Madras High Court
Domnic Savio vs R.Fleurentin Michael on 23 November, 2023
Author: R. Subramanian
Bench: R. Subramanian
C.M.A.No.868 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2023
CORAM
THE HONOURABLE MR. JUSTICE R. SUBRAMANIAN
AND
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
C.M.A.No.868 of 2022
1.Domnic Savio
2.Sheela
3.Geetha
4.Sridhar ... Appellants
Vs.
1.R.Fleurentin Michael
2.National Ins. Co., Ltd.,
No.46, Regina Mansion 2nd Floor,
Moore Street, Chennai – 600 001. ... Respondents
Appeal filed under Section 173 of Motor Vehicles Act, 1988
against the order and decreetal order dated 29.11.2018 made in
M.C.O.P. No.8624 of 2015 on the file of Motor Accidents Claims
Tribunal (VI Judge, Court of Small Causes), Chennai.
For Appellants : Ms.S.Ramya
for Mr.J.Mahalingam
For Respondents : Mr.J.Michael Visuvasam
for R2
R1 – Notice dispensed with
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Page 1 of 9
C.M.A.No.868 of 2022
JUDGMENT
(Judgment of the Court was delivered by R. SUBRAMANIAN, J.)
The claimants are on appeal voicing grievance on the
quantum of compensation awarded at Rs.15,96,000/- for the death
of Ms.Fathima, wife of the first appellant and mother of appellants
2 to 4 in a road accident that occurred on 27.09.2015. According
to the claimants, when the deceased Fathima was standing in the
bus stop opposite to Karpaga Vinayagar Hospital in Kolambakkam
Village on Grand Southern Trunk Road, a car bearing Registration
No.TN 31 BA 3754 driven by its driver in a rash and negligent
manner dashed against her. The said Fathima sustained fatal
injuries and died on the same day. Contending that there was
negligence on the part of the driver, which was the sole cause of
the accident, the claimants sought for a compensation of
Rs.47,00,000/-. The quantum of compensation was sought to be
supported by contending that the said Fathima was doing fish
vending business and she was earning atleast Rs.600/- per day.
2. The insurance company resisted the claim contending that
the accident did not occur in the manner stated by the claimants
and the deceased also contributed to the accident by suddenly
attempting to cross the road. The age and income particulars of
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the deceased were denied and the claimants are put to strict proof
of the same.
3. At trial, the first claimant/husband of the deceased was
examined as P.W.1, one Robin Sharma, an eye witness was
examined as P.W.2 and one Reeta Mari, a co-vendor was examined
as P.W.3. Exs.P1 to P13 were marked. The insurance company did
not let in any evidence.
4. The Tribunal, on the evidence of P.W.2 coupled with the
First Information Report which was marked as Ex.P1, concluded
that the accident occurred due to rash and negligent driving of the
car by its driver. Therefore, the Tribunal held that the insurance
company is liable to pay the compensation.
5. Though it was claimed that the deceased was earning
Rs.600/- per day and P.W.3 a co-vendor was examined in support
of the income, the Tribunal took the income at Rs.9,000/- per
month, added 25% towards future prospects, deducted 25%
towards personal expenses, applied multiplier of 13 and arrived at
the total loss of dependency at Rs.13,16,250/-. It also awarded a
sum of Rs.40,000/- towards loss of consortium to the first
claimant and Rs.2,00,000/- towards loss of love and affection for
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other three claimants. A sum of Rs.15,000/- each was awarded
towards loss of estate and funeral expenses apart from a sum of
Rs.10,000/- for transportation charges. Thus, the total
compensation was arrived at Rs.15,96,250/- and the same was
rounded off to Rs.15,96,000/-. The insurance company has
accepted the award. The claimants are on appeal seeking
enhancement.
6. We have heard Ms.S.Ramya, learned counsel for the
appellants and Mr.J.Michael Visuvasam, learned counsel for the
second respondent/insurance company.
7. Learned counsel for the appellants would vehemently
contend that the Tribunal ought to have accepted the evidence of
P.W.3, a co-vendor, who has specifically spoken about the income
of the deceased. She would also fault the Tribunal for not having
discussed the effect of the evidence of P.W.3. She would submit
that in the absence of any contra evidence and the evidence of
P.W.3 not having been controverted, in the cross-examination, in
any manner, the Tribunal was not justified in taking just about half
of the amount as monthly income.
8. Contending contra, Mr.J.Michael Visuvasam, learned
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counsel for the second respondent insurance company would
submit that there was no documentary evidence to support the
claim that the deceased was doing fish vending business. The
evidence of P.W.3 according to the learned counsel is wholly
unsatisfactory and unreliable. Learned counsel would also fault the
Tribunal for having deducted only 1/4th amount when there are
only three dependants and two of them are married daughters.
Therefore, according to Mr.J.Michael Visuvasam, learned counsel
for the second respondent, while the Tribunal was right in fixing
the monthly income at Rs.9,000/-, it erred in deducting only 1/4th
amount towards personal expenses. Learned counsel would also
point out that the daily income of Rs.600/- to Rs.700/- for a fish
vendor is an exaggerated version.
9. We have considered the rival submissions. No doubt, P.W.3
has spoken about the fact that the deceased was doing fish
vending business. P.W.3 would also depose that she used to invest
a sum of Rs.3,000/- every morning and she would earn a profit of
about Rs.600/- to Rs.700/- in a day. The claim appears to be quite
reasonable but at the same time we cannot also ignore the
vagaries in a business like this. It is common knowledge that sale
of fish on auspicious days and days like Fridays and Saturdays is
very low. Therefore, we cannot take it that fish vendor would earn
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Rs.600/- per day all through the 30 days. It will necessarily
fluctuate. If we have to exclude Fridays and Saturdays, at least 8
days in a month will go. Therefore, the average income should be
worked out taking into account the very nature of the business. No
doubt, the Tribunal's fixation at Rs.9,000/- per month appears to
be slightly on the lower side. Even assuming that the deceased
was not doing fish vending and she had been working as coolie,
she would earn more than Rs.9,000/- per month. We are therefore
unable to sustain the conclusion of the Tribunal that the income of
the deceased would have been Rs.9,000/- per month. With a view
to balance the rights of the parties and also taking into account the
vagaries pointed out earlier, we fix the monthly income at
Rs.12,000/-. If we add 25% towards future prospects, the monthly
income would be Rs.15,000/-. As rightly pointed out by
Mr.J.Michael Visuvasam, learned counsel for the second respondent
insurance company, of the four dependants, the husband would be
having his own income and the daughters have been married and
they are staying with their respective husbands. Therefore, their
dependency on the income of the mother may not be absolute. We
therefore apply deduction of 1/3rd amount and take the monthly
loss of dependency at Rs.10,000/-. If multiplier 13 is applied, total
loss of dependency would be Rs.15,60,000/-(Rs.10,000/- x 12 x 13
= Rs.15,60,000/-).We have to necessarily accept the contention of
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Mr.J.Michael Visuvasam, learned counsel for the second respondent
insurance company, on the compensation that is awarded under
the heads 'loss of consortium' and 'loss of love and affection'.
There are four claimants and as per the judgment of the Supreme
Court in National Insurance Co. Ltd vs Pranay Sethi and others (2017
(2) TN MAC 271), compensation for 'loss of love and affection' or
'loss of consortium' shall be only Rs.40,000/- per claimant.
Therefore, the compensation of Rs.2,40,000/- granted under these
two heads is reduced to Rs.1,60,000/-. The awards made under
the other heads namely 'funeral expenses', 'loss of estate' and
'transportation charges' are sustained. Thus, total compensation
would be Rs.17,60,000/-. The claimants would be entitled to 7.5%
interest on the compensation so awarded.
10. In fine, the civil miscellaneous appeal is partly allowed.
The award of the Tribunal dated 29.11.2018 made in M.C.O.P.
No.8624 of 2015 is set aside and a sum of Rs.17,60,000/- is
awarded towards compensation. The interest as awarded by the
Tribunal is sustained. We find that there was a delay of 209 days
in filing the appeal. This Court while condoning the delay has
observed that the claimants would not be entitled to interest for
the period of 209 days. Therefore, the insurance company would
be entitled to exclude the period of 209 days while computing the
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interest on the enhanced compensation.
11. It is stated that the insurance company has deposited
the entire amount as awarded by the Tribunal. The insurance
company will have eight weeks time to deposit the enhanced
compensation i.e., Rs.1,64,000/- with interest at 7.5% from the
date of filing of petition till the date of deposit, of course, after
excluding 209 days as per the order in C.M.P. No.5695 of 2022 in
C.M.A. SR. No.3554 of 2021. Considering the facts and
circumstances of the case, we make no order as to costs.
(R.S.M., J.) (N.S., J.)
23.11.2023
Index : Yes / No
Neutral Citation : Yes / No
mmi
To
1.The National Insurance Company Limited,
No.46, Regina Mansion 2nd Floor,
Moore Street, Chennai – 600 001.
2.The Record Keeper,
V.R. Section, High Court,
Madras.
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R. SUBRAMANIAN, J.
and
N.SENTHILKUMAR, J.
mmi
23.11.2023
https://www.mhc.tn.gov.in/judis
