Madras High Court
The Oriental Insurance Company Limited vs P.Pushpadhas on 12 October, 2017
Bench: K.Kalyanasundaram, V.Bhavani Subbaroyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.10.2017
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.A(MD) No.41 of 2014
and
M.P.(MD).No.1 of 2014
The Oriental Insurance Company Limited.,
Represented by its Branch Manager,
1st Floor, DDJ Complex Opposite,
Vadasery Bus Stand,
Vadasery,
Agastheeswaram Taluk,
Kanyakumari District. ...Appellant/3rd respondent
Vs.
1.P.Pushpadhas
2.Mabel Florence
3.P.M.Punijoe ...1 to 3 respondents / 1 to 3
petitioners
4.Joseph Innocent
5.Joseph Innocent ...4th & 5th respondents /
1st & 2nd respondents
(4th & 5th respondents remained exparte before the lower Court)
PRAYER: Appeal is filed under Section 173 of the Motor Vehicles Act,
1988, against the award of Rs.13,05,000/- passed in M.C.O.P.No.36 of 2013,
dated 05.10.2013, on the file of the Motor Accidents Claims Tribunal cum
Chief Judicial Magistrate, Nagercoil.
!For Appellant : Mr.K.Bhaskaran
^For R-1 & R-2 : Mr.R.Manimaran
For R-3 to R-5 : No appearance
:JUDGMENT
(Judgment of the Court was made by K.KALYANASUNDARAM,J.) Challenge in this appeal is to the award passed by the Motor Accident Claims Tribunal (Special District Judge), Nagercoil, in M.C.O.P.No.36 of 2013, dated 05.10.2013.
2.Heard Mr.K.Bhaskaran, learned counsel for the appellant and Mr.R.Manimaran, learned counsel for the respondents 1 and 2 and perused the materials available on record.
3.The facts in nutshell:- The parents and the sister of the deceased P.M.Rejo, who died in a motor vehicle accident on 23.05.2009, have approached the tribunal seeking compensation of Rs.40,00,000 alleging that when the deceased was walking in front of S.R.M. College Main Gate on Thambaram- Chengalput main road on 23.05.2009 at 01.45 pm, a Maxi Van TN-22-BC-4921 came in a rash and negligent manner and dashed against the stationary Car TN-07-E- 8229 and also against the deceased. In the accident, the deceased died on the spot.
4.The appellant Insurance Company resisted the claim on various grounds. However, the tribunal came to the conclusion that the driver of the Van caused the accident and awarded compensation of Rs.13,05,000/- along with interest @ 7.5% p.a.
5.The learned counsel for the appellant fairly submitted that this appeal has been filed only challenging the quantum and the award of the tribunal is excessive and exorbitant. It is further contended by the learned counsel for the appellant that the deceased died at the age of 23 and as per the decision of the Hon'ble Apex Court reported in 2016 (2) TN MAC 735 (SC) (Y.P.Shakuntala and others vs. Manager, Reliance General Insurance Co. Ltd.,and Others) ,the age of the mother has to be taken to determine the multiplier and in this case, the mother of the deceased was 50 years, on the date of accident, so the proper multiplier is '13'.
6.Per contra, the learned counsel for the respondents 1 and 2 would submit that the deceased was an Engineering student and admittedly, he died at the age of 23, but no addition was made towards future prospects and the multiplier can be decided, based on the age of the deceased.
7.In 2012(2) TN MAC 838 (Salini vs. Meiyarasu), the Division Bench of this court has held that if the deceased is a bachelor and the claimants are parents, proper multiplier shall be adopted taking the age of the mother. The same view was taken by this court in the recent judgment reported in 2017(2) TN MAC 73 (R.Vijayalakshmi vs M. Muthu Viswanath); which would run thus:-
?21.Therefore, the Hon'ble Supreme Court, after painstaking exercise in Sarla Verma's case, (cited supra), in Para No.40, has standardized the Multiplier scale to be adopted. Though there was divergent opinion expressed subsequently, with regard to the standardization of Multiplier scale adopted in Sarla Verma's case, but, however, the Supreme Court in subsequent cases, such as-
(i) Shakti Devi v. New India Insurance Co. Ltd. and another, 2010 (2) TN MAC 612 (SC);
(ii) National Insurance Co. Ltd. v. Shyam Singh and others, 2011 (2) TN MAC 317 (SC); and
(iii) Vijay Shankar Shinde and others v. State of Maharastra, 2008 (2) SCC 670, the formulae evolved in Sarla Verma's case has been commended for acceptance.
22.In Sakti Devi's case (referred supra), in Para No.12, relevant Principle has been spelt out, in the following words:
'Insofar as the Multiplier of is concerned, the Tribunal applied the Multiplier of '8'. Learned Counsel for the Appellant argued that the Multiplier of 18 should have been applied keeping in view the age of the deceased. The argument is devoid of any substance. In a case, where, the age of the Claimant is higher than the age of the deceased, the age of Claimant and not the age of the deceased has to be taken into account for the capitalization of the lost dependency. It is so because the choice of Multiplier is determined by the age of the deceased or that of the Claimant, whichever is higher.'
23. In Shyam Singh's case (supra), the Hon'ble Supreme Court has reiterated and applied the principle enunciated in Vijay Shankar Shinde's case, which is to the following effect:
'If a young man is killed in the accident leaving behind aged parents, who may not survive long enough to match with a high Multiplier provided by the 2nd Schedule, then the Court has to offset such high Multiplier and balance the same with the short life expectancy of the Claimants. That precisely has happened in this case. Age of the parents was held as a relevant factor in case of minor's death in recent decision in Oriental Insurance Co. Ltd. v. Syed Ibrahim and ors.. AIR 2008 SC 103. In our considered opinion, the Courts below rightly struck the said balance.'
24. The same principle was once again adopted by the Hon'ble Supreme Court very recently in Y.P. Shakuntala and others v. Manager, Reliance General Insurance Co. Ltd. and others, 2016 (2) TN MAC 735 (SC).
25.We are, therefore, of the opinion that between the age of the deceased of a road accident, and the age of the Claimant, whichever is higher of the two, is liable to be taken into account and consideration. Hence, the contention of the learned Counsel for the Appellants cannot be accepted that, it is the age of the deceased, which must be taken into account, and on the other hand, the contention canvassed by the learned Counsel for the Respondent/Insurance Company, is liable to be accepted.?
8.Further, in the decision reported in 2016(2) TN MAC 791 (DB)(Cal.) (Mithu Roy and others vs. New India Assurance Co. Ltd., and others), the Division Bench of Calcutta High Court, rejected the prayer for addition to the future prospects by observing that unless there is evidence of a steady rise in income, addition towards future prospects cannot be allowed.
9. With regard to quantum, the tribunal has fixed the income of the deceased at Rs.10,000/-. Considering the fact that the deceased is a bachelor, after deducting Rs.5,000/- towards his personal expenses, the loss of contribution to the family is arrived at Rs.5,000/-. By following the principles laid down in the above judgments and by applying proper multiplier '13', loss of income to the family is arrived at Rs.7,80,000/-. The award of the tribunal at Rs.2,00,000/- for loss of love and affection; Rs.25,000/- towards funeral expenses are confirmed. In addition, this court awards Rs.30,000/- for loss of estate and Rs.15,000/- for transportation. In total, the claimants would be entitled to Rs. 10,50,000/- with interest @ 7.5% p.a.
10.In the result, the appeal is partly allowed. The award is reduced to Rs.10,50,000/- as against Rs.13,05,000/-. The appellant Insurance Company is directed to deposit the modified amount, less the amount already deposited, within a period of four weeks from the date of receipt of a copy of this judgment. On such the compliance, the claimants are permitted to withdraw their share as per the apportionment fixed by the tribunal. No costs. Consequently, connected Miscellaneous Petition is closed.
To
1.The Motor Accident Claims Tribunal Special District Court, Nagercoil.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.