Madras High Court
National Insurance Company ... vs P.Thangappan on 1 July, 2021
C.M.A.(MD).No.1157 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
C.M.A.(MD).No.1157 of 2014
and
M.P(MD)No.1 of 2014
National Insurance Company Limited,
rep. by its Branch Manager,
Jerome Building, 1st Floor,
Trichy Fort Station Road,
Branch No.II, Trichy District,
Tiruchirapalli. ... Appellant
Vs.
1.P.Thangappan
2.T.Rajabai
3.T.Sujananthi
4.Nijar Mohammad
5.The Joint Secretary,
S.R.V.Matric Higher Secondary School,
Trichy-Chennai Main Road,
Samayapuram,
Tiruchi District – 621 112.
... Respondents
1/19
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C.M.A.(MD).No.1157 of 2014
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to set aside the Judgment and Decree passed by the Motor
Accident Claims Tribunal-cum-Chief Judicial Magistrate, Nagercoil in MCOP
No.114 of 2013 dated 06.06.2014.
For Appellant : Mr.D.Sivaraman
For Respondents : Mr.T.A.Ebenezer for R1
No appearance for R2
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
In this appeal, the appellant challenges the award of the Motor Accident
Claims Tribunal-cum-Chief Judicial Magistrate, Nagercoil passed in MCOP No.
114 of 2013.
2.The brief facts of the case are that one Sivanantham met with an accident
on 24.09.2011 and succumbed to the injuries. His parents and sister filed the
above original petition claiming compensation of Rs.39,00,000/-. It is their case
that at 08.15 a.m on 24.09.2011, the deceased was riding a motorcycle, Bajai
pulsar bearing Reg.No.TN-76-K.2821 on Trichy Main Road and his friends
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C.M.A.(MD).No.1157 of 2014
Subbu Raja was the pillion rider. When they were crossing Pallivasal bridge,
which is situated on the Trichy National Highways near Samayapuram, a bus
owned by the second respondent driven by its driver came in a high speed and
dashed against two wheeler. In the impact, both the rider Sivanantham and the
pillion rider Subbu Raja sustained injuries and they were taken to C.A.P.V.
Government Medical College Hospital, Periamilaguparai, where the deceased
was declared brought dead. It is their further case that the deceased was a
bachelor, 26 years old and he was employed as an Accountant in Eversendai
Construction Private Limited, Chennai and he was paid Rs.15,000/- per month.
Since the accident occurred due to the negligence of the driver of bus, the owner
as well as the insurer are liable to pay compensation.
3.The owner as well as Insurance Company, the appellate herein contested
the claim petition by filing separate counter affidavits. Both have denied the age,
avocation and income of the deceased. It is further stated that the owner and the
insurer of the two wheeler are necessary parties and the claim petition is liable to
be dismissed for non-jointer of the necessary parties. It is further stated that the
claim was excessive and exorbitant.
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C.M.A.(MD).No.1157 of 2014
4.To substantiate the case, the claimants examined 3 witnesses and marked
8 documents. No oral and documentary evidence was adduced on behalf of the
respondents in the claim petition. After analyzing the evidence, the Tribunal held
that the driver of the bus was responsible for the accident and awarded
compensation of Rs.28,84,500/- along with interest at the rate of 7.5% per month.
Questioning same, the present appeal has been filed.
5.Mr.D.Sivaraman, learned counsel for the appellant/Insurance Company
contended that the Tribunal has not followed the principles laid down by the
Hon'ble Apex Court and this Court to determine the compensation and the award
of the Tribunal is not justified. It is his submission that even according to the
claimants, the deceased was a bachelor and he was working in a private concern,
however, the Tribunal instead of adding 40% towards further prospects and
deducting 50% towards personal and living expenses, has added 50% towards
future prospects and deducted only 1/3rd towards personal expenses of the
deceased.
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C.M.A.(MD).No.1157 of 2014
6.Per contra, Mr.T.Selvakumaran, learned counsel appearing for the
claimants submitted that it is true that the deceased was a bachelor and he was
working in a private company. The Tribunal taking note of the fact that the 3rd
claimant was an unmarried sister of the deceased, has arrived at compensation
and there is no illegality in the award passed by the Tribunal.
7.This Court has carefully considered the rival submission and perused the
materials available on record.
8.Perusal of the records shows that the second claimant Raja bai gave
evidence as P.W.1 in the line of the averments made in the claim petition and
produced Ex.P.1-First Information Report, Ex.P.3-Rough Sketch to show that the
accident occurred due to the negligence of the driver of the bus. P.W.2, who
travelled along with the deceased as pillion rider, has spoken about the manner of
the accident in his evidence. Admittedly, no contra evidence was produced by the
respondents in the claim petition. So, the Tribunal came to the conclusion that
the accident occurred due to the negligence of the driver of the bus. We find no
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C.M.A.(MD).No.1157 of 2014
illegality in the said finding.
9.Insofar as the quantum is concerned, according to the claimants, the
deceased was 26 years, but no documentary evidence was produced to prove the
age of the deceased. The Tribunal found in Ex.P.2-Postmortem Certificate, age of
the deceased mentioned as 26 years. But P.W.2 has stated that the deceased is the
elder to him, so, the Tribunal fixed his age as 32. Ex.P.6 is the appointment order
of the deceased. P.W.3, an employee of the company, has stated that the deceased
was drawing Rs.15,000/- per month on probation. The Tribunal added 50% to the
salary as future prospects and arrived at income at Rs.22,500/-. After deducting
1/3rd, it is held that he was contributing Rs.15,000/- to the family.
10.At this juncture, it would be relevant to refer the decision of the Hon'ble
Apex Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi and
others reported in 2017(2) TN MAC 609(SC). The Constitution Bench of the
Hon'ble Apex Court has also held at paragraphs 39 to 43 as follows:-
“39. Before we proceed to analyse the principle for
addition of future prospects, we think it seemly to clear the maze
which is vividly reflectible from Sarla Verma, Reshma Kumari,
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C.M.A.(MD).No.1157 of 2014
Rajesh and Munna Lal Jain. Three aspects need to be clarified.
The first one pertains to deduction towards personal and living
expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:-
“30. Though in some cases the deduction to be made
towards personal and living expenses is calculated
on the basis of units indicated in Trilok Chandra4,
the general practice is to apply standardised
deductions. Having considered several subsequent
decisions of this (2003) 3 SLR (R) 601 Court, 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.
31. Where the deceased was a bachelor and the
claimants are the parents, the deduction follows a
different principle. In regard to bachelors, normally,
50% is deducted as personal and living expenses,
because it is assumed that a bachelor would tend to
spend more on himself. Even otherwise, there is also
the possibility of his getting married in a short time,
in which event the contribution to the parent(s) and
siblings is likely to be cut drastically. 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 dependant. In the absence of evidence to the
contrary, brothers and sisters will not be considered
as dependants, because they will either be
independent and earning, or married, or be
dependent on the father.
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C.M.A.(MD).No.1157 of 2014
32. 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 the family of the bachelor is large and
dependent 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.”
40. In Reshma Kumari, the three-Judge Bench agreed with the
multiplier determined in Sarla Verma and eventually held that the
advantage of the Table prepared in Sarla Verma is that uniformity
and consistency in selection of multiplier can be achieved. It has
observed:-
“35. … The assessment of extent of dependency
depends on examination of the unique situation of the
individual case. Valuing the dependency or the
multiplicand is to some extent an arithmetical
exercise. The multiplicand is normally based on the
net annual value of the dependency on the date of the
deceased’s death. Once the net annual loss
(multiplicand) is assessed, taking into account the
age of the deceased, such amount is to be multiplied
by a “multiplier” to arrive at the loss of dependency.”
41. In Reshma Kumari, the three-Judge Bench, reproduced
paragraphs 30, 31 and 32 of Sarla Verma and approved the same
by stating thus:-
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“41. The above does provide guidance for the
appropriate deduction for personal and living
expenses. One must bear in mind that the proportion
of a man’s net earnings that he saves or spends
exclusively for the maintenance of others does not
form part of his living expenses but what he spends
exclusively on himself does. The percentage of
deduction on account of personal and living expenses
may vary with reference to the number of dependent
members in the family and the personal living
expenses of the deceased need not exactly correspond
to the number of dependants.
42. In our view, the standards fixed by this Court in
Sarla Verma on the aspect of deduction for personal
living expenses in paras 30, 31 and 32 must ordinarily
be followed unless a case for departure in
the circumstances noted in the preceding paragraph is
made out.”
42. The conclusions that have been summed up in Reshma
Kumari are as follows:-
“43.1. In the applications for compensation made
under Section 166 of the 1988 Act in death cases
where the age of the deceased is 15 years and above,
the Claims Tribunals shall select the multiplier as
indicated in Column (4) of the Table prepared in Sarla
Verma read with para 42 of that judgment.
43.2. In cases where the age of the deceased is up to
15 years, irrespective of Section 166 or Section 163-
A under which the claim for compensation has been
made, multiplier of 15 and the assessment as indicated
in the Second Schedule subject to correction as
pointed out in Column (6) of the Table in Sarla Verma
should be followed.
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C.M.A.(MD).No.1157 of 2014
43.3. As a result of the above, while considering the
claim applications made under Section 166 in death
cases where the age of the deceased is above 15 years,
there is no necessity for the Claims Tribunals to seek
guidance or for placing reliance on the Second
Schedule in the 1988 Act.
43.4. The Claims Tribunals shall follow the steps and
guidelines stated in para 19 of Sarla Verma for
determination of compensation in cases of death.
43.5. While making addition to income for future
prospects, the Tribunals shall follow para 24 of the
judgment in Sarla Verma.
43.6. Insofar as deduction for personal and living
expenses is concerned, it is directed that the Tribunals
shall ordinarily follow the standards prescribed in
paras 30, 31 and 32 of the judgment in Sarla
Verma subject to the observations made by us in para
41 above.”
43. On a perusal of the analysis made in Sarla Verma which has
been reconsidered in Reshma Kumari, we think it appropriate to
state that as far as the guidance provided for appropriate
deduction for personal and living expenses is concerned, the
tribunals and courts should be guided by conclusion 43.6 of
Reshma Kumari. We concur with the same as we have no
hesitation in approving the method provided therein.”
11.In the case on hand, the claimants are parents and sister of the deceased.
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C.M.A.(MD).No.1157 of 2014
In the light of the observations of the Hon'ble Apex Court made supra, it would
be appropriate to deduct 50% towards personal and living expenses of the
deceased. In the same judgment, at para 61, it is held as follows:-
“61. In view of the aforesaid analysis, we proceed to record
our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have
been well advised to refer the matter to a larger Bench
as it was taking a different view than what has been
stated in Sarla Verma, a judgment by a coordinate
Bench. It is because a coordinate Bench of the same
strength cannot take a contrary view than what has been
held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in
Reshma Kumari, which was delivered at earlier point of
time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50%
of actual salary to the income of the deceased towards
future prospects, where the deceased had a permanent
job and was below the age of 40 years, should be made.
The addition should be 30%, if the age of the deceased
was between 40 to 50 years. In case the deceased was
between the age of 50 to 60 years, the addition should
be 15%. Actual salary should be read as actual salary
less tax.
(iv) In case the deceased was self-employed or on a
fixed salary, an addition of 40% of the established
income should be the warrant where the deceased was
below the age of 40 years. An addition of 25% where
the deceased was between the age of 40 to 50 years and
10% where the deceased was between the age of 50 to
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C.M.A.(MD).No.1157 of 2014
60 years should be regarded as the necessary method of
computation. The established income means the income
minus the tax component.
(v) For determination of the multiplicand, the deduction
for personal and living expenses, the tribunals and the
courts shall be guided by paragraphs 30 to 32 of Sarla
Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in
the Table in Sarla Verma read with paragraph 42 of that
judgment.
(vii) The age of the deceased should be the basis for
applying the multiplier.
(viii) Reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and funeral
expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs.
15,000/- respectively. The aforesaid amounts should be
enhanced at the rate of 10% in every three years.”
12.As rightly pointed out by the learned counsel for the appellant, in the
present case, the deceased is an employee in the private company and there is no
material to show that he had permanent job. So, the claimants are entitled for
40% addition for future prospectus. So, the contribution of the deceased is
arrived at Rs.10,500/- (15,000 + 40% = 21,000 – 50% = 10,500). By applying
multiplier '17', the loss of income is fixed at Rs.21,42,000/-(10,500 x 12 x 17). It
is relevant to note that in Magma General Insurance Company Limited vs.
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C.M.A.(MD).No.1157 of 2014
Nanu Ram alias Chuhru Ram and others reported in (2018)2 TN MAC 452,
the Hon'ble Apex Court has awarded consortium to the wife, parents and minor
children of the decision. The relevant paragraph is extracted hereunder:-
“8.7. A Constitution Bench of this Court in Pranay Sethi
dealt with the various heads under which compensation is to be
awarded in a death case. One of these heads is Loss of
Consortium.
In legal parlance, “consortium” is a compendious term which
encompasses 'spousal consortium', parental consortium', and 'filial
consortium'.
The right to consortium would include the company, care, help,
comfort, guidance, solace and affection of the deceased, which is
a loss to his family.
With respect to a spouse, it would include sexual relations with
the deceased spouse, (Rajesh and Ors. vs. Rajbir Singh and
Ors, (2013)9 SCC 54) Spousal consortium is generally defined as
rights pertaining to the relationship of a husbandwife which
allows compensation to the surviving spouse for loss of
“company, society, cooperation, affection, and aid of the other in
every conjugal relation. “ (BLACK'S LAW DICTIONARY (5TH
ED 1979))
Parental consortium is granted to the child upon the premature
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C.M.A.(MD).No.1157 of 2014
death of a parent, for loss of “parental aid, protection, affection,
society, discipline, guidance and training.”
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 and
family of the deceased. The greatest agony for a parent is to lose
their child during their lifetime. Children are valued for their
love, affection, compensationship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the
status and worth of actual relationships. Modern jurisdictions
worldover have recognized that the value of a child's consortium
for exceeds the economic value of the compensation awarded in
the case of the death of a child. Most jurisdictions therefore
permit parents to be awarded compensation under loss of
consortium on the death of a child. The amount awarded to the
parents is a compensation for loss of the love, affection, care and
companianship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at
providing relief to the victims or their families, in cases of
genuine claims. In case where a parent has lost their minor child,
or unmarried son or daughter, the parents are entitled to be
awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents
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C.M.A.(MD).No.1157 of 2014
in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count
(Rajasthan High Court in Jagmala Ram @ Jagmal Singh &
Ors. V. Sohi Ram & Ors (2017)4 RajLW 3368 (Raj);
Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep
Kumar & Ors, (2014)3 UC 1687; Karnataka High Court in
Lakshman and Ors. v. Susheela Chand Choudhary & Ors.
(1996)3 KarlJ 570 (DB). However, there was no clarity with
respect to the principles on which compensation could be awarded
on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be
governed by the principles of awarding compensation under 'Loss
of Consortium' as laid down Pranay Sethi.
In the present case, we deem it appropriate to award the father and
the sister of the deceased, an amount of Rs.40,000/- each for loss
of Filial Consortium.”
13.Following the decision referred supra, this Court awards Rs.1,20,000/-
towards loss of consortium. Further, Rs.15,000/- is awarded towards funeral
expenses and Rs.15,000/- towards loss of estate. Accordingly, the award of the
Tribunal is reduced from 28,84,500/- to Rs.22,92,000/-.
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C.M.A.(MD).No.1157 of 2014
14.In fine, the Civil Miscellaneous Appeal is partly allowed. The claimants
are entitled for Rs.22,92,000/- along with interest at the rate of 7.5% per annum
from the date of claim petition till the date of realization. The appellant/Insurance
Company is directed to deposit the award amount with accrued interest and costs,
less the amount already deposited, if any, within a period of eight weeks from the
date of receipt of a copy of this order. On such deposit, the claimants are
permitted to withdraw the award amount at the ratio of 25:50:25 less the amount
already withdrawn, if any, together with proportionate interest and costs. It is
made clear that the father and sister of the deceased are entitled for 25% each and
the mother is entitled 50% of the award. No costs. Consequently, connected
Miscellaneous Petition is closed.
[M.K.K.S.,J.] [B.P.,J.]
01.07.2021
skn
Intex : Yes/No
Internet : Yes/No
Note :
In view of the present lock down owing to COVID-19
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C.M.A.(MD).No.1157 of 2014
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To
1.The Motor Accident Claims Tribunal
-cum-Chief Judicial Magistrate, Nagercoil.
2.V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD).No.1157 of 2014
K.KALYANASUNDARAM, J.
and
B.PUGALENDHI, J.
skn
C.M.A.(MD).No.1157 of 2014
and
M.P(MD)No.1 of 2014
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.1157 of 2014
01.07.2021
https://www.mhc.tn.gov.in/judis/
