National Insurance Company Limited,Sankari v. Ammasi Nadar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.1.2009C O R A MTHE HONOURABLE Mr.JUSTICE R.SUDHAKARCivil Miscellaneous Appeal No.20 of 2009andM.P.No.1 of 2009The National Insurance Company Limited,Sankari. ... Appellant/3rd respondent Vs.-1.Ammasi Nadar,2.Marayee, ...Respondents 1 and 2/ Petitioners 1 and 23.Kulandaivelu, ...3rd Respondent/1st Respondent4.Suseela. ...4th Respondents/2nd RespondentCivil Miscellaneous Appeal is filed under Section 173 ofthe Motor Vehicles Act, 1988, against the award and decree dated29.4.2008 passed in M.C.O.P.No.365 of 2007 on the file of theMotor Accidents Claims Tribunal (Sub Court), Sankari, SalemDistrict. For Appellant : Mr.J.ChandranFor Respondents :Mr.K.Selvaraj for R1 and R2/caveators-----J U D G M E N T Mr.K.Selvaraj, learned counsel appears for the respondents1 and 2/caveators. By consent of both parties, the main appealitself is taken up for final disposal. 2. The National Insurance Company is on appeal challengingthe award dated 29.4.2008 passed in M.C.O.P.No.365 of 2007 onthe file of the Motor Accidents Claims Tribunal(Sub Court),Sankari, Salem District. https://hcservices.ecourts.gov.in/hcservices/

3. It is a case of fatal accident. The brief facts ofthis cases are as follows:- The accident in this case happenedon 9.5.2004. The deceased Selvan, aged 29 years, was travellingas a cleaner in the truck near Surat. The driver of the truckdrove the truck in a rash and negligent manner and hit astationary truck. In that accident, the said Selvan died onthe spot. The father aged 52 years and the mother aged 49 yearsfiled a claim for compensation in a sum of Rs.6,00,000/-stating that the deceased was earning a sum of Rs.6,000/- permonth and he is a cleaner in a heavy duty truck moving all overIndia. 4.In support of the claim, the father of the deceasedwas examined as P.W.1 Documents Exs.A-1 to A-6 were marked,the details of which are as follows:-Ex.A-1 is the English translation copy of FIR dated 12.5.2004,Ex.A-2 is the English translation copy of Panchanama dated 12.5.2004, Ex.A-3 is the English translation copy of panchanama InquestReport,Ex.A-4 is the English translation copy of charge-sheet,Ex.A-5 is the English translation copy of post-mortemcertificate dated 12.5.2004 andEx.A-6 is the death certificate dated 9.10.2004. No oral or documentary evidence was let in on behalf of theappellant Insurance company, the third respondent before theTribunal. 5. The finding of negligence on the part of the driver ofthe heavy vehicle (truck), in which the deceased travelled andwho is held responsible for the accident and the death, and theliability fixed on the appellant insurance company tocompensate the claimants is not seriously disputed by theappellant's counsel and the same is confirmed. The onlycontention raised by the counsel for the appellant is on thequantum of compensation.6. The Tribunal fixed the income of the deceased atRs.5,000/- per month (i.e.) Rs.60,000/- per annum. Afterdeducting 1/3 towards personal expenses of the deceased, theTribunal fixed the loss of income to the parents of the deceasedat Rs.40,000/- per annum. By adopting multiplier 13, the https://hcservices.ecourts.gov.in/hcservices/ Tribunal granted a sum of Rs.5,20,000/- towards pecuniary lossto the parents of the deceased. The Tribunal also grantedcompensation under conventional heads. In all, the Tribunalgranted the following amounts as compensation with interest at7.5% per annum:-Sl.No.HeadAmount granted bythe Tribunal1Loss of pecuniary benefits to the parentsof the deceased (Rs.40,000/- x 13 =Rs.5,20,000/-)Rs. 5,20,000/-2Funeral ExpensesRs. 5,000/-3Loss of love and affection to the parentson the death of their son (Rs.5,000/-each)Rs. 10,000/-4Transport charges Rs. 10,000/-5Loss of legal heirRs. 10,000/-TotalRs. 5,55,000/-7.The learned counsel for the appellant stated that theTribunal erred in fixing the income of the deceased atRs.5,000/- per month without any material to support the higherincome of the deceased. He stated that the accident in thiscase happened in the year 2004 and there was no proof to showthat he was earning a sum of Rs.5,000/- per month as a cleanerin the truck at the time of accident. Therefore, he pleadedthat the income should be suitably reduced. The multiplier 13is not in dispute. He also pleaded that the amount grantedunder the head loss of legal heir is not correct. The otheramounts granted by the Tribunal are not disputed by the learnedcounsel for the appellant. 8.On the other hand, learned counsel for the claimantssubmitted that the deceased was a regular employee as cleanerin the truck. His basic income along with bonus and batta wasmuch more and therefore, the income fixed by the Tribunal isjustified. He pleaded that the appeal should be dismissed. 9. As far as income of the persons like the deceased, inthe present case, the following two decisions will have to bekept in mind while fixing the income of the deceased:-(i) A Division Bench of this Court in B.Anandhi – vs. -Latha reported in 2002 ACJ 233 (P.SATHASIVAM,J., as he then was)observed that a coolie would earn Rs.100/- per day. In thatcase, the accident happened in the year 1995. https://hcservices.ecourts.gov.in/hcservices/ (ii) The Apex Court in State of Haryana and another – vs. -Jasbir Kaur and others reported in 2004-1 Law Weekly, was of theview that an agriculturist would earn Rs.3,000/- per month. Inthat case, the accident happened in the year 1999. In the above cited cases, the income of the deceased was takenat Rs.3,000/- per month for the year 1995 and 1999 respectively,whereas in the present case, the accident happened in the year2004. Considering the cost of living, rise in price ofcommodities and the living wages applicable from time to time,the Tribunal should have fixed the income of the deceased at arational basis. On the other hand without any reason, a sum ofRs.5,000/- per month was taken as income of the deceased, whowas a cleaner. The multiplier of 13 adopted is not disputed.It is because of higher income taken without any proof, theappeal is filed for modification. The contention of the counselfor the appellant deserves to be accepted for the simple reasonthat the deceased 29 years old cleaner by occupation was statedto be earning Rs.6,000/- per month for which no proof by way ofdocuments was produced from the owner of the vehicle that he waspaying Rs.6,000/- per month as salary. The fixing of income atRs.5,000/- per month by the Tribunal is excessive as it is notsupported by material evidence applicable to the relevant time(i.e.) 2004. In view of the decisions cited supra, theuncertainty in employment and the nature of employment, theincome of the deceased at best should be fixed at Rs.4,000/- permonth. The compensation based on higher income has to bereduced.10. Accordingly, the annual income of the deceased will beRs.48,000/- (Rs.4,000/-X 12 = Rs.48,000/-) and of which 1/3should be deducted for personal expenses of the deceased and thecontribution to the dependents will be Rs.32,000/- per annum.By adopting multiplier 13, the total pecuniary loss to theparents of the deceased will be Rs.4,16,000/- (Rs.32,000/- x 13= Rs.4,16,000/-). The sum of Rs.10,000/- granted towards lossof legal heir has no basis. However, the above said sum ofRs.10,000/- can be adjusted towards loss of love and affectionto the parents as a paltry sum of Rs.10,000/- alone wasgranted towards loss of love and affection to the parents, whichis very low. Hence, a sum of Rs.10,000/- each is granted forloss of love and affection to the parents, in all Rs.20,000/-.The sum of Rs.5,000/- granted towards funeral expenses isconfirmed. It is stated that the body of the deceased wasbrought from North India by air. Hence, the sum of Rs.10,000/-granted towards transportation expenses is justified.Accordingly, the award of the Tribunal is modified as follows:- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount grantedby theTribunalAmount grantedby this Court1Loss of pecuniarybenefits to the parents(Rs.40,000/- x 13 =Rs.5,20,000/-)Rs.5,20,000/----1(a)Loss of pecuniarybenefits to the parents(Rs.32,000/- x 13 =Rs.4,16,000/-)---Rs.4,16,000/-2Funeral ExpensesRs. 5,000/-Rs. 5,000/-3Loss of love andaffection to the parents(Rs.5,000/- each)Rs. 10,000/----3(a)Loss of love andaffection to the parents(Rs.10,000/- each)---Rs. 20,000/-4Transport expensesRs. 10,000/-Rs. 10,000/-5Loss of legal heirRs. 10,000/----TotalRs. 5,55,000/-Rs.4,51,000/-11. Since the accident in this case happened in the year2004 and the award is of the year 2008, the interest granted bythe Tribunal at 7.5% stands confirmed.12.In the result, the Civil Miscellaneous Appeal isallowed in part as follows:-(i)The award of the Tribunal is reduced to Rs.4,51,000/-from Rs.5,55,000/-. (ii) The interest granted by the Tribunal at 7.5% isconfirmed. (iii) Counsel for appellant prays for eight weeks' timeto deposit the award amount as ordered by this court and isgranted. (iv) On such deposit, the claimants are permitted towithdraw the award amount as apportioned below:- https://hcservices.ecourts.gov.in/hcservices/ Mother, the 2nd respondent Rs.3,00,000/- withproportionate interest andentire costsFather, the 1st respondent Rs.1,51,000/- withproportionate interest(v) There will be no order as to costs. (vi) Consequently, connected miscellaneous petition isclosed.TsSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Subordinate Judge,(The Motor Accidents Claims Tribunal), Sankari, Salem District.+ 1 cc to Mr. K. Selvaraj, Advocate, SR No.1832+ 1 cc to Mr. J. Chandran, Advocate, SR No.1718 Judgment in C.M.A.No.20 of 2009SSN(CO)SR/13.2.2009