Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 568 (MAD)

Amudhavalli & Others v. Magesh & Others

2010-02-15

M.M.SUNDRESH, R.BANUMATHI

body2010
Judgment :- R.BANUMATHI,J. 1. Being dissatisfied with the quantum of compensation of Rs.2,95,400/- awarded by the the Motor Accidents Claims Tribunal (Subordinate Judge), Kanchipuram in MACT.O.P.No.391 of 1999 for the death of Gajalakshmi, her parents, brother and sister have filed this appeal. 2. Brief facts are as follows; On 1.6.1999 at about 4.30 p.m., the deceased Sunitha @ Gajalakshmi was travelling in a Tata Sumo Car bearing Regn.No.TN 21 J 9999 along with her relatives from Kancheepruam to Chengalpattu. When the car was nearing Thimmavaram Modern Rice Mill, a lorry bearing Regn.No.TDV 3727 came from opposite direction in a rash and negligent manner and dashed against the Sumo Car in which the deceased was travelling. A criminal case was registered against the lorry driver in Crime No.334 of 1999 of Chengleput Taluk Police Station. Gajalakshmi, aged 27 years had passed C.A.Intermediate Examination in the month of May 1997. Alleging that the accident was due to rash and negligent driving of lorry driver and the Claimants family had lost support and love and affection of deceased Gajalakshmi, parents, brother and sister of Gajalakshmi have filed Claim Petition under Section 166 of Motor Vehicles Act claiming compensation for Rs.75,00,000/-. 3. Before the Tribunal, the 2nd Claimant got examined himself as P.W.1. Prakash, eye witness was examined as P.W.7. The representatives of various firms, which employed Gajalakshmi in their firms to check their accounts as auditor – P.Ws.5, 6 and 8 were examined. 4. Based upon oral and documentary evidence, the Tribunal held that the accident was due to rash and negligent driving of lorry driver and the 2nd Respondent, who is the insurer of the vehicle, has to indemnify the compensation on behalf of owner/1st Respondent. Taking monthly income of the deceased at Rs.1,600/- and deducting 1/3rd for personal expenses and adopting multiplier 18, the Tribunal has calculated loss of dependency at Rs.2,30,400/-. Adding conventional damages, the Tribunal has awarded total compensation of Rs.2,95,400/- payable with interest at the rate of 9 percent per annum. 5. The learned counsel for the Claimants contended that the deceased Gajalakshmi has passed C.A.Intermediate Examination and the Tribunal did not consider the educational background and future prospects of the deceased while computing the loss of income. Adding conventional damages, the Tribunal has awarded total compensation of Rs.2,95,400/- payable with interest at the rate of 9 percent per annum. 5. The learned counsel for the Claimants contended that the deceased Gajalakshmi has passed C.A.Intermediate Examination and the Tribunal did not consider the educational background and future prospects of the deceased while computing the loss of income. It was further submitted that the Tribunal erred in disbelieving evidence regarding income on the ground that the witnesses - Managing Partners of the firms/ companies might be relatives or friends of the deceased. Considering the status, future prospects and age of the deceased, the learned counsel for Appellants prayed for fixing monthly income atleast at a sum of Rs.15,000/-. 6. We have heard Mr.N.Vijayaraghavan, learned counsel for the Appellants/Claimants and the learned counsel for the Respondent Insurance Company. 7. It is not necessary for us to narrate the facts in detail as to how the accident had happened, who was negligent and coverage of Policy. It is for the reason that these aspects were recorded in favour of the Claimants and not seriously disputed by the Respondent Insurance Company. Only the quantum of compensation awarded is disputed. 8. The father of deceased Gajalakshmi - Natarajan was examined as P.W.1. In his evidence, P.W.1 has stated that Gajalakshmi has completed her C.A. Intermediate and that she was working in Sri Padmavathi Finance & Investments run by his brother-in-law. P.W.1 has further stated that a partner of one T.V.Skin Agencies is also known to his brother-in-law and Gajalakshmi was also attending to the accounts in the said concern T.V.Skin Agencies. 9. P.W.5 – Vijayakumar, a Managing partner of a concern - Vellore Shoe Fabrics has stated that Gajalakshmi had worked in their concern as Internal Auditor from 1.4.1998 till May 1999 and that they have paid Rs.5,000/- per month to Gajalakshmi apart from Bonus of Rs.7,000/-. To that effect, P.W.5 has also issued salary certificate Ex.P.19. P.W.5 has further stated that Ex.P.21 Income-tax return would show the salary and bonus paid to Gajalakshmi. Likewise, P.W.6 – Nandagopal, who is running a firm -Ananda Agencies dealing in Myda Suji stated that Gajalakshmi was working as Internal Auditor in their concern and that they have paid Rs.3,000/- per month to Gajalakshmi. P.W.6 issued Ex.P.25 to show that she was paid Rs.3,000/- per month apart from bonus of Rs.8,000/- per month. Likewise, P.W.6 – Nandagopal, who is running a firm -Ananda Agencies dealing in Myda Suji stated that Gajalakshmi was working as Internal Auditor in their concern and that they have paid Rs.3,000/- per month to Gajalakshmi. P.W.6 issued Ex.P.25 to show that she was paid Rs.3,000/- per month apart from bonus of Rs.8,000/- per month. P.W.9 – Karthikeyan, who is running the firm Vellore Ralor Garments in No.135, Katpadi Raod, has also stated that Gajalakshmi was their internal auditor and that she was paid Rs.12,000/- per month and she was getting Rs.1,40,000/-per annum as consulting fees. 10. Pointing out that P.Ws.2, 5, 6, 8 and 9 are all well known to father of deceased Gajalakshmi and that Exs.P.15 to P.23 have been brought up to boost the income of Gajalakshmi, Tribunal disbelieved oral evidence as well as documentary evidence -Exs.P.15 to P.23. Tribunal has taken into account the evidence of P.W.1. In his evidence, P.W.1 has admitted that Gajalakshmi had passed in only one subject and she had arrears and that she was not a qualified auditor. Pointing out that the deceased was only a student and that she had no income of her own, Tribunal had taken monthly income at Rs.1,600/-. Deducting the amount for personal expenses, Tribunal has taken the annual contribution approximately at Rs.19,200/- adopting the multiplier 18, Tribunal has awarded Rs.2,30,400/- towards loss of income. 11. As pointed out by the Tribunal, Gajalakshmi was yet to be qualified as Chartered Accountant and that she was only a student. Of course, the documents produced by the Claimants were issued either by brother-in-law of P.W.1 or the other firms who are known to P.W.1 – Natarajan. Even though Gajalakshmi was not earning income, the fact remains that she was doing C.A. After few years, she would have become a qualified auditor and would have earned more income. It cannot be denied that the loss of a child/daughter is one of the most emotionally crying experience in the life of a parent. 12. Gajalakshmi was aged about 27 years. After a couple of years, parents would have reaped the result of their labour and expenses in bringing up Gajalaskhmi. Though at the time of accident Claimants might not have received any benefit, Gajalakshmi being aged 27 years, parents would have had all expectation from her. 12. Gajalakshmi was aged about 27 years. After a couple of years, parents would have reaped the result of their labour and expenses in bringing up Gajalaskhmi. Though at the time of accident Claimants might not have received any benefit, Gajalakshmi being aged 27 years, parents would have had all expectation from her. When parents become aged and infirm they do have an expectancy of a reasonable monetary and psychological help from their children, what ever their status or avocation in their life. 13. As per Section 166 of the Motor Vehicles Act, Tribunal has to award a fair and reasonable compensation. The compensation to be awarded is not to be a wind fall but has to be just and reasonable. Though by use of the expression, "which appears to it to be just", a wide discretion is vested in the Tribunal. The determination has to be rational, to be done by a judicious approach and not the outcome of guesses and arbitrariness as held by the Supreme Court in the case reported in 1999 ACJ 10 SC (HELEN REBELLO VS. MAHARASHTRA STATE ROAD TRANSPORT CORPORATION). The expression "just" denotes fairness, equitability and reasonableness and non-arbitrariness. If it is not so, it cannot be just. 14. Courts have a duty to award just compensation. What is just and reasonable compensation cannot be adopted by any mathematical compensation. But it has to be equitable, fair and reasonable. (See 2003 ACJ 1775 (DIVISIONAL CONTROLLER, KARNATAKA STATE ROAD TRANSPORT CORPORATION VS. MAHADEVA SHETTY AND ANOTHER). 15. In 2009(1) CTC 743 (SYED BASHEER AHAMED VS. MOHD. JAMEEL), it was held the Courts have a duty to award just compensation. Section 168 enjoins the Tribunal to make award which appears to be just and reasonable. Wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily. The compensation must be based on data establishing reasonable nexus between the loss incurred by dependants of deceased and compensation to be awarded. 16. In our considered view, the Tribunal has not taken into account the fact that Gajalakshmi would have become a qualified auditor after few years. The compensation must be based on data establishing reasonable nexus between the loss incurred by dependants of deceased and compensation to be awarded. 16. In our considered view, the Tribunal has not taken into account the fact that Gajalakshmi would have become a qualified auditor after few years. Likewise the Tribunal also did not keep in view that the father of the deceased and her relatives were all doing business and once Gajalakshmi had become a qualified auditor her services would have been definitely utilised by the family concerns as well as in the concerns of their relatives. Having regard to the educational qualification and the evidence adduced by the Claimants, in our considered view, the monthly income of Rs.1,600/- adopted by the Tribunal is very low and the same is enhanced to Rs.10,000/- per month. Deducting Rs.2,500/- for personal expenses, contribution of Gajalakshmi to the family is calculated at Rs.7,500/- per month. Annual loss of dependency is calculated at Rs.90,000/-(Rs.7,500/- x 12). 17. From Ex.P.6, it is seen that the date of birth of deceased was 31.3.1972 and that she was aged 27 years. Based upon her age, Tribunal had adopted multiplier 18. As held by the Supreme Court in (2008) 2 SCC 667 (RAMESH SINGH VS. SATBIR SINGH), choice of multiplier would depend upon age of the deceased or that of the Claimant, which ever is higher. In the instant case, parents, brother and sister of the deceased being the Claimants, the choice of multiplier would depend upon the age of the parents. It cannot be said that the 3rd and 4th Claimants – brother and sister would have been depending upon Gajalakshmi for a number of years. Taking the age of the deceased as the basis, the Tribunal was not right in adopting the multiplier 18. 18. In the claim petition, the age of the 1st Claimant – mother is stated as 45 and age of the 2nd Claimant- father is stated as 50 years. Having regard to age of parents, we deem it proper to adopt multiplier 13. Loss of dependency is calculated at Rs.11,70,000/- (Rs.90,000 x 13). Insofar as the conventional damages, Tribunal has awarded Rs.4,000/- for transport expenses, Rs.1,000/- for damages to clothes, Rs.40,000/- for loss of love and affection and Rs.10,000/-for funeral expenses. The compensation awarded by the Tribunal udner the above heads is reasonable and the same is confirmed. Loss of dependency is calculated at Rs.11,70,000/- (Rs.90,000 x 13). Insofar as the conventional damages, Tribunal has awarded Rs.4,000/- for transport expenses, Rs.1,000/- for damages to clothes, Rs.40,000/- for loss of love and affection and Rs.10,000/-for funeral expenses. The compensation awarded by the Tribunal udner the above heads is reasonable and the same is confirmed. Insofar as mental agony Tribunal has awarded Rs.10,000/-. In the fatal cases, there cannot be any award of compensation under the separate head "mental agony." and the award of Rs.10,000/-by the Tribunal under the head "mental agony" is deleted. Accordingly, the compensation awarded by the Tribunal is enhanced to RS.12,25,000/- as follows:- Loss of dependency: Rs.11,70,000.00 Transport Expenses: Rs. 4,000.00 Damages to Clothes: Rs. 1,000.00 Love and affection (each Rs.10,000/)Rs. 40,000.00 Funeral Expenses: Rs. 10,000.00 Total: Rs.12,25,000.00 The parents - 1st and 2nd Claimants shall be entitled to Rs.6 lakhs each with accrued interest thereon and the 3rd and 4th Claimants shall be entitled to Rs.12,500/- each. In so far as interest, the Tribunal has awarded interest at the rate of 9 percent per annum and the rate of interest awarded by Tribunal is on the higher side. As held by the Supreme Court in S.Rajapriyas case (2005 AIR SCW 2542) and other decisions, interest is reduced to 7.5% p.a. From the date of filing of Petition. 19. In the result, the compensation amount awarded to the Claimants in M.C.O.P.No.391 of 1999 on the file of Motor Accident Claims Tribunal (Subordinate Judge), Kancheepuram is enhanced to Rs.12,25,000/-payable with interest at the rate of 7.5 percent per annum from the date of filing of Claim Petition and this Civil Miscellaneous Appeal is partly allowed. The 2nd Respondent Insurance Company is directed to deposit the enhanced compensation together with interest at the rate of 7.5 percent per annum from the date of filing of Claim Petition within a period of eight weeks from the date of receipt of copy of this Judgment. On such deposit, the 3rd and 4th Claimants are permitted to withdraw the compensation of Rs.12,500/-each along with accrued interest thereon. The 1st and 2nd Claimants are permitted to withdraw the remaining enhanced compensation in equal apportionment with accrued interest thereon. However, there shall be no order as to costs.