Madras High Court
Bharathi vs M.Thulasiraman on 27 April, 2021
C.M.A.No.51 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.04.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.51 of 2016
1. Bharathi
2. Minor M.Malar
3. Kokila ... Appellants
Versus
1. M.Thulasiraman
2. The Bharti AXA General
Insurance Co. Ltd.,
No.162, 2nd Floor,
Metro Plaza,
Anna Salai,
Chennai – 2. ... Respondents
(The 1st respondent exparte in lower Court,
hence notice may be dispense with)
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the decree and judgment dated 04.08.2015
made in M.C.O.P. No.743 of 2013 on the file of Motor Accident Claims
Tribunal (III Additional District Court), Poonamallee.
For Appellants : Mr.K.Varadha Kamaraj
For Respondents : Mr.S. Arun Kumar for R2
R1 - Exparte
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C.M.A.No.51 of 2016
JUDGMENT
This appeal has been filed by the claimants seeking enhancement
of compensation under the impugned award dated 04.08.2015 passed by
the Motor Accident Claims Tribunal (III Additional District Court),
Poonamallee in MCOP No.743 of 2013 .
2. Mr.Murugavel died as a result of an accident on 23.05.2013
caused by a vehicle owned by the first respondent and insured with the
second respondent. The first appellant is the wife of the deceased; the
2nd respondent is the daughter of the deceased and the 3rd appellant is
the mother of the deceased. They preferred a claim before the Motor
Accident Claims Tribunal seeking compensation for the death of
B.Murugavel. The Tribunal under the impugned award directed the
second respondent to pay a compensation of Rs.34,19,600/- together
with interests and costs as detailed hereunder :-
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C.M.A.No.51 of 2016
Heads Amount awarded
by the Tribunal
(Rs.)
Pecuniary loss of the deceased 30,54,600
Rs.25,454/- - 1/3 = 16970 x
12 x 15
Mental Agony 1,00,000
Funeral expenses 15000
Pain and suffering to the 1st 1,00,000
petitioner
Pain and suffering to the 2nd 1,00,000
petitioner
Pain and suffering to the 3rd 50000
petitioner
Total 34,19,600/-
3. The appellants / claimants unsatisfied with the quantum of
compensation awarded by the Tribunal have preferred this appeal seeking
for enhancement.
4. Heard Mr.K.Varadhakamaraj, learned counsel for the appellants
and Mr.S.Arunkumar, learned counsel for the second respondent /
Insurance Company. The first respondent was set ex-parte before the
Tribunal, hence notice to the first respondent is dispensed with.
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C.M.A.No.51 of 2016
5. This Court has perused and examined the impugned award
before the Tribunal.
6. The deceased was a Police Head Constable at the time of the
accident. Before the Tribunal, the appellants / claimants have filed eight
documents, which were marked as Exs.A1 to 8 and two witnesses were
examined on their side viz., the first appellant / first claimant as PW1
and an eye witness to the accident as PW2. On the side of the second
respondent / Insurance Company ten documents were filed, which were
marked as Exs.P1 to P10 and two witnesses were examined on their side
viz., RW1 and RW2.
7a. The appellants / claimants have filed the salary slip of the
deceased, who was a police Head Constable at the time of accident,
which was marked as Ex.P7 and the Tribunal has rightly accepted the
same and fixed the monthly income of the deceased at Rs.25,454/-. The
deceased was aged 45 years at the time of the accident which is an
undisputed fact. For a person aged 45 years, the Tribunal ought to have
awarded a compensation at the rate of 30% towards loss of future
prospects as per the decision of the Hon'ble Supreme Court in the case of
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C.M.A.No.51 of 2016
National Insurance Co. Ltd. vs. Pranay Sethi reported in 2017 16 SCC
680, which the Tribunal failed to award. The Tribunal has observed that
since the first appellant / first claimant is the wife of the deceased has
applied for Compassionate appointment, she is not entitled for loss of
future prospects which in the considered view is not a ground for
rejection. Hence, this Court awards the same to the appellants /
claimants. Thus the total income of the deceased per annum is
Rs.3,97,080/- (Rs.25,454/- + Rs.7,636/- = Rs.33,090/- x 12). Out of this
amount, income tax payable by the deceased has to be deducted. During
2013, i.e., the year of the accident, the income tax payable is shown
hereunder :-
For earning upto Rs.2,50,000/- : Nil
For earning between Rs.2,50,001/-
and Rs.5,00,000/- (10%) : Rs.19,708
--------------
Total Rs.19,708/-
--------------
Therefore, after deduction of income tax payable by the deceased, the
yearly income works out to Rs.3,77,374/- (Rs.3,97,082/- Less
Rs.19708/-).
7b. However, the Tribunal has adopted a wrong multiplier of 15
instead of 14 for a person aged between 41 to 45 years, as per the
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C.M.A.No.51 of 2016
decision of the Hon'ble Supreme Court in the case of Sarala Verma &
Ors vs Delhi Transport Corporation & Another reported in 2009 6 SCC
121. Thus by taking into account the age of the deceased at 45 years,
this Court modifies the multiplier to 14 instead of 15, fixed by the
Tribunal.
7c. The Tribunal has also rightly deducted 1/3rd towards personal
expenses of the deceased since the dependants of the deceased are three
in number. Thus the compensation under the head Pecuniary loss works
out to Rs.35,22,157/- (Rs.25,454/-(salary p.m.) + 30%(Future prospects)
x12 = Rs.3,97, 082/- Less 10%( Income Tax) = Rs.3,77,374/- per annum
x 14 x 1/3)
8. The Tribunal has instead of awarding loss of future prospects to
the appellants / claimants has erroneously awarded compensation
towards mental agony, pain and suffering of the first appellant /first
claimant, pain and suffering of the second appellant / second claimant
and pain and suffering of the third claimant / third claimant which has to
be set aside by this Court as it is not in accordance with law and the same
is set aside.
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C.M.A.No.51 of 2016
9. However, the Tribunal failed to award any compensation
towards loss of consortium to the first appellant / first claimant and loss
of love and affection to the second and third appellants who are the
daughter and the mother of the deceased. In accordance with Pranay
Sethi's case of the Hon'ble Supreme Court referred to supra, this Court
awards a compensation of Rs.40,000/- towards loss of consortium to the
first appellant and Rs.80,000/- towards loss of love and affection to the
second and third appellants / second and third claimants (Rs.40,000/-
each), which the Tribunal failed to award.
10. The Tribunal has also failed to award any compensation
towards loss of estate which the appellants / claimants are legally entitled
to as per the settled law and this Court awards the same at Rs.15,000/-.
11. Insofar as compensation of Rs.15,000/- awarded by the
Tribunal towards funeral expenses is concerned, the same is confirmed as
it is in accordance with the settled law.
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C.M.A.No.51 of 2016
12. For the foregoing reasons, the award of the Tribunal is hereby
modified in the following manner :
Heads Amount awarded Amount awarded
by the Tribunal by this Court
(Rs.) (Rs.)
Pecuniary loss of the 30,54,600 35,22,157
deceased
Mental Agony 1,00,000 -
Funeral expenses 15000 15000
Pain and suffering to the 1st 1,00,000 -
petitioner
Pain and suffering to the 2nd 1,00,000 -
petitioner
Pain and suffering to the 3rd -
petitioner 50000
Loss of consortium to the - 40000
1st petitioner
Loss of love and affection to 80000
2nd and 3rd petitioners
(Rs.40000 x 2)
Loss of estate - 15000
Total 34,19,600/- 36,72,157/-
13. In the result, the appeal filed by the appellants / claimants,
stands partly allowed by enhancing the compensation from
Rs.34,19,600/- to Rs.36,72,157/- as indicated above. No costs.
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C.M.A.No.51 of 2016
14. The second respondent / Insurance Company is directed to
deposit the entire award amount as assessed by this Court together with
interest at 7.5% p.a. from the date of claim petition till the date of
realization, less the amount, if any, already deposited to the credit of
M.C.O.P. No.743 of 2013 on the file of Motor Accident Claims Tribunal
(III Additional District Court), Poonamallee, within a period of four
weeks from the date of receipt of a copy of this Judgment. On such
deposit being made, the Tribunal is directed to transfer the award amount
directly to the bank account of the appellants 1 and 3 /major claimants,
as per the same ratio of apportionment made by the Tribunal through
RTGS, within a period of two weeks thereafter. Insofar as the share of
the second appellant / minor claimant is concerned, the same shall be
deposited in Fixed deposit in any one of the Nationalised Banks, till she
attains the age of majority and the interest accrued thereon shall be
withdrawn by the guardian of the minor claimant once in three months,
directly from the Bank. If the second claimant / minor claimant attained
the age of majority, it is open to her to file formal petition before the
Tribunal to get her share of apportionment is concerned. The requisite
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C.M.A.No.51 of 2016
Court fee, if any has to be paid by the appellants before receiving the
copy of this Judgment.
27.04.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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To
1.The III Additional District Judge,
Motor Accident Claims Tribunal
(III Additional District Court),
Poonamallee.
2.The Section Officer,
V.R. Section, High Court of Madras,
Chennai – 104.
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C.M.A.No.51 of 2016
ABDUL QUDDHOSE, J.
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C.M.A.No.51 of 2016
27.04.2021
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