Madras High Court
Alamelu vs Minor Janani on 4 April, 2012
Author: R. Karuppiah
Bench: R. Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 4.4.2012
Coram:
The Honourable Mr.JUSTICE R. KARUPPIAH
C.M.A.No.1538 of 2009
1. Alamelu
2. Muniyammal
3. Ramanujam
4. Minor Abirami
5. Minor Bala
6. Minor Ayyanar
rep. by first petitioner
as guardian .. Appellants/Claimants
Vs.
1.Minor Janani
rep. by her Guardian/Father,
Damodharan
1B, Sivarathiri Madam St.,
Dist.
2.Branch Manager
The Oriental Insurance Co. Ltd
75 Krishnan St ., Thiruvannamalai. .. Respondents/Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 as against the judgment and decree dated 25.9.2006 made in MACTOP.No.885 of 2005 on the file of Motor Accidents Claims Tribunal, Tiruvannamalai (District Court, Tiruvannamalai).
For Appellants : Ms. M.Malar
For Respondents : Mr.J.Chandran for R2.
R1- exparte
J U D G M E N T
The appellants/claimants have filed this civil miscellaneous appeal praying for an enhanced compensation as against the award dated 25.9.2006 passed by Motor Accidents Claims Tribunal, Tiruvannamalai (learned District Judge, Tiruvannamalai) in MACTOP.No.885 of 2005 for the death of Ramesh in the road traffic accident on 25.10.2005.
2. The claimants/appellants have claimed compensation of Rs.20 lakhs for the loss of the life of one Ramesh, who is the husband of the first appellant, son of appellants 2 and 3 and father of appellants 4 to 6 by contending that on 25.10.2005 at about 3.50 pm the deceased was proceeding in his own TVS moped bearing Regn.No.25.A.5363 slowly and carefully on the left side of the road towards Vannianagaram, the first respondent bus bearing Regn.No.25.E.3846, was driven by its driver as rash and negligent manner and dashed against the deceased vehicle and the deceased was died and therefore the first respondent who is the owner of the vehicle and second respondent, who is insurer of the vehicle are liable to pay compensation to the appellants/claimants. The owner of the vehicle remained exparte.
3. The insurance company has contested the claim by denying the abovesaid facts stated in the claim petition and contended that the petitioner should prove all the contentions.
4. Before the Tribunal, on the side of the claimants, first claimant was examined as PW.1 and one Periyasamy was examined as PW.2 and marked Ex.P1, copy of FIR, Ex.P2, copy of post-mortem certificate, Ex.P3, copy of M.V. Report, Ex.P4, copy of chargesheet and Ex.P5, copy of driving licence of the deceased. On the side of the respondents, they have not examined any witness and not marked any documents.
5. On perusal of the abovesaid oral and documentary evidence, the Tribunal has held that the accident was occurred only due to rash and negligent driving of the first respondent vehicle driver and the abovesaid vehicle was duly insured with second respondent and therefore the second respondent-insurance company is liable to pay compensation to the claimants. Further, the Tribunal has fixed the age of the deceased as 30 years and the income of the deceased was fixed Rs.2500/- per month i.e., annual income at Rs.30,000/- and after deducting one third, multiplier was taken as 17 and fixed Rs.3,40,000/- for loss of income and also Rs.5000/- was awarded for loss of consortium and Rs.1000/- for funeral expenses and totally awarded Rs.3,46,000/- as compensation to the claimants with interest at 7.5% per annum from the date of claim petition.
6. Being dissatisfied with the quantum awarded by the Tribunal, the appellants/claimants filed the present appeal for enhancement of compensation amount.
7. The learned counsel for the appellants has contended that the Tribunal has failed to apply proper multiplier and also failed to consider the income of the deceased, since the deceased was a driver and earned Rs.9,000/- per month, but the Tribunal has wrongly fixed the income as Rs.2,500/- per month and also contended that the Tribunal has awarded meagre amount of Rs.5000/- for loss of consortium and Rs.1000/- for funeral expenses and further contended that the Tribunal has failed to award any amount for loss of love and affection, mental agony, transportation and damages to clothes and articles and therefore requested to enhance the award amount.
8. The learned counsel for the second respondent-insurance company has contended that the Tribunal has correctly fixed the age, income and applied correct multiplier and therefore the award passed by the Tribunal is correct and proper and no need to interfere with the abovesaid award.
9. Heard the learned counsel on either side and perused the records.
10. On perusal of the record reveals that the Claims Tribunal after scrutinising the oral evidence of PW.2 who is eye-witness to the occurrence and also oral evidence of PW.1 and documentary evidence viz. Exs.P1 to P5 and considering the fact that no oral and documentary evidence on the side of the respondents, has correctly held that the accident was occurred only due to rash and negligent driving of the driver of the first respondent vehicle and therefore the second respondent who is insurer of the vehicle is liable to pay compensation.
11. The appellants who are the claimants alone filed this appeal for enhancement of compensation and the respondents have not filed any appeal or cross-appeal as against the finding of the Tribunal.
12. With regard to quantum of compensation awarded by the Tribunal, as already stated, the age of the deceased was fixed as 30 years on the basis of Ex.P2 post-mortem certificate and the oral evidence of PW.1. In this appeal, the learned counsel for the respondents has not seriously objected the abovesaid age fixed by the Tribunal. Therefore the age of the deceased was correctly fixed by the Tribunal as 30 years and there is no need for any interference.
13. With regard to the legal heirs and dependents of the deceased, PW.1 has clearly deposed and the abovesaid fact was not challenged by the respondents at the time of evidence and therefore the appellants/claimants have proved that the claimants who are wife, parents and children of the deceased alone are legal heirs and dependents of the deceased.
14. The main grievance of the appellants is that the Tribunal has wrongly fixed the monthly income of the deceased as Rs.2,500/- instead of Rs.9,000/- per month since the deceased was a driver. PW.1 who is the first claimant has deposed and also marked Ex.P5, the driving licence of the deceased. Except the abovesaid oral and documentary evidence, no other independent oral and documentary evidence to prove the monthly income of the deceased. As already discussed, the age of the deceased was 30 years and also holding driving licence. Considering the oral and documentary evidence and the age of the deceased, this Court feels that the income fixed by the Tribunal is very low. Therefore, considering the oral and documentary evidence adduced on the side of the claimants, the monthly income of the deceased is to be fixed as Rs.4,500/- instead of Rs.2,500/-.
15. With regard to deduction for personal and living expenses, the decision of the Honourable Apex Court reported in SARLA VERMA v. DTC (2009 (6) SCC 121) in para 30 is extracted as follows:-
30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."
16. In the instant case, the Tribunal has deducted one third for personal and living expenses of the deceased. As already discussed, the claimants are six in number. As per the abovesaid SARLA VERMA case and also considering the facts of the case, the deduction towards personal and living expenses of the deceased should be one fourth instead of one third.
17. As already discussed, the age of the deceased is fixed as 30 years. The Tribunal has taken the multiplier as 17. The learned counsel for the appellants has contended that the multiplier is to be taken as 18 instead of 17. As per the abovesaid decision of the Apex Court i.e. SARLA VERMA case, the Tribunal has correctly taken the multiplier as 17.
18. From the abovesaid discussion, the loss of income to the claimants after deducting personal and living expenses of the deceased is calculated as Rs.3,375 x 12 x 17 = Rs.6,88,500/-.
19. Apart from the abovesaid amount, the Tribunal has awarded only Rs.5000/- for loss of consortium. This Court feels that the abovesaid amount is to be increased as Rs.10,000/- since it is very low. Further, the Tribunal has not passed any amount for loss of love and affection to the appellants 2 to 6, who are parents and children of the deceased. Considering the age of the deceased and claimants and family circumstances, Rs.6000/- each is to be awarded to the claimants 2 to 6. The Tribunal has awarded only Rs.1,000/- towards funeral expenses, which is considered as low and therefore it should be enhanced as Rs.5,000/-. Further, no amount was awarded for transport expenses and hence Rs.5,000/- is to be awarded for transportation.
20. Accordingly, the award passed by the Tribunal is modified and enhanced as follows:-
Loss of income : Rs. 6,88,500.00 (Rs.3375 x 12 x 17) Loss of consortium : Rs. 10,000.00 Loss of love and affection : Rs. 30,000.00 Funeral expenses : Rs. 5,000.00 Transport expenses : Rs. 5,000.00 ------------- Total Rs. 7,38,500.00 ------------- 21. In the result, the appeal is allowed in part and the compensation awarded by the Tribunal is enhanced from Rs.3,46,000/- to Rs.7,38,500/- with interest at 7.5% per annum from the date of claim petition till date of realisation and directed to deposit the abovesaid amount by the second respondent-insurance company within two months from the date of receipt of this Judgment. On such deposit, the first petitioner is entitled to Rs.2,13,500/- and petitioners 2 and 3 are entitled to Rs.75,000/- each and petitioners 4 to 6 are entitled to Rs.1,25,000/- each with proportionate interest. The petitioners are permitted to withdraw the abovesaid amount less any amount received already on necessary application before the Tribunal. No costs. Vks Copy to: 1. The Registrar,Small Causes Court, Chennai. 2. M/s.United India Insurance Co. Ltd., 64, Armenian St., Chennai 600 001