The New India Assurance Company v. V. Amudha

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.11.2008CORAM:-THE HON'BLE MR. JUSTICE R. SUDHAKARC.M.A.NO. 2807 OF 2004The New India Assurance Company,No.312 Anna Salai, Teynampet,Chennai.18.... Appellant/ Respondent-IIVs.1.V. Amudha2.Parmala3.Sridhar4.V. Abirami(Respondents 2 to 4 were declared as majorsand the first respondent is discharged fromguardianship vide order dated 23.12.2004 and 3.7.2008in CMP No.20621/2004 & CMP No.1011/2008.) 5.V. Stella Rani6.Minor V. Pratap7.Minor V. Aswini(Respondents 6 &7 are rep. By their mother andnext friend Stella Rani)8. K. Manimekalai9.R. Vennila10.G. Sumathi .. Respondents/Petitioners/ Respondent-1Appeal filed under Section 173 of the M.V. Act againstthe award and decree dated 18.3.2004 made in MACTOP No. 5823 of1999 on the file of the Motor Accident Claims Tribunal (III Judge,Court of Small Causes) Chennai.For Appellant : Mr. S. JayasankarFor Respondents : Mrs. Salim Fathima R1 - R9 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTThe New India Assurance Company has filed this appealchallenging the award dated 18.3.2004 made in MACTOP No. 5823 of1999 on the file of the Motor Accident Claims Tribunal (III Judge,Court of Small Causes) Chennai.2. The fatal accident in this case happened on 9.12.99at 15.30 hours. The deceased Venugopal, aged 42 years, a masonengaged in building and construction work, was riding a cycle whenhe was hit by a tanker lorry and in that accident, the saidVenugopal died. The family members viz., first wife aged 37years, two minor daughters aged 16 years and 11 years respectivelyand minor son aged 15 years, second wife aged 28 years, two minorsons aged 9 years and 6 years respectively, two married daughtersaged 19 years and 18 years respectively have filed the claimpetition claiming a sum of Rs.16,00,000/- as compensation statingthat the income of the deceased was Rs.10,000/- p.m.3. In support of the claim petition, one Amudha, firstpetitioner was examined as P.W.1. Stella Rani, second wife, wasexamined as P.W.2. One Mohan, the eye witness was examined asP.W.3. and one Amaladoss was examined as P.W.4. Documents Exs.A1to A7 were marked. Ex.A1 is the legal heirship certificate. Ex.A2is the post mortem certificate. Ex.A3 is the legal heirshipcertificate. Ex.A4 is the F.I.R. Ex.A5 is the sketch. Ex.A6 isthe charge sheet. Ex.A7 is the post mortem certificate. On behalfof the appellant/ II respondent before the Tribunal, no oral anddocumentary evidence was let in. 4. Considering the age and occupation of the deceased,the Tribunal fixed the monthly income at Rs.3,000/-. Afterdeducting 1/3rd towards personal expenses of the deceased andadopting 15 multiplier, the Tribunal determined the loss ofpecuniary benefits in a sum of Rs.3,60,000/-. In all, the Tribunalgranted the following amounts as compensation with interest at therate of 9% p.a.Sl.No.HeadAmount grantedby the Tribunal1Loss of pecuniary benefitsRs.3,60,000/-2Loss of expectation of lifeRs. 50,000/-3Loss of consortiumRs. 10,000/-4Loss of love and affection Rs. 50,000/-5Funeral expensesRs. 2,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount grantedby the Tribunal6Damage to articlesRs. 3,000/-TotalRs.4,75,000/-5. The finding of negligence on the part of the driverof the appellant transport corporation bus and the liability of theappellant to compensate the claimant is not in dispute and the sameis confirmed.6. The only contention raised by the learned counsel forthe appellant is on the quantum of compensation. The contention ofthe learned counsel for the appellant is that the sum ofRs.50,000/- granted for loss of expectation of life is notjustified and without any reason or basis, the sum ofRs.3,60,000/- has been granted for loss of pecuniary benefits.7. The learned counsel for the claimants on the otherhand submitted that the deceased left behind the wife and sevenchildren and the second wife as well. Therefore, the compensationtowards loss of love and affection should be enhanced and theamount of Rs.50,000/- granted towards loss of expectation of lifecan be adjusted on the other heads. The deceased in this case was45 years old and he died in the year 1999. In the absence of proofof income, the income was fixed as Rs.3,000/- p.m. The Tribunal byadopting 15 multiplier determined the loss of pecuniary benefits. 8. The following decisions will have to be kept in mindwhile fixing the income of the deceased:-(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 ofthe view that an agriculturist would earn Rs.3,000/- per month.In that case, the accident happened in the year 1999. 9. In this case, the accident happened in the year 1999.The income of the deceased can be taken atleast Rs.4,500/- p.m.Particularly in view of the fact that the deceased was supporting alarge family. Of course, the other wife as a matter of right isnot entitled. The income of the deceased fixed is marginally lowerthan what he would have earned and therefore, the higher multiplierjustifies the compensation. However, the seven children can be https://hcservices.ecourts.gov.in/hcservices/ granted more amount towards loss of love and affection on the deathof their father. While setting aside the sum granted towards lossof expectation of life, the minor children are granted furtheramount of Rs.20,000/- towards loss of love and affection. Thefirst wife will be entitled to further amount of Rs.5,000/-towards loss of consortium on the death of the husband. TheTribunal dismissed the claim petition filed by the petitioners 5,8and 9 and the same is confirmed. Sl.No.HeadAmountgranted bythe TribunalAmountgranted bythis Court 1Loss of pecuniary benefitsRs.3,60,000/-Rs.3,60,000/-2Loss of expectation of lifeRs.50,000/- ---3Loss of consortiumRs.10,000/-Rs.15,000/-4Loss of love and affection tothe childrenRs.50,000/-Rs.70,000/-5Funeral expensesRs.2,000/-Rs.2,000/-6Damage to articlesRs.3,000/-Rs.3,000/-TotalRs.4,75,000/-Rs.4,50,000/-10. Since the accident happened in the year 1999 and theaward was passed in the year 2004, the interest granted by theTribunal at 9.% p.a. is confirmed. 11. In the result, the civil miscellaneous appeal ispartly allowed as follows:-(i) The award of the tribunal is reduced to Rs.4,50,000/- fromRs.4,75,000/-.(ii) It is stated that entire award amount has beendeposited. Claimants 1,2,3,4,6 and 7 are entitled to theirrespective shares as apportioned by the Tribunal. Claimants 1 to 3have already withdrawn 50% of the deposited amount with interestand they are entitled to withdraw their respective share amountwith interest. First claimant is also entitled to withdraw costspaid by the appellant 4th claimant is entitled to withdraw her sharewith interest. https://hcservices.ecourts.gov.in/hcservices/ (iii) The share of the minors/ respondents 6 and 7/claimants 6 and 7 shall be invested in any nationalised bankproximate to the place of the residence of the mother of the minorsfor a period of three years and renewable thereafter till theminors attain majority. The mother of the minors is permitted towithdraw the accrued interest in respect of the share of theminors once in three months directly from the bank and for the saidpurpose the mother of the minors shall open a savings bank accounton the same branch and the interest amount shall be transferred tothe account to be maintained by their mother.(iv) The nationalised bank to which the amount will bedeposited, shall intimate to the mother of the minors of suchdeposit and confirm the same to the Tribunal that the mother of theminors has been duly informed. The Tribunal to inform the bankaccordingly. (v) 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.(vi) There will be no order as to cost. (vii) Consequently, CMP No. 16192 of 2004 and 1161 of 2008are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.raTo1. The Motor Accident Claims Tribunal (III Judge, Court of Small Causes) Chennai.2. The Section OfficerVR Section, High Court, Madras1 cc to Mr.S. Jayasankar, Advocate, SR. 654931 cc to Mr.M. Swamikkannu, Advocate, SR. 65531 CMA No. 2807 of 2004KA (CO)kk 22/1