N.Panjali v. M.Babu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.06.2023

CORAM

THE HONOURABLE MRS.JUSTICE R.KA L A I M A T H I C .M . A . N o . 2 9 5 1 of 202 1

1. N.Panjali

2. N.Martin .. Appellants/claimants Vs .

1.M.Babu

2. Reliance General Ins.Co.,Ltd, Reliance House, 4th Floor, No.6, Haddows Road, Nungambakkam, Chennai-600034.

.. Respondents Pra y e r : Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, for enhancement of the compensation in M.C.O.P.No.7095 of 2017 dated 03.01.2020 on the file of the Motor Accidents Claims Tribunal/III Court of Small Causes, Chennai. For Appellants : Ms.Ramya V. Rao For R2 : Mr.M.B.Raghavan for M/s.M.B.Gopalan Associates JUDGM E N T

Not being satisfied by the compensation awarded by the Motor Accidents Claims Tribunal/III Court of Small Causes, Chennai, in M.C.O.P.No.7095 of 2017 dated 03.01.2020, the legal heirs of the deceased Nagan namely his wife and his son have preferred this Civil Miscellaneous Appeal for enhancement of the compensation.

2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 and Rule 3 of Motor Accident Claims Tribunal Rules, claiming compensation of Rs.12,00,000/- for the death of Nagan caused in a road accident that occurred on 26.09.2017.

3. The learned Tribunal after hearing both sides arguments and upon consideration of oral and documentary evidence has passed an award for an amount of Rs.3,90,831/-, along with interest at the rate of 7.5% per annum from the date of numbering of the petition till the date of realization.

4. Ms.Ramya V. Rao, the learned counsel for the appellants

vehemently contended that as the claim petition is filed by wife and son, the Tribunal has deducted half instead of 1/3rd which is not correct. She restricted her arguments with regard to the deduction aspect and she would further contend that for loss of love and affection, the Tribunal has granted Rs.25,000/- and the son is entitled for additional amount of Rs.15,000/- under the said head.

5. Per contra, Mr.M.B.Raghavan, learned counsel for the second respondent - Insurance Company would argue that as the mother is the only legal heir and hence, the deduction of 50% is correct. The Tribunal after taking into consideration of oral and documentary evidence has passed an award, appears to be very reasonable and prayed for dismissal of the Appeal.

6. Heard Ms.Ramya V. Rao, the learned counsel for the appellants and Mr.M.B.Raghavan, the learned counsel for second respondent - Insurance Company and perused the materials on record.

7. As regards the manner of the accident, it is the case of the

appellants that on 26.09.2017 at about 16.00 hrs, the deceased was walking at the left side of the road towards the west direction along GST Road, near Urapakkam School bus stop, the TATA ACE goods vehicle bearing Registration No.TN 12 K 9772 came in a rash and negligent manner which was proceeding from Chengalpattu towards Tambaram hit against the deceased and he died in the hospital on 11.10.2017, is not in dispute.

8. No doubt, the appellants are wife and son of the deceased Nagan. The Tribunal has deducted 50% towards the personal expenses of the deceased. To have a proper understanding, it is relevant to go through the Section 166 of Motor Vehicles Act, 1988. The said Section is extracted hereunder:

' ' 1 6 6 .

App l i c a t i o n f o r com p e n s a t i o n .

- ( 1 ) An ap p l i c a t i o n f o r com p e n s a t i o n ar i s i n g ou t o f an ac c i d e n t o f t h e na t u r e sp e c i f i e d i n su b - s e c t i o n ( 1 ) o f s e c t i o n 16 5 may be mad e - ( a ) by t h e pe r s o n who ha s su s t a i n e d th e i n j u r y ;

or ( b ) by t h e own e r o f t h e pr o p e r t y ; o r ( c ) whe r e de a t h ha s r e s u l t e d f r o m t h e ac c i d e n t , by a l l o r an y o f t h e l e g a l r e p r e s e n t a t i v e s o f t h e de c e a s e d ;

o r ( d ) by an y ag e n t du l y au t h o r i s e d by t h e pe r s o n

i n j u r e d or a l l or an y o f t h e l e g a l r e p r e s e n t a t i v e s o f t h e de c e a s e d , as th e ca s e may be :

Pr o v i d e d th a t whe r e a l l t h e l e g a l r e p r e s e n t a t i v e s o f t h e de c e a s e d ha v e no t j o i n e d i n an y su c h ap p l i c a t i o n f o r com p e n s a t i o n , t h e ap p l i c a t i o n sh a l l be mad e on be h a l f o f or f o r t h e be n e f i t o f a l l t h e l e g a l r e p r e s e n t a t i v e s o f t h e de c e a s e d and t h e l e g a l r e p r e s e n t a t i v e s who ha v e no t s o j o i n e d , sh a l l be imp l e a d e d as r e s p o n d e n t s t o t h e ap p l i c a t i o n .

[ P r o v i d e d f u r t h e r t h a t whe r e a pe r s o n ac c e p t s com p e n s a t i o n und e r Se c t i o n 16 4 i n ac c o r d a n c e wi t h t h e pr o c e d u r e pr o v i d e d un d e r s e c t i o n 14 9 , h i s c l a i m s pe t i t i o n be f o r e t h e C l a i m s Tr i b u n a l sh a l l l a p s e . ] ( 2 ) Ev e r y ap p l i c a t i o n un d e r su b - s e c t i o n ( 1 ) sh a l l be mad e , a t t h e op t i o n o f th e c l a i m a n t , e i t h e r t o t h e C l a i m s Tr i b u n a l ha v i n g j u r i s d i c t i o n ov e r t h e ar e a i n wh i c h t h e ac c i d e n t oc c u r r e d or t o th e C l a i m s Tr i b u n a l wi t h i n th e l o c a l l i m i t s o f who s e j u r i s d i c t i o n t h e c l a i m a n t r e s i d e s or ca r r i e s on bu s i n e s s or wi t h i n t h e l o c a l l i m i t s o f who s e j u r i s d i c t i o n t h e de f e n d a n t r e s i d e s , and sh a l l be i n su c h f o r m and co n t a i n su c h pa r t i c u l a r s as may be pr e s c r i b e d :

( 3 ) No ap p l i c a t i o n f o r com p e n s a t i o n sh a l l

be en t e r t a i n e d un l e s s i t i s mad e wi t h i n s i x mon t h s o f t h e oc c u r r e n c e o f t h e ac c i d e n t .

( 4 ) Th e C l a i m s Tr i b u n a l sh a l l t r e a t an y r e p o r t o f ac c i d e n t s f o r w a r d e d t o i t und e r [ S e c t i o n 15 9 ] as an ap p l i c a t i o n f o r com p e n s a t i o n und e r t h i s Ac t .

( 5 ) No t w i t h s t a n d i n g an y t h i n g i n t h i s Ac t o r an y o t h e r l a w f o r t h e t i m e be i n g i n f o r c e , th e r i g h t o f a pe r s o n t o c l a i m com p e n s a t i o n f o r i n j u r y i n an ac c i d e n t sh a l l , up o n t h e de a t h o f t h e pe r s o n i n j u r e d , su r v i v e t o h i s l e g a l r e p r e s e n t a t i v e s , i r r e s p e c t i v e o f whe t h e r t h e ca u s e o f de a t h i s r e l a t a b l e t o o r ha d an y ne x u s wi t h t h e i n j u r y o r no t . ' '

9. The 1st proviso speaks about the legal representatives. Therefore, the legislature does not distinguish whether they are dependent or not dependent of the deceased. Hypothetically speaking where mother may maintain her major son for some reasons. As per Section 166 of the Motor Vehicles Act, all the representatives of the deceased if they have not joined in the application for compensation, they shall be impleaded as the respondents. In this regard, the Hon'ble Supreme Court in Guj a r a t St a t e Road Tran s p o r t vs .

Ramanbh a i Prabh a t b h a i & Ano t h e r reported in 198 7 ACJ 561 , wherein, it has been held that every legal representatives who suffers on account of the death of a person due to motor accident should have remedy to realise compensation under Section 110 A of the Motor Vehicles Act.

10. In Meg j i b h a i Khim j i Vir a and Anr . vs Cha t u r b h a i Ta l j a b h a i And Ors . , reported in 197 7 ACJ 253 , the Gujarat High Court has held that even a nephew is entitled to maintain a claim petition being the sole relative and the legal representative of the deceased. The provisions have to be ordinarily understood in a simple meaning and in clear terms it postulates that all the legal representatives can maintain a claim under Section 166 of Motor Vehicles Act. With regard to this aspect, it is relevant to refer to the decision of the Hon'ble Supreme Court in Man j u r i Bera v. The Or i e n t a l In s u r a n c e Compan y Lt d . , and Oth e r s reported in MANU/ S C / 1 9 7 8 / 2 0 0 7 , wherein the ratio decidendi in the case is that ''even if there is no loss of dependency, the claimant if he or she is a legal representative will be entitled to compensation.

11. In the facts and circumstances, the arguments of the learned counsel appearing for the second respondent/Insurance company is too technical. When the basic provision under Motor Vehicles Act namely Section 166 mandates that if some of the legal representatives have not joined in the application for compensation, the legal representatives who have not so joined shall be impleaded as respondents to the application. Therefore, Section 166 of the Motor Vehicles Act gives a clear indication in this regard. More so, daughter and the son are class-1 legal heirs under Section 8 of the Hindu Succession Act. In Hindu Society, father till his death often takes care of the married daughter and the major son also for sometimes.

12. As the claimants are two in numbers, as regards deduction for personal and living expenses, the Hon'ble Supreme Court of India has standardized the details in Sar a l a Verma and oth e r s Vs De l h i Tran s p o r t Co r p o r a t i o n and Ano t h e r reported in 200 9 2 TNMA C 1 SC . Wherein, if the dependents are two in number, 1/3rd is to be deducted for the personal and living expenses of the deceased. With

regard to the notional income and multiplier adopted by the Tribunal, there is no issue.

13. Based on the aforesaid observations loss of dependency is reworked as follows:- Monthly income of the deceased = Rs.8000/- Less: Personal expenses of the deceased (1/3) = Rs.2666/- - - - - - - - - - - - - - - - - - - - - - Monthly loss of dependency = Rs.5334/- Annual loss of dependency x 12 = Rs.64,008/- Total loss of dependency by adopting Multiplier 5 = Rs.3,20,040/-

14. As per the law laid down by the Hon'ble Apex Court in Nat i o n a l In s u r a n c e Co . Lt d . , Vs . Pran a y Se t h i and oth e r s , reported in [2 0 1 7 (2 ) TN MAC 609 (S C ) ] , for loss of consortium, wife and children are entitled to be compensated. Therefore, this Court deems fit to grant an amount of Rs.20,000/- for loss of parental consortium to the second appellant. In other aspects, the

amounts awarded by the Tribunal appears to be reasonable and hence, the same needs no interference.

15. Based on the aforesaid discussions, the compensation awarded by the Tribunal is re-worked and modified as follows: S .

No Des c r i p t i o n Amoun t award e d by Tr i b u n a l (R s ) Amoun t award e d by th i s Cou r t (R s ) Award con f i r m e d or enhan c e d or gran t e d 1.

Towards loss of dependency 2,40,000/- 3,20,040/- Enhanced 2.

For Loss of Consortium (1st appellant) 40,000/- 40,000/- Confirmed

3. Towards loss of love and affection 25,000/- 25,000/- Confirmed

4. For Transport Charges 10,000/- 10,000/- Confirmed 5.

Medical Expenses 45,831/- 45,831/- Confirmed 6.

Loss of Estate and Funeral expenses 30,000/- 30,000/- Confirmed - 20,000/- Granted 7.

Loss of Parental Consortium (2nd appellant) Tot a l Rs . 3 , 9 0 , 8 3 1 / - Rs . 4 , 9 0 , 8 7 1 / - Enhan c e d by Rs . 1 , 0 0 , 0 4 0 / - 16.In the result, 16(i).This Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.3,90,831/- is hereby enhanced to Rs.4,90,871/- together with interest at the rate of 7.5% per

annum from the date of petition till the date of deposit. 16(ii).The second respondent-Insurance Company is directed to deposit the award amount now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of eight weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.7095 of 2017 dated 03.01.2020 on the file of the Motor Accidents Claims Tribunal/III Court of Small Causes, Chennai.

16(iii).On such deposit, the appellants / claimants are permitted to withdraw the award amount now determined by this Court along with interest and costs, less the amount if any already withdrawn by filing necessary cheque application before the Tribunal. No costs. 30.06.2023 mn Index : Yes / No Internet : Yes / No : Yes / No

R.KA L A I M A T H I , J .

mn To 1.The Motor Accidents Claims Tribunal/III Court of Small Causes, Chennai. 2.The Section Officer, VR Section, High Court, Madras.

30.06.2023