Madras High Court
S.Uma Maheswari vs Metropolitan Transport ... on 29 January, 2021
CMA.Nos.3135 of 2010 and 3007 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.01.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
CMA.Nos.3135 of 2010 and 3007 of 2013
and M.P.No. 1 of 2013
CMA.No. 3135 of 2010
1.S.Uma Maheswari
2. Minor Praveenkumar
rep. By Mother & next
friend S.Umamaheswari. ... Appellants
..vs..
1.Metropolitan Transport Corporation Limited,
Chennai Division -I,
Pallavan Salai,
Chennai -600002.
2.Anjali
W/o. Srinivasan ..Respondents
CMA.No. 3007 of 2013
S.Uma Maheswari ... Appellant
Vs
1.Metropolitan Transport Corporation Limited,
Chennai Division -I,
Pallavan Salai,
Chennai -600002.
1/16
https://www.mhc.tn.gov.in/judis
CMA.Nos.3135 of 2010 and 3007 of 2013
2.Anjali
3.Kalai Arasi
4.Jothi Kumar
5.Raja ..Respondents
Common Prayer : These appeals filed under Section 173 of the
Motor Vehicles Act, 1988, against the common judgment and
decree dated 28.04.2008 in M.C.O.P.Nos.2537 of 2003 and 2672 of
2003 on the file of the Motor Vehicles Accident Claims Tribunal, VI
Court of Small Causes, Chennai, Chennai.
For Appellant : Mr. G.Balachandran
(in both CMAs)
For Respondent
(in CMA.No.3135 of 2010) : Dr.S.S.Swaminathan - R1
: Mr.S.Udayakumar – R2
(in CMA.No.3007 of 2013) : Dr.S.S.Swaminathan – R1
: Mr.S.Udayakumar – R2 to R5
----
COMMON JUDGMENT
The matter is heard through "Video Conferencing".
Since the common question of law is involved in both the
appeals and the appeals filed against the common award of Motor
Accidents Claims Tribunal, they are also disposed of by a common
judgment.
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CMA.Nos.3135 of 2010 and 3007 of 2013
2. These Civil Miscellaneous Appeals have been filed by the
claimants against the common judgment and decree dated
28.04.2008 in M.C.O.P.Nos.2537 of 2003 and 2672 of 2003 on the
file of the Motor Accident Claims Tribunal, VI Court of Small
Causes, Chennai, Chennai.
3. Common facts involved in these cases is that on
09.04.2003 at about 10.30 while the deceased S.Sivasubramaniam
was proceedings in his motor bike near Saidapet, at that time, the
transport corporation bus bearing reg.no. TN01-N-2117 driven by
its driver, came in a rash and negligent manner and hit the bike
from behind. Due to the impact, the deceased Sivasubramaniam
died on the spot. The accident had occurred only due to the rash
and negligence on the part of the driver of the transport
corporation bus, hence, claiming compensation, the wife and minor
child have filed a claim petition in MCOP.No. 2537 of 2003,
claiming compensation of Rs.20,00,000/-. The mother, sister and
brothers have filed a separate claim petition in MCOP.No. 2672 of
2003, claiming compensation of Rs.20,00,000/- (restricted to
Rs.7,00,000/-).
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CMA.Nos.3135 of 2010 and 3007 of 2013
4.The Transport Corporation, filed counter statement before
the tribunal and denied the mode of accident. The injuries, period
of treatment, expenses, disability have also been denied. It was
contended before the tribunal that the accident had occurred only
due to the negligence on the part of the deceased who stopped the
his vehicle unexpectedly. Therefore, the driver is not responsible
for the accident and consequently, the transport corporation is not
liable to pay compensation.
5. Before the Tribunal, the wife and mother of the deceased
were examined themselves as P.W.1 & PW2 and examined one
T.Madhurai as PW3/eyewitness and marked documents ExP1 to P9.
No witnesses and documents were marked on the side of the
Transport Corporation.
6.The Tribunal after considering the pleadings, oral and
documentary evidence, fixed liability on the part of driver of the
transport corporation bus and directed the Transport Corporation to
pay the compensation of Rs.7,20,000/-. Out of the said common
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CMA.Nos.3135 of 2010 and 3007 of 2013
compensation amount, the claimants in MCOP.No. 2537 of2003 are
entitled to a sum of Rs.4,00,000/- and the claimants in MCOP.No.
2672 of 2003 are entitled to a sum of Rs.3,52,000/- as per the
apportionment fixed by the tribunal. Challenging the quantum of
compensation and the apportionment fixed to the mother, brothers
and sisters of the deceased, the wife of the deceased
Sivasubramanian has filed these two appeals.
7. Grounds raised in CMA.No. 3135 of 2010 (Challeging the
quantum of compensation)
7.1 The tribunal has awarded low amount of compensation
without taking into consideration the future prospects of the
deceased. The share of Rs.2,50,000/- to the 1st appellant and
Rs.1,50,000/- to the 2nd appellant is low. The other ground raised
by the appellant is that the brothers and sisters of the deceased
are 2nd class heirs, they are entitled to receive share of
compensation only in the absence of 1st call heirs. Therefore, the
mother of the deceased alone is entitled for compensation.
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CMA.Nos.3135 of 2010 and 3007 of 2013
7.2 The tribunal has not granted any amount to the appellant
towards loss of consortium and the compensation granted is very
meagre towards of loss of love and affection. In total, the tribunal
has granted compensation without applying legal principles laid
down by the Hon'ble Supreme Court and this Court. Hene, the
award passed by the tribunal requires ehnacement.
8. CMA.No. 3007 of 2013 (Challenging the share alloted to
the brothers and sister of the deceased.)
8.1 The tribunal has erred in awarding compensation to the
brothers and sisters of the deceased ignoring the fact that under
Hindu Law second class heirs are not entitled to compensation
when the first class heirs are alive. The tribunal failed to see that
respondents 2 to 5 have not impleaded the minor son of the
deceased in their claim petition, as such the tribunal ought to have
dismissed the claim petition for non-joinder of proper parties. The
main ground raised by the appellant is that there is no dependency
of any nature for the respondents 3 to 5 who are sister and
brothers, therefore, the share of compensation allotted to them is
liable to be set aside.
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CMA.Nos.3135 of 2010 and 3007 of 2013
9. Heard both sides and perused the documents available on
record.
10. The appellant has specifically raised a ground that the
brothers and sisters are not entitled for the compensation for the
death the deceased husband Sivasubramani. According to the
learned counsel for the appellant, the compensation amount was
fixed by the tribunal by taking salary of the deceased at the time
of the death at Rs. 5498/- per month. But the tribunal has taken
the income of the deceased at Rs.5000/-, deducted 1/3rd of the
income towards personal and living expenses, adopted the
multiplier 18 and calculated the loss of income at Rs.7,20,000/-.
According to the appellant, the quantum fixed by the tribunal is
totally inadequate and the same is calculated without following the
principles laid down by the Hon'ble Supreme Court and this Court.
It is further contended by the learned counsel for the appellant
that the deceased was working as Grade-II Police Constable and he
would receive higher salary in future, therefore he is entitled for
future prospects of 100%.
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CMA.Nos.3135 of 2010 and 3007 of 2013
11. The learned counsel appearing for the
respondent/transport corporation submitted that the tribunal has
rightly fixed the monthly income at Rs.5000/- and calculated the
loss of dependency. The claimant/appellant has also not adduced
any oral or documentary evidence to substantiate their claim that
the deceased would have received higher salary in future. The
learned counsel appearing for the respondent/transport corporation
fairly submitted that even though the appellant have not produced
any materials for their claim for fixing 100% towards future
prospects, the tribunal, while calculating the loss of income for the
deceased, ought to have fixed future prospects as per the decision
of Hon'ble Supreme Court (Pranay Sethi's Case). The learned
counsel for the respondent/transport corporation fairly agreed to
add 50% of the income towards future prospects. Accordingly, as
per the salary certificate /Ex.P9, a sum of Rs.5,498/- is fixed as
monthly income of the deceased, adding 50% of the additional
income towards future prospects, deducting 1/3 of the total income
towards personal and living expenses, adopting multiplier 17, the
loss of dependency is calculated by this Court at Rs.11,21,592/-.
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CMA.Nos.3135 of 2010 and 3007 of 2013
12. With regard to the contention made by the appellant in
CMA.No 3007 of 2013, challenging the apportionment ordered by
the tribunal to the sister and brothers, the learned counsel
appearing for the respondents 3 to 5 has argued that brothers and
sisters of the deceased are dependants to the deceased and they
are entitled for compensation. Therefore the compensation granted
by the tribunal is valid and does not require any modification.
13. The Hon'ble Supreme Court in Saralaverma's case has
held that in the absence of evidence to prove the dependency, the
brothers and sisters are not entitled for compensation. The
relevant portion of the judgment is extracted below;
....Further, subject to evidence to the contrary,
the father is likely to have his own income and will
not be considered as a dependant and the mother
alone will be considered as a dependent. In the
absence of evidence to the contrary, brothers and
sisters will not be considered as dependents,
because they will either be independent and
earning, or married, or be dependant on the
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CMA.Nos.3135 of 2010 and 3007 of 2013
father. Thus even if the deceased is survived by
parents and siblings, only the mother would be
considered to be a dependant, and 50% would be
treated as the personal and living expenses of the
bachelor and 50% as the contribution to the
family. However, where family of the bachelor is
large and dependant on the income of the
deceased, as in a case where he has a widowed
mother and large number of younger non-earning
sisters or brothers, his personal and living
expenses may be restricted to one-third and
contribution to the family will be taken as two-
third.
14. As per the decision of the Hon'ble Supreme Court cited
supra, the brothers and and sisters should establish their
dependency before the tribunal. But in the present case, and as
rightly pointed by the learned counsel appearing for the appellant,
the respondents 3 to 5 in CMA 3007 of 2013 have failed to prove
that they were depending upon the income of the deceased,
therefore, as per decision of the Hon'ble Supreme Court cited
supra, the mother of the deceased/1st respondent in CMA.No. 3007
of 2013 alone is entitled for the compensation and the respondents
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CMA.Nos.3135 of 2010 and 3007 of 2013
3 to 5/ sister and brothers are entitled compensation only under
the head loss of love and affection. Accordingly, this Court set
aside the compensation awarded by the tribunal at Rs.2,52,000/-
(Rs.84,000/- each) to the claimants 2 to 4 in MCOP.NO.2672 of
2003 and grants Rs.75,000/- (Rs.25,000/- each) under the head
'Loss of love and affection' to the sister and brothers.
15. Likewise, Filial consortium is the right of the parents to
compensation in the case of an accidental death of a child. An
accident leading to the death of a child causes great shock and
agony to the parents of the deceased. The greatest agony for a
parent is to lose their child during their lifetime. In the present
case, the mother of the deceased alone claiming compensation as
parent, therefore, this Court is of the view that the interest of
justice would be met if liberal compensation is granted to the
mother of the deceased.
16. In view of the principles laid down by the Hon'ble
Supreme Court cited supra and the facts and circumstances of the
case discussed above, this Court modifies the compensation
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CMA.Nos.3135 of 2010 and 3007 of 2013
awarded by the tribunal under various heads as follows;
Heads Compensation Compensation
awarded by the enhanced/
tribunal Awarded by
Rs. this Court Rs.
Loss of dependency 7,20,000 11,21,592/
Loss of love and 10,000/- 80,000/-
affection
(Rs.40,000/- each
to the appellants in
CMA.No.3135 of
2010)
Filial consortium to 5,000/- 25,000
mother (2nd
respondent in
CMA.No. 3007
/2013)
Loss of love and 15,000/- 75,000/-
affection to sister (Rs.25,000/-
and brothers each)
(respondents 3 to 5
in CMA.No. 3007
/2013)
Loss of estate .... 15,000
Funeral expenses 2,000 15,000
Total 7,52,000/- 13,31,592/-
17. In the result, both the Civil Miscellaneous Appeals are
partly allowed and the compensation awarded by the tribunal at
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CMA.Nos.3135 of 2010 and 3007 of 2013
sum of Rs. 7,52,000/- is enhanced to Rs.13,31,592/- along with
interest at the rate of 7.5% per annum from the date of petition till
the date of deposit.
From the aforesaid modified compensation amount of
Rs.13,31,592/-, the wife, minor child and the mother of the
deceased are entitle to receive compensation of sum of
Rs. 12,56,592/- (excluding a sum of Rs.75,000/- granted to the
sister and brothers) as compensation, as per the apportionment
fixed by this Court as mentioned below.
• The wife of the deceased (1st appellant in CMA.No. 3135 of
2010) is entitled to 45% of the enhanced compensation,
which comes to Rs. 5,65,466/-.
• The minor child of the deceased (2 nd appellant in CMA.No.
3135 of 2010) is entitled to 40% of the enhanced
compensation, which comes to Rs. 5,02,637/-.
• The mother of the deceased (2nd respondent in CMA.No. 3007
of 2013) is entitled to 15% of the enhanced compensation,
which comes to Rs. 1,88,489/-.
• As observed above, the claimants 3 to 5 in CMA No.3007 of
2013 are entitled to withdraw a sum of Rs.25,000/- each.
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CMA.Nos.3135 of 2010 and 3007 of 2013
18. The 1st respondent /transport Corporation shall deposit
the compensation amount along with interest, as modified by this
Court, less the amount already deposited, if any, within a period of
twelve weeks from the date of receipt of a copy of this judgment.
On such deposit being made, the 1st appellant and the respondents
2 to 5 are permitted to withdraw the same by filing appropriate
applications before the tribunal. The share of the minor 2nd
appellant in CMA.No. 3135 of 2010 is directed to be deposited in
any one of the Nationalized Bank, till the minor attains majority.
The 1st appellant, mother of the minor is permitted to withdraw the
accrued interest, once in three months for the welfare of the minor
child. No costs.
29.01.2021
Index: Yes/No
Internet : yes
ak
https://www.mhc.tn.gov.in/judis
CMA.Nos.3135 of 2010 and 3007 of 2013
To
1. VI Court of Small Causes,
(Motor Vehicles Accident Claims Tribunal)
Chennai.
2. The Section Officer,
VR Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
CMA.Nos.3135 of 2010 and 3007 of 2013
D.KRISHNAKUMAR, J.,
ak
CMA. Nos.3135 of 2010
and 3007 of 2013
29.01.2021
https://www.mhc.tn.gov.in/judis
