Madras High Court
M/S. Bajaj Allianz General Insurance vs R.Palanisamy on 17 December, 2020
Author: V.Bharathidasan
Bench: V.Bharathidasan
C.M.A.No.1782 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.12.2020
CORAM
THE HON'BLE MR.JUSTICE V.BHARATHIDASAN
C.M.A.No.1782 of 2020
and
CMP.No.13120 of 2020
M/s. Bajaj Allianz General Insurance
Co. Ltd.,
No.184/25, KPS Shopping Arcade,
1st Floor, By-pass Road,
Hotel Gowri Krishna,
Madurai-625 010. ... Appellant
Vs.
1. R.Palanisamy,
S/o. Rakkanna Gounder
2. Smt. Aadhilakshmi
W/o. R.Palanisamy
Both are residing at
Old No.6/43, New No.7/64,
Marayipalayam,
Madampalayam Post,
Sathyamangalam Taluk,
Erode District.
https://www.mhc.tn.gov.in/judis/
C.M.A. No.1782 of 2020
3. P.Sugumaran,
S/o. Pitchai,
No.1-E/NA, Lal Bagadur
Sasthri Street,
Anna Nagar,
Madurai District.
4. M/s.The Vaigai Rice Flours,
No.162/1, Kamarajar Salai,
Munichalai Road,
Madurai-625 009. .. Respondents
PRAYER:- Civil Miscellaneous Appeal preferred under Section 173 of
Motor Vehicles Act against the Order and decree dated 26.03.2019 made in
MCOP No.328 of 2014 on the file of the Motor Accidents Claims Tribunal,
Subordinate Court, Sathyamangalam.
For Appellant : Mr. M.B.Raghavan
For Respondents : Mr.K.V.Shanmuganathan
for R1 and R2
JUDGMENT
Feeling aggrieved with the quantum of compensation awarded by the Tribunal, the insurance company is before this Court by filing this Civil Miscellaneous Appeal.
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2. The case of the claimant before the tribunal in brief as follows :-
It is a case of fatal accident claim. The deceased by name P.Thenmozhi, aged about 17 years. On 13.03.2014, at 07.40 a.m., while she was travelling in a two wheeler bearing Regn. No.TN-36 Y-4893 as a billion rider in the Puliampatti-Sathyamangalam main road, at that time, a Mahendra car bearing Regn. No.TN-64-2211, owned by the 1st respondent, which was insured with the 2nd respondent, came in a rash and negligent manner and dashed against the deceased, in which she has sustained serious injury. Immediately, she was taken to Kovai Medical Centre and subsequently, she succumbed to injuries on 14.03.2014. The claimants, who are parents of deceased, claiming the compensation of Rs.15,00,000/-, have filed the claim petition before the Tribunal.
3. The 1st respondent / owner of the vehicle remained exparte. The appellant insurance company has contested the claim petition on the ground that the accident was taken place due to the negligent driving of a two wheeler and no liability would be fixed on the driver of a car. That apart, it 3/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 is also stated that since the deceased is a school going girl and a non- earning member, the compensation claimed by the claimants is highly excessive and speculative.
4. Before the tribunal, the mother of deceased was examined as P.W.1 and marked as many as 20 documents as Ex.P1 to P20. On the side of respondents, no witness was examined and no document was marked.
5. The Tribunal, after considering the materials available on record, has come to a conclusion that the accident was been taken place due to the rash and negligent driving of driver of a car, which was insured with the 3rd respondent and 3rd respondent was liable to pay the compensation. So far as quantum of compensation is concerned, the Tribunal had fixed the notional monthly income of deceased at Rs.10,000/- per month. After adding 40% of monthly income towards future prospects, deducting 50% of monthly income towards personal expenses, and applying the multiplier of 18, the Tribunal has granted a sum of Rs.15,12,000/- towards loss of dependency. In respect of other convention heads, the Tribunal has awarded a sum of 4/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 Rs.15,000/- towards funeral expenses, a sum of Rs.15,000/- towards transport expenses, a sum of Rs.40,000/- towards loss of love and affection and a sum of Rs.48,061/- towards medical expenses. Thus, the Tribunal has awarded a sum of Rs.16,30,061/- as compensation. Aggrieved over the compensation awarded by the Tribunal, the appellant insurance company is before this Court with this appeal.
6. Mr.M.B.Raghavan, learned counsel appearing for appellant insurance company would contend that the deceased was a school going girl and a non-earning member. The Tribunal has fixed the monthly income of deceased as Rs.10,000/-, which is higher side. According to him, a minor and a non-earning member, the Hon'ble Supreme Court of India has granted a consolidated amount as compensation. However, the Tribunal, without considering the same, has mechanically fixed a sum of Rs.10,000/- as monthly income without any reason whatsoever. 5/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020
7. Mr.K.V.Shanmuganathan, learned counsel appearing for respondents 1 and 2 would submit that the deceased was the only daughter of claimant. She was 17 years school going girl, she was a brilliant student and she had a great future. If she is alive, she would have earned more amount. Considering the same, the Tribunal has fixed the monthly income of deceased as Rs.10,000/- and there is no illegality in it. According to the learned counsel, in respect of other heads, the Tribunal has awarded reasonable amount. Therefore, there is no reason to interfere with the same.
8. I have considered the rival submissions made by the learned counsel appearing for appellant as well as respondents 1 and 2 and perused the records.
9. The deceased was a 17 years old school going girl and she was earning nothing. However, as a school going girl, she had great prospects of earning in future and there may not be any actual pecuniary benefit derived by her parents during her life time. However, it will not bar the parents from claiming for the prospective loss by the untimely death of the 6/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 minor child. The parents are emotionally attached to the child and the loss will have devastating effect on the family and for the sufferings of loss of happiness, the parents should be necessarily compensated. Awarding compensation for the loss of life cannot be weighted in golden scales and the parents are entitled for a just compensation, and it cannot be neither a windfall nor a pittance. In R.K.Malik Vs. Kiran Pal reported in (2009) 14 SCC 1 the Hon'ble Supreme Court has held as follows:
"22. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non-payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy.
23. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which 7/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has suffered non-pecuniary loss or damage as a consequence of the wrong done to him by way of damages/monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness etc., which is sometimes described as compensation paid for "loss of expectation of life"."
10. For assessing the notional income of a minor, the Hon'ble Supreme Court in Lata Wadhwa Vs. State of Bihar reported in (2001) 8 SCC 197 has held that in case of death of a child, there is no actual pecuniary benefit derived by its parents during the life time of the child. However, the parents are entitled to claim for the prospective loss they suffered and that they had a reasonable expectation of pecuniary benefit had the child lived and the loss of the child to the parents is irrecoupable and no 8/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 amount of money can compensate them. Considering the facts of that case, the Hon'ble Supreme Court has held that in cases of children between the age group of 10-15 years, the annual contribution can be fixed at Rs.24,000/- and multiplier of 15 be applied. The relevant portion of the judgement is as follows:
"11........In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's life-time. But this will not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived.
........................... Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well placed officials of the Tata Iron and Steel Company, and on considering the submission of Mr.Nariman, we would direct that the compensation amount for the children between 9/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs, to which the conventional figure of Rs.50,000/- should be added and thus the total amount in each case would be Rs. 2.00 lakhs. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. The TISCO itself has a tradition that every employee can get one of his child employed in the company. Having regard to these facts, in their case, the contribution of Rs.12,000/- per annum appear to us to be on the lower side and in our considered opinion, the contribution should be Rs.24,000/- and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs.3.60 lakhs, to which an additional sum of Rs.50,000/- has to be added, thus making the total amount payable at Rs.4.10 lakhs for each of the claimants of the aforesaid deceased children."
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11. The above judgement was followed in Kishan Gopal Vs. Lala reported in (2014) 1 SCC 244. In the said case, for the death of a 10 year old boy, the notional income was fixed at Rs.30,000/- p.a. and multiplier 15 was applied.
12. In yet another judgement, the Hon'ble Supreme Court in New India Assurance Co. Ltd., Vs. Satender reported in CDJ 2006 SC 953, has held that in case of death of minor children neither the income of the child is capable of assessment on estimated basis nor financial loss suffered by the parents is capable of mathematical computation. Hence, in that case, a sum of Rs.1,80,000/- was awarded for the death of a child aged about 9 years old.
13. Recently, the Hon'ble Supreme Court in Rajendra Singh Vs. National Insurance Company Limited reported in CDJ 2020 SC 585 has confirmed the award passed by the Tribunal for a sum of Rs.2,95,000/- for the death of a 12 year old boy. Further, in respect of future prospects, the Hon'ble Supreme Court has noted that the judgement in R.K.Malik case 11/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 (cited supra) does not considered Satender case (cited supra). The relevant paragraph of the said judgement is as follows:
"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 (cited supra) does not consider Satender (cited supra) on the grant of future prospects as far as children are concerned."
14. Further, a Division Bench of this Court in National Insurance Co. Ltd., Vs. R.Vimala reported in 2015 (2) TN MAC 490 (DB) for the death of a 9 year old boy fixed the notional monthly income as Rs.5,000/- 12/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 and deducted 1/3 towards personal expenses and awarded a sum of Rs.8,92,000/-.
15. In the instant case, the Tribunal, without any reason whatsoever, had fixed the notional monthly income of the deceased at Rs.10,000/- p.m., and added 40% of income towards future prospects, deducted 50% of monthly income towards her personal expenses and applied multiplier of 18, arrived the loss of dependency at Rs.15,12,000/-.
16. Considering the peculiar facts and circumstances of the case, and from the perusal of records, it could be seen that the deceased was the only daughter of appellants, she had a great academic career, and she died at the young age of 17 years, this Court is inclined to fix a sum of Rs.8000/- as a monthly income, adding 40% of monthly income as future prospects, which comes to Rs.11,200/- (Rs.8000 + 3200), deducting 50% of monthly income towards her personal expenses, which comes to Rs.5,600/- and applying the multiplier of 18, the loss of dependency comes to Rs.12,09,600/- (Rs.5600 x 12 x 18). So far as consortium is concerned, the claimants are parents, as per 13/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 the Judgment of the Hon'ble Supreme Court in the case of National Insurance CO.Ltd., /vs/ Pranay Sethi and others reported in 2017 (16) SCC 680, and in the case of United India Insurance Co. Ltd., vs. Satinder Kaur @ Satwinder Kaur and others in Civil Appeal No. 2705 of 2020, dated 30.06.2020, has held that that a maximum sum of Rs.40,000/- can be granted towards consortium, whereas in the instant case, the appellants are parents, they are entitled for a filial consortium of Rs.40,000/- each. However, the Tribunal has granted only a sum of Rs.40,000/-, which is liable to be enhanced. The claimants are also entitled for a sum of Rs.15,000/- each towards funeral expenses and loss of estate. Another sum of Rs.5000/- is granted towards transport charges. So far as medical expenses is concerned, based on the bills produced by the claimant, a sum of Rs.48,061/- was granted by the Tribunal, which is rounded to Rs.50,000/-.
17. In view of the above, the award passed by the Tribunal is modified as follows :-
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https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 Sl. Headings Amount Amount Award No. Awarded by awarded by confirme the this Court d or Tribunal enhanced Rs.
1 Loss of dependency 15,12,000 12,09,600 reduced 2 Funeral expenses 15,000 15,000 confirmed 3 Transport expenses 15,000 5,000 reduced 4 Loss of love and 40,000 80,000 enhanced affection (Filial consortium) 5 Medical expenses 48,061 50,000 enhanced 6 Loss of estate Nil 15,000 granted Total 16,30,061 13,74,600 reduced (rounded to 13,75,000) Totally, the respondents 1 and 2 are entitled to get only a sum of Rs.13,75,000/- as compensation instead of Rs.16,30,061/- awarded by the Tribunal.
18. In the result, the Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.16,30,061/- is hereby reduced to Rs.13,75,000/- together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit. The appellant / 15/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 insurance company is directed to deposit the award amount now determined 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.328 of 2014, on the file of the Motor Accident Claims Tribunal, Subordinate Court, Sathyamangalam. On such deposit, the respondents 1 and 2 / claimants are permitted to withdraw the award amount now determined by this Court, along with interest and costs, less the amount, if any, already withdrawn by making necessary applications before the Tribunal. The respondents 1 and 2 / claimants are also entitled to refund of Court fee, if any, on the reduced amount of compensation now determined by this Court. No costs. Consequently, the connected miscellaneous petition is closed.
17.12.2020 rpp To The Motor Accidents Claims Tribunal, Subordinate Court, Sathyamangalam.
16/17 https://www.mhc.tn.gov.in/judis/ C.M.A. No.1782 of 2020 V. BHARATHIDASAN, J., rpp C.M.A.No.1782 of 2020 and C.M.P. No.13120 of 2020 17.12.2020 17/17 https://www.mhc.tn.gov.in/judis/