Madras High Court
Iffco Tokio Gen Ins Co Ltd vs B.Anithadevi on 17 August, 2022
Author: P.T. Asha
Bench: P.T. Asha
C.M.A.Nos.1947 & 2734 of 2021 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.08.2022 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA C.M.A.Nos.1947 & 2734 of 2021 & C.M.P.No.10487 of 2021 C.M.A.No.1947 of 2021:
Iffco Tokio Gen Ins Co Ltd., 128, 4th Floor, Iffco Bhavan, Habibullah Road, T. Nagar, Chennai – 600 017. ...Appellant Vs
1.B.Anithadevi
2.B.Srinivasalu
3.P.Panchamalar ... Respondents 1/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Decree and Judgement in O.P.No.1033 of 2019 dated 05.01.2021 passed by the Chief Small Causes Court Judge, Motor Accidents Claims Tribunal, Chennai.
For Appellant : Mrs.R.Rathna Thara
For Respondents : Mr.K.Varadha Kamaraj
2&3
For Respondent 3: No Appearance
C.M.A.No.2734 of 2021:
1.B.Anithadevi
2.B.Srinivasalu ...Appellants
Vs
1.P.Panchamalar
2.Iffco Tokio General Insurance Company Ltd., No.128, 4th Floor, Iffco Bhavan, Habibullah Road, T. Nagar, Chennai – 600 017. ... Respondents 2/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Judgement and Decree dated 05.01.2021 made in M.C.O.P.No.1033 of 2019 on the file of the Motor Accident Claims Tribunal, (Chief Judge, Court of Small Causes), Chennai.
For Appellants : Mr.K.Varadha Kamaraj For Respondent 1: No Appearance For Respondent 2: Mrs.R.Rathna Thara COMMON JUDGEMENT The petitioners as well as the Insurance Company have filed the appeals challenging the award of the Motor Accident Claims Tribunal, Chief Small Causes Court, Chennai in M.C.O.P.No.1033 of 2019.
2. The Insurance Company has filed C.M.A.No.1947 of 2021 and the petitioners have filed C.M.A.No.2734 of 2021. The brief facts 3/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 which has given rise to these appeals are as follows.
3. The petitioners who are the parents of minor B.Susi have filed the above claim petition seeking compensation of a sum of Rs.25,00,000/- for the death of their minor daughter in a road accident on 30.10.2018. The deceased minor was seven years of age and studying in the II standard. On 30.10.2018, when the minor child was walking on the platform on the Konnur High Road, a Car bearing Registration No.TN 01 AZ 9599 proceeding in the opposite direction hit the minor child on account of rash and negligent driving by its driver. The child was thrown out and sustained head injuries and multiple fatal injuries all over her body.
4. The petitioners would submit that their child was admitted in SIMS Hospital, Vadapalani, where she succumbed to injuries on the 01.11.2018.
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5. The 1st respondent owner of the Car remained ex parte and it was only the Insurance Company that had filed its counter, in which they had contended that the driver of the Car was not responsible for the accident and further the petitioners were careless in allowing a minor child to walk alone on the main road.
6. That apart, the Insurance Company has submitted that the 1st respondent had done several alterations on the vehicle without getting prior approval of the Registration Authority and therefore there is a violation of the Motor Vehicles Rules. The Insurance Company would submit that therefore they are not liable to compensate the petitioners. The Insurance Company further submitted that the compensation claimed was on the higher side.
5/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021
7. The Tribunal below by its order dated 05.01.2021 fastened the liability on the respondents 1 and 2 and awarded compensation of a sum of Rs.5,05,000/-. The Tribunal has adopted an annual income of a sum of Rs.30,000/- and adopted a multiplier of 15 in keeping with the Second Schedule of the Act.
8. The petitioners were aggrieved by the compensation granted by the Tribunal and the Insurance Company has challenged the award stating that the Tribunal has erred in adopting a multiplier method for awarding compensation and the Tribunal ought to have awarded a lumpsum payment since the deceased is a minor who has not started contributing to the family income.
9. Mrs.R.RathnaThara, learned counsel appearing on behalf of 6/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 the Insurance Company would contend that if the multiplier method is adopted, then the deductions would automatically apply. The learned counsel would draw the attention of the Court to the post script to the Second Schedule, Schedule for compensation for third party fatal accidents / injury cases claims.
10. The learned counsel would draw the attention of the Court to the Judgement reported in 2009 (6) SCC 121 – Sarla Verma and others Vs. Delhi Transport Corporation, where the Hon’ble Supreme Court had held that where the assessment is based on multiplier method deduction towards personal expenses has to necessarily be taken into account.
11. The learned counsel would also rely upon the Judgement reported in 2013 (9) SCC 65 – Reshma Kumari and others Vs. 7/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 Madan Mohan and another, where the Hon’ble Supreme Court has held that when the multiplier method is adopted there must be deduction towards personal expenses.
12. The learned counsel would therefore submit that since the multiplier method has been adopted by the Tribunal below, the Tribunal ought to have deducted amounts towards personal expenses.
13. Per contra, Mr.K.Varadha Kamaraj, learned counsel appearing on behalf of the petitioners would submit that the annual income assessed by the Tribunal is very low. The learned counsel would further submit that the Tribunal ought to have fixed the notional annual income at a sum of Rs.60,000/-. The learned counsel would submit that no deductions can be made considering the fact that the deceased is a minor.
14. In support of his argument, the learned counsel would rely 8/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 upon the Judgement of this Court reported in 2021 (2) TN MAC 271 – Divisional Manager, Reliance General Insurance Co., Ltd., Vs. Govindaraji and others, where the learned Judge had relied upon the several Judgements of the Hon'ble Supreme Court to hold that the deductions cannot be made for personal expenses on a minor.
15. Heard the learned counsels and perused the records.
16. The Hon’ble Supreme Court in the Judgement reported in 2009 (6) SCC 121 – Sarla Verma and others Vs. Delhi Transport Corporation, has discussed how the Tribunal should proceed in assessing a compensation in the case of death in paragraph no.18 of the said Judgement, which reads as follows:
“9. Basically only three facts need to be established by the claimants for assessing compensation in the case of 9/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 death :
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
The issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence.
It will also be easier for the insurance companies to settle 10/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 accident claims without delay.”
17. The Bench in order to provide uniformity and consistency had also suggested the steps to be followed by the Tribunal while assessing compensation in paragraph no.19 of the Judgement, which reads as follows:
“To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand. 11/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active Career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. 12/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.” This Judgement has been followed in the subsequent Judgement of the three member bench of the Hon’ble Supreme Court in 2013 (9) SCC 65 – Reshma Kumari and others Vs. Madan Mohan and another. The Hon’ble Supreme Court following the Judgement in 13/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 Sarla Verma and others Vs. Delhi Transport Corporation has observed as follows:
“As regards the cases where the age of the victim happens to be upto 15 years, we are of the considered opinion that in such cases irrespective of Section 163A or Section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed.
18. Further in paragraph no.43 of the said Judgement, the Bench had summed up the conclusions and in paragraph no.43.2 and 43.6 the Tribunal has held as follows:
“43.2. In cases where the age of the deceased is 14/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed.” “43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 41 above.”
19. Therefore, the intent of the Hon’ble Supreme Court was that assessment as stated in the Second Schedule has to be followed. The post script in the Second Schedule talks about the deduction. 15/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 Therefore, 1/3rd has to necessarily be deducted in the instant case.
20. The learned counsel for the petitioners would submit that the Tribunal has erred in adopting a notional income of only a sum of Rs.30,000/- per annum totally overlooking the fact that the accident has taken place in the year 2018.
21. Considering the fact that the deceased is a minor, a sum of Rs.3,000/- per month can be adopted thereby, adopting an annual notional income of Rs.36,000/-. 1/3 rd of this has to be deducted towards personal expenses. Therefore, the family would be left with an annual contribution of a sum of Rs.24,000/-. Since the deceased minor is less than 15 years of age appropriate multiplier is 15. Therefore, amount payable under the head of loss of Dependency is Rs.3,60,000/-.
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22. The Tribunal has awarded a sum of Rs.40,000/- to the parents under the head of Loss of Love and Affection, this has to be enhanced to a sum of Rs.80,000/-
23. The Tribunal has rightly awarded a sum of Rs.15,000/- towards funeral expenses and an additional sum of Rs.15,000/- has to be awarded under the head of Loss of Estate.
24. The award of the Tribunal below is re-worked as follows:
Heads Award of the Award of the High
Tribunal Court
Loss of Dependency Rs.4,50,000/- Rs.3,60,000/-
Funeral Expenses Rs.15,000/- Rs.15,000/-
Loss of Love and Rs.40,000/- Rs.80,000/-
Affection
Loss of Estate ................... Rs.15,000/-
17/20
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1947 & 2734 of 2021
Heads Award of the Award of the High
Tribunal Court
Total Rs.5,05,000/- Rs.4,70,000/-
25. Therefore, compensation that is now payable to the petitioners is a sum of Rs.4,70,000/-.
26. The Insurance Company is directed to deposit the award amount along with interest and costs, less the amount already deposited within a period of six weeks from the date of receipt of a copy of this Judgement, to the credit of M.C.O.P.No.1033 of 2019. On such deposit, the petitioners are permitted to withdraw their respective share of the award amount, as per the apportionment fixed by the Tribunal, along with proportionate interest and costs, less the amount if any, already withdrawn, by filing necessary application before the Tribunal. In all other respects, the award of the Tribunal below stands confirmed.
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27. In the process, the appeal filed by the Insurance Company is allowed and the appeal filed by the petitioners is dismissed. Consequently, connected Civil Miscellaneous Petition is closed. No costs .
17.08.2022 kan Index : Yes/No Speaking order/non-speaking order To, The Motor Accident Claims Tribunal, Chief Small Causes Court, Chennai 19/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1947 & 2734 of 2021 P.T.ASHA, J., kan C.M.A.Nos.1947 & 2734 of 2021 17.08.2022 20/20 https://www.mhc.tn.gov.in/judis