Madras High Court
B.Josephin Amali vs M.Karuppaiah on 28 March, 2024
C.M.A.(MD)No.489 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 09.02.2024
Pronounced on : 28.03.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
C.M.A.(MD)No.489 of 2017
1. B.Josephin Amali
2. J.Jeyasipriya
3. Minor J.Jeyasiyola
Minor represented by her mother and natural
guardian the 1st appellant B.Josephin Amali ... Appellants/
Claimants
Vs.
1. M.Karuppaiah
2. United India Insurance Company Limited,
66, 67, Aranmanai Vasal,
Sivagangai Nagar,
Sivagangai District,
through its Branch Manager. ... Respondents/
Respondents
(R1 dispensed with)
Prayer : This Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to call for the records from the Motor Accident
Claims Tribunal, Sivagangai (District Court, Sivagangai) dated 31.08.2016
1/10
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C.M.A.(MD)No.489 of 2017
made in M.C.O.P.No.136 of 2012 and enhance the award compensation
amount by allowing this Civil Miscellaneous Appeal.
For Appellants : Mr.P.Selvakamatchi
For R2 : Mr.I.Suthakaran
JUDGMENT
The Civil Miscellaneous Appeal is directed against the award
passed in M.C.O.P.No.136 of 2012 dated 31.08.2016 on the file of the
Motor Accident Claims Tribunal/District Court, Sivagangai.
2. The appellants/claimants, who were awarded with compensation
of Rs.6,54,000/- (Rupees Six Lakhs and Fifty Four Thousand only) with
interest and costs payable by the respondents 1 and 2 jointly and severely
for the death of Johnpeter, consequent to an accident occurred on
12.03.2012, challenged the quantum of compensation awarded at, by the
Tribunal and claimed enhancement of the same.
3. The learned counsel appearing for the appellants would submit
that the Tribunal failed to consider the age of the first appellant, who is the
wife of the deceased and also failed to award loss of consortium to the first
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appellant, that the amount awarded at Rs.10,000/- is very low, that the
deceased was running an oil mill and also coconut business and lorry
service office business in the name of Micheal Ashok Lorry Service and
he was cultivating the lands by lease under the Hutson and Agro products
and he was earning more than Rs.35,000/- per month, but the Tribunal has
erred in fixing the notional annual income at Rs.72,000/-, that the Tribunal
has also failed to determine the additional future prospects of the deceased
as the deceased was aged 47 years at the time of accident, that the Tribunal
ought to have deducted 1/4 of the monthly income towards personal and
living expenses of the deceased and that the total compensation awarded is
very low and the same is liable to be enhanced.
4. The case of the appellants is that the deceased was doing oil
business, coconut business and was also operating lorry service, that he
was also cultivating the lands for Hutson and Agro products by owning 6
acres of land and that he was earning more than Rs.35,000/- per month.
5. No doubt, the appellants have produced the xerox copies of the
income tax return for the assessment years 2009-2010 and 2010-2011, but
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the same came to be exhibited subject to the objections raised by the other
side. Despite objections, the appellants have not chosen to produce the
authenticated copies of the income tax return nor the original
acknowledgments nor taken any steps to summon the records from the
concerned Department. Moreover, the appellants have not chosen to
examine the auditor of the deceased to prove the income. As already
pointed out, the Tribunal has fixed the monthly income of the deceased as
Rs.6,000/-. As rightly contended by the learned counsel appearing for the
appellants, considering the evidence available on record and the period of
accident, fixing monthly income at Rs.6,000/- is on lesser side and hence,
this Court is inclined to fix the monthly income at Rs.10,000/-.
6. As rightly pointed out by the learned counsel appearing for the
appellants, the Tribunal has not added any amount towards future
prospects. But the Hon'ble Supreme Court in National Insurance
Company Limited Vs. Pranay Sethi and others reported in 2017 (2) TN
MAC 609 (SC), has concluded that if 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
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and 10% where the deceased was between the age of 50 to 60 years should
be regarded as the necessary method of computation. In the case on hand,
the Tribunal, taking note of the postmortem certificate, has fixed the age of
the deceased as 48 years and the same was not disputed by the other side.
Since the deceased was aged 48 years and was self-employed, 25% of the
income has to be added towards future prospects and on such addition, the
monthly income comes to Rs.12,500/- {Rs.10,000/- + Rs.2,500/- (25% of
the income)}.
7. Considering the number of claimants, the Tribunal has rightly
deducted one-third (1/3rd) of the income towards personal and living
expenses of the deceased and after such deduction, the monthly income
comes to Rs.8,333/-{Rs.12,500/- - Rs.4,167/-}. As per the dictum laid
down by the Hon'ble Supreme Court in Smt.Sarla Verma and others Vs.
Delhi Transport Corporation and another reported in AIR 2009 SC
3104, the Tribunal has rightly applied multiplier 13. Hence, the loss of
dependency would be Rs.12,99,948/- {Rs.8,333/- x 12 x 13}.
8. The Tribunal has awarded Rs.10,000/- for the first appellant
towards consortium and awarded Rs.5,000/- for funeral expenses and
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Rs.10,000/- to the appellants 2 and 3 for loss of love and affection and
Rs.5,000/- for loss of estate. Our Hon'ble Supreme Court in Pranay
Sethi's case has permitted to award Rs.40,000/- towards spousal
consortium. But, subsequently, the Hon'ble Supreme Court in Magma
General Insurance Company Ltd, Vs. Nanu Ram alias Chuhru Ram
and others reported in (2018) 18 SCC 130, has held that the right to
consortium would include the company, care, help, comfort, love and
affection, guidance, solace, etc., which is a loss to his family. The Hon'ble
Supreme Court interpreted consortium to be a compendious term, which
encompasses (i) spousal consortium, to be awarded to the surviving
spouse, (ii) parental consortium to be awarded to the children upon the
premature death of their parents and (iii) filial consortium to be awarded to
the parents for the loss of their children. Recently, the Hon'ble Apex Court
in The New India Assurance Company Ltd. Vs. Smt.Somwati and
others, has reiterated the above position and further held that the amount
to be awarded for loss of consortium will be as per the amount fixed in
Pranay Sethi's case. But, at the same time, they have specifically observed
that no amount should be awarded under the separate head of loss of love
and affection.
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9. The first appellant being the wife of the deceased is entitled to get
Rs.40,000/- towards spousal consortium and the appellants 2 and 3 being
the daughters of the deceased are entitled to get Rs.40,000/- each towards
parental consortium. The appellants are also entitled to get Rs.15,000/- for
funeral expenses and Rs.15,000/- for loss of estate under the conventional
heads. Hence, the appellants are entitled to get total compensation of
Rs.14,49,948/-. Accordingly, the compensation awarded by the Tribunal is
modified as follows:-
Amount Award
Amount
awarded confirmed or
S. awarded by
Description by enhanced or
No. this Court
Tribunal granted or
(Rs.)
(Rs.) reduced
1. Loss of dependency 6,24,000 12,99,948 Enhanced
Loss of spousal
2. consortium 10,000 40,000 Enhanced
(1st appellant)
Loss of love and
3. affection 10,000 Nil Nil
(appellants 2 and 3)
Loss of parental
80,000
4. consortium Nil Granted
(40,000 x 2)
(appellants 2 and 3)
5. Funeral expenses 5,000 15,000 Enhanced
6. Loss of estate 5,000 15,000 Enhanced
Enhanced by
Total 6,54,000 14,49,948
Rs.7,95,948/-
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10. Considering the other facts and circumstances of the case, this
Court further decides that the parties are to be directed to bear their own
costs.
11. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.6,54,000/- (Rupees
Six Lakhs and Fifty Four Thousand only) is hereby enhanced to
Rs.14,49,948/- (Rupees Fourteen Lakhs Forty Nine Thousand Nine
Hundred and Forty Eight only). The respondents 1 and 2 are directed to
deposit the modified award amount together with interest at 7.5% per
annum from the date of petition till the date of realization excluding the
default period, if any, jointly and severely to the credit of M.C.O.P.No.136
of 2012 on the file of the Motor Accident Claims Tribunal/District Court,
Sivagangai, after deducting the amount already deposited if any, within a
period of four weeks from the date of receipt of a copy of this judgment
and on such deposit, the first appellant is entitled to get Rs.6,49,948/-
(Rupees Six Lakhs Forty Nine Thousand Nine Hundred and Forty
Eight only) and the appellants 2 and 3 are entitled to get Rs.4,00,000/-
(Rupees Four Lakhs only) each. Accordingly, the appellants 1 and 2 and
the third appellant, who has attained majority, are permitted to withdraw
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their shares along with interest and costs, less amount already withdrawn,
if any, on due application before the Tribunal. The appellants are directed
to pay the court fee for the enhanced compensation, if any, and the
Registry is directed to draft the decree only after the payment of Court fee.
Parties are directed to bear their own costs.
28.03.2024
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
csm
To:
1. The Motor Accident Claims Tribunal/
District Court, Sivagangai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
Dated : 28.03.2024
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