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2012 DIGILAW 3477 (MAD)

Sevakkal v. M. Valarmathi

2012-08-03

S.VIMALA

body2012
Judgment:-This Civil Miscellaneous Appeal is filed against the judgment and decree passed in MCOP No.1657 of 2006 dated 10.11.2008 by the learned Additional District and Sessions Judge (Fast Track Court No.3), Madurai. 2.The first claimant is the wife and the second claimant is the daughter of the deceased-Karuppaiah, who filed a claim petition for compensation, claiming a sum of Rs.2,00,000/- in respect of the death of the deceased in an accident that took place on 08.07.2006. 3.The claim petition was filed against the owner and insurer of two lorries, bearing Registration Nos.TN-46-D-1741 (R1 and R2) and TN-28-E-7373 (R3 and R4). The Tribunal awarded a sum of Rs.50,000/- as compensation only on account of the loss of dependency and the second respondent- Insurance Company was directed to pay the compensation and the claim was dismissed as against the fourth respondent - Insurance Company. 4.The claimants have filed the Civil Miscellaneous Appeal challenging the quantum of compensation as awarded by the Claims Tribunal. It is the claim of the appellants / claimants that: 1)The Tribunal ought to have awarded the compensation for loss of love and affection, loss of consortium and funeral expenses; 2)The Tribunal ought to have found that the deceased was the only bread-winner of the family; 3)The Tribunal ought to have applied the multiplier method of compensation; and 4)the Tribunal ought to have awarded more than what is claimed in the claim petition. 5.In order to appreciate the contentions raised, it is necessary to look into the details of award passed by the Claims Tribunal. The Claims Tribunal, while giving a finding that the deceased was a beggar, quantified the compensation by adopting the following principle / assumption. 1)The deceased was taken as non-earning person; 2)The notional income for a non-earning member was fixed at Rs.15,000/- and 1/3rd was deducted towards personal expenses, and the multiplier adopted was 5. Thus a sum of Rs.50,000/- has been arrived at, which was awarded towards loss of dependency. 6.The compensation of Rs.50,000/- was ordered to be payable to the first claimant, i.e., the wife of the deceased. Insofar as the second claimant is concerned, it was disallowed on the ground that the second claimant was married and hence no longer dependent on the deceased. 6.The compensation of Rs.50,000/- was ordered to be payable to the first claimant, i.e., the wife of the deceased. Insofar as the second claimant is concerned, it was disallowed on the ground that the second claimant was married and hence no longer dependent on the deceased. There is a specific finding that as the deceased was a wayward, living elsewhere, as a beggar, the first and second claimants were not entitled to any compensation on account of loss of consortium and loss of love and affection, respectively. No amount was awarded towards funeral expenses also. 7.The order passed by the Tribunal and the findings arrived at by the Tribunal, raises the following issues: 1)What was the status of the deceased? 2)Whether the married daughter is entitled to claim compensation or not? 3)If yes, whether in the capacity as legal representative or in the capacity as dependent? 4)What is the just compensation to the claimants? 8.The order of the Tribunal proceeds on the footing that the deceased deserted the claimants long back and adorned the life of a beggar, leading a wayward life and therefore, he would not have been of much help to the dependents. The finding of the Tribunal that he was leading a life of beggary, is under challenge. 9.A perusal of the order passed by the Tribunal would go to show that on the side of the appellants/claimants, the only witness examined is the second claimant-Selvi. Admittedly, the first claimant/wife of the deceased, has not been examined. The second claimant would state in her evidence that the deceased was the only bread-winner of the family and both the claimants were living on the earnings of the deceased. On the side of the respondents, one Archunan has been examined, who is the Head Constable attached to Karuppayurani Police Station. He stated about the materials collected during the investigation of the accident (in which the deceased died), which pertains to Crime No.501 of 2006. He has fairly admitted in his cross-examination that he did not investigate the accident. 10.The learned counsel for the respondents strongly relied upon the documents marked as Exs.R1 to R4, which are the statements recorded by the Police under Section 161(3) Cr.P.C. The witnesses who had given statements under Section 161(3) Cr.P.C., are Palanichamy belonging to Dindigul, Raman belonging to Virudhunagar District and the first claimant-Sevakkal belonging to Madurai. Ex.R4 is the Inquest Report. 10.The learned counsel for the respondents strongly relied upon the documents marked as Exs.R1 to R4, which are the statements recorded by the Police under Section 161(3) Cr.P.C. The witnesses who had given statements under Section 161(3) Cr.P.C., are Palanichamy belonging to Dindigul, Raman belonging to Virudhunagar District and the first claimant-Sevakkal belonging to Madurai. Ex.R4 is the Inquest Report. Immediately after the accident, the lorry driver has given the First Information Report. While describing the accident, he has stated in the First Information Report that the deceased was wearing saffron- coloured dress and the persons in and around were telling them that the deceased was a beggar in a temple. The deceased has been identified only after two days of the accident. Cumulatively taking all the circumstances, the Tribunal has come to the conclusion that the deceased might have been leading a wayward life. Whether this finding is based on materials, is the issue to be considered. 11.P.W.1-the married daughter of the deceased, has stated that the deceased has been living only with them and about two days prior to the accident, he went out of the house for the purpose of seeking the advise of the fortune-tellers and he died after that. But the statement as recorded under Section 161(3) Cr.P.C. under Ex.R3 is that the deceased was living separately from sometime before and he was leading a life by taking alms. The issue is as to whether what is stated in Ex.R3 has been proved or not. Insofar as the Criminal Proceedings are concerned, the statement recorded under Section 161(3) Cr.P.C., is admissible only for the purpose of contradiction. But this is filed in the proceedings of a civil nature. The question is whether this statement remains proved. 12.Ex.R3-Statement is alleged to have been given by the first claimant/wife of the deceased. The daughter of the deceased, who was examined before the Tribunal has specifically stated that her mother was bedridden and she did not give such a statement before the police. In such circumstances, the Insurance Company should have examined either the police officer who has actually recorded the statement or they should have taken out a Commission to examine the person who gave the statement. Neither of the steps have been taken. In such circumstances, the Insurance Company should have examined either the police officer who has actually recorded the statement or they should have taken out a Commission to examine the person who gave the statement. Neither of the steps have been taken. It is highly doubtful whether she should have given such statement, because from the petition filed, it appears that she is an illiterate lady and she has put her thumb impression in the petition. In the statement recorded by the police, the Registration Number of the two lorries have been specifically mentioned. It is impossible for an illiterate lady to have spoken about the registration numbers of the lorries and also the code. Therefore, it is highly doubtful whether such statement has been given, by the wife of the deceased. Therefore, Ex.R3-Statement remains unproved. In such circumstances, the only evidence available is the evidence of the second claimant. There is nothing on record to discredit the statement made by the second claimant. 13.A modest claim of Rs.2,00,000/- has been made contending that the deceased was earning a sum of Rs.3,000/- per month. Even assuming that the deceased had been living a wayward life for sometime, whether that would disentitle the claimants to make a claim, is the issue to be considered. 14.Section 166 of the Motor Vehicles Act uses the expression "legal representative" and not dependant. The Motor Vehicles Act, 1988 does not define the expression "legal representative" either in Section 166 or in any of the definitions in Section 2 of the Act. Therefore, the definition of "legal representative" as provided under Section 2(11) of Civil Procedure Code has to be referred to. Thus, a person who in law represents the estate of a deceased person or a person who intermeddles with the estate of the deceased, would be the legal representative of the deceased. It is the status of the claimants as legal representative that counts. The status as dependent may be one of the factor, when a claim is made for loss of dependency. To claim compensation on account of loss of love and affection, loss of consortium and funeral expenses, one need not be a dependent, who had been on actual financial dependency upon the earning of the deceased. The status of the claimants as the legal representatives of the deceased that counts. To claim compensation on account of loss of love and affection, loss of consortium and funeral expenses, one need not be a dependent, who had been on actual financial dependency upon the earning of the deceased. The status of the claimants as the legal representatives of the deceased that counts. Therefore, the finding of the Tribunal that the claimants are not entitled for compensation on account of loss of love and affection, loss of consortium and funeral expenses, has no basis. 15.It is settled law that life of a human being, in a democratic country, cannot be weighed in golden scales. It is not the life in the immediate past, which should be the basis for quantification, but it is the life covering past, present and future, are also to be considered while assessing the loss. What could have been the loss for the family has to be assessed having regard to the contribution made by the deceased in the past, in praesenti as well as the likely contribution in future. The life, after all, rests on hope only. Even assuming that the deceased was living a wayward life, it is quite probable that, if there is a change of mind, any time he would have joined the family. 16.It is not even the case where there is a decree for separation or divorce by any competent Court of law. Even there are cases where even after a decree for divorce, there had been reunion. Therefore, unless there are materials to show that the deceased permanently left the company of the claimants and he never intended to join the family, the claim that he has been living with the claimants and contributing to the family, has to be accepted. The fact remains that the deceased had lived with the first claimant as husband and through her, the second claimant has seen the world. The married daughter, as the legal representative as well as the dependent of the deceased to certain extent, would be depending upon the income of her father. The emotional dependency, psychological dependency and other dependencies, cannot be said to be nullified immediately after the marriage. Therefore, the married daughter is also entitled to claim compensation. The services of the father cannot be equated to that of the services rendered by the ATM machine. The emotional dependency, psychological dependency and other dependencies, cannot be said to be nullified immediately after the marriage. Therefore, the married daughter is also entitled to claim compensation. The services of the father cannot be equated to that of the services rendered by the ATM machine. 17.It is the case of the claimants that the deceased was earning a sum of Rs.3,000/- per month. That would be the quantum to be taken even in the absence of evidence regarding income. Even though there is no documentary proof to show the past income of the deceased, taking the daily income at Rs.75/-, the monthly income would be Rs.2,250/-. After deducing 1/3rd towards personal expenses of the deceased, monthly dependency would be Rs.1,500/-. Adopting the multiplier of 9, the loss of dependency comes to Rs.1,62,000/-. Awarding a sum of Rs.8,000/- towards funeral expenses, Rs.15,000/- towards loss of consortium to the wife of the deceased /first claimant and Rs.15,000/- towards loss of love and affection to the second claimant, the total quantification would be Rs.2,00,000/- (Rupees Two Lakhs Only). Thus, the claimants are entitled to the modified compensation of Rs.2,00,000/-. The interest rate fixed by the Tribunal at 7.5% p.a. from the date of petition, remains unaltered. 18.In the result , the Civil Miscellaneous Appeal is allowed and the claimants are entitled to the compensation of Rs.2,00,000/- payable by the second respondent with interest at 7.5% p.a. from the date of petition, within a period of eight weeks from the date of receipt of a copy of this judgment. On deposit of the compensation, the first claimant is permitted to withdraw a sum of Rs.1,50,000/- and the second claimant is permitted to withdraw the balance sum of Rs.50,000/-. No costs.