Madras High Court
Palaniyammal vs M. Govindaraj on 9 November, 2023
C.M.A. No. 1821 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
PRONOUNCED ON : 09.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
C.M.A. No. 1821 of 2021
1. Palaniyammal
2. Perema
3. Kavitha ... Appellants / Petitioners
Vs.
1. M. Govindaraj
2. M/s. New India Assurance Co. Ltd.,
Sethu Krishna Trade Center,
Trichy Main Road,
Gugai, Salem -6. ... Respondents / Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and decree dated 22.08.2019
passed in M.C.O.P. No. 826 of 2017 on the file of the Motor Accident
Claims Tribunal/ Special District Court, Salem.
For Appellants : Mr. Ma. P. Thangavel
For R1 : Ex-parte
For R2 : M/s. K. Vinod
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C.M.A. No. 1821 of 2021
JUDGMENT
This Civil Miscellaneous appeal has been filed by the claimants seeking enhancement of compensation awarded in M.C.O.P. No. 826 of 2017, dated 22.08.2019 on the file of the Special District Judge, Motor Accident Claims Tribunal, Salem.
2. For the sake of convenience, the parties are referred herein according to their litigative status and rank before the Tribunal.
3. On 01.03.2017, at about 19:00 hours, the deceased Thulasimani (aged about 10 years at the time of accident), was standing as pedestrian in Tharamangalam to Chinnappampatty road, at that time, a bolero pick up van bearing Registration No.TN-38-AX-7380, driven by its driver in a rash and negligent manner, lost his control and dashed against the deceased, thereby causing instant death to the deceased Thulasimani. A criminal case was registered in Cr.No.116 of 2017 U/s.279 and 304(A) of IPC against the driver of the van on the file of the Tharamangalam Police station. For the loss of deceased Thulasimani, the claimants, who are the 2/13 https://www.mhc.tn.gov.in/judis C.M.A. No. 1821 of 2021 mother and sisters have filed claim petition seeking compensation for a sum of Rs.10,00,000/- by invoking section 166 of the Motor Vehicles Act, 1988.
4. The first respondent is the owner cum driver of the bolero van has not contested the claim and remained ex-parte. The second respondent – insurance company has filed counter, denied the manner in which the accident has taken place and contended that the deceased crossed the road negligently, thereby invited the accident and further disputed the dependency of the claimants.
5. The Tribunal after considering the evidence placed on record has held that the rash and negligence on the part of the first respondent is responsible for the accident. The Tribunal also quantified and granted compensation for a sum of Rs.3,15,000/- along with interest @ 7.5% per annum from the date of filing of petition till the date of realization.
6. Aggrieved over the award, the claimants have filed this appeal seeking enhancement of compensation. The respondents have not preferred any appeal challenging the award.
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7. The learned counsel for the claimants submitted that the Tribunal has not properly fixed the quantum of compensation, more particularly the Tribunal without considering the date of accident and cost of living index fixed the notional income of the deceased as Rs.15,000/- per annum. The Tribunal has not considered the fact, that the deceased is the only male child of his widow mother, hence the Tribunal ought to have awarded compensation by following the judgment of this Court in J.Kanagaraj vs Metropolitan Transport Corporation Ltd., [2017 (2) TN MAC 702] and also the compensation awarded under various heads is on the lower side, hence prays to enhance the compensation.
8. The learned counsel for the second respondent - insurance company submitted that the Tribunal based on the evidences placed on record and following the norms followed by this Court, has awarded a just compensation, hence prays to confirm the same.
9. I have considered the submissions made on both sides and perused the materials available on record.
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10. Admittedly, in this case, the deceased, who is aged about 10 years at the time of accident and was a school student studying 5 th Standard, died in road accident on 01.03.2017, due to rash and negligence of the first respondent herein. The Tribunal, while fixing the notional income of the deceased has relied on the judgments of the Hon'ble Apex Court in Oriental Insurance Co. Ltd., vs. Syed Ibrahim [2007 (2) TN MAC 474 (SC)], Lata Wadhwa and others vs. State of Bihar [2001 (2) ACJ 1735] and Kishan Gopal and another vs. Lala and others [2013 ACJ 2594], however fixed Rs.15,000/- as notional income of the deceased per annum, as per II Schedule annexed to Section 163 of the Motor Vehicles Act 1988. The Tribunal also taken the multiplier as '14' by considering the age of the mother of the deceased, who is 42 years, at the time of accident and awarded compensation of Rs.2,10,000/- (15,000/- X 14) under the head loss of dependency.
11. The Hon'ble Apex Court in Kishan Gopal and another vs. Lala and others [2013 ACJ 2594 : (2014) 1 SCC 244] has considered fixing notional income of the deceased, aged about 10 years, who had no income 5/13 https://www.mhc.tn.gov.in/judis C.M.A. No. 1821 of 2021 prior to the accident, after considering the previous judgment in Lata Wadhwa and others vs. State of Bihar cited supra, the Apex Court took Rs.30,000/- as the notional income of a non-earning member whereas as per II Schedule annexed to Section 163 of the Motor Vehicles Act 1988, it is only Rs.15,000/-. The relevant paragraphs 36 to 39 of the Kishan Gopal case are extracted hereunder for better appreciation.
“36. After noting the submission made on behalf of TISCO in Lata Wadhwa case that the compensation determined for the children of all the age groups could be double as in its view the determination made was grossly inadequate and the observation was further made that loss of children is irrecoupable and no amount of money could compensate the parents. Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs to which under the conventional heads a sum of Rs.50,000 should be added and thus total amount in each case would be Rs.2 lakhs.
37. Further, in Lata Wadhwa case, it was observed that insofar as the children of age group between 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO and one of the children was employed in the Company in the said case having regard to the fact the contribution of the deceased child was taken Rs.12,000 p.a. Appears to be on the lower side and held that the contribution of such children should be Rs.24,000 p.a.
38. In our considered view, the aforesaid legal principle 6/13 https://www.mhc.tn.gov.in/judis C.M.A. No. 1821 of 2021 laid down in Lata Wadhwa case, with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years old, who was assisting the appellants in their agriculture occupation which is on undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs.15,000. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard.
39. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000 and further taking the young age of the parents, namely, the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in Sarla Verma vs. DTC, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 X 15 = 4,50,000 and 50,000 under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC vs. Susamma Thomas, which is referred to in Lata Wadhwa case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000 under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants.”
12. Subsequently, the Apex Court in Rajendra Singh and others vs. National Insurance Co. Ltd. and others [2020 ACJ 2211] has considered awarding compensation for the school student aged about 12 7/13 https://www.mhc.tn.gov.in/judis C.M.A. No. 1821 of 2021 years and Rs.36,000/- per annum is fixed as notional income by the Tribunal. However, in this judgment, the judgment of Kishan Gopal case was not brought to the notice of the Court and based on the judgments of the Apex Court in R.K. Malik vs. Kiran Pal [2009 ACJ 1924 (SC)] and New India Assurance Co. Ltd., vs. Satendar [2007 ACJ 160 (SC)], has accepted that the determination of a just and proper compensation to the claimants with regard to the deceased child, based on the facts of the case no enhancement of compensation was ordered. The relevant portion in paragraph 15 of Rajendra Singh case is extracted hereunder:
“15. The deduction on account of contributory negligence has already been held by us to be unsustainable. The determination of a just and proper compensation to the appellants with regard to the deceased child, in the entirety of the facts and circumstances of the case, does not persuade us to enhance the same any further from Rs.2,95,000/- by granting any further compensation under the separate head of 'future prospects'. It may only be noticed that R.K. Malik (supra) does not consider Satender (supra) on the grant of future prospects as far as children are concerned.”
13. This Court in Muthukani and others vs. K. Dhanasekaran and others [C.M.A. No.1259 of 2022, dated 01.08.2022] has held that, while considering the compensation to be awarded for the deceased aged three and 8/13 https://www.mhc.tn.gov.in/judis C.M.A. No. 1821 of 2021 half years, who was died in the road accident taken place on 04.11.2018 as Rs.1,00,000/- per annum as notional income. This Court in Iffco Tokio Gen. Ins. Co. Ltd., vs. B. Anithadevi and others [2022 (2) TN MAC 731], fixed the notional income of the minor deceased as Rs.36,000/- per annum and further deduction of 1/3 is made towards personal and living expenses of the deceased. Recently, this Court in The New India Assurance Co. Ltd., vs. Amirthavalli and others [C.M.A. No.467 of 2022, dated 17.07.2023] fixed the notional income of Rs.45,000/- per annum to the deceased, who was aged about 14 years at the time of accident.
14. Based on all the above observations and the fact that the deceased, who is aged about 10 years and was a school student studying 5th Standard and considering the submissions of the learned counsel of the claimants that, the mother of the deceased is widow and his sisters are not having father, this Court is of the view that fixing a sum of Rs.45,000/- per annum as notional income would be proper, since the same is fixed as notional income in the recent judgment of this Court and deduction of one- third is made towards personal and living expenses of the deceased. Considering the age of the deceased at the time of accident, the applicable 9/13 https://www.mhc.tn.gov.in/judis C.M.A. No. 1821 of 2021 multiplier is '15' as per Sarla Verma and others Vs. Delhi Transport Corporation and others [2009 ACJ 1298 SC : 2009 (6) SCC 121], accordingly, the compensation under the head loss of dependency is assessed as Rs.4,50,000/- (Rs.45,000/- X (1/3) X 14)
15. The Tribunal has awarded Rs.25,000/- to each claimants as compensation under the head loss of love and affection. As per the Hon'ble Apex Court in United India Insurance Co. Limited v. Satinder Kaur and Ors. [MANU/SC/0500/2020 : (2021) 11 SCC 780] and Magma General Insurance Co. Ltd., vs Nanu Ram [2018 ACJ 2018], all the claimants are entitled for consortium. Hence, this Court is inclined to grant the claimants, consortium of Rs.40,000/- each to the mother and sisters of the deceased Thulasimani. The Tribunal has awarded Rs.15,000/- each under the head loss of estate and funeral expenses, this Court finds no infirmity in the above award and the same is hereby confirmed.
16. Accordingly, the award passed by the Tribunal under various heads are hereby modified as follows:
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https://www.mhc.tn.gov.in/judis C.M.A. No. 1821 of 2021 S. Description Amount Amount Award No. awarded by awarded by confirmed or Tribunal this Court enhanced or (Rs) (Rs) reduced
1. Loss of dependency 2,10,000/- 4,50,000/- Enhanced
2. Loss of Love and Affection 75,000/- 1,20,000/- Enhanced / modified to Loss of consortium
3. Funeral Expenses 15,000/- 15,000/- Confirmed
4. Loss of Estate 15,000/- 15,000/- Confirmed Total Compensation 3,15,000/- 6,00,000/- Enhanced
17. In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.3,15,000/- is hereby enhanced to Rs.6,00,000/- [Rupees Six Lakhs only] together along with interest at the rate of 7.5% per annum from the date of filing of Claim Petition till the date of deposit, excluding the default period, if any. The second respondent - insurance company is directed to deposit the amount awarded by this Court along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment to the credit of M.C.O.P.No.826 of 2017 on the file of the Special District Judge, M.C.O.P Tribunal, Salem. On such deposit, the appellants / claimants are permitted to withdraw the award amount now 11/13 https://www.mhc.tn.gov.in/judis C.M.A. No. 1821 of 2021 determined by this Court along with interest and costs, less the amount if any, already withdrawn, as per the apportionment fixed by the Tribunal. The Tribunal shall disburse the amount now awarded by this Court by directly giving credit to the Savings Bank Accounts of the claimants. Since, this Court has enhanced the compensation, the appellants/claimants are directed to pay the necessary Court fee, if any, on the enhanced compensation. There shall be no order as to costs in the present appeal.
09.11.2023 stn Index:Yes/No Speaking Order:Yes/No Neutral Citation Case: Yes/No To:
1. The Special District Judge, M.C.O.P. Tribunal, Salem.
2. The Section Officer, V.R.Section, High Court, Chennai.12/13
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