Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 3659 (MAD)

Maheswari v. Supreme India Roadlines, Chennai

2013-10-21

R.BANUMATHI, R.SUBBIAH

body2013
Judgment : R. Banumathi, J. 1. Being dissatisfied with the quantum of compensation of Rs.8,56,362/- awarded by the Tribunal in M.C.O.P.No.512 of 2004 (28.8.2008) on the file of Motor Accident Claims Tribunal (Principal Subordinate Judge), Tindivanam, the Claimants have filed this appeal for enhancement. 2. Brief facts are that on 26.6.2003 at about 11.15 A.M., deceased Manohar was proceeding in his motorcycle bearing registration No.PYR 2293 in Pondy-Tindivanam Road. When he was nearing Andiyarpalayam, the lorry bearing registration No.TN-04 H 8524, belonging to the 1st Respondent coming from opposite direction after giving way to Thiruvalluvar Transport Corporation Bus which was coming from its behind, suddenly came right and dashed against the motorcycle as well as the Maruthi car and both motorcycle and Maruthi car were dragged to a distance of 100 feet and fell in to a pit. In the accident, Manohar and the occupants of Maruthi car sustained grievous injuries. After the accident, Manohar was admitted in Jipmer hospital, Pondicherry where he had taken treatment for two days. Thereafter, Manohar was admitted in Apollo Hospital, Chennai and succumbed to the injuries on 29.6.2003. Regarding the accident, a criminal case in Crime No.432 of 2003 under Sections 279, 337 and 304(A) I.P.C. on the file of Kiliyanur Police Station was registered against the lorry driver. At the time of accident, deceased was working as Head Constable in Kiliyanur Police Station and was earning Rs.14,000/- per month. Alleging that the accident was due to rash and negligent driving of the driver of lorry, the Claimants who are wife, sons and mother of the deceased have filed the Claim Petition claiming compensation of Rs.25,00,000/-. 3. Resisting the Claim Petition, 2nd Respondent-Insurance Company has filed counter stating that the lorry bearing registration No.TN-04 H 8524 was not involved in the accident and that 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 quantum of compensation claimed is excessive. 4. Before the Tribunal 1st Claimant-Maheswari examined herself as P.W.1. Eye-witness – Dhanapalraj was examined as P.W.2. Exs.P1 to P14 were marked on the side of the Claimants. No oral and documentary evidence was adduced on the side of 2nd Respondent-Insurance Company. 5. 4. Before the Tribunal 1st Claimant-Maheswari examined herself as P.W.1. Eye-witness – Dhanapalraj was examined as P.W.2. Exs.P1 to P14 were marked on the side of the Claimants. No oral and documentary evidence was adduced on the side of 2nd Respondent-Insurance Company. 5. Upon consideration of oral evidence of P.W.2-eye witness and also Ex.P1-FIR registered against the lorry driver, Tribunal held that the accident was due to rash and negligent driving of the lorry driver. Insofar as quantum of compensation, based on Ex.P9-salary certificate, Tribunal has taken the monthly salary of the deceased at Rs.6,795/- per month and Rs.81,540/- per annum. Deducting one-third for personal expenses, Tribunal has calculated the loss of contribution to the family at Rs.54,360/-per annum. Adopting multiplier "15", Tribunal has calculated the loss of dependency at Rs.8,15,400/-. Adding conventional damages, Tribunal has awarded total compensation of Rs.8,56,362/- as under:- Loss of dependency (Rs.54,360 x 15) ... Rs. 8,15,400.00 Medical expenses ... Rs. 27,962.00 Educational expenses to Claimants 2 and 3 ... Rs. 5,000.00 Loss of love and affection to all the Claimants ... Rs. 5,000.00 Funeral expenses ... Rs. 2,000.00 Transport charges ... Rs. 1,000.00 Total ... Rs. 8,56,362.00 Being dissatisfied with the quantum of compensation, Claimants have filed this appeal. 6. There is no serious challenge from the side of 2nd Respondent-Insurance Company as to the involvement of lorry in the accident and the manner of accident and also as to who was responsible for the accident and fastening of liability upon the 2nd Respondent-Insurance Company. The 2nd Respondent-Insurance Company has not preferred any appeal regarding the finding of the Tribunal that the accident occurred due to rash and negligent driving of the lorry driver. Therefore, it is not necessary for us to elaborate upon the manner of accident and the liability of the 2nd Respondent-Insurance Company. The point falling for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal needs enhancement. 7. Mr.Natesh Kumar, learned counsel for Claimants submitted that Tribunal failed to consider that if the deceased Manohar been alive, he would have earned higher income in the course of his employment through pay fixation and increment, as he has more than ten years of service left in his career and that Tribunal has not given any addition towards future prospects. Learned counsel further submitted that Tribunal erred in deducting one-third for personal expenses. Learned counsel further submitted that Tribunal erred in deducting one-third for personal expenses. Since the dependents are four in number, Tribunal ought to have deducted one-fourth for personal expenses and prayed for enhancement of compensation. 8. Per contra, taking us through the award of the Tribunal Mr.S.Manohar, learned counsel for 2nd Respondent-Insurance Company has submitted that the total compensation awarded by the Tribunal is just and reasonable and the same has to be confirmed. 9. In her evidence, P.W.1-Maheswari has stated that at the time of accident, her husband was working as Head Constable in Kiliyanur Police Station and was getting monthly salary of Rs.14,000/- per month. P.W.1 further stated that her husband was a degree-holder and had he been alive, he would have got promotion as Inspector of Police and would have earned Rs.30,000/- per month. P.W.1 has produced Ex.P9-salary certificate. 10. By perusal of Ex.P9-salary certificate, it is seen that deceased Manohar was getting gross salary of Rs.6,795/- per month. Considering Ex.P9-salary certificate, the monthly salary of the deceased is taken at Rs.6,795/-, rounded of to Rs.6,800/- per month. 11. The date of birth of deceased was 26.3.1962. Date of accident was on 26.6.2003. At the time of accident, deceased was aged 41 years. As per the decision in Sarla Verma's case (2009) 6 SCC 121 for future prospects, addition to be made to the actual salary of the deceased. In the instant case, deceased Manohar was working as Head Constable at the time of accident and was getting monthly salary of Rs.6,795/-, rounded of to Rs.6,800/- per month. Had he been alive, deceased would have got further promotion and would have earned more salary. As per the ratio of Sarla Verma's case, for the age group 40-50, 30% addition to be made for future prospects. Following the decision of Sarla Verma's case, 30% addition is made towards future prospects i.e. Rs.2,040/-to be added to the salary of Rs.6,800/-and the monthly income of the deceased is taken at Rs.8,840/-per month. 12. Insofar as deduction for personal expenses, Tribunal has deducted one-third amount for personal expenses. In Sarla Verma's case, the Hon'ble Supreme Court held that deduction towards personal and living expenses somewhere between one-third where number of dependent family members is 2 to 3, one-fourth where the number of dependent family members is 4 to 6 and one-fifth where the number of dependent family members exceeds six. In Sarla Verma's case, the Hon'ble Supreme Court held that deduction towards personal and living expenses somewhere between one-third where number of dependent family members is 2 to 3, one-fourth where the number of dependent family members is 4 to 6 and one-fifth where the number of dependent family members exceeds six. In the present case, since there were four Claimants – wife, sons and mother, following the ratio laid down in Sarla Verma's case, one-fourth deduction is made for personal expenses. Deducting one-fourth i.e. Rs.2,210/-, the loss of contribution to the family is calculated at Rs.6,630/- per month (Rs.8,840 – Rs.2,210/-) i.e. Rs.79,560/- per annum. 13. As pointed out earlier, deceased Manohar was aged 41 years at the time of accident. As per Second Schedule to M.V. Act, for the age group 40-45, the proper multiplier to be adopted is "15" which the Tribunal has adopted. Adopting multiplier "15", the loss of dependency is calculated at Rs.11,93,400/- (Rs.79,560/- x 15 = Rs.11,93,400/-). 14. Insofar as conventional damages, Tribunal has awarded Rs.27,962/- for medical expenses. It is pertinent to note that after the accident, deceased was admitted in hospital and had taken treatment and succumbed to the injuries on 29.6.2003. Claimants have produced Ex.P7-medical bills showing that Claimants have spent Rs.27,962/- towards medical expenses. Based on Ex.P7-medical bills, Tribunal has awarded Rs.27,962/- for medical expenses and the same is maintained. 15. Tribunal has not awarded any amount for loss of consortium. As stated above, at the time of accident, 1st Claimant was aged 32 years and she has lost the company of her husband at the young age. In Rajesh and Others Vs. Rajbir Singh and Others (2013 (3) CTC 883), the Honourable Supreme Court has held that compensation to be awarded towards loss of consortium, must not be merely a token amount but must be substantial.In Para No.20, the Hon'ble Supreme Court held as follows:- "20. ...... In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. ......... By Loss of Consortium, the Courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. ......... By Loss of Consortium, the Courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the Courts award at least rupees one lakh for Loss of Consortium." Following the ratio of the above said decision, an amount of Rs.1,00,000/- is awarded towards "loss of consortium" to the 1st claimant. 16. Tribunal has awarded Rs.5,000/- for educational expenses to Claimants 2 to 3. In death cases, awarding of compensation under the head educational expenses to the minor children of the deceased does not arise and the same is deleted. 17. Tribunal has awarded Rs.5,000/- for loss of love and affection to Claimants 1 to 4. Since Claimants 2 and 3 have lost their father at their young age of 13 and 11 respectively and also the 4th Claimant-mother at her old age of 60 years, the compensation of Rs.5,000/- awarded by the Tribunal for loss of love and affection is very low and the same is enhanced to Rs.1,00,000/-. 18. Tribunal has awarded Rs.2,000/- for funeral expenses and the same is enhanced to Rs.10,000/-. Tribunal has also awarded Rs.1,000/- for transport charges and the same is maintained. The compensation of Rs.8,56,362/- awarded by the Tribunal is enhanced to Rs.14,32,362/- as under:- Loss of dependency (Rs.79,560 x 15) ... Rs.11,93,400.00 Medical expenses ... Rs. 27,962.00 Loss of love and affection to the Claimants ... Rs. 1,00,000.00 Loss of consortium to 1st Claimant ... Rs. 1,00,000.00 Funeral expenses ... Rs. 10,000.00 Transport charges ... Rs. 1,000.00 Total ... Rs.14,32,362.00 Tribunal has awarded interest at the rate of 7.5% per annum and the same is maintained. The enhanced compensation of Rs.5,76,000/- (Rs.14,32,362 – Rs.8,56,362) is to be apportioned amongst the Claimants 1 to 3 equally. 19. Rs. 1,00,000.00 Loss of consortium to 1st Claimant ... Rs. 1,00,000.00 Funeral expenses ... Rs. 10,000.00 Transport charges ... Rs. 1,000.00 Total ... Rs.14,32,362.00 Tribunal has awarded interest at the rate of 7.5% per annum and the same is maintained. The enhanced compensation of Rs.5,76,000/- (Rs.14,32,362 – Rs.8,56,362) is to be apportioned amongst the Claimants 1 to 3 equally. 19. In the result, the compensation of Rs.8,56,362/- awarded by the Tribunal in M.C.O.P.No.512 of 2004 dated 28.8.2008 on the file of Motor Accident Claims Tribunal (Principal Subordinate Judge), Tindivanam is enhanced to Rs.14,32,362/- and the appeal is partly allowed. It was stated before us that 2nd Respondent-Insurance Company has deposited the entire compensation amount along with accrued interest awarded by the Tribunal. Claimants 1 to 4 are permitted to withdraw their respective share along with proportionate accrued interest as apportioned by the Tribunal, immediately after the receipt of copy of this judgment. 2nd Respondent-Insurance Company is directed to deposit the enhanced compensation of Rs.5,76,000/- along with accrued interest from the date of filing of Claim Petition till the date of deposit within a period of eight weeks from the date of receipt of copy of this judgment. On such deposit, the Claimants 1 to 3 are permitted to withdraw the said amount along with proportionate accrued interest equally.