Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 1598 (MAD)

Jeeva @ Sujatha v. Saraswathy

2015-03-24

D.HARIPARANTHAMAN

body2015
JUDGMENT:- 1. Arising out of an accident, two claim petitions were filed and the Tribunal passed the common award. Not satisfied with the quantum of compensation, the claimants have filed these appeals for enhancement of compensation. Since the issue in both the appeals is common, both the appeals are heard together and a common judgment is passed. 2. That on 06.10.2011 one Velkumar rode a motor cycle bearing registration No.TN-72-AB-7157 seating one Veerapandiaraja as pillion. While they were proceeding on Tiruchendur-Kanyakumari Beach road, a Omni Van bearing registration No.TN-38-AZ-5523 owned by the 1st respondent insured with the second respondent insurance company hit the motor cycle resulting in the death of both the rider as well as the pillion on the spot. Legal representatives of the rider and pillion filed MCOP.Nos.1339 and 1341 of 2011 on the file of Motor Accident Claims Tribunal, (IV Additional District Court), Tirunelveli, and the Tribunal by a common judgment dated 13.08.2012, awarded compensation of Rs.6,40,000/- and Rs.5,75,000/- respectively, with interest @ 8% per annum under the following heads:- CMA (MD)No.109 of 2013 Loss of income Rs.5,80,000/- Loss of love and affection & loss of consortium Rs. 50,000/- Funeral expenses Rs. 10,000/- Total Rs.6,40,000/- CMA (MD)No.110 of 2013 Loss of income Rs. 5,15,000/- Loss of love and affection & loss of consortium Rs. 50,000/- Funeral expenses Rs. 10,000/- Total Rs.5,75,000/- 3. The learned counsel for the appellants in both the appeals submitted that the Tribunal erred in fixing the monthly income of the deceased in both the cases at Rs.4,000/-, when the claimants claimed that the deceased in both the cases as Driver and Grocery & Fancy Shop owner respectively, earned Rs.15,000/- and Rs.23,000/- per month respectively. Therefore, he submitted that the monthly income of the deceased in both the cases could be fixed at Rs.6,000/-. In support of his contention, he relied on a Division Bench judgment of this Court in M. Sengabagam vs. V.Vinod Kumar, 2013 (2) TN MAC 450 (DB). 4. The learned counsel for the appellants further submitted that the Tribunal erred in deducting 1/3rd towards the personal expenses of the deceased in both the cases. According to him, the deduction should be 1/4th when the number of dependants 4 and 5 respectively. In support of the same, he relied on the Supreme Court judgment in Smt. Sarla Verma & Ors. According to him, the deduction should be 1/4th when the number of dependants 4 and 5 respectively. In support of the same, he relied on the Supreme Court judgment in Smt. Sarla Verma & Ors. v. Delhi Transport Corporation and another reported in 2009 (2) TNMAC 1 (SC). 5. He further submitted that at the time of accident, the wife of the deceased in both the cases aged 23 and 32 years respectively and they lost consortium of their husbands at the young age. Therefore, the Tribunal ought to have awarded atleast Rs.1,00,000/- each. He also contended that the award towards love and affection in both the cases is meagre and prays for enhancement. 6. I have considered the above submissions. 7. In MCOP.No.1339/11 (CMA.No.109/13), the claimants claimed that the deceased as a driver and also by selling rice, earned Rs.15,000/- per month. However, in the absence of proof, the Tribunal fixed the monthly income of the deceased at Rs.4,000/- per month. Relying on the entry in Ex.P7-Driving Licence of the deceased, the Tribunal fixed the age of the deceased as 30 years. After deducting 1/3rd towards the personal expenses of the deceased and applying 18' multiplier, the Tribunal awarded Rs.5,80,000/- towards loss of income and loss of estate. The actual calculation of loss of income is Rs.5,76,072/- and the Tribunal rounded off the same to Rs.5,80,000/-. 8. In MCOP.No.1341/11 (CMA.No.110/13), the claimants claimed that the deceased by running Grocery and Fancy shop, earned Rs.23,000/- per month. However, in the absence of proof, the Tribunal fixed the monthly income of the deceased at Rs.4,000/- per month. The Tribunal fixed the age of the deceased as 37 years as averred in the claim petition. After deducting 1/3rd towards the personal expenses of the deceased and applying 16' multiplier, the Tribunal awarded Rs.5,15,000/- towards loss of income and loss of estate. The actual calculation of loss of income is Rs.5,12,064/- and the Tribunal rounded off the same to Rs.5,15,000/-. 9. In M. Sengabagam vs. V.Vinod Kumar, 2013 (2) TN MAC 450 (DB), relied on by the learned counsel for the claimants, a Division Bench of this Court held that the claimants did not produce evidence to ascertain the income of the deceased. However, considering the fact that the deceased was an agriculturist and a businessman in that case, income of Rs.6,000/- was fixed by the Division Bench. However, considering the fact that the deceased was an agriculturist and a businessman in that case, income of Rs.6,000/- was fixed by the Division Bench. Hence, the monthly income of the deceased in both the cases is fixed at Rs.6,000/-. 10. With regard to deduction towards personal and living expenses, the Supreme Court in Sarla Verma's case, at paragraph 14, has held as follows:- "we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six." 11. The number of dependents in these cases is 4 and 5 respectively. Hence, after deducting 1/4th towards the personal expenses of the deceased and applying 17' multiplier as per Sarla Verma's case, the loss of income in CMA.No.109/13 is calculated at Rs.9,18,000/- (Rs.4500X12X17). After deducting 1/4th towards the personal expenses of the deceased and applying 15' multiplier as per Sarla Verma's case, the loss of income in CMA.No.110/13 is calculated at Rs.8,10,000/- (Rs.4500X12X15). 12. 'Consortium', as per Best v. Samuel Fox reported in (1952) AC 716, means, "Duty owned by a wife to her husband and vice versa, companionship, love and affection, comfort, mutual services, sexual intercourse, etc.,". Further in Rajesh and Others Vs. Rajbir Singh and Others reported in (2013 (3) CTC 883), the Honourable Supreme Court has held that at least rupees one lakh should be awarded as compensation for the Loss of Consortium. Following the ratio of the above said decision, a Division Bench of this Court in Maheswari vs M/S. Supreme India Roadlines (CMA.No.395 of 2009, decided on 21.10.2013), has awarded a sum of Rs.1,00,000/- towards "loss of consortium". 13. Hence, I am inclined to award Rs.1,00,000/- for loss of consortium in both the cases. 14. In CMA.No.109/13, considering the fact that the appellants 2 and 3/minor children have lost the love and affection, care and guidance of their father at their age of 2 years and 8 months respectively, I am inclined to award Rs.30,000/- each towards loss of love and affection. The father of the deceased/4th appellant is awarded Rs.10,000/- towards loss of love and affection. The award towards funeral expenses is confirmed. 15. The father of the deceased/4th appellant is awarded Rs.10,000/- towards loss of love and affection. The award towards funeral expenses is confirmed. 15. In CMA.No.110/13, considering the fact that the appellants 2 and 3/minor children have lost the love and affection, care and guidance of their father at their age of 5 years and 1 year respectively, I am inclined to award Rs.30,000/- each towards loss of love and affection. The parents of the deceased/appellants 4 and 5 is awarded Rs.10,000/- each towards loss of love and affection. The award towards funeral expenses is confirmed. The rate of interest at 8% is confirmed. The compensation in both the appeals is modified as hereunder:- CMA (MD)No.109 of 2013 Loss of income Rs.9,18,000/- Loss of consortium Rs.1,00,000/- Loss of love and affection Rs. 70,000/- Funeral expenses Rs. 10,000/- Total Rs.10,98,000/- (Less) Amount awarded by the Tribunal Rs. 6,40,000/- Enhanced compensation Rs. 4,58,000/- CMA (MD)No.110 of 2013 Loss of income Rs.8,10,000/- Loss of consortium Rs.1,00,000/- Loss of love and affection Rs. 80,000/- Funeral expenses Rs. 10,000/- Total Rs.10,00,000/- (Less) Amount awarded by the Tribunal Rs.5,75,000/- Enhanced compensation Rs. 4,25,000/- 16. In the result, the appellants/claimants in both the appeals are entitled to compensation of Rs.10,98,000/- and Rs.10,00,000/- respectively with interest @ 8% from the date of claim to till the date of deposit. The 2nd respondent insurance company in both the appeals is directed to deposit Rs.10,98,000/- and Rs.10,00,000/- respectively with interest @ 8% from the date of claim to till the date of deposit, less the amount already deposited, if any, to the credit of MCOP.Nos.1339 and 1341 of 2011 on the file of Motor Accident Claims Tribunal, (IV Additional District Court), Tirunelveli, within a period of six weeks from the date of receipt of a copy of this order. On such deposit, except the appellants 2 and 3/minor claimants in both the appeals, other appellants who are major claimants are permitted to withdraw their respective shares with proportionate accrued interest and costs by making necessary application before the Tribunal. The Tribunal shall deposit the shares of the appellants 2 and 3 who are minor claimants in any one of the Nationalised Banks in Fixed which shall be renewed periodically till the minors attain majority. The Tribunal shall deposit the shares of the appellants 2 and 3 who are minor claimants in any one of the Nationalised Banks in Fixed which shall be renewed periodically till the minors attain majority. The interest accrued on the deposit of minors is permitted to be withdrawn by the 1st appellant in both the appeals once in three months directly from the bank. The Civil Miscellaneous Appeals are disposed of accordingly. No costs.