Madras High Court
Vijayalakshmi vs Sengottayan on 2 August, 2021
CMA No.1996 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
CMA No.1996 of 2016
1. Vijayalakshmi
2. Parvathiammal
3. Minor Ramakrishnan
4. Minor Vigneswari
5. Minor Uma Maheswari ... Appellants
Minors 3,4,5 represented by Guardian
1st petitioner
versus
1. Sengottayan
2. The Divisional Manager,
The Oriental Insurance Company Ltd.,
75, Krishnan Street,
Thiruvannamalai.
3. Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
Villupuram. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act to enhance the award dated 14.12.2005 made in MACTOP
No.251 of 2004 on the file of the Motor Accident Claims Tribunal cum
Chief Judicial Magistrate, Thiruvannamalai.
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CMA No.1996 of 2016
For Appellants : Ms.A.Subadra
for Ms.M.Malar
For Respondents : Mr.M.J.Vijayaraghavan for R2
R1 - Exparte
R3-Dismissed vide BSR No.110936
JUDGMENT
(Heard Video Conference)
This appeal has been filed by the claimants seeking enhancement
of compensation under the impugned award dated 14.12.2005 passed by
the Motor Accidents Claims Tribunal, Chief Judicial Magistrate,
Tiruvannamalai in MCOP No.251 of 2004.
2. The appellants / claimants unsatisfied with the quantum of
compensation awarded by the Tribunal under the impugned award have
preferred this appeal seeking for enhancement.
3. The details of the compensation awarded by the Tribunal under
the impugned award to the appellants / claimants are as follows :-
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CMA No.1996 of 2016
Heads Amount awarded
by the Tribunal
(Rs.)
Pecuniary loss 8,51,520
Rs.6,652.50 Less 1/3rd =
Rs.4,435/- x 12 = Rs.53,220 x
Loss of consortium 5,000
Loss of love and affection 5,000
Funeral expenses 2,000
Total 8,63,520
4. Heard Ms.A. Subadra, learned counsel for the appellants/
claimants and Mr.M.J.Vijayaraghavan, learned counsel for the second
respondent. The first respondent remained ex-parte both before the
Tribunal and before this Court.
5. This Court has perused and examined the impugned award
before the Tribunal.
6. The appellants / claimants are the dependants of the deceased
Kannan, who died on 24.06.2002 as a result of an accident caused by a
vehicle insured with the second respondent. The first appellant is the
wife of the deceased and the second appellant is his mother and the
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CMA No.1996 of 2016
remaining three appellants are his children. The deceased was a Driver
employed with the Tamil Nadu Transport Corporation Limited
(Villupuram Division). The appellants / claimants have filed the salary
certificate of the deceased, which has been marked as Ex.P6 before the
Tribunal, which confirms that he was earning Rs.6,652.50 at the time of
the accident. The same has been accepted by the Tribunal and
accordingly, the Tribunal has assessed the monthly income of the
deceased at Rs.6,652.50. No contra evidence has been produced by the
respondents before the Tribunal to disprove the salary certificate (Ex.P6).
The Tribunal has adopted 16 multiplier for the purpose of assessing the
loss of dependency to the appellants / claimants which is not correct. The
appellants / claimants have filed the Driving licence of the deceased,
which has been marked as Ex.P4 before the Tribunal. As seen from the
Driving Licence, the deceased was born on 11.06.1960. The accident
happened on 24.06.2002. Therefore, the correct age of the deceased at
the time of the accident is 42 years. For a person aged 42 years, the
correct multiplier to be adopted is 14, in accordance with the settled law.
Since, the Tribunal has erroneously adopted 16 multiplier, the same is
modified by this Court to 14. The appellants / claimants have contended
before the Tribunal that the deceased was a permanent employee of the
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CMA No.1996 of 2016
Government owned Transport Corporation and he was employed as a
Driver. They have also produced the Salary certificate of the deceased
which has been marked as Ex.P6 to prove that the deceased was
employed as Driver in Government owned Transport Corporation. A
consistent stand has been taken by the appellants / claimants as seen from
their deposition that the deceased was a permanent employee with the
Government owned Transport Corporation. No contra evidence has been
produced by the respondents before the Tribunal to disprove the
contention of the appellants / claimants that the deceased was a
permanent employee of the Government owned Transport Corporation.
Any adjudication of claim by the Motor Accidents Claims Tribunal is
based on preponderance of probabilities. When the appellants / claimants
have discharged their burden to prove that the deceased was a permanent
employee of the Government owned Transport Corporation, it is for the
respondents to disprove the said contention by producing documentary
evidence in support of their contention that the deceased was not a
permanent employee of the Government owned Transport Corporation.
Therefore, this Court is of the considered view that the appellants /
claimants are entitled to all the benefits that are to be granted for a
permanent employee.
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CMA No.1996 of 2016
7. The Tribunal has erroneously failed to award any compensation
towards loss of future prospects which the appellants/claimants are
legally entitled to as per the decision of the Hon'ble Supreme Court in the
case of National Insurance Co. Ltd. vs. Pranay Sethi reported in 2017
16 SCC 680. Being a permanent employee of the Government owned
Transport Corporation, the appellants /claimants are entitled to 30%
towards loss of future prospects.
8. The appellants / claimants are 5 in number, but the Tribunal has
erroneously deducted 1/3rd towards personal expenses of the deceased
instead of 1/4th which is applicable for 5 dependants. Hence, the same is
modified by this Court and 1/4th is deducted towards the personal
expenses of the deceased instead of 1/3rd erroneously deducted by the
Tribunal.
9. Accordingly, the loss of income will have to be enhanced by this
Court from Rs.8,51,520/- to Rs.10,89,816/- as detailed hereunder :
Rs.6,653/- + 30% x 1/4 x 14 x 12 = Rs.10,89,816/-
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CMA No.1996 of 2016
10. The Tribunal has also awarded a lesser compensation towards
loss of consortium to the 1st appellant, who is the wife of the deceased.
In accordance with Pranay Sethi's judgment, as referred to supra, the
loss of consortium to the first appellant / first claimant will have to be
enhanced from Rs.5,000/- to Rs.40,000/- and accordingly, the same is
enhanced.
11. The Tribunal has awarded a lesser compensation of Rs.2,000/-
towards funeral expenses which has to be enhanced to Rs.15,000/- in
accordance with the settled law and accordingly, the same is enhanced.
12. The Tribunal has also failed to award any compensation
towards loss of estate to the appellants / claimants, which they are legally
entitled to. After giving due consideration to the same, this Court awards
a compensation of Rs.15,000/- towards loss of estate.
13. The Hon'ble Supreme Court in Pranay Sethi's case, referred to
supra has fixed the compensation under the conventional heads of claim
at Rs.70,000/-. Under the enhanced compensation assessed by this
Court, the compensation towards conventional heads has been fixed at
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CMA No.1996 of 2016
Rs.70,000/- under the heads viz., Loss of consortium, funeral expenses
and Loss of estate. Therefore, the compensation awarded by the Tribunal
under the head loss of love and affection at Rs.5,000/- has to be set aside
by this Court, since the total compensation payable under the
conventional heads as per Pranay Sethi judgment has already been
achieved by the revised assessment made by this Court.
14. For the foregoing reasons, the award of the Tribunal is hereby
enhanced in the following manner :
Heads Amount awarded Amount awarded
by the Tribunal by this Court
(Rs.) (Rs.)
Pecuniary loss 8,51,520 10,89,816/-
*Rs.6,652.50 Less 1/3rd = * #
Rs.4,435/- x 12 = Rs.53,220
x 16
# Rs.6,653/- + 30% x 1/4 x
14 x 12 = Rs.10,89,816/-
Loss of consortium 5,000 40,000
Loss of love and affection 5,000 -
Funeral expenses 2,000 15,000
Loss of estate - 15,000
Total 8,63,520 11,59,816
15. In the result, the appeal filed by the appellants / claimants,
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CMA No.1996 of 2016
stands partly allowed by enhancing the compensation from Rs.8,63,520/-
to Rs.11,59,816/-, as indicated above. No costs. Consequently, connected
miscellaneous petition is closed.
16. There is a delay of 2049 days in filing the appeal, which was
earlier condoned by this Court. It is made clear that the appellants /
claimants are not entitled to get any interest for the said delay period of
2049 days.
17. 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 delay period of 2049 days less the amount, if any,
already deposited to the credit of MACTOP No.251 of 2004 on the file of
the Motor Accident Claims Tribunal cum Chief Judicial Magistrate,
Thiruvannamalai, within a period of eight 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 2 / major claimants through RTGS, within a period of
two weeks thereafter as per the ratio of apportionment fixed by the
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Tribunal. Insofar as the share of 3, 4 and 5 appellants / minor
claimants are concerned, the same shall be deposited in Fixed deposit in
any one of the Nationalized Banks, till they attain the age of majority and
the interest accrued thereon shall be withdrawn by the guardian of the
minor claimants once in three months, directly from the Bank. If the
minor claimants have attained the age of majority, it is open to them to
file formal petition before the Tribunal to get their share of
apportionment. Necessary Court fee, if any has to be paid by the
appellants / claimants before receiving the copy of this Judgment.
02.08.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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To
1. The Chief Judicial Magistrate,
Thiruvannamalai.
2. The Section Officer,
V.R. Section
High Court of Madras, Chennai - 104.
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CMA No.1996 of 2016
ABDUL QUDDHOSE, J.
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CMA No.1996 of 2016
02.08.2021
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