Easwari v. M.Swaminathan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 12.3.2009CoramThe HONOURABLE Mr. JUSTICE R.SUDHAKARC.M.A.No.1309 of 20031.Easwari,2.Minor Harishkumar,3.Minor Kalaiselvan,4.Kaliammal.(Minor appellants 2 and 3 arerepresented by their mother and next friend Tmt.Easwari,the first appellant). ... Appellants/Claimantsvs.1.M.Swaminathan,2.National Insurance Co. Ltd., 157, Karamadai Road, RVR Buildings, Mettupalayam 641 301. ... Respondents/Respondents Civil Miscellaneous Appeal is filed under Section 173 of theMotor Vehicles Act, 1988 against the award and decree dated 11.7.2002passed in M.C.O.P.No.59 of 2001 on the file of the Motor AccidentsClaims Tribunal (District Judge), Nilgiris at Uthagamandalam.For appellants : No appearanceFor respondents : No appearance-----JUDGMENTThe wife, two minor sons and the mother of the deceased, theclaimants have filed this appeal seeking enhancement of thecompensation over and above the amount awarded by the Tribunal. 2. Even though sufficient opportunity was given, none appearsfor the appellants and the respondents. Since the appeal is of theyear 2003, the appeal is disposed of on merits.3. It is a case of fatal accident. The brief facts of the caseare as follows:- The accident in this case happened on 10.10.2001. https://hcservices.ecourts.gov.in/hcservices/ The deceased Rajendran, aged 33 years, was travelling on the lorrydriven by its driver-cum-owner, the first respondent along with loadof carrot harvested from his field and the lorry was stopped forcleaning and reloading of the carrot. Since the driver of thelorry did not take proper care in parking, the lorry suddenly moved.The driver of the lorry tried to stop the lorry. Since he could notstop the lorry, the driver jumped out of the lorry and the lorrycapsized. During the process, the lorry ran over the saidRajendran. In that accident, the said Rajendran died. The wife aged23 years and two minor sons aged 3-1/2 years and 1-1/2 years and themother 50 years filed the claim under Section 166(1) of the MotorVehicles Act for compensation in a sum of Rs.8 lakhs stating that thedeceased was earning a sum of Rs.6,000/- per month. 4. In support of the claim, the wife of the deceased wasexamined as P.W.1. One Mr.Kanageswaran, a coolie worker of thedeceased and also the eye witness to the accident, was examined asP.W.2. Exs.A-1 to A-9 were marked, the details of which are asfollows as mentioned in the award:-Ex.A-1 is the photocopy of FIR dated 10.10.2001,Ex.A-2 is the photocopy of post-mortem certificate dated 10.10.2001,Ex.A-3 is the photocopy of the death certificate dated 15.10.2001,Ex.A-4 is the photocopy of Motor Vehicle Inspector's Inspection report dated 10.10.2001, Ex.A-5 is the photocopy of the insurance policy dated 28.9.2001, Ex.A-6 is the school transfer certificate dated 27.11.1991,Ex.A-7 is the legal heir certificate dated 4.12.2001,Ex.A-8 is the copy of judgment dated 5.11.2001 andEx.A-9 is the certified copy of post-mortem certificate dated 10.10.2001.No oral or documentary evidence was let in on behalf of therespondents. 5. The Tribunal, in this case based on the age, occupation andthe evidence of P.W.1, fixed the income of the deceased at Rs.1,500/-per month stating that the deceased would be earning Rs.50/- per day.After deducting a sum of Rs.500/- towards personal expenses of thedeceased, the Tribunal fixed the sum of Rs.1,000/- towards loss ofcontribution to the dependents of the deceased. Based on the ageand circumstances of the family of the deceased, the Tribunal adopted https://hcservices.ecourts.gov.in/hcservices/ 15 multiplier and granted a sum of Rs.1,80,000/- (Rs.1,000/- x 12 x15 = Rs.1,80,000/-) towards loss of contribution to the dependentsof the deceased. The Tribunal also granted compensation underconventional heads. In all, the Tribunal granted the followingamounts as compensation with interest at 9% per annum:-Sl.No.HeadAmount granted bythe Tribunal1Loss of contribution to the dependents ofthe deceased Rs.1,80,000/-2Loss of consortium to the wife on the deathof her husbandRs. 10,000/-3Transport and funeral expenses Rs. 10,000/-TotalRs.2,00,000/-6. The claimants filed the present appeal seeking enhancement ofcompensation stating that the income of the deceased has not beenproperly fixed and therefore, they are prejudiced by lessercompensation. It was also pleaded in the memorandum of appealgrounds that the multiplier to be followed in this case should be 18and not 15. 7. On the appreciation of the facts and circumstances of thecase, the grounds raised in the appeal in respect of the loss ofcontribution to the dependents of the deceased have to be acceptedand the compensation has to be enhanced for the following reasons:-(i) The accident in this case happened on 10.10.2001.(ii) The deceased was aged 33 years old and was an intensiveagriculturist and was dealing in vegetables and other cash cropsby which he was earning daily income and these facts are notdisputed. (iii) While determining the income, the following two decisions canbe taken into consideration:- (a) 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. (b) 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. https://hcservices.ecourts.gov.in/hcservices/ In the above cited cases, the income of the deceased wastaken at Rs.3,000/- per month for the year 1995 and 1999respectively, whereas in the present case, the accident happenedin the year 2001. In this case, the income of the deceased wastaken as Rs.1,500/- per month which is meagre. (iv) Based on the above decisions, the income of the deceased inthis case should have been fixed at Rs.3,000/- per month. (v) As far as multiplier is concerned, the Tribunal taking intoconsideration the age and the family circumstances of thedeceased, adopted 15 multiplier and this cannot be found faultwith, in view of the Apex Court's decision in New India Assurance– vs.- Smt.Kalpana and others reported in 2007 AIR SCW 1316 =2007(1) Supreme 514, and in The Managing Director, TNSTC – vs. -Sripriya and others reported in 2007(1) TN MAC 319 (SC) and alsothe decision in General Manager, Kerala State Road TransportCorporation – vs. Susamma Thomas and others reported in (1994)1ACC 346 (SC) = AIR 1994 SC 1631 and also taking note of the factthat there are two minor children aged 3-1/2 years and 1-1/2years. Therefore, the multiplier 15 adopted by the Tribunal isreasonable. (vi)In the appeal grounds the claimants stated that the loss ofcontribution to the family of the deceased would be Rs.1,800/-per month and this can be accepted in view of the income fixed.Accordingly, the loss of contribution to the dependents of thedeceased will be Rs.3,24,000/- (Rs.1,800/- x 12 x 15 =Rs.3,24,000/-) as against Rs.1,80,000/-. (vii) The sum of Rs.10,000/- granted towards loss of consortium tothe wife of the deceased and the sum of Rs.10,000/- grantedtowards transport and funeral expenses are confirmed. (viii)No compensation is granted towards loss of love andaffection to the two minor sons and the mother of the deceased.Hence, the two minor children are granted a sum of Rs.10,000/-each towards loss of love and affection on the death of theirfather. The mother of the deceased is granted a sum ofRs.5,000/- towards loss of love and affection on the death of herson. (ix) Accordingly, the award of the Tribunal is enhanced as follows:-Sl.No.HeadAmount grantedby theTribunalAmount grantedby this Court1Loss of contribution to thedependents of the deceased Rs.1,80,000/-Rs.3,24,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount grantedby theTribunalAmount grantedby this Court2Loss of consortium to the wife onthe death of her husbandRs. 10,000/-Rs. 10,000/-3Loss of love and affection to thetwo minor children on the deathof their father (Rs.10,000/-each) ---Rs. 20,000/-4Loss of love and affection to themother on the death of her son ---Rs. 5,000/-5Transport and Funeral expensesRs. 10,000/-Rs. 10,000/-TotalRs.2,00,000/-Rs.3,69,000/- 8. In the result, the Civil Miscellaneous Appeal is allowed inpart as follows:-(i) The award of the Tribunal is enhanced to Rs.3,69,000/- fromRs.2,00,000/-. (ii) The enhanced amount of compensation of Rs.1,69,000/- willsuffer interest at 7.5% per annum from the date of claim petitiontill date of deposit. (iii) The enhanced award amount is apportioned as follows:-The first appellant, the wife ofthe deceasedRs.1,00,000/- with proportionateinterest.The appellants 2 and 3, the minorsons of the deceasedRs.25,000/- each withproportionate interestThe 4th appellant, the mother ofthe deceasedRs.19,000/- with proportionateinterest (iv) The second respondent insurance company is granted eightweeks' time to deposit the entire enhanced award amount with interest.(v) On such deposit, the appellants 1 and 4 are permitted towithdraw the enhanced award amount as apportioned above.(vi) In respect of the minor appellants' share, the same shallbe invested in any nationalised bank proximate to the place of theresidence of the mother, the first appellant/first claimant for aperiod of three years and renewable thereafter till the minors attainmajority. The mother of the minor appellants 2 and 3 is permittedto withdraw the accrued interest in respect of the share of the https://hcservices.ecourts.gov.in/hcservices/ minors once in three months directly from the bank and for the saidpurpose the first appellant/first claimant shall open a savings bankaccount on the same branch and the interest amount shall betransferred to the account to be maintained by the mother.(vii) The nationalised bank to which the amount will beinvested, shall intimate to the first appellant/mother of the minorsof such deposit and confirm the same to the Tribunal that the firstappellant has been duly informed. The Tribunal to instruct the bankaccordingly.(viii) Since the deposit is in the case of minors, the Tribunalis directed to send a report containing the details of the depositto the High Court on such deposit.(ix) There will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsToTHE DISTRICT JUDGE, (MOTOR ACCIDENTS CLAIMS TRIBUNAL), NILGIRIS AT UTHAGAMANDALAM. 2. THE SECTION OFFICERJUDICIAL DEPARTMENTHIGH COURT, MADRAS3. THE SECTION OFFICERV.R.SECTIONHIGH COURT,MADRASC.M.A.No.1309 of 2003ck(co)SRA(3/4/2009)