Mr.Arumugam @ Kalyani v. Mr.M.Gulam Mohideen,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.01.2015

CORAM

THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN C.M.A. No. 1924 of 2004 1.

Mr. Arumugam alias Kalyani 2.

Mrs. Anjalai 3.

Minor Mahavishnu (minor represented by his grandfather and guardian 1st appellant) ..Appellants/Petitioner Vs.

1.

Mr.M. Gulam Mohideen 2.

The New India Assurance Company Limited, No.163, Madhanagopalapuram, Perambalur Taluk & District.

..Respondents/Respondents Prayer:

Civil Miscellaneous Appeal as against the judgment and decree dated 19.12.2003 passed in M.C.O.P. No. 501 of 2002 on the file of Motor Accidents Claims Tribunal (District Judge), Perambalur.

For Appellants ::

Mrs. Geetha for Mr.Hajee P.K. Jamal Mohamed For Respondents::

Mr.S. Manohar for R2

J U D G M E N T

The Civil Miscellaneous Appeal has been preferred by the claimants aggrieved over the quantum of compensation to the tune of Rs.2,20,500/- awarded by the Tribunal for the death of one Subramani, who was travelling as a pillion rider in a two-wheeler on 03.05.2002, which was hit by a mini bus belonging to the 1st respondent and insured with the 2nd respondent. Therefore, the legal heirs, namely, the parents of the deceased and his one-andhalf year old son filed the claim petition. 2.

On contest, the Tribunal found that the mini bus was driven rashly and negligently and thereby, resulted in the accident. Considering the avocation of the deceased as a mechanic, the monthly contribution of the deceased to the family was taken as Rs.1000/- and adopting multiplier 18, Rs.2,16,000/-

was calculated as "Loss of Income" and together with other amounts, a sum of Rs.2,20,500/- was awarded as compensation. 3.

Heard both the parties.

4.

A perusal of the award would show that the Tribunal did not determine "Loss of Income" properly. In the absence of any proof regarding income, it determined Rs.1000/- as "loss of monthly contribution to the family", which is less than the notional income shown in the II Schedule to the Motor Vehicles Act. The Honourable Apex Court, in the absence of any proof regarding income of the victim, in New India Assurance Company Limited V. Smt.Kalpana and Others reported in 2007 (1) Supreme 514 held that Rs.3000/- should be taken as "monthly income after deduction". Following the said judgment, for the death of a twowheeler mechanic, aged about 23 years, this Court determines monthly income after deduction as Rs.3000/-. As per the judgment of the Honourable Apex Court rendered in Smt. Sarla Verma V. Delhi Transport Corporation and Others reported in 2009 2 TN MAC 1 (SC), the appropriate multiplier to be adopted is 18 and if the same is applied, then "Loss of Income" would be (Rs.3000 x 12 x

18) = Rs.6,48,000/-.

5.

The Tribunal did not award any amount towards " Loss of love and affection". It is very pathetic that the 3rd appellant, the minor son, who was 1 1⁄2 years old, at the time of accident, had lost his mother, even before he lost his father in the accident in question. Though there are other relations, who would take care of the child, yet, for all practical purposes, he is only an orphan, deprived of mother's love and affection and father's care and guidance throughout his life. The poor innocent child has been left in the lurch by nature because of the accident. Therefore, in an endeavour to compensate for "Loss of love and affection", this Court awards a sum of Rs. 2 lakhs to the 3rd appellant and a sum of Rs.25,000/- to the parents of the deceased. The amount of Rs.2000/- awarded towards "Funeral Expenses" is enhanced to Rs.

10,000/- under the caption " Funeral and Transportation Expenses", as no amount was awarded towards "Transport Expenses". The amount of Rs.2500/- awarded towards "Loss of Estate" is enhanced to Rs.17,000/-. Hence, the total compensation payable to the appellants is Rs.9 lakhs. The rate of interest awarded by the Tribunal, @ 7.5% per annum remains unaltered.

6. The 2nd respondent Insurance Company is directed to deposit the entire amount, as per the modified award passed by this Court, with interest and costs, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the 1st and 2nd appellants are entitled to withdraw Rs.1 lakh each and the 3rd appellant would be entitled to the remaining sum of Rs.7 lakhs, which shall be deposited in

any one of the Nationalised Banks, in interest bearing Fixed Deposit, till he attains majority. The appellants are permitted to withdraw interest accruing on such deposit once in three months.

7.

In the result, the Civil Miscellaneous Appeal is partly allowed and the amount awarded by the Tribunal to the tune of Rs.2,20,500/- is enhanced to Rs.9 lakhs. No costs. Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar nv To The MACT (District Judge),Perambalur.

Copy to: The Section Officer, VR Section, High Court, Madras.

+1cc to M/s. Sellathurai, Advocate, S.R.No.1949 +1cc to Mr.S. Manohar, Advocate SR.1462 RSI(CO) EU(17/08/2016) C.M.A. No. 1924 of 2004