Madras High Court
K.Dhanalakshmi vs The Branch Manager on 29 October, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29/10/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Rev.P.(MD) No.16 OF 2006 AGAINST C.M.A.No.1067 of 2005 K.Dhanalakshmi .. Petitioner Appellant Vs 1.The Branch Manager, Oriental Insurance Company Limited, Palani. 2.Sivasubramanian 3.S.Palaniammal 4.Minor S.Manivannan 5.Minor S.Vasuki (4 and 5 minor respondents represented by mother and guardian, third respondent) .. Respondents Respondents Prayer Review Petition filed under Order 47, Rules 1 and 2 read with Section 114 of CPC, to review the Judgement and Decree dated 18.01.2006 passed in C.M.A.No.1067 of 2005 and set aside the same. !For Petitioner ... Mr.D.Venkatesh ^For Respondent No.1 ... Mr.K.Baskaran For Respondent No.2 ... No appearance For Respondent ... Mr.V.Venkatesan Nos.3 to 5 :JUDGMENT
This review petition is focussed as against the Judgement and Decree dated 18.01.2006 passed in C.M.A.No.1067 of 2005.
2. Heard both sides.
3. A re'sume' of facts absolutely necessary and germane for the disposal of this petitioner would run thus:
Earlier the Motor Accidents Claims Tribunal cum the learned Subordinate Judge, Palani vide order dated 16.03.2000 in M.C.O.P.No.810 of 1996, rejected the claim of the mother of the deceased, Dhanalakshmi (petitioner No.5 therein) and awarded compensation in favour of the petitioner No.1, the wife and the petitioner Nos.2 and 3, the minor children of the deceased. The petitioner No.4, the father of the deceased died.
4. Being aggrieved by the order of the Tribunal, rejecting her claim, the petitioner Dhanalakshmi preferred an appeal in C.M.A.No.1067 of 2005. In the appeal also this Court confirmed the order of rejection on the main ground that Dhanalakshmi, even though happened to be the mother of the deceased, yet she was not the dependant in stricto sensu.
5. The said Dhanalakshmi filed the review application on the main ground that such a rejection is an error apparent as it is a trite proposition of law that mother is one of the legal heirs and that too Clause 1 here under the Hindu Suggestion Act and that she can be considered as a dependant.
6. Earlier my learned Predecessor, placing reliance on the Judgment of the Hon'ble Apex Court reported in 1984-ACJ-54 (Neena Kapur) held that the mother is not the dependant.
7. The learned counsel for the petitioner herein cited the decision of the Hon'ble Apex Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another reported in AIR-1987-SC-1690. An excerpt from it would run thus:
"... It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased. Section 110-A(1) of the Act thus expressly states that (i) an application for compensation may be made by the legal representatives of the deceased or their agent and (ii) that such application shall be made on behalf of or for the benefit of all the legal representatives. Both the person or persons who can make an application for compensation and the persons for whose benefit such application can be made are thus indicated in S.110-A of the Act. This section in a way is a substitute to the extent indicated above for the provisions of S.1A of the Fatal Accidents Act, 1855 which provides that "every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased". While the Fatal Accidents Act, 1855 provides that such suit shall be for the benefit of the wife, husband, parent and child of the deceased, S.110- A(1) of the Act says that the application shall be made on behalf of or for the benefit of the legal representatives of the deceased. A legal representative in a given case need not necessarily be a wife, husband, parent and child. It is further seen from S.110-B of the Act that the Claims Tribunal is authorised to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. ..."
Following the aforesaid decision of the Hon'ble Apex Court, the Division Bench of this Court in the Judgment reported in 1996(II)CTC-136 reiterated the same proposition.
8. As such, the above excerpt from the Judgment of the Hon'ble Apex Court, would clearly demonstrate that the mother also is one of the dependants and in this case peculiarly, PW1, the wife of the deceased clearly and categorically without mincing words deposed before the Tribunal that the mother was also actually depending on the deceased. In as much as, the legal and factual positions are glaringly clear in this case, it could rightly be taken such rejection of the petitioner's claim as an error apparent and consequently the earlier order of this Court could be reviewed and accordingly, it is held that the petitioner Dhanalakshmi also is entitled to get compensation.
9. The Judgment of the Tribunal would indicate that the Tribunal has chosen the multiplier 18, which is the maximum multiplier and in such a case, in the total amount awarded, no modification is required.
10. The Tribunal earlier apportioned the compensation as under:
For wife, petitioner No.1 - Rs. 95,000/-
For minor children, petitioner Nos.2 and 3 (each Rs.75,000/-) - Rs.1,50,000/-
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Total - Rs.2,45,000/- -------------
11. I am of the considered opinion that the amount apportioned in favour of the minor petitioners need not be disturbed and out of the sum of Rs.95,000/-
(Rupees ninety five thousand only) in favour of the wife, Rs.20,000/- (Rupees twenty thousand only) has to be allotted in favour of the petitioner, Dhanalakshmi, the mother of the deceased.
12. The Tribunal under the caption love and affection, a sum of Rs.25,000/- (Rupees twenty five thousand only) only awarded even though there were four claimants. At the time of awarding compensation, the petitioner Dhanalakshmi was not taken as a dependant, now then in view of the review, the petitioner Dhanalakshmi is also a dependant of the deceased, this Court under the caption love and affection and enhance the amount Rs.25,000/- (Rupees twenty five thousand only) to Rs.35,000/- (Rupees thirty five thousand only). Accordingly, the order of the Tribunal is modified as under:
For loss of income - Rs.2,16,000/-
For love and affection - Rs. 35,000/-
For funeral expenses - Rs. 4,000/-
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Total - Rs.2,55,000/-
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13. As such, under the following ratio, the parties are entitled to take. For wife, petitioner No.1 - Rs. 75,000/-
For children, respondent Nos.2 and 3 (each Rs.75,000/-) - Rs.1,50,000/-
For Dhanalakshmi, petitioner No.5 - Rs. 30,000/-
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Total - Rs.2,55,000/-
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14. For clarity it is detailed further as under:
The additional sum of Rs.10,000/- (Rupees ten thousand only) shall be awarded under the caption love and affection to Dhanalakshmi, the petitoner No.5 with 7.5% interest per annum from the date of M.C.O.P. filed out of Dhanalakshmi's share of Rs.30,000/- (Rupees thirty thousand only) after adjusting the aforesaid Rs.10,000/- (Rupees ten thousand only), the remaining sum of Rs.20,000/- (Rupees twenty thousand only) of her share shall be taken out from the already awarded sum of Rs.95,000/- (Rupees ninety five thousand only) of the first petitioner and paid to Dhanalakshmi and the remaining Rs.75,000/- (Rupees seventy five thousand only) shall go to the wife, the first petitioner.
15. If the petitioner No.1 had already taken Rs.95,000/- (Rupees ninety five thousand only), she is bound to return only Rs.20,000/- (Rupees twenty thousand only) to Dhanalakshmi with accrued interest thereon, which shall actually withdraw from the Court, without any further interest.
14. With the observations, this petition is allowed. No costs.
smn To The Motor Accidents Claims Tribunal cum the Subordinate Judge, Palani