IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.11.2009 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.M.A.No.2507 of 2004 S.Murugan ... 1st Respondent / 1st Appellant Vs. 1.Selvi.W/o.Mani 2.Rajasekaran, S/o.Mani 3.Minor Rajalakshmi, D/o.Mani 4.Minor Rajeswari, D/o.Mani R3 and R4 represented by Mother and Natural Guardian 1st Respondent. ... 1 to 4 Petitioners / 1 to 4 Respondents 5.The Branch Manager, United India Insurance Co.Ltd., 28,Meenakshi Complex, Mailam Road, Tindivanam. (2nd Appellant Transposed as the ... 2nd Respondent / 5th respondent as per order of dt. 5th Respondent 13.9.2004 in Memo in CMA 2507/2009) PRAYER: This appeal is filed under Section 173 of Motor Vehicle Act, 1988 against the judgement and decree in M.C.O.P.No.89 of 2001 dated 09.09.2003 on the file of Motor Accident Claims Tribunal, Principal Sub Judge at Tindivanam. For Appellant : Ms.Revathi Muralidharan For Respondents 1 to 4 : Mr.A.K.Kumarasamy For Fifth Respondent : No Appearance JUDGMENT This appeal is directed against the judgment and award passed by the lower Court made in MCOP No.89 of 2001 dated 09.09.2003. The first respondent before the lower Court is the appellant. The claimants before lower Court are the respondents 1 to 4 and the second respondent before the lower Court is 5th respondent in this appeal. https://hcservices.ecourts.gov.in/hcservices/ 2.The case of the claimants before the lower court is as follows:- i) On 11.09.2000 at about 5.45 hrs. the deceased Mani was walking on the extreme left at Maraimalai Nagar Salai opposite to Thiruvalluvar Bus Stand, Pondicherry. At that time, the driver of the V.M.S.Bus bearing Regn.No.TN-32/B-1122 drove it in a rash and negligent manner in a one way without following the traffic rules of Pondicherry, at the said M.M. Adigal Salai. The driver of the above bus should drive on the southern side road at M.M.Adigal Salai and it is a rule for all vehicles and it is the traffic law of Pondicherry. But the driver of the bus drove the bus at northern side of the M.M.A.Salai against the traffic law of Pondicherry and dashed against the deceased Mani. Due to the said impact, the deceased Mani was thrown away and fell on the road and the rear wheel of the bus ran over his head and consequently the brain came out of his head and multiple grievous injuries were caused on him and he died on the spot itself. The post mortum of the deceased Mani was done at Pondicherry Government Hospital. ii)The accident took place only due to the wrong committed by the driver of the bus who drove the vehicle in one way area in a rash and negligent manner and hit against the deceased and caused him multiple injuries to death on the spot. The first respondent being the owner of the vehicle and the 2nd respondent being the insurer of the vehicle are jointly and severally liable to pay the compensation to the claimants / petitioners. iii)The deceased Mani was hale and healthy before the accident. The deceased Mani was professionally a fisherman and was earning a monthly income of Rs.5,000/-. The petitioners are the legal heirs of the deceased i.e. his wife, one son and two minor daughters and are wholly depending upon the income of the deceased and now the petitioners are starving without daily bread due to the death of the deceased and the petitioners lost their only companionship of the deceased Mani and their future became gloomy and his death caused irreparable loss to the petitioners. iv) The petitioners calculate their claims as follows:- The deceased Mani died at the age of 35 years and he would earn up to his age of 70 years. Therefore, the loss of income of the deceased is worked out as Rs.5000/- X 12 X 35 = 21,00,000/- after deducting 1/3rd amount towards his personal expenses for Rs.7,00,000/- and the remaining amount at Rs.14,00,000/-. This amount could be fixed as loss of income to the family due to the death of Mani. v) The petitioners estimated their claim of Rs.14,00,000/- for https://hcservices.ecourts.gov.in/hcservices/ the sudden death of their sole bread winner, the deceased Mani for their future life, Children's education and status etc., vi) Therefore, the petitioners pray before this Hon'ble tribunal to kindly pass an order directing the respondents to pay the compensation amount with interest and cost of the proceedings and pass such or other orders as it may deem fit and proper in the circumstances of the case and thus render justice. 3. The contentions raised by the second respondent before the lower court would be as follows:- i) The allegation that accident was not due to rash and negligent Act of the petitioner are not true and it is only the petitioner who invited his fatal accident. It is also contended that there was no rash and negligent act on the part of the driver of the bus, the respondents 1 and 2 are not liable to pay any compensation. ii) The claim that the deceased was aged 35 years is not true. The age of the petitioners 3 and 4 given are false. Deliberately it has been shown too young to claim a higher compensation if possible. The averments that the deceased was fisherman and was earning Rs.5,000/- per month is also false. In order to claim a higher compensation, false allegations are made. This respondent do not admit that the petitioners are the legal heirs of the deceased and are entitled to get compensation. The claim is excessive and arbitrary. Hence, the petition is liable to be dismissed with cost. 4. The lower Court had examined PWs 1 and 2 and admitted the documents in Exs. P1 to P4 on the side of the claimants and neither any oral evidence nor any documents were produced on the side of the respondents. The lower court had considered the evidence and passed a judgment and award for a sum of Rs.7,06,000/- with interest at 9% per annum from the date of petition till the date of payment. The respondents 1 and 2 before the lower Court had preferred the present appeal and subsequently, the Insurance Company had been ordered to be arrayed as 5th respondent and the first respondent before the lower court above figured as appellant and is prosecuting the appeal. 5. Heard Ms.Revathi, the learned counsel for the appellant / 1st respondent and Mr.A.K.Kumarasamy, the learned counsel for the respondents 1 to 4 / claimants. There is no representation for the 5th respondent / 2nd respondent. 6. The learned counsel for the appellant would submit in his arguments that the lower court was not correct in assessing the monthly income of the deceased at Rs.4,500/- relying upon Ex.P4 salary certificate, since the author of the said salary certificate https://hcservices.ecourts.gov.in/hcservices/ was not examined by the lower court. He would further submit in his arguments that since the avocation of the deceased person would not yield any income during the monsoon period, still the lower court had assessed the compensation on the basis of the multiplier method holding the income of deceased person at Rs.4,500/- per month. He would further submit in his arguments that, the compensation for loss of consortium was awarded at Rs.40,000/- for his wife / first petitioner and a sum of Rs.30,000/- awarded to his children namely claimants 2 to 4, towards loss of love and affection which are certainly on the higher side and the awarding of such compensation should have been reduced. She would further submit in her argument that the said award of damages at Rs.1,30,000/- on conventional heads is not in accordance with law and therefore the compensation awarded by the lower court at Rs.7,06,000/- with interest at 9% per annum has to be reduced and proper compensation has to be fixed and thus the appeal may be allowed. 7. The learned counsel for the respondents 1 to 4 would submit in his argument that the lower Court was right in awarding a compensation in favour of the claimants at Rs.7,06,000/- after fixing the monthly income of the deceased at Rs.4,500/- by using the multiplier at 16. He would further submit that the awarding of compensation at Rs.40,000/- for the loss of consortium and Rs.30,000/- towards loss of love and affection for each child of the deceased, is not higher side. However, a judgment of our Honourable Apex Court reported in 2009 (2) TNMAC 1 (SC) in the case of Smt.Sarla Verma & others v. Delhi Transport Corporation and another would go to show that the dependants family members who are numbering from 4 to 6, the deduction should not be at 1/3rd, and it ought to have been at 1/4th. If it is adopted, the compensation payable to the loss of income of the deceased Mani would be the same as per the quantum of the award passed by the lower court. He would further submit in his argument that nothing is required to set aside or modify the order passed by the lower Court and hence, the appeal may be dismissed. He would also submit that the liability to pay the compensation for the claimants was first fixed against the fifth respondent and since he was transposed as 5th respondent, it has to be deemed that he did not prefer any appeal and therefore the award passed by the lower court against the 5th respondent Insurance Company cannot be altered, in the absence of any separate appeal preferred by the 5th respondent. 8. On giving anxious thoughts to the argument submitted on either side, this court could see that the fixing of liability for the rash and negligent driving on the part of the driver of the appellant / first respondent is not disputed. Therefore, the liability to pay compensation by the respondents before the lower Court cannot be altered. Now, the point for consideration is whether the quantum of compensation fixed by the lower Court at https://hcservices.ecourts.gov.in/hcservices/ Rs.7,06,000/- for the death of Mr. Mani / Husband of first claimant and the father of the claimants 2 to 4 is liable to be modified by reducing the compensation. Originally, the 5th respondent / Insurance company had joined together with the appellant to prefer this appeal. However, in view of the order passed by this court, the 5th respondent was transposed from the rank of second appellant to the rank of 5th respondent. Immediately, after the transposing or within the time limit no cross appeal has been preferred by the said 5th respondent. Therefore, we have to see whether the first respondent before the lower Court, on the appellant herein can question the award passed by the lower Court. Even, if we take that the appellant is entitled to question the quantum of compensation fixed by the lower court, whether such quantum could be modified or altered is a question to be decided. The lower Court had come to the conclusion of fixing the monthly income of the deceased at Rs.4,500/- on the basis of the salary certificate in Ex. P4. The said documents would reveal that the deceased Mani had earned a sum of Rs.4,500/- per month. Since the said salary certificate was not questioned during the evidence of the petitioner, the same could be taken as the income of the deceased Mani. Accordingly, the deceased Mani was found to have earned a sum of Rs.4,500/- per month out of his employment. The age of the deceased Mani was fixed at 40 as per the post-mortem certificate produced. In the aforesaid judgment of the Honourable Apex Court reported in 2009(2) TNMAC 1 (SC) in between Smt.Sarla Verma & others v. Delhi Transport Corporation and another has to be looked into. The relevant paragraph is as follows:- "d.Though in some cases the deduction to be made towards Personal and Living Expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this 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 dependant family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six." 9. According to the dictum of the Hon’ble Apex Court, we can see that if the dependant family members are numbering from 4 to 6, the deduction towards maintenance of the deceased be fixed at 1/4 of the salary. Therefore, when we calculate the monthly income of the deceased at Rs.4500/- with the 1/4th ratio, the contribution to the petitioner would come to Rs.3375/- per month. Accordingly, the annual contribution of the deceased Mani would be at Rs.40,500/- per annum. https://hcservices.ecourts.gov.in/hcservices/ 10. The lower Court had fixed the multiplier at 16 for the calculation of the quantum of compensation of deceased Mani. The judgment of the Hon’ble Apex Court reported in 2009(2) TNMAC 1 (SC) in between Smt.Sarla Varma Vs. Delhi Transport Corporation and another has to be referred to for the purpose of ascertaining the multiplier for a person who was aged at 40 on the date of death of the victim. The relevant paragraph would run as follows:- "21.We therefore hold that the multiplier to be used should be as mentioned in coloumn (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." 11. As per guidelines given by the Hon’ble Apex Court, the deceased Mani in this case was aged at 40 and for a person who is aged about 40, the multiplier could be used at 15 only. Accordingly, on applying the multiplier of 15 on the annual contribution at Rs.40,500/-, the compensation for the loss of income of the deceased Mani would be arrived at Rs.6,07,500/-. As regards, the compensation towards loss of consortium fixed by the lower Court at Rs.40,000/- for first claimant and loss of love and affection fixed at Rs.30,000/- per children of the deceased Mani are concerned, they are certainly on the higher side. The deceased was aged at 40 only at the time of accident. Therefore, it should have been fixed by the lower Court at Rs.30,000/- towards loss of consortium for the first claimant and at Rs.20,000/- towards love and affection for the claimants 2 to 4 are concerned. Accordingly, when we calculate such compensation, it would arrive at Rs.90,000/- payable to the claimants. When the compensation for loss of expectation of life is calculated at Rs.6000/-, Funeral expenses for Rs.2500/- total compensation reached by Rs.7,06,000/- payable for the loss of life of deceased Mani. It is exactly the same compensation assessed by the lower Court. 12. The appellant was the first respondent before the lower Court who is none other than the owner of the vehicle, which involved in the accident. The fifth respondent / insurer is liable to indemnify the appellant in case the appellant / first respondent was found liable to pay the said compensation. Since, the second https://hcservices.ecourts.gov.in/hcservices/ respondent before the lower Court (5th respondent herein) did not prefer any appeal against the judgment of lower Court, the fifth respondent is bound by the judgment of the lower Court. Despite the technical difficulty arising for the fifth respondent and subsequently for the sole appellant, this Court found that the claimants are entitled to a sum of Rs.7,06,000/- as compensation to which amount, the lower Court had also arrived with different methods of calculation. Therefore, this Court does not find any merit in this appeal filed by the applicant. Accordingly, the appeal deserves dismissal. In the result, the appeal is dismissed confirming the judgment and award passed by the lower Court. Accordingly, the appeal is dismissed. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssn To 1.The Principal Subordinate Judge, Tindivanam. 2.The Section Officer, VR Section, High Court,Madras. +1cc to mr.A.K.Kumarasamy,Advocate Sr 64850 BV(CO) km/9.2. C.M.A.No.2507 of 2004 https://hcservices.ecourts.gov.in/hcservices/