Madras High Court
The Managing Director vs S.Geetha on 14 July, 2014
Author: V.Dhanapalan
Bench: V.Dhanapalan, G.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.07.2014 CORAM THE HON'BLE MR.JUSTICE V.DHANAPALAN and THE HON'BLE MR.JUSTICE G.CHOCKALINGAM C.M.A.No.3298 of 2013 and M.P.No.1 of 2013 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Bharathipuram, Salem Main Road, Dharmapuri ... Appellant / Respondent -vs- 1. S.Geetha 2. Minor A.Vasanth 3. Minor A.Sharmili 4. Rajamani 5. Pachiammal ... Respondents / Petitioners Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle Act against the Decree and the judgment passed in M.C.O.P.No.312 of 2011 dated 05.12.2012, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Dharmapuri. For Appellant : Mr.D.Venkatachalam For R1 : Mr.M.Selvam ***** J U D G M E N T
(Judgment of the Court was delivered by V.Dhanapalan,J.,) This Civil Miscellaneous Appeal arises against the Decree and the judgment passed in M.C.O.P.No.312 of 2011 dated 05.12.2012, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Dharmapuri.
2. The appellant was the respondent before the Tribunal. The respondents / claimants are wife, minor son, minor daughter and parents of the deceased Arumugam respectively, who, while driving his motor cycle bearing Regn. No.TN-29-AB-9565 from North to South at Dharmapuri Town in Krishnagiri Main Road, met with an accident on 01.10.2010 at about 11.45 p.m. on account of the rash and negligent driving of the appellant Corporation bus bearing registration No.TN-29-N-2022, due to which, the deceased died on the spot and his two wheeler was completely damaged. The deceased was an Advocate by profession practicing at Dharmapuri and was earning not less than Rs.20,000/- per month. The petitioners / claimants, by filing claim petition before the Tribunal, sought compensation of a sum of Rs.50,00,000/-.
3. Before the Tribunal, on behalf of the claimants, five witnesses were examined and the following exhibits were marked:
Exhibits Description of Documents Ex.P1 Bar experience certificate issued by Bar Association, Dharmapuri dated 28.08.2012 Ex.P2 Study certificate of 2nd petitioner dated 24.08.2012 Ex.P3 Study Certificate of 3rd petitioner dated 24.08.2012 Ex.P4 Xerox copy of FIR dated 02.10.2010 Ex.P5 Xerox copy of the legal heir certificate dated 25.11.2010 Ex.P6 Xerox copy of the Enrollment certificate of the deceased dated 25.07.2001.
Ex.P7 Xerox copy of the Postmortem certificate dated 02.10.2010 Ex.P8 Xerox copy of the insurance policy of two wheeler dated 22.10.2009.
Ex.P9 Xerox copy of the RC Book Ex.P10 Receipt for selling turmeric by the deceased dated 24.03.2010 Ex.P11 Xerox copy of the kist receipt dated 05.03.2009 Ex.P12 Xerox copy of the sale deed dated 30.10.2006 Ex.P13 Xerox copy of the sale deed dated 01.11.2006 Ex.P14 Xerox copy of the patta dated 31.12.2010 Ex.P15 List of MCOP cases filed by the deceased before Sub-Judge, Dharmapuri.
Ex.P16 List of MCOP cases filed by the deceased before Principal District Court, Dharmapuri Ex.P17 List of MCOP cases filed by the deceased before Principal District Judge, Dharmapuri On behalf of the appellant / respondent, one witness was examined and no exhibit was marked.
4. On appreciation of materials before it, the Tribunal awarded compensation of a sum of Rs.19,93,000/- together with interest at 7.5% p.a. from the date of petition till the date of deposit and the break-up details are as follows:
Loss of Income (Rs.10,000/- x 12 x 16) - Rs.19,20,000/-
Loss of consortium - Rs. 10,000/- Loss of love and affection (Rs.10,000x4) - Rs. 40,000/- Transport charges - Rs. 10,000/- Funeral expenses - Rs. 10,000/- For damage of vehicle - Rs. 3,000/- --------------------- Total - Rs.19,93,000/- ---------------------
The said award is being challenged by the appellant / Corporation on the following grounds:
i) that the Tribunal failed to note that the accident occurred only due to the rash and negligent on the part of the rider of the motorcycle, who came in the opposite direction and dashed against the right side head light of the bus and caused the accident;
ii) that the Tribunal ought not to have considered the evidence of P.W.1, who is the wife of the deceased and she has not seen occurrence and also ought not to have held that mere registering FIR against the driver of the appellant is more enough for holding negligence on him;
iii) that the learned Trial Judge failed to note that no valid document was filed by the claimants to prove the income of the deceased.
5. Learned counsel for the appellant / respondent would submit that the award passed by the Tribunal is unsustainable, as the evidence of the driver has not at all been taken into account to decide the negligence aspect and further that in absence of any documentary evidence to show the age, occupation and income of the deceased, the determination made by the Tribunal in this regard is incorrect, since they are all concocted one. He would also submit that application of multiplier 16 is contrary to the established principles and the decisions of the Hon'ble Supreme Court as well as this Court.
6. On the other hand, learned counsel appearing for the claimants / respondents has vehemently contended that the Tribunal, on analyzing entire oral and documentary evidence and upon considering the case registered against the driver as also filing of FIR, the Tribunal has rightly taken a decision not to give so much of importance to the deposition of the driver to conclude the part of negligence aspect, as the same is supported by Ex.P4, Ex.P7 and Ex.8. To give weightage to the side of claimants, P.W.2, an eye witness to the occurrence was examined and P.W.3, P.W.4 and P.W.5, who are all Court personnels, were examined to derive the exact income of the deceased, as they deposed as to the number of MCOP cases filed by the deceased. He would further contend that the deceased was the bread winner of the family and but for the accident, the deceased would have lived upto the age of 75 years in future and striven more for the welfare and enjoyment of the life of petitioners. Thus, the award of the Tribunal cannot be questioned and the appeal to be dismissed in toto.
7. We have heard the learned counsel on either side and perused the material documents available on record.
8. A circumspection of the fact, as per the version of the P.W.2, would reveal that on 01.10.2010 at about 11.45 p.m., when the deceased was proceeding in his motor cycle bearing Reg. No.TN-29-AB-9565 towards South side near A1 broker office at Dharmapuri, the respondent Corporation bus bearing Reg.No.TN-29-N-2022 , driven by its driver in a rash and negligent manner dashed against the deceased, resulting in sustenance of fatal injuries and death subsequently. P.W.2 thereafter, came to know that the deceased was one Arumugam, Advocate at Dharmapurii. Therefore, as against the claim of a sum of Rs.50,00,000/- the Tribunal has awarded a sum of Rs.19,93,000/- as compensation. Aggrieved over the same, the appellant / Transport Corporation is before this Court for determination of their liability by this Court.
9. To the above claim, appellant / respondent has made a statement to the effect that on the date of accident, the bus bearing Reg.No. TN-29-N-2022 was to go to Hosur from Dharmapuri bus stand and the same was driven by its driver cautiously and carefully with normal speed. At that time, the two wheeler of the deceased bearing TN-29-AB-9565 dashed on the right side of the head light of the bus and the accident occurred owing to consumption of alcohol by the deceased. Therefore, negligence is totally on the part of the deceased person and the same cannot be reversed against the driver of the appellant Corporation bus. However, it is to be noticed that during the cross examination, the driver of the bus has fairly conceded that the Police has registered a case against him and he was also suspended from service for one month.
10. The Tribunal, on looking into the claim and rival submissions, has framed the following two questions for consideration:
i) On whose negligence, the accident had happened?
ii) To what quantum of compensation, the petitioners are entitled to?
iii) To what other relief the petitioners are entitled to?
11. The Tribunal has firstly examined the negligence aspect and also the circumstances, under which, the bus of the respondent Corporation and the two wheeler were driven by the driver and the deceased respectively. The claim petition before the Tribunal was filed by the claimants / petitioners under Sections 166 of Motor Vehicles Act, which makes a provision for application for compensation arising out of an accident, which after few amendments reads as under:
Section 166 Application for compensation:-
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the Legal Representatives of the deceased; pr
(d) by any agent duly authorised by the person injured or all or any of the Legal Representatives of the deceased, as the case may be:
Provided that where all the Legal Representatives of the deceased have not joined in any such Application for compensation, the Application shall be made on behalf of or for the benefit of all the Legal Representatives of the deceased and the Legal Representatives who have not so joined, shall be impleaded as Respondents to the Application.
(2) Every Application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such Application, the Application shall contain a separate statement to that effect immediately before the signature of the Applicant. In an application filed under Section 166, claiming compensation, it is necessary for a claimant to prove negligence on the part of the driver or owner of the vehicle. The burden is on the claimant to establish the negligence on the part of the driver or owner of the vehicle and on proof thereof, the claimant is entitled to compensation.
12. Keeping in mind the above, in order to arrive at a firm decision in respect of 1st point, the Tribunal has analyzed thoroughly the evidence of P.W.2, an eye witness to the occurrence, who deposed that on 01.10.2010 at 11:45 p.m., while he was coming in his bicycle, the bus of the respondent Corporation bearing registration No.TN-29-N-2022, driven by its driver rashly and negligently, hit the two wheeler bearing Regn.No.TN-29-AB-9565, pursuant to which, the deceased sustained injuries on his neck, chest, right hand, left leg, shoulder and chin. He has also deposed that he saw the driver of the bus running out of that place and subsequently, P.W.2 came to know that the deceased was one Arumugam, a lawyer at Dharmapuri.
13. In furtherance to the above deposition of P.W.2, the Tribunal has also taken into account the statement made by the driver of the Corporation bus in the capacity of R.W.1, who has stated that the deceased all of the sudden started to cross the road without hearing the horn given by him and when he tried to apply sudden brake to avert the accident, but before ever it stopped, the deceased came in contact with the bus and caused the accident. He has further deposed that the deceased was under the influence of alcohol at the time of accident. However, during the cross examination, the driver of the bus has admitted that a case has been registered by the Police Ex.P3 against him based on the complaint given by the 1st petitioner / claimant Geetha, wife of the deceased and in addition to that, he was also suspended from service for one month. In the complaint, P.W.1 has stated that owing to an accident occurred near A1 broker office at 11:45 p.m. caused by the Corporation bus, her husband died on the spot. She has also produced a copy of RC book to prove the ownership to the effect that the deceased is the owner of the two wheeler, which is duly insured with the Oriental Insurance Company and Ex.P8, insurance policy, has also been marked in this regard.
14. After careful reading of the oral evidence of P.W.2, the Tribunal has held that the accident occurred solely due to the rash and negligent driving of the driver of the Corporation bus, resulting in sustainment of injuries and the subsequent death. Thus, based on the oral and documentary evidence, it was held by fixing negligence on the part part of the driver of the bus, that the appellant / respondent alone is liable to pay compensation, even though R.W.1 had deposed that the deceased came and dashed against the bus, which decision, in our considered opinion, can be a justifiable one and therefore, there is no reason to disbelieve the same to take a contradictory view.
15. The Hon'ble Supreme Court, while deciding the factor and circumstances of negligence in the case of Vijay Kumar Kulhar vs Rajasthan State Road Transport (C.A. @ S.L.P.(C)Nos.3889 & 3890 of 2008) decided on 27.07.2009, has held as under:
17. P.W.5 Ghosh Mohammad driver of RSRTC Bus had lodged a report in the Police Station, Jhunjhunu in respect of the accident, registered as FIR No. 33/83 for the offence under Section 279 IPC against the present appellant. Exh. 26 is the said report. No doubt, it is true that appellant has been acquitted of the said offence but nothing turns on his acquittal.
18. After the receipt of the report, police had prepared a spot map Exh.1 wherein it has been noticed that left side of the truck had hit the right side of the bus, as a result whereof, the bus was found in hanging position on the left side of the bridge.
19. The mechanical examination report of the truck is marked as Exh. 37 in which it has been noticed that the mudguard on the left side of the truck was dented and there were marks of peeling off and dents on the left side gate of the truck.
20. Exh. 38 is the mechanical examination report of the bus according to which front portion of the bus was damaged and was lying on the floor, the steering control was also lying broken and there were damages on the right side of the bus.
21. From the aforesaid evidence, it is clearly made out that left side of the truck collided with right side of the bus and then it reached the main road. P.W.1 Mahinder Kumar Sharma conductor of the bus and P.W.5, driver of the bus have deposed in one voice that the bus was going at a moderate speed whereas the truck came at a high speed and dashed violently to the rear right side of the bus as a result of which the bus dashed against the bridge and broke the wall and was lying in a hanging position.
22. After carefully going through the FIR, the inspection reports of both the vehicles and the oral evidence available on record, it is clearly made out that it was truck driven by the appellant which had come in a rash and negligent manner from behind and while attempting to overtake the bus had dashed against it causing damage.
23. Once it is held that the accident was caused on account of rash and negligent driving of the truck by the appellant, then obviously the appellant would be liable to pay the amount of compensation, which has been assessed by learned Single Judge at Rs. 40,000/-.
16. The Hon'ble Karnataka High Court has also elaborately dealt with the negligence aspect in M.N. Rajan and others vs Konnali Khalid Haji and another, reported in [ILR 2004 KAR 3731] as under:
23. A Division Bench of this Court in the case of GENERAL MANAGER, BANGALORE TRANSPORT SERVICE v. N. NARASIMHAIAH AND ORS., 1976 ACJ 379 held as follows:
"If it is found that the negligent act of omission of a driver was the proximate and efficient cause of an accident, it will not be a valid defence to say that the person injured was also negligent unless it is shown that the person injured had made it extremely difficult for the other to avoid the accident. In this case the evidence of the witness referred to above clearly establishes that Raju was riding the cycle along when the vehicle came from behind him and dashed against the cycle. The evidence of the driver of the bus, if scrutinized carefully, clearly goes to show that he did not see at all how the accident happened. It is only after he heard the sound he stopped the bus. Therefore, his story that it was due to the negligence of Raju the accident happended cannot be believed. A person driving a motor vehicle on a busy road like the one in question must drive the vehicle with reasonable care strictly observing the traffic regulations and the rules of the road so as not to imperil the safety of the other persons whether they are pedestrians or cyclists or others who have a similar right to use the highways on which he drives it.
24. It is well settled that the burden of establishing the defence of contributory negligence is on the defendant who admits that on account of the conduct of the plaintiff, his negligence had gone into the background and it was the conduct of the plaintiff that resulted in the accident; it is not for the claimant to disprove it. In the case of SHARADA BAI v. KARNATAKA STATE ROAD TRANSPORT CORPORATION (supra) speaking about the burden of proving contributory negligence, the Court held: "The burden of proving contributory negligence is on the cross-objectors in this case. It is not for the Appellant to disprove it. If the tort-feasor's negligence or breach of duty is established as causative of the damage, the onus is on him to establish that the victim's contributory-negligence was a substantial or cooperating cause. In order to establish the defence of contributory negligence the propounder of that defence must prove, first, that the victim failed to take reasonable care of himself or, in other words, such care as a man of ordinary prudence would have done and that was a contributory-cause of the accident. The amount of care which a person could reasonably be expected to take, must needs vary with the circumstances and the conditions actually prevailing at the material point of time. However, it is relevant to note that, in order to discharge the burden of proof, it is unnecessary for the propounder of that defence to adduce evidence about the matter. Contributory negligence can be - and very often is- inferred from the evidence adduced already on the claimants behalf or from the perceptive facts, either admitted or found established, on a balance of probabilities in the case.
25. In this case, there is neither pleading nor any proof of contributory negligence. Further, contributory negligence on the part of the deceased or the driver of the motor cycle cannot be inferred on the basis of the evidence on record. In the case of DARYAOBAI AND ORS. v. MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION, 1996 ACJ 1233 a Division Bench of the Madhya Pradesh High Court while holding that if the driver of the vehicle involved in the accident is not examined in the case, an adverse influence can be drawn, was pleased to observe that - "The statement of Kanhaiya Lal as corroborated by the statement of Amol Das goes to prove that the accident had occurred due to rash and negligent driving of the vehicle by the driver of the jeep. It may also be observed here that if a party specially the owner of the vehicle fails to examine the driver of the vehicle involved in the accident, an adverse inference will have to be drawn. This is not the case of respondent Union of India that the driver is not available or his attendance could not be procured despite efforts being made. Thus, it would be deemed that the driver of the jeep was purposely withheld and was not produced in the court for examination and cross-examination. In such a situation, we are inclined to believe Kanhaiya Lal and Amol Das that goes to prove that the accident occurred due to rash and negligent driving of the jeep owned by the Union of India. Even otherwise, it is the driver of the vehicle which is required to keep constant vigil on the road and vehicle coming from opposite direction including other vehicles overtaking the vehicle driven by him and, therefore, he is the best person to depose about the manner of accident. We are, therefore, not in agreement with the finding of the learned Tribunal and further hold that the accident occurred due to rash and negligent driving of the vehicle by the driver of the jeep of Narcotics Department."
In this case also, evidence of PW-2 proves that the accident had occurred due to rash and negligent driving of the lorry by its driver. Quite curiously, the driver of the lorry was not examined by the owner or insurer of the vehicle. Therefore, an adverse inference can be drawn against them. Therefore, the plea of contributory negligence urged by the learned Counsel for the respondents 1 and 2 for the first time in this appeal is required to be noticed only to be rejected in limine.
17. Learned counsel for the appellant / respondent has mainly questioned the award of the Tribunal for its wrong application of multiplier, as for the age group between 36 to 40 years, as per the dictum laid down by the Hon'ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, reported in 2009 (2) TN MAC 1 (SC), it would be appropriate to fix the multiplier of 15, but to the contrary, the Tribunal has applied the multiplier of 16, even though the age of the deceased was assessed as 36 years only.
18. In Sarla Verma's case, the Supreme Court compared the multiplier indicated in various decisions with the multiplier mentioned in the second schedule of Section 163-A of Motor Vehicles Act and identified a table. Relevant portion of the said judgment would read as under:
"19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years):
Age of deceased Multiplier Scale as envisaged in General Manager, Kerala State Road Transport Corporat-ion, Trivandr-um v. Susamma Thomas and others, 1994(2) SCC 176 Multiplier Scale as adopted by U.P. State Road Transport Corporat-ion and others v. Trilok Chandra and others, 1996 (4) SCC 362 Multiplier Scale in U.P. State Road Transport Corporation and others v. Trilok Chandra and others, 1996(4) SCC 362 as clarified in New India Assurance Company Ltd. v. Charlie and another, 2005 (10) SCC 720 Multiplier Specified in Second Column in the Table in Second Schedule to the MV Act Multiplier actually used in Second Schedule to M.V. Act (as seen from the quantum of compensation) (1) (2) (3) (4) (5) (6) Upto 15 years
-
-
-15 20
15 to 20 years 16 18 18 16 19 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above 65 years 5 5 5 5 5
20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
19. While considering the above factor, it is equally important to take note of the income of the deceased. In this regard, the evidence of P.W.3, Sheristadar in Dharmapuri Sub-Court, P.W.4, Sheristadar of the Tribunal and P.W.5, an Assistant in PDJ Court, Krishnagiri, shall have to be given due weightage, as P.W.3 has confirmed filing of 31 MCOP cases by the deceased from 2002 to 2008 before the Sub-Court, Dharmapuri, P.W.4 has deposed regarding filing of 30 MCOP cases in the name of the deceased from 17.02.2008 to 01.10.2010 before the Tribunal and P.W.5 has finally gave deposition to the extent that the deceased filed 9 MCOP cases before the Principal District Judge, Krishnagiri. Moreover, the deceased, besides practising advocacy, was an active agriculturist owning 7 acres of land and from both of them, the deceased could have been earning a sum of Rs.15,000/-. Thus, on deduction of Rs.5,000/- towards his personal expenses, the annual income so fixed comes to Rs.10,000/-. Finally, a sum of Rs.10,000/- was awarded towards loss of consortium, Rs.10,000/- for transport charges, Rs.40,000/- towards love & affection to claimants 2 to 5 and Rs.10,000/-under the heading Funeral Expenses. Apart from the above, a sum of Rs.3,000/- was given for the damage of motor cycle.
20. It is true that there is some lapse on the side of the Tribunal in fixation of multiplier, which goes against the settled principles of the Hon'ble Supreme Court, but at the same time, it is to be noted that the amount of compensation awarded towards loss of consortium and love and affection are very minimal and more particularly, no amount has been awarded to the 1st claimant / wife of the deceased under the heading love and affection. Therefore, the compensation awarded under these two heads needs revision in view of fixation of lesser amount.
21. Accordingly, while accepting the contention of the learned counsel for the appellant Corporation, the multiplier of 16 so applied by the Tribunal, is modified to 15 so as to work out to Rs.1,20,000/- x 15 = Rs.1,80,000/- At the same time, the amount awarded towards loss of consortium is on the lesser side. The Hon'ble Supreme Court in the case of Rajesh and others vs. Rajbir Singh and others, reported in 2013 (2) TN MAC 55 (SC) was pleased to hold as under:
20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi v. National Insurance Company Limited and others, 2012 (2) TN MAC 1 (SC). We may, therefore, revisit the practice of awarding compensation under conventional heads: Loss of Consortium to the spouse, Loss of Love, care and guidance to children and Funeral Expenses. It may be noted that the sum of Rs.2,500/- to Rs.10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (2) TN MAC 1 (SC), it was held that compensation for Loss of Consortium should be in the range of Rs.5,000/- to Rs.10,000/-. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non pecuniary damage for Loss of Consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By Loss of Consortium, the Courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the Courts award at least rupees one lakh for Loss of Consortium. Therefore, by taking judicial notice of the above facts, compensation awarded under the head Loss of Consortium is enhanced to Rs.70,000/. Since we also feel that the amount of Rs.10,000/- awarded towards love and affection for each of the claimants, excluding the 1st claimant / wife of the deceased is inadequate, we fix Rs.20,000/- for each of the claimants / respondents including the 1st claimant / wife of the deceased under the heading love and affection, thereby totalling Rs.1,00,000/-.
22. Accordingly, the award passed by the Tribunal is slightly modified / rearranged and the new break-up details are as follows:
Sl.No. Description Amount awarded by Tribunal Amount awarded by this Court
1.
Loss of Income Rs.19,20,000/-
(Rs.1,20,000/- x 16) Rs.18,00,000/-
(Rs.1,20,000/- x 15)
2. Loss of Consortium Rs.10,000/-
Rs.70,000/-
3. Loss of Love and Affection Rs.40,000/-
Rs.1,00,000/-
4. Transport Charges Rs.10,000/-
No Change
5. Funeral Expenses Rs.10,000/-
No Change
6. For Damage of Vehicle Rs.3,000/-
No Change Total Rs.19,93,000/-
Rs.19,93,000/-
23. This Civil Miscellaneous Appeal is partly allowed except with the above modifications. An amount of Rs.19,93,000/- with accrued interest @ 7.5% from the date of petition till the date of realization is fixed as compensation and the amount has to be disbursed to the V.Dhanapalan, J.
and G.Chockalingam, J.
ar claimants / respondents as per the apportionment made by the Tribunal. No costs. Connected miscellaneous petition is closed.
[V.D.P.,J.] [G.C.,J.] 14.07.2014 Index: Yes Internet: Yes ar To Motor Accident Claims Tribunal / Principal District Judge, Dharmapuri
C.M.A.No.3298 of 2013