the negligence of the deceased who suddenly crossed the road without noticing the on-coming vehicle. As occurrence spot is a junction, there is no scope for rash and negligent driving. Hence, the respondents/insurance company sought for dismissal of the petition.
6. Before the Tribunal, the first petitioner examined herself as P.W.1 and one eyewitness as P.W.2, and produced Ex.P.1 to Ex.P.7 in support of her contentions. On the other hand, the second respondent/insurance company examined R.W.1 and produced Ex.R.1 to R4 .
7. The Tribunal after considering the available materials on records concluded that the petitioners are entitled for a compensation of Rs.5,25,000/- and both the respondents are liable to pay the same.
8. Aggrieved over the quantum of compensation given by the Tribunal, the claimants have come forwarded with the appeal contending that the Tribunal ought to have fixed the notional income of the deceased at Rs.9,000/- per month instead of Rs.4,500/-. The petitioner also contends that the Tribunal did not award any future prospects and that the amount awarded by the Tribunal under other conventional heads also are very low and sought for enhancement of compensation.
The details of the compensation awarded by the Tribunal is as follows:- Sl.
No.
Head Amount granted by the Tribunal Loss of pecuniary benefits to the dependents of the deceased prospects (Rs.3,000 x 12 x 14) Rs.5,04,000/- Loss of Love and Affection for petitioners Rs.10,000/- Loss of consortium Rs.10,000/- Funeral Expenses Rs.5,000/- Total Rs.5,29,000/- (Rs.5,25,000/-)
9. On the other hand, the second respondent insurance company which contested the matter before the Tribunal on the ground of policy violation and no liability for them has not preferred any appeal against the award passed by the Tribunal holding that the respondents are jointly and severally liable to pay the compensation.
10.
However, the learned counsel for the respondent/insurance company contended that the Trial Court has fixed the compensation on higher side and same is to be reduced.
11. The petitioner P.W.1 deposed that the deceased Govindan was aged about 43 years and he was earning Rs.9,000/- per month by doing centring work . It is evident from Ex.P.2 Postmortem Certificate and Ex.P.6 Death Certificate that the age of deceased as 42 years. The Trial Court fixed the age as 43 years and fixed the notional income at Rs.4,500/- per month and adopted the multiplier 14. The petitioner contends that the notional income fixed by the Tribunal is very low. Considering the nature of the work done by the deceased and taking judicial notice of the wages of the employees doing centring work, the plea of the petitioners to fix the monthly income of the deceased at Rs.5,500/- is to be entertained.
Further, the deceased was aged 43 years at the time of death and as such towards future prospects 25% of the income is to be taken into consideration. Thus, taking the age of the deceased the correct multiplier to be applied is 14. For the purpose of determining the loss of income and Future prospects due to the death of the deceased Govindan reference can be made to the Constitution Bench judgment of the Supreme Court reported in 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and Others], "while determining the income of permanently employed person, addition of 50% of actual salary to the income of the deceased towards future prospects has to be taken into account."
Thus, applying the above decision and by applying correct multiplier of 14, it will be appropriate to calculate the loss of earning of deceased, as under,:- Actual income = Rs.6500/- 25% addition towards future prospects = Rs.1625/- Total annual income = Rs.8,125/- Rs.8,125/- X 12 X 14 = Rs.13,65,000/- Less 1/3rd deduction towards personal expenses = Rs.4,55,000/- (Rs.13,65,000/- - Rs.4,55,000/-) Rs.9,10,000/-. In view of the decision cited supra, Rs.9,10,000/- is granted as compensation under the head "Loss of Earning".
12. Admittedly, the petitioners are wife, children and parents of the deceased Govindan. In respect of awarding compensation under conventional heads, the Supreme Court, in the decision cited supra [2017 (2) TN MAC 609], at paragraph 54, held as follows:- "The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any
quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.
The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantumcentric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.
Following the above said Apex court Ruling, towards loss of estate, loss of consortium and funeral expenses, this court is inclined to modify the compensation as under:- Loss of Estate = Rs.15,000/- Loss of consortium = Rs.40,000/- Funeral Expenses = Rs.15,000/- Accordingly, the compensation granted by the Tribunal is modified as follows:- Sl.
No.
Head Amount granted by the Tribunal Amount granted by this Court For Loss of earning (Rs.3,000 x 12 x 14 = Rs.5,04,000/-) Rs.5,04,000/- Rs.9,10,000/ - Loss of Love and Affection for petitioners Rs.10,000/- --- Loss of consortium Rs.
10,000/- Rs.
40,000/- Funeral expenses Rs.
5,000/- Rs.
15,000/-
Sl.
No.
Head Amount granted by the Tribunal Amount granted by this Court Loss of Estate ...
Rs.
15,000/- Total Rs.5,29,000/ - Rs.9,80,000/ - There is no objection with regard to interest granted at 7.5% per annum and the same is confirmed. In the light of the foregoing discussion, the award of the Tribunal is modified on the above terms
13. In the result, the Civil Miscellaneous Appeal is allowed.
(i) The award granted by the Tribunal is enhanced to Rs.9,80,000/- from Rs.5,29,000/- (Rs.5,25,000/-).
(ii) The interest granted by the Tribunal at 7.5% per annum is confirmed.
(iii) The apportionment of the modified award amount is as under:- The Petitioners 1 to 5 are entitled to get 20% each of the award amount.
(iv) The respondent/Insurance Company is directed to deposit the award amount as ordered by this court less the amount if any already deposited along with proportionate interest within a period of six weeks from the date of receipt of a copy of this Judgment. On such deposit, the petitioners/claimants are permitted to withdraw their respective share amounts including accrued interest.
(v) There will be no order as to costs in this appeal. Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar vv
To
1. The Motor Accident Claims Tribunal/Principal District Judge, Namakkal.
2. The Section Officer, VR Section, High Court, Madras.(2 copies) +1cc to Mr.N.VIJAYARAGHAVAN, Advocate, S.R.No.4016 +1cc to Mr.MA.P. THANGAVEL Advocate, S.R.No. 3586 C.M.A.No.3166 of 2017 gj(CO) TR(27/03/2018)