National Insurance Company Limited vs Sujatha Rajalakshmi on 23 December, 2010

[Cites 2, Cited by 6]

Madras High Court

National Insurance Company Limited vs Sujatha Rajalakshmi on 23 December, 2010

Challenging the quantum of compensation awarded by the Tribunal in and by an award dated 17.07.2007 made in MCOP.No.970 of 2002, dated 17.07.2007 on the file of the Motor Accident Claims Tribunal (III Additional Sub Court), Tiruchirappalli, the present Civil Miscellaneous Appeal is filed.

2.It is the case of the respondents 1 to 3/claimants who are wife, son and daughter of the deceased respectively that the deceased was earning a sum of Rs.40,000/- per month by running engineering industries. In order to prove the income earned by the deceased, on the side of the respondents/claimants, the son of the deceased was examined as P.W.1. P.W.1 categorically stated in his evidence that his father was earning a sum of Rs.40,000/- per month by running engineering industries. In support of his evidence, the statement of income-tax returns for the period of three years were marked as Ex.P.17 and the Registration Certificate for running the industries was marked as Ex.P.16.

3.By placing reliance on the evidence of P.W.1 and Ex.Ps.16 and 17, the Tribunal fixed a sum of Rs.20,000/- as monthly income of the deceased. Thereafter, by deducting 1/3rd of the amount towards the personal expenses of the deceased, fixing a sum of Rs.1,60,000/- as annual loss of contribution to the family and applying multiplier '11' has awarded a sum of Rs.17,60,000/- as compensation under the head of loss of dependency. That apart, the Tribunal by adding another sum of Rs.13,33,840/- towards medical expenses, Rs.10,000/- for 'loss of consortium', Rs.25,000/- for 'transportation', Rs.25,000/- for 'loss of love and affection' and Rs.10,000/- for 'funeral expenses' awarded a total sum of Rs.31,63,840/- as compensation. Aggrieved over the same present appeal has been filed.

4.Learned counsel appearing for the appellant by inviting the attention to the evidence of P.W.1 submitted that P.W.1 had admitted in his cross examination that after the death of his father, he is running the industries and earning more income than his father. Thus, by relying upon the said piece of admission made by P.W.1 in his cross examination, learned counsel appearing for the appellant submitted that the evidence of P.W.1 would show that absolutely there is no loss of income to the respondents/claimants on account of the death of the victim. While doing so, the Tribunal ought not to have fixed a sum of Rs.20,000/- as monthly loss of income since the source of income would continue to exist even after the death of the victim. In support of his contention, learned counsel appearing for the appellant relied upon the following judgments of the Hon'ble Supreme Court as well as this Court:

"i)In M.G.Bros Lorry Service, Madras and another Vs. S.Andalammal and others reported in 1982 ACJ (Supp.) 408

ii)In State of Haryana Vs.Jasbir Kaur reported in AIR 2003 SC 3696

iii)In New India Assurance Co., Ltd., Vs.Charlie and another reported in 2005 ACJ 1131

iv)In New India Assurance Co., Ltd., Vs. Kayalvizhi and others reported in 2010 ACJ 2530"

5.Per contra, learned counsel appearing for the respondents 1 to 3/claimants submitted that at the time of death of his father, he was only 21 years old and as a fresh graduate from Engineering College, he started to run the industries. Therefore, the business experience of the deceased cannot be equated with the experience of his son who was a fresh entrant in the business. In that way, there is a heavy loss of service and guidance of the deceased to the respondents 1 to 3. In the said circumstances, a sum of Rs.20,000/- fixed by the Tribunal for making calculation under the head of loss of income does not suffer from any infirmity. Learned counsel appearing for the respondents by placing reliance on the judgment reported in 1996 (1) L.W 660 (Mrs.Maya Devi and 8 Others Vs.Mrs.Dhanalakshmi and Others) submitted that even if the children continuing the business of his father, it cannot be said that there is no loss of income to the family of the victim. He further submitted that P.W.1 is making more income as per the evidence in his cross examination is only to refer the income which he has been earning every month on completion of his studies. Hence, the said piece of evidence cannot be read in isolation to take a different meaning that after the demise of his father, he is earning income by continuing the business which was run by his father.

6.Heard the learned counsel appearing on either side and perused the materials available on record.

7.On a perusal of the evidence of P.W.1, we find that the P.W.1 had categorically admitted in his evidence that by continuing the business which was run by his father, he is making more income. In view of the said admission, we are not inclined to accept the submission made by the learned counsel appearing for the respondents 1 to 3/claimants that P.W.1 had made statement in his evidence only with regard to the income which he has been earning personally on completion of his studies. The relevant portion of the evidence of P.W.1 is as follows:

"vd; mg;gh nwe;j gpd;g[ vA;fs; epWtdj;jpy; khjk; xd;Wf;F U.45,000/- ypUe;J U.50,000/- tiu tUkhdk; fpilf;Fk;... gp.vr;.n.vy; ypUe;J fpilf;Fk; Mh;lh; bghWj;J mJ BtWglyhk; ehd; jhf;fy; bra;Js;s v.17f;F chpa fzf;F tptuA;fs; vA;fs; Mol;lhplk; cs;sJ. Kd;g[ nUe;jijtpl vd;Dila bghWg;gpy; eph;thfj;jpd; tUkhdk; mjpfhpj;Js;sJ vd;why; rhpjhd;".

8.In our considered opinion, the said piece of evidence of P.W.1 undoubtedly goes to prove that the P.W.1 was earning more income by continuing the business of his father. Under such circumstances, we do not hesitate to hold that there is no loss of income to the family of the respondents 1 to 3/claimants on account of the death of the victim, since the source of income would continue to exist even after the death of the victim. In this regard, reference could be placed in the judgments relied upon by the learned counsel appearing for the appellant. In M.G.Bros Lorry Service, Madras and another Vs. S.Andalammal and others reported in 1982 ACJ (Supp.) 408, it has been held as follows:

"....The income from agriculture, house property and from the investments cannot be taken into account for determining the loss of income, for, those are sources which still continued to exist even after the death of Sanjeevi Mudaliar. Therefore, there cannot be said to be any loss from those three sources".

9.In State of Haryana Vs.Jasbir Kaur reported in AIR 2003 SC 3696, the Hon'ble Supreme Court has held as follows:

"...The land possessed by the deceased still remains with the claimants as his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source".

10.But at the same time, as contended by the learned counsel appearing for the respondents 1 to 3 that on account of the death of the victim, the respondents had lost the valuable guidance and services of the deceased. Therefore, the respondents/claimants have to be compensated adequately for the loss of guidance and service on account of the death of the victim.

11.Considering the facts and circumstances of the case, we are of the opinion that a sum of Rs.15,000/- could be fixed as loss of service to the family on account of the death of the deceased by deducting 25% in the sum of Rs.20,000/- fixed by the Tribunal as loss of monthly income. If Rs.15,000/- is fixed towards loss of service and guidance to the respondents 1 to 3 and after deducting 1/3rd amount towards personal expenses of the deceased, the balance amount works out to Rs.10,000/- per month which sum is hereby fixed as monthly loss of income to the family. If Rs.10,000/- is fixed as monthly loss of income to the family, the annual loss of income to the family works out to Rs.1,20,000/- [Rs.10,000/- x 12]. If multiplier 11 is applied, then the total loss of dependency works out to Rs.13,20,000/- which sum could be awarded under the head of loss of dependency as just and proper compensation. Hence, a sum of Rs.17,60,000/- awarded by the Tribunal under the head of loss of dependency is hereby reduced to Rs.13,20,000/- and except this modification, the amount awarded under the other heads remain unaltered. Consequently, the total award amount of Rs.31,63,840/- is hereby reduced to Rs.27,23,840/-.

12.The break up details of the award are as follows:

Rs.

       "For Loss of dependency	   	..   13,20,000/-
	For Loss of love
	 and affection 			..      25,000/-
	For Loss of Consortium	        ..	10,000/-
	For Medical expenses		..   13,33,840/-
	For  Transportation	  	..      25,000/-
	For Funeral Expenses		..      10,000/-
					  ===============
				Total	     27,23,840/-
					  ===============

13.Accordingly, the appeal is modified reducing the award to Rs.27,23,840/- from Rs.31,63,840/- awarded by the Tribunal.

14.In view of the above modification, the appellant insurance company is directed to deposit the entire award amount after deducting the amount that has been deposited by them with proportionate interest and on such deposit, the first respondent is entitled for a sum of Rs.17,23,840/- and the respondents 2 and 3 are entitled to a sum of Rs.5,00,000/- each. No costs.

sms To The Motor Accident Claims Tribunal (III Additional Sub Court), Tiruchirappalli.

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Madras High Court