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2008 DIGILAW 4783 (MAD)

J. Karpagam & Others v. V. Murugan & Another

2008-12-23

V.PERIYA KARUPPIAH

body2008
Judgment :- 1. This appeal is directed against the award passed by the lower Court in M.C.O.P.No.1169 of 1999 dated 18.06.2002, preferred by the second respondent Insurance Company. For convenient sake the ranking of the parties before the lower Court are referred in this Judgment also. 2. The brief facts relied upon by both parties before the Lower Court are as follows: (i) On 03.01.1999 at about 9.30 p.m while the deceased was walking along Thiruvottiyur High Road proceeding near Lakshmi Amman Koil Bus Stop, an Auto Rickshaw bearing Regn. No.TN-04-Y-3976 belonged to the first respondent came in a rash and negligent manner, dashed against the deceased, as a result of which the deceased succumbed to injuries and admitted in the hospital. The first claimant is the wife, second and third claimants are the sons of the deceased. The deceased was aged 33 years at the time of accident and was working as loading and unloading maistry, earned Rs.10,000/-to Rs.13,000/- per month. Hence a total sum of Rs.11,00,000/- was claimed as compensation. (ii) In the Counter filed by the second respondent, it is stated that as the accident was solely due to the careless and unmindful act of the deceased who suddenly darted across the road. The age, avocation and income of the deceased are to be proved. The claimants are also put to strict proof that they are legal heirs of the deceased. In any event the compensation claimed is very excessive and speculative. 3. The lower Court after the appraisal of the evidence adduced before it had awarded a sum of Rs.1,62,000/- as compensation against the claim of Rs.11,00,000/-and aggrieved against the said award, the claimants have preferred this appeal for enhancement of compensation. 4. Heard Mr. M. Swamikannu, learned counsel appearing for the appellants and Mr. S. Ramakrishnan, learned counsel appearing for the second respondent. 5. Learned counsel for the appellants/claimants would submit in his argument that the deceased was working as Maistry of loading and unloading of goods and was earning a sum of Rs.10,000/- per month. But however, the lower Court had come to a conclusion that the deceased Jayapal was doing loading work and was earning a sum of Rs.100/-per day for 22 days in a month and he was earning a sum of Rs.2,200/- per month towards his exercise as Loadman. But however, the lower Court had come to a conclusion that the deceased Jayapal was doing loading work and was earning a sum of Rs.100/-per day for 22 days in a month and he was earning a sum of Rs.2,200/- per month towards his exercise as Loadman. He would further submit in his arguments that the lower court had wrongly deducted 1/3rd of the contribution after fixing the contribution to the claimants from out of the said monthly income of Rs.2,200/-. He would further submit that the claimants being three persons would have more dependency and the dependency should have been fixed at 75% and deduction towards maintenance of the deceased should have been at 25% from out of the monthly income of deceased and the claimants dependancy should have been fixed accordingly. 6. He would also submit in his arguments that the award of compensation towards loss of consortium and loss of love and affection to a consolidated sum of Rs.15,000/-is not sufficient and the compensation for Loss of Estate and for the Medical Expenditure sustained towards treatment given to the deceased person were not awarded by the lower Court. Moreover he would submit that the fixation of multiplier at 15 was not as per law for a person who aged 41 years at the time of accident . 7. Learned counsel for the appellants would also draw the attention of this Court to the Judgment of our Apex Court reported in 2000 ACJ 1368 [Jyoti Kaul and Others v. State of Madhya Pradesh and another] to the effect that multiplier should have been fixed depending upon the facts and circumstances of the each case and also for fixing of multiplier at 15 for a person who was aged 50 was also upheld by the Apex Court. Therefore, he has requested the court to enhance the award amount passed by the lower Court. .8. Learned counsel for the second respondent/insurance company would submit in his arguments that the lower Court had correctly calculated the income of the deceased and had applied the prinicples of deductions and accordingly the 1/3rd of monthly dependency was deducted towards lumpsum payment. He would further submit that the multiplier used by the lower Court was to the advantage of the claimants. He would further submit that the multiplier used by the lower Court was to the advantage of the claimants. The Apex Court had fixed the multiplier at 13 for the person aged 36 years whereas the deceased person here was aged 41 years at the time of accident and therefore, the multiplier need not be enhanced or if the monthly income of the deceased is fixed by this Court more than that of the fixation of the lower Court, the suitable multiplier of 13 may be used and the same compensation may be ordered. He would further submit that the award of compensation towards the loss of consortium and loss of love and affection are all correct and there was no evidence to show that the deceased was treated and the expenditure was incurred by the claimants and therefore no circumstances shown by the appellants to enhance the compensation. He would therefore, request to dismiss the appeal. 9. I have given anxious consideration to the arguments advanced by both sides. 10. On a careful consideration of the arguments, evidence adduced and the Judgment and decree passed by the Lower Court, it is seen that the appellants who are the claimants, have asked for enhancement of compensation from Rs.1,62,000/-to Rs.11,00,000/-. According to the claimants, the deceased was working as loading and unloading Maistry and was not working as a loadman so as to fix a monthly income of Rs.2,200/-. The deceased was actually earning a sum of Rs.10,000/- by way of his working as well as commission agent and therefore the monthly income should have been increased. There is no dispute that the accident had happened on 1. 1999. According to the evidence of P.W.1, the wife of the deceased, the deceased was doing the profession of loadman. During the period of accident, income for a load man would be at Rs.100/- per day as fixed by the lower Court. Similarly, the load man could have worked for 22 days in a month and accordingly the income of the deceased person fixed at Rs.2,200/- per month by the lower Court is perfectly allright. However, the lower Court had reduced the said income to Rs.1,200/-while fixing the dependency of the claimants. Thereafter it had calculated the compensation on the basis of the said monthly dependency and again 1/3rd deduction was done from the said amount. However, the lower Court had reduced the said income to Rs.1,200/-while fixing the dependency of the claimants. Thereafter it had calculated the compensation on the basis of the said monthly dependency and again 1/3rd deduction was done from the said amount. The said procedure is not in accordance with the judicial principles settled by our Apex Court. For fixing the monthly dependency, only 1/3rd deduction is normally made and in some cases depending upon the number of dependents it can be further reduced to the lesser percentage. So far as this case is concerned the income earned by the deceased was shared by the three claimants and the deceased. Therefore a deduction of 25% was made instead of 1/3rd for fixing the monthly dependency. If 25% is applied, the monthly dependency would be Rs.1,650/-and the annual dependency would be Rs.19,200/-. 11. Now, we have to see whether the multiplier adopted by the lower Court at 15 could be used for the deceased person. The age of the deceased was fixed at 41 years as per the Post-mortem Certificate produced in the case. According to the Judgment of our Apex Court reported in 2000 ACJ 1368 [Jyoti Kaul and Others v. State of Madhya Pradesh and another] it has been decided as follows: 7. The aforesaid decisions make it clear that the principles of multiplier would depend on the facts and circumstances of each case. Looking to the facts of this case we find that the Tribunal has given good reasons for applying the multiplier of 15. This was in addition of taking into consideration that the predecessors of the deceased all lived for more than 80 years. High Court reduced the multiplier from 15 to 10 without taking into consideration the circumstances considered by the Tribunal and thus committed the error. We, accordingly, set aside the findings of the High Court only to the extend of the application of multiplier and uphold other findings including reduction of interest. The present appeal, accordingly, succeeds in part. The computation of compensation now shall be made on the basis of multiplier of 15. The difference in enhanced amount which has yet not been paid by the respondent State shall be paid to the claimants within a period of three months from today." In the aforesaid Judgment of our Apex Court for a person aged 50 years, the multiplier of 15 is used. The difference in enhanced amount which has yet not been paid by the respondent State shall be paid to the claimants within a period of three months from today." In the aforesaid Judgment of our Apex Court for a person aged 50 years, the multiplier of 15 is used. However, the deceased in this case was aged only 41 years and the claimants are depending upon the sole income of the deceased person and therefore the fixation of multiplier at 15 by the lower Court is not liable to be disturbed. When we calculate the total dependency with the use of mulitiplier 15, it would be Rs.2,88,000/-[ Rs.19,200/- x 15]. 12. Apart from this compensation, the first claimant being a widow, she should have been awarded Rs.15,000/- towards loss of consortium and the claimants 2 and 3, the minor children of the deceased persona are also to be awarded a sum of Rs.15,000/-each towards loss of Love and Affection. As regards the compensation to be awarded for loss of estate, a sum of Rs.5000/-could be awarded as compensation. An award of a sum of Rs.3,000/-towards Funeral Expenses is justifiable and accordingly the claimants are entitled to the said amount. Hence, the total Compensation eligible to the claimants are as follows: Dependancy : Rs.2,88,000.00 Loss of Consortium to the first claimant : Rs. 15,000.00 Loss of Love and Affection : Rs. 30,000.00 to 2nd and 3rd claimants Rs.15,000/- each Loss of estate : Rs. 5,000.00 Funeral Expenses : Rs. 3,000.00 Total : Rs.3,41,000.00 But the lower Court had awarded only a sum of Rs.1,62,000/-which is not correct. Therefore, the enhanced compensation of a sum of Rs.1,79,000/- is payable to the claimants in this appeal and the claimants are entitled to the said sum with interest at 7.5% from the date of the petition till the date of realisation. 13. For the foregoing discussions the appeal is partly allowed. The award is accordingly enhanced from 1,62,000/-to 3,41,000/-and the enhanced compensation of Rs.1,79,000/- shall carry interest at 7.5% from the date of petition till the date of deposit with proportionate costs. Time for deposit of the said amount before the Tribunal eight weeks.