Madras High Court
K.Hamasaveni vs Arumugam on 25 November, 2021
CMA No.833 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Civil Miscellaneous Appeal No.833 of 2020
1. K.Hamasaveni
2. Minor M.Gunasekar @ Guna
3. Minor M.Goutham
4. Maran
5. Ramal ... Appellants
Minors 2 and 3 rep. by their next friend and
mother Hamsaveni.
Vs.
1. Arumugam
2. A.Palanisamy
Prop. Selvamurugan Transports,
3. The Branch Manager,
New India Assurance Company Ltd.,
Branch Office: 5/1/338, Annapoorna Building,
Ooty Main Road, Mettupalayam,
Coimbatore District. ... Respondents
1/10
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CMA No.833 of 2020
Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act,
1988, against the judgment and decree dated 18.10.2011 in MCOP NO.64
of 2010 passed by the Motor Accident Claims Tribunal/Subordinate Judge,
Perundurai.
For Appellants : Mr.R.Nalliyappan
For Respondents : Mr.R.Siva kumar, for R3
R 2 - Died
R 3 - Notice dispensed with
JUDGMENT
The claimants who are the parents, wife and children of one
Marudhachalam, who died in a motor accident that occurred on 29.12.2009,
are the appellants. They sought for a compensation of Rs.20,00,000/-
contending that Marudhachalam was earning Rs.15,000/- per month by
doing agricultural work, real estate brokerage and as a commission agent for
coconuts trading. It is also stated that his parents, his wife and children were
dependant on him.
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CMA No.833 of 2020
2. The owner and the driver of the offending vehicle remained ex-
parte. The Insurance Company which is arrayed as the third respondent
resisted the claim contending that the Bus bearing Reg No.TN 39 AU 7878,
which was insured with it was not involved in the accident at all. It was also
contended that the driver of the bus did not have a valid driving license. The
quantum of compensation claimed was termed as excess.
3. The Tribunal on a consideration of the evidence that was
produced before it came to the conclusion that the accident occurred due to
the rash and negligent driving of the driver of the Bus bearing Reg No.TN
39 AU 7878. On the availability of the insurance, the Tribunal concluded
that the Insurance Company is liable to pay the compensation.
4. On the quantum, the Tribunal though concluded that the age of
the deceased Marudhachalam was 28 years, however took the age of the
dependants and concluded that the age for fixing the multiplier can be
adopted at 40. Despite production of Ex.P11 salary certificate, the Tribunal
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CMA No.833 of 2020
fixed the monthly income of the deceased at Rs.4,500/-. It also deducted a
sum of Rs.1,125/- towards personal expenses and took the loss of income at
Rs.3,375/-. The Tribunal thus arrived at the annual loss of income of
Rs.40,500/- and adopting a multiplier of 15, the Tribunal fixed the loss of
dependency at Rs.6,07,500/- (though it is termed as loss of earning power).
On the other heads, the Tribunal awarded the following amounts under
various heads:
S.No. Heads Amount (Rs.)
1. Compensation for Transport charge 5,000/-
2. Damage to clothing and articles 1,000/-
3. Medical expenses 20,000/-
4. Funeral expenses 10,000/-
5. Loss of consortium 25000/-
6. Loss of love and affection 25,000/-
7. Pain and suffering 25,000/-
Terming the award as very meager, the claimants have come up with this
Appeal.
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CMA No.833 of 2020
5. I have heard Mr.R.Nalliyappan, learned counsel appearing for
the appellant and Mr.R.Siva Kumar, learned counsel appearing for the
Insurance Company.
6. Mr.R.Nalliyappan, learned counsel appearing for the appellant
would contend that having fixed the age of the deceased at 28, the Tribunal
erred in adopting the multiplier for the age of 40. He would also fault the
Tribunal for fixing the monthly income at Rs.4,500/-, when the Tahsildar's
Certificate produced as Ex.P11 shows that the annual income is about
Rs.95,000/-. According to the learned counsel, the Tribunal should have
accepted Ex.P11 and fixed at Rs.8,000/- as the monthly income. He would
also contend that the Tribunal erred in awarding only Rs.25,000/- towards
compensation for the loss of love and affection for the two minor children.
7. Contending contra, Mr.R.Sivakumar, learned counsel appearing
for the Insurance Company would submit that the overall award is just and
reasonable, though there may be certain areas were the Tribunal could be
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CMA No.833 of 2020
said to have erred.
8. I have considered the rival submissions.
9. As regards fixation of the age for adoption of multiplier, the
Hon’ble Supreme Court has repeatedly held that it is the age of the deceased
which should be taken into account. The Tribunal has come to firm
conclusion that the age of the deceased is 28. Therefore, the Tribunal was
not right in adopting the age of 40 for the purposes of fixing the multiplier.
On the quantum of the monthly income Ex.P11 certificate issued by the
Tahsildar, offers some evidence of the income. Therefore, the Tribunal was
not right in fixing Rs.4,500/- without assigning any reason to disbelieve
Ex.P11. I am therefore of the opinion that Ex.P11 could form the basis for
deciding the monthly income and the monthly income of the deceased could
be taken at Rs.8,000/- per month including future prospectus.
10. If the monthly income is taken at Rs.8,000/- including future
prospectus and a deduction of 1/4th is made, in view of the dependency of
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CMA No.833 of 2020
five persons, the loss of monthly income would be about Rs.6,000/-, so
annual loss of income would be Rs.72,000/-. If we adopted the multiplier of
17 taking the age of the deceased at 28, the total loss of dependency would
be Rs.12,24,000/-. As I have already pointed out the loss of consortium
awarded to the two minor children at Rs.25,000/- is too low, the same is
enhanced to Rs.50,000/- . The amounts awarded under the other heads are
confirmed.
11. In light of the above, the award of the Tribunal is modified and
the award is re worked as follows:
S.No. Heads Amount (Rs.)
1. Compensation for Transport charge 5,000/-
2. Damage to clothing and articles 1,000/-
3. Medical expenses 20,000/-
4 Funeral expenses 10,000/-
5 Loss of consortium 25000/-
6 Loss of love and affection 50,000/-
7. Pain and suffering 25,000/-
8 Compensation for loss of dependency 12,24,000/-
Total 13,60,000/-
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CMA No.833 of 2020
12. In view of the above, the Appeal is partly allowed. The award
will carry interest at 7.5% per annum from the date of petition till date of
payment.
13. The award is apportioned as follows:
1. The 1st appellant, wife of the deceased, would be entitled to
Rs.4,00,000/- with proportionate interest and entire costs.
2. The appellants 2 & 3/ minor children would be entitled to
Rs.3,00,000/- each with proportionate interest.
3. The appellants 4 & 5, parents of the deceased would be entitled to
Rs.1,80,000/- each with proportionate interest.
14. The Insurance Company is directed to deposit the award
amount as per the modified award, less the amount, if any, already deposited
within a period of six (6) weeks from the date of receipt of a copy of the
judgment to the credit of MCOP No. 64 of 2010. On such deposit, the major
claimant, namely, the first, fourth and fifth appellants will be entitled to
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CMA No.833 of 2020
withdraw their shares of the compensation. The Tribunal is directed to
deposit the share of the minors, namely the appellants 2 & 3, in an interest
earning fixed deposit in any one of the Nationalised Banks till they attain
majority. The first appellant, mother of the minors, is permitted to withdraw
future interest alone once in six months for the maintenance of the minors.
There shall be no order as to costs.
25.11.2021
jv
Index:Yes/No
Internet:Yes
speaking order/Non-speaking order
To
1. The Subordinate Judge,
Motor Accidents Claims Tribunal,
Perundurai.
2. The Section Officer,
V.R.Section,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
CMA No.833 of 2020
R.SUBRAMANIAN, J.
jv
Civil Miscellaneous Appeal No.833 of 2020
25.11.2021
https://www.mhc.tn.gov.in/judis
