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2013 DIGILAW 3192 (MAD)

M. Sengabagam v. V. Vinod Kumar

2013-09-05

R.BANUMATHI, R.SUBBIAH

body2013
JUDGMENT : R. Banumathi, J. 1. Being dissatisfied with the quantum of compensation of Rs.5,95,000/-for the death of Mani @ Manian Ambalam in a road traffic accident on 28.12.2008, the Claimants have preferred this appeal for enhancement. 2. Brief facts are that on 28.12.2008 at 11.00 A.M. deceased Mani @ Manian Ambalam was proceeding in his cycle from Viralimalai and entered the southern junction of National Highways. At that time, the car bearing registration No.TN-09 AW 7288 coming from south to north in National Highway in a rash and negligent manner driven by 1st Respondent, who is the owner of the car with uncontrollable speed dashed against the cyclist. Due to the impact, Mani @ Manian Ambalam sustained grievous injuries and died on the spot. Regarding the accident, a criminal case was registered against the driver of car in Crime No.362 of 2008 under Section 304(A) I.P.C. of Viralimalai Police Station. At the time of accident, deceased Mani @ Manian Amabalam was doing agricultural work and cattle business. Deceased was also doing firewood and charcoal business at Trichy and Chennai and was earning Rs.10,000/-per month. Alleging that the accident was due to rash and negligent driving of the car driver and that the family has lost the support, the Claimants who are wife, daughters and son have filed Claim Petition claiming compensation of Rs.30,00,000/-. 3. Denying the accident, 2nd Respondent-Insurance Company filed counter contending that the accident occurred due to negligence of the deceased and that the 2nd Respondent-Insurance Company is not liable to pay compensation to the Claimants. 2nd Respondent-Insurance Company also denied age, occupation, monthly income of the deceased and that the compensation claimed is excessive. 4. Before the Tribunal, 1st Claimant-Senbagam examined herself as P.W.1. Eye-witness Shanmugam was examined as P.W.2. Exs.P1 to P3 were marked. On the side of 2nd Respondent-Insurance Company, no oral and documentary evidence was adduced. 5. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of car driver and that owner of the car and its insurer are jointly and severally liable to pay compensation to the Claimants. Insofar as quantum of compensation, Tribunal had taken notional income of deceased at Rs.4,500/- per month and annual income at Rs.54,000/-. Insofar as quantum of compensation, Tribunal had taken notional income of deceased at Rs.4,500/- per month and annual income at Rs.54,000/-. Referring to the decisions of the Hon'ble Supreme Court in 2009 1 ACJ 1298 (Sarla Verma and others v. Delhi Transport Corporation) and 2010 AIR SCW 4391 (Shyamwati Sharma and others v. Karam Singh and others), Tribunal held that since the family members are six in numbers, it would be reasonable to deduct one-fourth of the income. Deducting one-fourth, Tribunal has calculated the annual contribution to the family at Rs.40,500/-. Adopting multiplier "14", Tribunal has calculated the loss of dependency at Rs.5,67,000/-. Adding conventional damages, Tribunal has awarded total compensation of Rs.5,95,000/- to the Claimants. Challenging the quantum of compensation, Claimants have filed this appeal. 6. Mr.M.Swamikkannu, learned counsel for Claimants contended that Tribunal erred in taking the monthly income of the deceased at Rs.4,500/-. It was submitted that at the time of accident, deceased was earning Rs.10,000/- by selling firewood, charcoal and also doing business in cattle apart from agricultural work. Learned counsel further submitted that Tribunal erred in deducting one-fourth for personal expenses and also the multiplier adopted is on the lower side and prayed for enhancement. 7. Taking us through the award of Tribunal, Mr.N.Vijayaraghavan learned counsel for 2nd Respondent-Insurance Company submitted that the total compensation awarded by the Tribunal is very much reasonable warranting no interference. 8. It is not necessary for us to narrate entire facts in detail such as, as to how the accident occurred and who was negligent and insurance policy coverage and who is liable to pay compensation. It is for the reason that these things are recorded infavour of Claimants and secondly, none of the findings are under challenge. Claimants have preferred the appeal only challenging the quantum of compensation awarded by the Tribunal. 9. In her evidence, P.W.1-Senbagam stated that at the time of accident her husband was doing agricultural work and cattle business and also doing firewood and charcoal business at Trichy and Chennai and was earning Rs.10,000/- per month. P.W.1 further stated that due to the death of the sole breadwinner, she is unable to run the family. 10. Tribunal had taken the notional income of the deceased at Rs.4,500/-and the annual income at Rs.54,000/-. P.W.1 further stated that due to the death of the sole breadwinner, she is unable to run the family. 10. Tribunal had taken the notional income of the deceased at Rs.4,500/-and the annual income at Rs.54,000/-. Learned counsel for Claimants submitted that at the time of accident, deceased was doing cattle business apart from doing agricultural work and was earning Rs.10,000/- per month and that the monthly income fixed by the Tribunal is on the lower side. Though the Claimants have not produced any documentary proof to show that deceased was earning Rs.10,000/- per month, considering the nature of agricultural work that was doing at the time of accident and also the firewood business run by the deceased, we are of the view that the notional income of Rs.4,500/- fixed by the Tribunal is very low. By doing the agricultural work and firewood business, deceased would have earned atleast Rs.200/- per day i.e. Rs.6,000/- per month. Therefore, the monthly income of the deceased is fixed at Rs.6,000/- per month. 11. Tribunal has deducted one-fourth for personal expenses. Learned counsel for Claimants contended that Tribunal ought to have deducted one-third for personal expenses. In (2008) 4 SCC 259 [Bilkish v. United India Insurance Co., Ltd.,], the Supreme Court has taken the view that deceased would have spent one-third towards personal expenses and the contribution two-third of his income to his family. Undisputedly, deduction of one-third towards personal expenses is ordinary rule in India. Following the consistent view taken by the Supreme Court, one-third deduction is made for personal expenses. The monthly income of the deceased is fixed at Rs.6,000/- per month. Deducting one-third for personal expenses i.e. Rs.2,000/- (Rs.6000 – Rs.2000 = Rs.4000/-), the contribution to the family is calculated at Rs.4,000/- per month and the annual contribution is calculated at Rs.48,000/-. 12. In the Claim Petition, the age of the deceased was mentioned as 39 years. By perusal of Ex.P2-Post Mortem certificate, it is seen that at the time of accident, the deceased was aged 42 years. Learned counsel for Claimants submitted that Tribunal erred in adopting multiplier "14" and the proper multiplier to be adopted is "15". As per Second Schedule to M.V. Act for the age group 40-45, the proper multiplier to be adopted is "15". Adopting multiplier "15", the "loss of dependency" is calculated at Rs.7,20,000/- (Rs.4000 x 12 x 15 = Rs.7,20,000/-). 13. Learned counsel for Claimants submitted that Tribunal erred in adopting multiplier "14" and the proper multiplier to be adopted is "15". As per Second Schedule to M.V. Act for the age group 40-45, the proper multiplier to be adopted is "15". Adopting multiplier "15", the "loss of dependency" is calculated at Rs.7,20,000/- (Rs.4000 x 12 x 15 = Rs.7,20,000/-). 13. Insofar as conventional damages, Tribunal has awarded Rs.10,000/-for "loss of consortium". At the time of accident, 1st Claimant was aged 37 years. Considering the fact that 1st Claimant has lost her husband at her young age, Rs.10,000/- awarded for "loss of consortium" is enhanced to Rs.50,000/- . Tribunal has awarded Rs.10,000/-for "loss of love and affection". Claimants 2 to 5 are minors at the time of accident and they lost their father at their young age. Like wise, the 6th Claimant had also lost her father at the age of 19 years. Having regard to the fact that Claimants 2 to 6 have lost their father at their young age, compensation of Rs.10,000/-awarded by the Tribunal for "loss of love and affection" is enhanced to Rs.1,00,000/-. Tribunal has awarded Rs.8,000/-for funeral expenses and the same is enhanced to Rs.10,000/-. Thus the total compensation of Rs.5,95,000/- awarded by the Tribunal is enhanced to Rs.9,00,000/-as under:- 14. In so far as interest, Tribunal has awarded interest at the rate of 7.5% Loss of dependency (Rs.4000 x 12 x 15) ... Rs.7,20,000.00 Loss of consortium ... Rs. 50,000.00 Loss of love and affection ... Rs.1,00,000.00 Funeral expenses ... Rs. 10,000.00 ... Rs.8,80,000.00 ... Rs.9,00,000.00 Rounded off to p.a. from the date of filing of Claim Petition and the same is maintained. The enhanced compensation of Rs.9,00,000/-is to be apportioned amongst the Claimants as follows:- (i) 1st Claimant is entitled to Rs.3,00,000/-; (ii) Claimants 2 to 6 are entitled to Rs.1,00,000/- each. 15. In the result, compensation of Rs.5,95,000/-awarded by the Tribunal in M.C.O.P.No.163 of 2009 (25.1.2011) on the file of Motor Accident Claims Tribunal (Court of Small Causes), Chennai is enhanced to Rs.9,00,000/-and the appeal is partly allowed. It was stated before us that 2nd Respondent-Insurance Company has deposited the compensation awarded by the Tribunal along with accrued interest. Claimants 1 to 3 and 6 are permitted to withdraw their respective share along with proportionate accrued interest lying in court deposit immediately after the receipt of copy of this judgment. It was stated before us that 2nd Respondent-Insurance Company has deposited the compensation awarded by the Tribunal along with accrued interest. Claimants 1 to 3 and 6 are permitted to withdraw their respective share along with proportionate accrued interest lying in court deposit immediately after the receipt of copy of this judgment. 2nd Respondent-Insurance Company is directed to deposit the enhanced compensation of Rs.3,05,000/- along with accrued interest within a period of eight weeks from the date of Claim Petition till the date of deposit. On such deposit, the Claimants 1 to 3 and 6 are permitted to withdraw their respective share along with proportionate accrued interest. The share in respect of minor Claimants 4 and 5 is ordered to be invested in anyone of the nationalised bank till they attain majority. 1st Claimant is permitted to withdraw the accrued interest once in three monthly directly from the Bank. Consequently, connected M.P. is closed. No costs.