Madras High Court
Oriental Insurance Company Ltd vs )Manimekalai on 28 March, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Civil Miscellaneous Appeal(MD)No.224 of 2016
and
C.M.P(MD)No.3003 of 2016
Oriental Insurance Company Ltd.,
Kumbakonam,
Rep. by its Branch Manager. .... Appellant
vs.
1)Manimekalai
2)Minor Manjula
(Minor is represented by her mother
1st respondent herein.)
3)Archunan
4)Senthilnathan ... Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against
the judgment and decree dated 30.06.2014 in MCOP.No.369 of 2012 on the file
of the Motor Accident Claims Tribunal, Principal Sub Judge, Kumbakonam.
!For Appellant : Mr.S.Veeranasamy
^For R1 & R2 : Mr.Madhusuthanan
:JUDGMENT
(Judgment of the Court was made by Mr.Justice S.MANIKUMAR) Being aggrieved by the award made in MCOP.No.369 of 2012, dated 30.06.2014, by the Motor Accident Claims Tribunal, Principal Sub Judge, Kumbakonam the appellant has filed this appeal. As the challenge is limited only to quantum of compensation of Rs.13,56,000/- with interest, @ 7.5% per annum, awarded to the legal representatives of the deceased, there is no need to advert to the finding of the Tribunal, fixing negligence on the driver of the offending vehicle, insured with the appellant company and the consequential liability.
2.The Tribunal has awarded compensation of Rs.13,56,000/- with interest, @ 7.5% per annum under the following heads:-
Loss of income = Rs.12,96,000/-
Loss of love and affection = Rs. 50,000/-
Funeral expenses = Rs. 10,000/-
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Total = Rs.13,56,000/-
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3.Material on record discloses that the claimants are the mother and sister of the deceased. At the time of accident, the deceased was aged 21 years and a student of DME III year, Mass Poly Technic College, Kumbakonam. Considering Ex.P10-consolidated mark sheet of the deceased issued by the Polytechnic college, and by observing that had the deceased been alive, he would have completed the course, got a job and earned Rs.9,000/- per month, the Tribunal fixed Rs.9,000/- as the monthly income of the deceased and deducted 1/3rd towards his personal and living expenses. Applying 18 multiplier, the Tribunal quantified the compensation towards loss of income as Rs.12,96,000/- (Rs.6000X12X18). In addition to the above, the Tribunal has awarded Rs.50,000/- (Rs.25,000/- each) to the respondents 1 and 2 towards loss of love and affection and Rs.10,000/- towards funeral expenses.
4.At the time of accident, the deceased was aged 21 years and a bachelor and hence, it is the case of the appellant that the Tribunal ought to have deducted 50% of the income towards the personal and expenses of the deceased as per the judgment of the Hon'ble Supreme Court in Sarla Verma and Others Vs. Delhi Transport Corporation, reported in 2009 ACJ 1298. In the instant case, the 1st respondent is a widow.
5.Legal representatives should be awarded with just compensation. Few decisions on this aspect are as under:-
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In Common Cause, A Registered Society v. Union of India reported in 1999 (6) SCC 667, at Paragraph 128, held as follows:-
?The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non- pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what Mcgregor says, is generally more important than money: it is the best that a court can do. In Re: The Medianna (1900) A.C. 1300, Lord Halsbury L.C. observed as under:
"How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...But nevertheless the law recognises that as a topic upon which damages may be given."
(iii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, at Paragraph 12, the Supreme Court has held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
At Paragraph 15 of the said judgment, the Supreme Court has held that, "Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iv) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), the Hon'ble Supreme Court, comprising of three Hon'ble Judges Bench was dealing with a case arising out of a complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Hon'ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
?We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The ?adequate compensation? that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.?
(emphasis supplied)
(v) In Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422, the Hon'ble Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
?The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor.?
(emphasis supplied)
6.The Tribunal has failed to consider the future prospects of the deceased. Perusal of the award shows that the Tribunal has failed to award compensation under the heads, loss of estate, transportation and damage to clothes. The overall quantum of compensation of Rs.13,56,000/- with interest @ 7.5% per annum, awarded to the legal representatives of the deceased, cannot be said to be excessive, warranting interference. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs.
7.The appellant is directed to deposit the entire award amount with proportionate accrued interest and costs, to the credit of MCOP.No.369 of 2012 on the file of the Motor Accident Claims Tribunal, Principal Sub Judge, Kumbakonam, within a period of six weeks from the date of receipt of a copy of this order, if not done already. In view of the dismissal of the appeal, the 1st respondent/claimant is permitted to withdraw her share with proportionate accrued interest and costs, by making necessary application before the Tribunal. On the date of accident in 2012, the 2nd respondent aged 14 years. Since the 2nd respondent continues to be minor, her share with proportionate accrued interest and costs, shall be deposited in any one of the Nationalised Banks in Fixed Deposit, proximate to the residence of the claimants, till the minor attains majority. The interest accruing on such deposit is permitted to be withdrawn by the 1st respondent/mother once in three months. Consequently, C.M.P(MD)No.3003 of 2016 is closed.
To The Principal Sub Judge, Motor Accident Claims Tribunal, Kumbakonam.
.