Madras High Court
The New India Assurance Company Limited vs Palaniyandi @ Saravanan on 28 November, 2018
Author: J.Nisha Banu
Bench: J.Nisha Banu
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.11.2018
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.A.(MD)No.397 of 2018
and
C.M.P.(MD).Nos.5068 and 9450 of 2018
The New India Assurance Company Limited,
No.3, Main Road,
Dindigul – 624 001. ... Appellant/
2nd respondent
Vs.
1.Palaniyandi @ Saravanan
2.Gandhi
... Respondents 1 & 2/
Claimants
3.M.Karuppaiya ... 3rd respondent/
1st respondent
(R3 was ex parte before the Tribunal and hence, he is given up)
PRAYER: Appeal had been filed under Section 173 of the Motor Vehicles
Act, 1988, against the award, dated 23.01.2018, made in M.C.O.P.No.
363 of 2013 by the Motor Accident Claims Tribunal / Subordinate Judge,
Kulithalai.
For appellant : Mr.M.Sureshkumar
For respondents 1 & 2 : Mr.N.Sudhagar Nagaraj
http://www.judis.nic.in
2
JUDGMENT
It is a case of fatal. The manner of the accident is not in dispute. The Tribunal has awarded a sum of Rs.7,20,000/- as loss of income; Rs.50,000/- towards loss of love and affection; Rs.10,000/- towards loss of estate; Rs.10,000/- towards transportation and Rs.15,000/- towards funeral expenses,, totally, a sum of Rs.8,05,000/- as compensation. The Tribunal has directed the appellant / Insurance Company to pay the entire compensation amount with interest at the rate of 7.5% from the date of petition till the date of realization. The appellant / Insurance Company has filed this appeal only questioning the quantum of compensation.
2.The learned counsel appearing for the Insurance Company would submit that at the time of the accident, the deceased was aged about 5 years. There is no material produced by the claimants that the child was earning anything. But, the Tribunal has erroneously adopted multiplier method by notionally taking a sum of Rs.5,000/- as monthly income. He would further submit that at the most the Tribunal could have been awarded only Rs.5,00,000/- in lump sum, in the light of the guidelines given by the Hon'ble Supreme Court in (a) R.K.Malik and another v. Kiran Paul and others, reported in 2009 (1) TNMAC 593 (SC); and (b) Kishan Gopal and another v. Lala and others, reported in 2013 (5) CTC 212 (SC) : 2013 (2) TNMAC 358 (SC). By http://www.judis.nic.in 3 relying on a decision of this Court in Perumayee and another Vs. P.Chinnasamy and another reported in 2018 (1) TN MAC 51, he would further submit that in similar circumstances, this Court has awarded only Rs.5,00,000/- in lump sum. But, the Tribunal has excessively awarded and therefore, the award passed by the Tribunal may be reduced.
3. The learned counsel appearing for the claimants would submit that the Tribunal has awarded only meagre amount as compensation and therefore, the same may not be interfered with.
4. Heard the learned counsel appearing for the parties and perused the records carefully.
5. When the very same issue arises for consideration, this Court in an unreported decision in C.M.A(MD).Nos.170 and 171 of 2018 (New India Assurance Company Vs. Ammaiyappan and others), by judgment dated 24.09.2018, has held as follows:
“3. While admitting the liability to the extent of Rs.5,00,000/- in each appeal, it is contended by the learned counsel for the appellant that the remaining amount was excessively awarded by the Tribunal by overlooking the guidelines given in the following decisions and therefore, the award has to be interfered with in the light of the following http://www.judis.nic.in 4 decisions:
i) R.K.Malik and another v. Kiran Paul and others, reported in 2009 (1) TNMAC 593 (SC);
ii) Kishan Gopal and another v. Lala and others, reported in 2013 (5) CTC 212 (SC) :
2013 (2) TNMAC 358 (SC).
4. When the similar issue arises for consideration, a learned Single Judge of this Court, in the decision reported in 2017 (2) TNMAC 805 (National Insurance Co. Ltd. v. K.Sugumar and others), has held as follows:
“4.1. In the case of R.K.Malik and another vs. Kiran Paul and others, reported in 2009 (1) TNMAC 593, the observation of the Supreme Court reads as under:
15. The real problem that arises in the cases of death of children is that they are not earning at the time of the accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, Loss of dependency by its very nature is awarded for prospective or future loss. In this context, Lord Atkinson aptly observed in Taff Vale Rly. Co. v.
Jenkins, (1911-13) All England Reporter 160 as follows:
http://www.judis.nic.in 5 "In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
....
18. ... We must point out here that the learned counsel for the appellants had argued that the notional sum of Rs. 15,000/- should be enhanced and increased as the legislature has not amended the Second Schedule and the same continues to be in existence since it was enacted on 14.11.1994. We are not examining and going into this aspect as the accident had taken place in the present case nearly three years after the enactment of the Second Schedule. The time difference between the date of the enactment and the date of accident is not substantial.
In the same case, the Hon'ble Supreme Court has pointed out that the amount specified in the second schedule can be followed with regard to notional income as the time difference is only three years between the enactment of the second schedule and the date of accident. But, in this case, the time difference is more than 25 years. Therefore, the notional income has to be taken at a http://www.judis.nic.in 6 higher level, considering the inflation and reduction in the value of money.
4.2. So far as the decision of the Hon'ble Supreme Court in the case of Kishan Gopal and another vs. Lola, reported in 2013 (2) TNMAC 358 SC, (as relied upon by the learned counsel for the appellant) is concerned, in the case of road accident that had happened on 19.07.1992, where a student, aged 10 years, died, the Hon'ble Supreme Court has taken the notional income of the deceased as Rs.30,000/-.”
5. Considering the aforesaid celebrated decisions, the learned Single Judge, in K.Sugumar's case (cited supra), in which the accident had occurred on 29.08.2014, has fixed the notional income of the deceased as Rs. 60,000/- p.a.
6. In the cases on hand, the date of accident is on 11.08.2013 and at the time of the accident, the deceased were aged about 8 and 12 years respectively and studying in a school and the Tribunal has taken Rs.6,000/- p.m. as the notional income of the deceased. After adding 50% of the amount ie. Rs.3,000/- p.m. (6000 + 3000 = 9000) as future prospects, deducting 50% of the amount towards personal expenses (9000 – 4500 = 4500) and adopting multiplier No.15 (4500 x 12 x 15), the Tribunal has awarded a sum of Rs.8,10,000/- towards loss of income, which, in the opinion of this Court is very reasonable.” http://www.judis.nic.in 7
6. The above decision is squarely applicable to this case. In the abovesaid case, the accident was occurred in the year 2013. Considering the escalation of prices and value of money, this Court has confirmed the award passed by the Tribunal towards loss of income by fixing Rs.6,000/- as notional monthly income of the deceased.
7. Though the learned counsel appearing for the appellant, by relying upon the decision of this Court in Perumayee case, cited supra, submitted that in similar circumstances, this Court has awarded only Rs. 5 lakhs in lump sum and the said award may be passed in this case also, this Court is not inclined to accept the same in view of the fact that in that case, the accident was occurred in the year 1984. In the case on hand, the accident was occurred in the year 2010. The Tribunal by relying upon a decision of a Division Bench of this Court in National Insurance Company Limited Vs. R.Vimala, reported in 2015 (2) TN MAC 490 (DB), has fixed Rs.5,000/- as notional income and awarded compensation. This Court is of the view that the award passed by the Tribunal cannot be termed as excessive award. There is no merit in this appeal. In view of the above, this Court is inclined to dismiss this appeal.
8. In the result, this Civil Miscellaneous Appeal is dismissed. The appellant / Insurance Company is directed to deposit the entire compensation awarded by the Tribunal, less the amount already http://www.judis.nic.in 8 deposited, with accrued interest and costs, within a period of eight weeks from the date of receipt of a copy of this judgment and on such deposit being made, the claimants are permitted to withdraw the entire award amount with accrued interest and costs, as apportioned by the Tribunal, by filing an application before the Tribunal. No costs. Consequently, connected miscellaneous petitions are closed.
28.11.2018
Index :Yes/No
Internet :Yes/No
gcg
To
1.The Motor Accident Claims Tribunal / Subordinate Judge, Kulithalai.
2.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 9 J.NISHA BANU,J.
gcg C.M.A.(MD)No.397 of 2018 28.11.2018 http://www.judis.nic.in