Branch Manager, National Insurance Co. Ltd. v. Tamil Selvi
2014-03-28
S.MANIKUMAR
body2014
DigiLaw.ai
JUDGMENT : S. Manikumar, J. In the accident, which occurred on 12-8-2007, involving a Motorcycle, bearing Registration No. KA 01 ED 6870, mother of the respondents/claimants, aged 48 years and stated to be a House Keeper, earning Rs. 4,200/- per month, died. Daughter and Sons have claimed compensation of Rs. 10,00,000/-. In respect of avocation and income drawn by the deceased, the e respondents/claimants have examined one if Mr. Subramaniam as PW.2, who has produced Ex. P7-Salary Certificate and Ex. P8 - Cash Voucher. PW.2 has also deposed that I there would be possibility for increments and r permanent employment. Evidence has been adduced to the effect that the deceased would be entitled to bonus, at the rate of 8.33%. Considering the testimony of PW.2, coupled with the documents, Exs. P7 and P8, the Claims Tribunal has fixed the monthly income of the deceased at Rs. 5000/-, though in the claim petition, it was claimed at - Rs. 4,200/-. Fixing the age of the deceased as 45 years, by applying ‘15’ multiplier and after deducting l/3rd towards personal and living expenses of the deceased, the Claims Tribunal has computed the loss of contribution to the family at Rs. 6,00,120/-. Apart from the above, the Claims Tribunal has awarded Rs. 5000/- towards funeral expenses, Rs. 30,000/- towards loss of love and affection and Rs. 2,000/- towards transportation expenses Altogether, the Claims Tribunal has awarded Rs. 6,37,120/- with interest at the rate of 6% per annum. 2. Though Mr. N.B. Surekha, learned counsel for the appellant-insurance Company submitted that the Claims Tribunal has erred in fixing the monthly income of the deceased at Rs. 5,000/-, this Court is not inclined to subscribe to the said contention, for the reason that the Claims Tribunal, after considering the evidence adduced by PW.2, to prove employment and salary drawn by the deceased, with likelihood of 8.33% bound, has fixed the monthly income at Rs. 5,000/-, for the purpose of computing loss of contribution to the family. 3.
5,000/-, this Court is not inclined to subscribe to the said contention, for the reason that the Claims Tribunal, after considering the evidence adduced by PW.2, to prove employment and salary drawn by the deceased, with likelihood of 8.33% bound, has fixed the monthly income at Rs. 5,000/-, for the purpose of computing loss of contribution to the family. 3. Though the learned counsel for the appellant-Insurance Company also contended that the married daughter and sons of the deceased are not entitled to compensation, this Court is not inclined to accept the same, in the light of the decisions of this Court in United India Insurance Company v. Kasiammal, reported in 1997 (III) CTC 346 wherein, one of the contentions raised therein, challenging the award, was that a married son, living separately, not a dependant and hence, not entitled to claim compensation. The short question framed by this Court, at Paragraph 6 of the judgment, was whether the claimants, who were married sons and married daughters, entitled for compensation ? While addressing the abovesaid question, this Court has considered two decisions relied on by the appellant Insurance Company therein in Revanben v. Kantibhai Narottamhai Gohil, reported in 1995 ACJ 548 and U.R State Road Transport Corporation v. Tara Devi, reported in 1995 ACJ 1220 : (1996 AIHC 2571 (All). and also the decisions of the Apex Court in Bhagwatidin v. Gheesalal, reported in 1980 ACJ 116. Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai. reported in AIR 1987 SC 1690 and Pushpam v. Nirmala, reported in 1991 TLNJ 101, and at Paragraphs 15, 16 and 17 held as follows : "15. As pointed out earlier, the compensation amount is being paid to the legal representatives on account of untimely death of their ancestor. The dependency of the legal representatives is a question to be considered and does no mean only the dependents can claim compensation. The compensation being the amount for the loss to the estate of the deceased, it has to be considered as to whether the legal representatives had been put to loss because of the death of the deceased. Wherever the deceased is an earning member, naturally his savings is an accumulation for the estate which can be divided by the legal representatives after the death of the deceased.
Wherever the deceased is an earning member, naturally his savings is an accumulation for the estate which can be divided by the legal representatives after the death of the deceased. As the legal representatives had been put to loss of the earning of the deceased, the legal representatives are also entitled for the compensation. 16. Further in this case there is absolutely no evidence to show that the married sons are living separately. When they are residing with the mother, naturally the married sons had lost not only the assistance of the deceased mother but also lost her valuable advice in family matters. The deceased, being a widow, naturally she could have lived with any one of the sons. When the legal representatives, the married sons of the deceased are entitled for compensation even though they are residing separately, the claimants herein will be entitled for compensation; especially when they are residing with the deceased. Moreover, the aged parents in many a house are the watch dogs for the entire house, servants and the grand children except a few exceptional cases. When the claimants had lost such valuable services of their mother they are entitle for compensation. The loss cannot be substituted by any other confident or respondent person either in the family or by appointing a servant. If the contention of the counsel for the appellant is accepted, I do not surprise that in future the appellant may plead that generally the aged ones are only a liability in the family and since due to the accident the aged one died, the family is get rid of the same and the driver should be suitably rewarded by the legal representatives instead of claiming any compensation for the death of the deceased. 17. Further if the contention of the counsel for the appellant that the claimants are entitled only for the no fault amount is accepted, then a person who sustained some grievous injuries will be paid more than the amount that would be paid to the legal representatives i.e., married sons and daughters of the deceased and in that case it would be cheaper to kill than maim. If the claimants are to be paid the no fault amount, that may mean that the claimants are being paid some ex gratia payment out of sympathy and not for the loss of life of their ancestor.
If the claimants are to be paid the no fault amount, that may mean that the claimants are being paid some ex gratia payment out of sympathy and not for the loss of life of their ancestor. Hence the contention of the counsel for the appellant cannot be countenanced and there is absolutely no merit in the appeal and is dismissed". (Emphasis supplied) 4. Mother can continuously render her valuable services to her son, even if he is married. Similarly, a married son would still continue to assist his mother or father, in the case of need. Contribution by means of service or income, both can be taken into account to determine the quantum of compensation. A married son is also a legal representative, as per the law of succession and that he is entitled to make a claim. Even taking it for granted that married sons and daughters are not totally dependent, on the income of the deceased mother, yet the valuable and gratuitous services rendered by the there, cannot be measured in terms of one. A Woman, either a housewife or employed, voluntarily engages herself in all se hold works and extend her valuable and inatuitous services to her husband, childe find other members, in the family. In Arun Kumar Agarwal v. National Insurance Company Ltd., reported in 2010 (9) SCC 218 : AIR 2010 SC 3426 the Supreme Court, after considering the word "services", which the husband and the family members stand to lose, as per Kemp on Negligence, held as follows : "It is not possible to quantify any amount in lieu of the services rendered by the wife/ mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term ‘services’ is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased.
They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier". 5. In the light of the decision, stated supra, this Court deems it fit to hold that married sons and daughters are entitled to claim compensation. However, during the course of arguments, attention of this Court was invited to the calculation mistake, which has occurred in computing the loss of contribution to the family. According to the learned counsel for the company, if l/3rd of the income is deducted, towards the personal and living expenses of the deceased, the deduction should have been Rs. 1,666/-, whereas, the Claims Tribunal has deducted Rs. 1,266/- for computing the loss of contribution to the family. As per the decision made in Sarla Verma v. Delhi Transport Corporation Ltd., reported in 2009(2) TNMAC 1 : ( AIR 2009 SC 3104 ) the proper multiplier that should have been applied for (he age group of persons between 41 and 45 is ‘14’, whereas, the Claims Tribunal has applied ‘15’ multiplier. 6. Arguments of the learned counsel for the appellant-insurance Company is reasonable and therefore alter deducting l/3rd towards personal and living expenses of the deceased and by applying ‘14’ multiplier, to the age group of persons between 41 and 45, the loss of contribution to the family works out to Rs. 5,60,000/-. The compensation awarded towards loss of love and affection is sustained. 7. The accident has occurred on 12-8-2007. Though a sum of Rs. 10,000/- has been claimed as transportation expenses, the Claims Tribunal has awarded only Rs. 2,000/-. Transportation expenses would be incurred, when the injured is taken to the hospital for treatment and when the corpse is taken to the place of residence. The compensation awarded towards transportation is less. Similarly, the compensation of Rs. 5,000/- awarded towards Funeral Expenses is also inadequate. There is no award under conventional head, damage to clothes. The excessive compensation of Rs. 40,120/-awarded by the Claims Tribunal, due to calculation mistake, can be adjusted towards other heads, as stated supra. The overall compensation of Rs. 6,37.120/- awarded to the claimant, cannot be said to be excessive, warranting reduction. 8.
5,000/- awarded towards Funeral Expenses is also inadequate. There is no award under conventional head, damage to clothes. The excessive compensation of Rs. 40,120/-awarded by the Claims Tribunal, due to calculation mistake, can be adjusted towards other heads, as stated supra. The overall compensation of Rs. 6,37.120/- awarded to the claimant, cannot be said to be excessive, warranting reduction. 8. Hence, for the reasons, stated supra, the Civil Miscellaneous Appeal is dismissed. The appellant-insurance Company is directed to deposit the entire award amount, if not already deposited, with proportionate accrued interest and costs, to the credit of M.C.O.R No. 95 of 2009, on the file of Motor Accidents Claims Tribunal, (Principal Subordinate Court), Krishnagiri, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the respondent/claimant is permitted to withdraw the same, by making necessary applications before the Tribunal. 9. No costs. Consequently, connected Miscellaneous Petition is also closed.