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2013 DIGILAW 3810 (MAD)

Oriental Insurance Co. Ltd, Chennai v. Shanthi

2013-11-05

K.KALYANASUNDARAM, R.BANUMATHI

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Judgment : R. Banumathi, J. 1. Being aggrieved by the quantum of compensation awarded for the death of deceased Jeyaraj, the insurance company has preferred the appeal in C.M.A.No.3661 of 2012. 2. Being dissatisfied with the amount apportioned to her share, the mother of the deceased Jeyaraj has filed cross objection in Cross Objection No.107 of 2013. 3. For convenience, the parties are referred as per their array in C.M.A.No.3661 of 2012. 4. Brief facts are that on 11.05.2006 at about 4.45 p.m., when the deceased Jeyaraj was proceeding in his motorcycle bearing Regn. No.TN 05 E 6856 on Poonamallee Byepass Road, near Sennerkuppam Pillaiyar Koil, the canter van bearing Regn. No.TN 31 B 5017 belonging to the first respondent, driven by its driver in a rash and negligent manner came from opposite direction and dashed against the deceased. In the accident, the deceased sustained fatal injuries and died on the spot. A case was registered in Crime No.52 of 2006 on the file of Poonamallee Highways Police Station for the offences under Sections 279 and 304 (A) I.P.C. The deceased was aged 32 years at the time of accident and was doing business and earning Rs.10 lakhs per annum. Alleging that the accident was due to the rash and negligent driving of the driver of the first respondent's van, the claimant/wife of the deceased has filed the claim petition, claiming compensation of Rs.50 lakhs. 5. Resisting the claim petition, the insurance company filed a counter affidavit, denying the manner of accident, age, avocation and income of the deceased and the dependency of the claimant. The insurance company also denied its liability. 6. To substantiate the claim, the claimant/wife of the deceased examined herself as P.W.1. Eye witness – B.Babu was examined as P.W.2. On the side of the claimant, Exs.P1 to P13 were marked. On the side of the respondents, Rajamani - mother of the deceased was examined as R.W.1 and Exs.R1 and R2 were marked. A copy of the Pension Payment Order was marked as Ex.C1. 7. Based on Ex.P3 – Income Tax Return for the year 2004-2005, the Tribunal has taken the income of the deceased at Rs.1,42,232/- per annum i.e. Rs.11,853/- per month and after deducting 1/3rd amount towards personal expenses, the Tribunal has taken the loss of contribution at Rs.7,902/-. The deceased was aged 32 years at the time of accident. 7. Based on Ex.P3 – Income Tax Return for the year 2004-2005, the Tribunal has taken the income of the deceased at Rs.1,42,232/- per annum i.e. Rs.11,853/- per month and after deducting 1/3rd amount towards personal expenses, the Tribunal has taken the loss of contribution at Rs.7,902/-. The deceased was aged 32 years at the time of accident. Based on his age, the Tribunal had adopted multiplier 17 and calculated the total loss of dependency at Rs.16,12,008/- (Rs.7,902/- x 12 x 17 = Rs.16,12,008/-). Adding conventional damages and damages to clothing and watch and also transport to hospital, the Tribunal awarded total compensation of Rs.16,67,508/- with interest payable at the rate of 7.5% as under: Loss of dependency .. Rs. 16,12,008.00 (Rs.7,902/- x 12 x 17) Transport to hospital .. Rs. 2,000.00 Damage to clothing .. Rs. 1,500.00 Damage to Article (Watch) .. Rs. 2,000.00 Loss of consortium to the wife of the deceased .. Rs. 30,000.00 Loss of love and affection to the mother of the deceased .. Rs. 20,000.00 = = = = = = = = Rs. 16,67,508.00 = = = = = = = = The Tribunal has apportioned 20% of the award amount to the third respondent/mother of the deceased and 80% to the first respondent/wife of the deceased. 8. The learned counsel for the insurance company submitted that the income of the deceased taken by the Tribunal is on the higher side and also fixing the multiplier and assessment of dependency are not in accordance with the evidence adduced and the quantum of compensation awarded by the Tribunal is on the higher side. The learned counsel for the claimant/wife of the deceased and the learned counsel for the cross objector/mother of the deceased submitted that the deceased was running a stationery shop and was earning more than Rs.10 lakhs per annum and he was an income tax assessee. 9. The learned counsels for the claimant and the cross objector drawn our attention to Exs.P3 and P4 and also P5 and submitted that the deceased was getting Rs.1,42,232/-per annum, based on which, the Tribunal has rightly calculated Rs.11,853/- and the quantum of compensation awarded by the Tribunal is just and reasonable and does not warrant any interference. 10. 9. The learned counsels for the claimant and the cross objector drawn our attention to Exs.P3 and P4 and also P5 and submitted that the deceased was getting Rs.1,42,232/-per annum, based on which, the Tribunal has rightly calculated Rs.11,853/- and the quantum of compensation awarded by the Tribunal is just and reasonable and does not warrant any interference. 10. In her evidence, P.W.1 – wife of the deceased had stated that the deceased Jeyaraj was running stationery shop and was earning more than Rs.10 lakhs per annum. Exs.P3 and P4 are the income tax returns for the assessment years 2004-2005 and 2005-2006. As seen from Ex.P3 income tax return for the year 2004-2005, the deceased Jeyaraj was getting annual income of Rs.1,42,232/-. Based on Ex.P3, the Tribunal rightly taken the income of the deceased at Rs.1,42,232/-, which when calculated per month comes to Rs.11,853/-. After deducting 1/3rd amount towards personal expenses of the deceased, the Tribunal had taken the loss of contribution to the family at Rs.7,902/-. The Tribunal has not chosen to make any addition towards future prospects and in such view of the matter, we are not inclined to interfere with the income fixed by the Tribunal at Rs.11,853/-. 11. At the time of accident, the deceased was aged 32 years. As per the II Schedule, the proper multiplier to be adopted is 17, which the Tribunal has adopted and the same is maintained. Adopting multiplier 17, the total loss of dependency is calculated at Rs.16,12,008/- (Rs.7,902/- x 12 x 17 = Rs.16,12,008/-) and the same is reasonable. 12. So far as the conventional damages, the Tribunal has awarded Rs.30,000/-towards loss of consortium to the first respondent/wife of the deceased and Rs.20,000/-towards loss of love and affection to the third respondent/mother of the deceased, which in our considered view is very reasonable. The quantum of compensation awarded towards transport to hospital at Rs.2,000/-, damages to clothing at Rs.1,500/- and damage to article watch at Rs.2,000/- is also very reasonable and the same is maintained. The total compensation of Rs.16,12,008/-awarded by the Tribunal is just and reasonable and the award passed by the Tribunal is to be confirmed. 13. The quantum of compensation awarded towards transport to hospital at Rs.2,000/-, damages to clothing at Rs.1,500/- and damage to article watch at Rs.2,000/- is also very reasonable and the same is maintained. The total compensation of Rs.16,12,008/-awarded by the Tribunal is just and reasonable and the award passed by the Tribunal is to be confirmed. 13. The learned counsel for the cross objector/ mother of the deceased submitted that the first respondent married the deceased Jeyaraj for the second time and that she was not the legally wedded wife of the deceased and in such view of the matter, the Tribunal erred in apportioning 80% of the award amount to the first respondent and prayed for modification of the apportionment. 14. Per contra, the learned counsel for the first respondent submitted that the first respondent is the legally wedded wife of the deceased Jeyaraj and as per Ex.P13, the deceased Jeyaraj has nominated the first respondent as nominee in his L.I.C. policy. It was also submitted that the third respondent/mother of the deceased is already getting family pension and that she has also another one son and therefore, the Tribunal rightly apportioned only 20% of the compensation. 15. The contention raising objection regarding the status of the first respondent is not acceptable. As seen from Ex.P13, the deceased Jeyaraj himself nominated the first respondent as the nominee in his L.I.C. policy. The first respondent had also produced Ex.P11 - legal heirship certificate to show that she is the wife of the deceased and also Ex.P12 family card to show that she is the legally wedded wife of the deceased and therefore, the Tribunal rightly upheld the status of the first respondent as the wife of the deceased. 16. Inso far as the apportionment made by the Tribunal, the Tribunal has apportioned only 20% to the mother of the deceased. The mother of the deceased is aged 74 years. Even though she is aged 74 years, the fact remains that she has lost the support as well as the love and affection of her son Jeyaraj. The fact that the third respondent/mother of the deceased is getting family pension cannot be a reason to apportion a very less compensation to the third respondent. Even though she is aged 74 years, the fact remains that she has lost the support as well as the love and affection of her son Jeyaraj. The fact that the third respondent/mother of the deceased is getting family pension cannot be a reason to apportion a very less compensation to the third respondent. Having regard to the age of the third respondent and also that she has lost the love and affection of her son Jeyaraj at the evening of her life, the third respondent shall be entitled to 37.50% of the award amount and the first respondent is entitled to 62.50% of the award amount and they shall be entitled to the proportionate accrued interest. 17. The quantum of compensation at Rs.16,67,508/-awarded by the Motor Accidents Claims Tribunal (Additional Subordinate Judge), Chengalpattu in M.C.O.P.No.2 of 2007 is confirmed and the Civil Miscellaneous Appeal filed by the insurance company inC.M.A.No.3661 of 2012 is dismissed. Consequently, cross objection filed by the third respondent in Cross Objection No.107 of 2013 is dismissed. No costs. Consequently connected miscellaneous petition is closed. 18. The apportionment of compensation between the first respondent/wife of the deceased and the third respondent/mother of the deceased is modified and the first respondent/wife of the deceased shall be entitled to 62.50% of the award amount and the third respondent/mother of the deceased shall be entitled to 37.50%. The appellant insurance company is directed to deposit the entire amount of compensation awarded by the Tribunal, if not already deposited, along with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgmnet. On such deposit, both the first respondent/wife of the deceased and the third respondent/mother of the deceased are permitted to withdraw their respective shares of compensation as apportioned by this Court along with proportionate accrued interest. So far as the costs awarded by the Tribunal, the first respondent/wife of the deceased shall be entitled to receive the same.