Madras High Court
D.Jamuna Rani vs Alm Company on 3 July, 2023
C.M.A.No.969 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.07.2023
CORUM
The Hon'ble Mr.Justice Krishnan Ramasamy
C.M.A.No.969 of 2018
1. D.Jamuna Rani
2. S.Dakshinamoorthy ... Appellants
Vs.
1. ALM Company,
Veppampattu
No.10, Pilliyar Koil Street,
Veppampattu,
Thiruvallur.
(R-1 remained exparte his presence may be dispensed with)
2. ICICI Lombard General Insurance Company Ltd.,
84/85, Waltax Road, Chennai – 600 003.
... Respondent
Civil Miscellaneous Appeal has been filed under Section 173 of Motor
Vehicles Act 1988 against the judgment and decree dated 21.04.2016, in
M.A.C.T.O.P.No.498 of 2014, passed by the Motor Accident Claims
Tribunal (II Additional District Judge), Poonamallee.
Appearance
For Appellants : M/s.A.Subadra
for M/s.M.Malar
For Respondent-1 : Ex parte
For Respondent-2 : Mr.B.Siva Kollappan
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C.M.A.No.969 of 2018
JUDGMENT
Not being satisfied with the quantum of compensation awarded by
the Motor Accident Claims Tribunal cum II Additional District Judge,
Poonamallee. (henceforth, referred to as 'the Tribunal') in and by its award
dated 21.04.2016, in M.A.C.T.O.P.No.498 of 2014, the present Appeal has
been filed by the claimants, seeking enhancement of compensation.
2. On 30th March, 2014, about 13.30 hours, when D.Pandi (since
deceased) was travelling as a pillion rider in a Motor Cycle, bearing
Registration No.TN-10-AF-0605, from East to West direction on Ambathur
to Thiruverkau Road, Therodum Veethi, near Sahana Bed Shop, first
respondent's Tipper Lorry, bearing Registration No. TN-20-CV-6529 came
in a rash and negligent manner, endangering the public safety and dashed
against the deceased's motor cycle, due to which, the deceased fell down and
died on the sport, as the Lorry tyre run over on his head.
3. At the time of the accident, the deceased was a Bachelor, aged
about 23 years and he was a Welder, doing self business and earning a sum
of Rs.10,000/- per month. Hence, the claimants, being parents of the
deceased made a claim in a sum of Rs.10,00,000/- as compensation against
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C.M.A.No.969 of 2018
the owner of the offending vehicle, first respondent as well as the insurer of
the offending vehicle, viz., the second respondent herein.
4. The owner of the offending Vehicle, (viz., Lorry) remained absent
before the Tribunal, and hence, he was set ex parte. The second
respondent/Insurance Company, Chennai contested the claim petition by
filing a counter statement, inter alia disputing their liability on the ground
that since the deceased along with three more persons travelled in a motor
cycle and that rider of the motorcycle attempted to overtake the Lorry in a
rash and negligent manner, the accident had occurred, for which, second
respondent cannot be mulcted with any liability and hence, prayed for
dismissal of the claim petition together with costs.
5. On behalf of claimants, two witnesses were examined, viz., Jamuna
Rani, mother of the deceased (P.W.1) and Kuzhandaivel, Eyewitness to the
accident (P.W.2) and 8 documents were got marked as Exs.P.1 to P.8. None
was examined on behalf of respondents, and no documents were exhibited
either.
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C.M.A.No.969 of 2018
6. The Tribunal, on appreciation of both oral and documentary
evidence has come to the conclusion that the accident had occurred only due
to the rash and negligent driving of the driver of the Tipper Lorry, belonging
to the first respondent, and the second respondent, being the Insurer of the
Lorry, is liable to pay the compensation. By coming to such a conclusion,
the Tribunal has made calculation under different heads and passed an
award for a total sum of Rs.12,77,000/- with interest at the rate of 7.5% p.a.
from the date of claim petition (i.e. 30.06.2014) till the date of deposit, as
compensation.
6.1 The break up details of the compensation amount awarded by
the Tribunal are as follows:-
S.No Head Amount
granted
1. Loss of income Rs.10,50,000/-
2. Funeral Expenses Rs. 15,000/-
3. Transportation Rs. 10,000/-
4. Love and affection (claimants 1 and Rs. 2,00,000/-
2)
5. Damage to clothes Rs. 2,000/-
Total Rs.12,77,000/-
7. Finding the compensation amount as insufficient, the present
Appeal has been filed by the claimants/appellants, as stated above.
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C.M.A.No.969 of 2018
8. As the present Appeal is filed only questioning the quantum of
compensation awarded by the Tribunal, this Court is not traversing into the
other aspects of the award passed by the Tribunal.
9. M/s.A.Subadra, learned counsel appearing on behalf of
appellants/claimants submitted that the Tribunal, while determining the
compensation towards Loss of Income, fixed the notional income of the
deceased at Rs.8,750/- by taking the daily income of the deceased at
Rs.350/- per day, which is meager. The learned counsel would submit that
the deceased was a Welder, doing own business and normally, a Welder
would earn more than Rs.350/- per day, whereas, the Tribunal, without
considering the same, on its own accord, taken the daily income of the
deceased at Rs.350/- and fixed the notional income of the deceased. In this
connection, learned counsel placed reliance on the decision of the
Honourable Supreme Court, in the case of Syed Sadiq Vs. United India
Insurance Company, reported in 2014 (1) TNMAC 459 (SC), wherein, the
Honourable Supreme Court even for a vegetable vendor, who sustained
injuries in the accident occurred in the year 2008, fixed the notional monthly
income at Rs.6,500/-. The learned counsel, therefore, submitted that, when
the Hon'ble Apex Court took notional income of a vegetable vendor as
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C.M.A.No.969 of 2018
Rs.6,500/- during the year 2008, the notional income fixed by the Tribunal
at Rs.8,750/-, for a Welder, who died in the accident occurred in the year
2014 is meager and requires modification.
9.1 The learned counsel also relied on a decision rendered by the
Hon'ble Division Bench of this Court, in the case of Chinnathamani and
two others Vs. Amman Grantes and another reported in 2019 2 TNMAC
293, wherein, Cost of Inflation Index issued by the Central Board of Direct
Tax is taken into consideration while determining the notional income of the
deceased. Thus, by relying the said decision, the learned counsel prayed
that some reasonable sum may be fixed towards the notional monthly
income of the deceased by providing appropriate weightage to the increased
cost of living.
9.2 Further, the learned counsel submitted that the Tribunal, while
determining compensation under the head, 'Loss of Income', has adopted
wrong multiplier of '15' by taking into consideration the age of the mother of
the deceased as '42' at the time of filing the claim and as per the law laid
down by the Hon'ble Supreme Court, in the case of Sarala Verma Vs.
Delhi Transport Corporation reported in [(2009) 5 LW 561], the age of
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C.M.A.No.969 of 2018
the deceased alone should be taken inconsideration for fixing the multiplier
and not the Dependants' age. Hence, learned counsel for the
appellants/claimants submitted that, in the present case, since the deceased
is aged about 23 years, the correct multiplier that has to be applied is '18'.
9.3 Further, the learned counsel submitted that, the Tribunal, while
determining the compensation towards Loss of Income, has failed to add any
amount towards future prospects, which also resulted in awarding an
inadequate compensation of Rs.10,50,000/-. In support of her contention
that 40% should be added towards Future Prospects, she has placed reliance
on the ratio laid down by the Honourable Supreme Court, in re National
Insurance Company Limited Vs. Pranay Sethi and others reported in
2017 (2) TN MAC 601.
9.4 It is also the grievance of the learned counsel for the appellants
that no compensation has been awarded towards Loss of Estate. Therefore,
by averring so, the learned counsel prayed for appropriate modification of
the award passed by the Tribunal.
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C.M.A.No.969 of 2018
10. Mr.B.Siva Kollappan, learned counsel for the second
respondent/Insurance Company submitted that, though he has not filed any
Cross Appeal against the compensation awarded by the Tribunal, however,
he contended that compensation awarded towards love and affection at a
sum of Rs.2,00,000/- is on the higher side and against the principle laid
down by the Hon'ble Supreme Court, in the case of (Magma General
Insurance Co. Ltd., Vs. Nanu Ram @ Chuhru Ram), as in the said
decision, it is held that only a maximum of Rs.40,000/- can be awarded
towards Filial Consortium. Hence, the learned counsel prays for appropriate
reduction of the compensation awarded by the Tribunal towards Love and
Affection. Insofar as the compensation awarded by the Tribunal under
other heads, viz., i) Funeral expenses, ii) Transportation and iii) Damages to
clothes are concerned, the learned counsel submitted that has no objection as
the same are just and fair.
10.1 As regards the contention of the learned counsel for the
appellants that the Tribunal has applied wrong multiplier of '15' is
concerned, he fairly admits that the multiplier adopted by the Tribunal is
wrong and it should be '18'. Insofar as the contention of the learned counsel
for the appellants that the Tribunal has fixed the daily income of the
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C.M.A.No.969 of 2018
deceased at Rs.350/-, it is contended that since the deceased was only a self-
employed (Welder) and that there is no tangible evidence to show that the
deceased was earning Rs.10,000/- per month, the Tribunal has rightly taken
the daily income of the deceased at Rs.350/- and fixed the notional monthly
income of the deceased at Rs.8,750/- and arrived at a compensation of
Rs.10,50,000/- towards Loss of Income, and the same requires no
interference.
11. Heard the learned counsel for the appellants/claimants and the
learned counsel for the second respondent/Insurance Company.
12. The deceased, D.Pandi is Self-employed (Welder) and was
earning Rs.10,000/- per month. However, since the claimants failed to
produce any supportive document in this regard, the Tribunal, while
determining the compensation towards Loss of Income, taken the daily
income of the deceased at Rs.350/- and fixed the notional income of the
deceased at Rs.8,750/- and awarded compensation. However, this Court is
of the view that fixation of Rs.8,750/- towards the notional income of the
deceased, who died in the accident during the year 2014, by taking his
day's income at Rs.350/- is too low. In fact, the Hon'ble Apex Court, in the
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case of Syed Sadiq's case (cited supra) fixed the notional monthly income
even for a vegetable vendor at Rs.6,500/-, who sustained injuries in the
accident occurred in the year 2008, in the absence of any proof for income.
12.1 Since, in the case on hand, the claimant was a Welder, this
Court deems it fit to fix the notional monthly income of the claimant, by
providing appropriate weightage to the increased cost of living as sought for
by the learned counsel for the appellants. Therefore, by following the ratio
laid down by the Hon'ble Supreme Court, in Syed Sadiq's case (cited
supra) and by applying the cost inflation index method, as per decision
rendered in Chinnathamani's case (cited supra), which is '220 for the year
2013-14 and '129' for the year 2008-09, the notional monthly income of the
deceased is calculated in the following manner:-
The notional income fixed by the Cost Inflation Index
Hon'ble Supreme Court for the X for the year 2013-14
vegetable vendor, i.e. Rs.6,500/- --------------------------
for the year 2008 Cost Inflation Index
for the year 2007-08
Rs.6,500/- x 220/129 = Rs.11,085/-
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12.2 Therefore, this Court fix the notional income of the claimant
for the year 2013-14 at Rs.11,085/-. However, since the learned counsel for
the second respondent/Insurance Company made a request to fix reasonable
sum towards notional income of the deceased, to which, learned counsel for
the appellants is also agreable, this Court to inclined to fix notional monthly
income of the deceased at Rs.10,000/-.
12.3 So far as the multiplier adopted by the Tribunal is concerned,
this Court is of the view that the Tribunal ought not to have taken into
consideration the age of the deceased's mother while fixing the multiplier for
determining the compensation towards the head, 'Loss of Income' and as
held by the Hon'ble Supreme Court in the case of Sarala Verma's case
(cited supra), the age of the deceased alone should be taken inconsideration
for fixing the multiplier, and in the present case, since the deceased is aged
23 years, right multiplier that has to be applied is '18'.
12.4 As rightly contended by the learned counsel for the appellants
the Tribunal failed to add any compensation towards Future Prospects,
while awarding compensation towards Loss of Income. Therefore, as per
ratio laid down by the Honourable Supreme Court of India in Pranay
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C.M.A.No.969 of 2018
Sethi's case's, wherein, it is held that atleast 40% should be added towards
Future Prospects, this Court is inclined to award 40% towards future
Prospects in the present case as well.
12.5 Thus, by fixing the notional monthly income of the deceased
at Rs.10,000/-; adding 40% towards future prospects; deducting 50%
towards personal expenses (since the deceased is a Bachelor) and by
applying right multiplier of '18' (since the deceased is aged 23 years), the
total loss of income of the deceased is calculated as under:-
Notional Monthly income + 40% future prospects
works out to Rs.13,200/- (i.e. Rs.10,000/- + Rs.3,200)
Multiplier of '18' and Deduction of 50% towards personal expenses
13,200 x 12 x1/2 x 18/100 = Rs.15,12,000/-
Loss of income = Rs.15,12,000/-
12.6 Consequently, the sum of Rs.10,50,000/- awarded by the
Tribunal under the head of 'Loss of Income' is hereby modified and
enhanced to Rs.15,12,000/-.
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12.7 As rightly contended by the learned counsel for the appellants,
the Tribunal has failed to award any compensation towards i) Loss of
Estates. Hence, this Court is inclined to award a sum of Rs.15,000/- under
the head 'Loss of Estate'.
12.8 So far as the compensation awarded under the head i) Love
and Affection is concerned, as rightly pointed out by the learned counsel for
the second respondent/Insurance Company, the Tribunal has awarded an
exorbitant sum of Rs.2,00,000/- and the same is reduced to Rs.40,000/-each
to both the claimants.
12.9 Insofar as the compensation awarded by the Tribunal towards
i) Funeral Expenses, ii) Transportation and iii) Damages to Clothes, the
same remains unaltered.
13. Thus, the total compensation payable to the claimants is as
hereunder:-
S.No Head Amount
granted
1. Loss of income Rs.15,12,000/-
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C.M.A.No.969 of 2018
S.No Head Amount
granted
2. Funeral Expenses Rs. 15,000/-
3. Transportation Rs. 10,000/-
4. Love and affection (for parents) Rs. 80,000/-
5. Damage to clothes Rs. 2,000/-
6 Loss of Estate Rs. 15,000/-
Total Rs.16,34,000/-
13.1 Consequently, the total compensation amount of Rs.12,77,000/-
awarded by the Tribunal is hereby modified and enhanced to Rs.16,34,000/-
which shall carry interest at the rate of 7.5% per annum from the date of
claim petition till the date of deposit, out of which, the first claimant/mother
of the deceased is entitled to Rs.10,00,000/- together with proportionate
interest and 2nd claimant/father of the deceased is entitled to Rs.6,34,000/-
plus proportionate interest.
14. In the result, the Civil Miscellaneous Appeal is partly allowed on
following terms:-
i) The second respondent, ICICI Lombard General Insurance
Company Ltd., is directed to deposit the entire amount awarded by this
Court along with interest and costs before the Tribunal within a period of
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C.M.A.No.969 of 2018
eight weeks from the date of receipt of a copy of this judgment, after
deducting the amount already deposited, if any. Upon which, the Tribunal
shall transfer the amount to the claimants' respective bank accounts through
RTGS within a period of two weeks thereon.
ii) It is made clear that if the second respondent/Insurance Company
fails to make payment within the stipulated time, they are liable to pay
interest for the delayed payment.
iii) Since the claimants by way of filing C.M.P.No.9580 of 2017,
has sought for amendment of the claim from Rs.9,00,000/- to Rs.21,00,000/-
and the said Petition is ordered by this Court, vide order, dated 13.07.2017
the claimants are directed to pay the requisite court fee, if any, within one
week before the date of receipt of a copy of this judgement.
iv) The appellants/claimants are entitled to withdraw their respective
share as apportioned by this Court with proportionate interest accrued
thereon by making necessary application before the Tribunal.
v) Since this Appeal has been filed with a delay of 257 days, the
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C.M.A.No.969 of 2018
appellants/claimants shall forgo the interest for the delay period, as already
stated by this Court while condoning the delay, in its order, dated
21.03.2018, made in C.M.P.No.13741 of 2017 in C.M.A.Sr.No.41034 of
2017.
vi) However, there shall be no order as to costs.
03.07..2023
Internet : Yes / No
Index : Yes / No
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To
The Motor Accident Claims Tribunal
II Additional District Judge, Poonamallee.
Krishnan Ramasamy, J.,
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C.M.A.No.969 of 2018
sd
C.M.A.No.969 of 2018
03.07..2023
https://www.mhc.tn.gov.in/judis
