IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.12.2008 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.No.3644 of 2008 and M.P.No.1 of 2008 M/s. National Insurance Company Limited, Mettupalayam. ... Appellant/3rd Respondent vs. 1.Tmt.Hepribah James, 2.Tmt.Rajeswari, 3.Tmt.P.Annalakshmi, 4.Minor Sujatha Sais, 5.Minor Sumitha, 6.Minor Arunkalaiyanan, 7.P.K.Rajan. 8.H.Raju (Minor respondents 4 and 5 are represented by next friend guardian mother Rajeswari, the second respondent) (Minor 6th respondent is represented by next friend guardian mother P.Annalakshmi, the third respondent) ... Respondents/Petitioners 1 to 6 and Respondents 1 and 2 Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the award and decree dated 10.12.2007 passed in M.C.O.P.No.103 of 2005 on the file of the Motor Accidents Claims Tribunal(Additional District Judge, Fast Track Court No.V), Tiruppur at Coimbatore. For appellant : Mr.J.Chandran For respondent Nos.1 to 6 : Mr.Ma.P.Thangavel ----- https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT Respondents 1 to 6/claimants appears through counsel. By consent of both parties, the main appeal itself is taken up for disposal. 2. The National Insurance company is on appeal challenging the award dated 10.12.2007 passed in M.C.O.P.No.103 of 2005 on the file of the Motor Accidents Claims Tribunal(Additional District Judge, Fast Track Court No.V), Tiruppur. 3. The finding of negligence on the part of the driver of the lorry, who is held responsible for the accident resulting in death and the liability fixed on the appellant insurance company to compensate the dependents of the deceased, the claimants, is not seriously disputed by the appellant's counsel and the same is confirmed. 4. It is a case of fatal accident. The brief facts of the case is as follows:- The accident in this case happened on 12.1.2003 at 2.50 p.m. The deceased Dass alias Samivel Devadoss said to be a driver in a private school, was travelling on a scooter, when he was hit by a lorry insured with the appellant. In that accident, the said Doss alias Samivel Devadoss died. The mother, aged 60 years, two wives aged 31 and 30 years respectively, two minor daughters aged 13 and 10 years respectively and a minor son aged 6 years, filed a claim for compensation in a sum of Rs.15 lakhs, stating that the deceased was earning a sum of Rs.6,000/- per month. 5. In support of the claim, the wife of the deceased, the second respondent, was examined as P.W.1. One Dinakaran, the eye witness, was examined as P.W.2. One Ramesh was examined as P.W.3 to prove the occupation and income of the deceased. Exs.A-1 to A-9 were filed, the details of which are as follows:- Ex.A-1 is the copy of F.I.R. dated 12.1.2003, Ex.A-2 is the copy of post-mortem certificate dated 12.1.2003, Ex.A-3 is the copy of judgment, Ex.A-4 is the copy of death certificate dated 11.2.2003, Ex.A-5 is the legal heir certificate, Ex.A-6 is the driving licence of the deceased, Ex.A-7 is the salary certificate dated 24.9.2007, Ex.A-8 is the Motor Vehicle's Inspector's Inspection Report in respect of scooter and lorry and Ex.A-9 is the authorisation given by the company to P.W.3. No oral or documentary evidence was let in on behalf of the appellant insurance company, the second respondent before the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 6. The Tribunal fixed the income of the deceased at Rs.4,000/- per month by rejecting Ex.A-7, salary certificate marked through P.W.3. Accordingly, the income of the deceased was taken as Rs.48,000/- per annum. From this amount, 1/3 was deducted towards personal expenses of the deceased. The contribution to the family of the deceased was fixed as Rs.32,000/-. The Tribunal by adopting 16 multiplier granted a sum of Rs.5,12,000/- (Rs.32,000/- x 16 = Rs.5,12,000/-) towards pecuniary loss. The Tribunal also granted compensation on conventional heads. In all the Tribunal granted the following amounts as compensation with interest at 7.5% as follows:- Sl.N o. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits to the dependents of the deceased Rs.5,12,000/- 2 Loss of love and affection to the mother Rs. 5,000/- 3 Loss of consortium to the wife, the second claimant, on the death of her husband Rs. 10,000/- 4 Loss of love and affection to the two minor daughters and one minor son on the death of their father Rs. 75,000/- (Rs.25,000/- each) 5 Funeral expenses Rs. 5,000/- Total Rs.6,07,000/- 7. In appeal, the only contention raised by the counsel for the appellant is on the quantum of compensation. According to the counsel for the appellant, the Tribunal granted higher compensation by adopting 16 multiplier. He relied upon the decisions in New India Assurance – vs.- Smt.Kalpana and others reported in 2007 AIR SCW 1316 = 2007(1) Supreme 514 and in The Managing Director, TNSTC – vs. - Sripriya and others reported in 2007(1) TN MAC 319 (SC). He stated that for the 3 minor children, the Tribunal granted Rs.25,000/- each towards loss of love and affection which is a higher compensation and that has to be reduced. 8. Heard the learned counsel for the respondents 1 to 6/ claimants, who relied upon the decision in Laxmi Devi – vs. - Mohammad Tabbar reported in 2008(2) CTC 621 and stated that 14 multiplier should be taken, if 16 multiplier is found to be excessive. 9. The deceased in this case is the driver in a private school and it is not disputed. Ex.A-7 is the salary certificate stating the income of the deceased at Rs.6,000/- per month issued by the employer and that was marked through one Ramesh P.W.3, a co-driver. The employer has not been examined. The Tribunal was, therefore, justified in fixing the income of the deceased at Rs.4,000/- per month, in view of the two decisions referred to in paragraph 7. The https://hcservices.ecourts.gov.in/hcservices/ Tribunal fixed the age of the deceased as 38 years, which is supported by Ex.A-6, driving licence and Ex.A-2 the post-mortem certificate. 10. In so far as the multiplier is concerned, the decision of the Apex Court in Kalpana's case and Sripriya's case will be more appropriate and relevant as the deceased in those cases were also drivers by profession and aged 33 and 37 years respectively. The Apex Court adopted the multiplier 13 and 12 respectively on the death of the drivers in those cases. In Sripriya's case, the driver was an employee of transport corporation, whereas in the present case, the deceased was an employee of a private school and the actual proof of employment was not marked. Only the co-worker's statement was recorded. The name of the employer has not been mentioned. Hence, the income fixed by the Tribunal is justified. 11. Therefore, in view of the decisions of the Apex Court in Kalpana's case and Sripriya's case, the multiplier in this case stands reduced to 13 as against 16. In the decision cited by the claimant in Laxmi Devi – vs. - Mohammad Tabbar reported in 2008(2) CTC 621, the higher multiplier 14 was determined by the Apex Court as against 12 multiplier fixed by the High Court, primarily on the ground that the interest awarded was 6%. Whereas in the present case, the interest granted by the Tribunal is 7.5%. Hence, the award in this case has to be suitably modified by adopting 13 multiplier and not 16. 12. As far as compensation for loss of love and affection to the three minor children, the amount should be reasonably fixed and cannot be excessive as in this case. It is without any basis. For the wife a sum of Rs.10,000/- was granted towards loss of consortium, which is reasonable and the same is confirmed. The mother was granted a sum of Rs.5,000/- towards loss of love and affection and the same is confirmed. The children, however, will get Rs.20,000/- each towards loss of love and affection on the death of their father and nothing more. In this case, no amount has been granted towards transport expenses, loss of estate, etc. The award, therefore, stands modified as follows:- Sl.N o. Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of pecuniary benefits to the dependents of the deceased Rs.5,12,000/- Rs.4,68,000/- 2 Loss of love and affection to the mother Rs. 5,000/- Rs. 5,000/- 3 Loss of consortium to the wife, the second claimant, on the death of her husband Rs. 10,000/- Rs. 10,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.N o. Head Amount granted by the Tribunal Amount granted by this Court 4 Loss of love and affection to the two minor daughters and one minor son on the death of their father Rs. 75,000/- (Rs.25,000/- each) Rs. 60,000/- (Rs.20,000/- each) 5 Funeral expenses Rs. 5,000/- Rs. 5,000/- 6 Transport expenses --- Rs. 2,000/- 7 Loss of estate --- Rs. 2,500/- Total Rs.6,07,000/- Rs.5,52,500/- 13. Since the accident in this case happened in the year 2003 and the award was passed in the year 2007, the interest granted at 7.5% is confirmed. 14. The learned counsel for the appellant prays for eight weeks' time to deposit the balance amount as awarded by this Court. Learned counsel for the respondents 1 to 6/claimants prays for withdrawal on such deposit and are allowed. 15. In the result, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The award of the Tribunal is reduced to Rs.5,52,500/- from Rs.6,07,000/-. (ii) The interest granted by the Tribunal at 7.5% stands confirmed. (iii) The award amount is apportioned as follows:- Wife, the 2nd respondent Rs.1,27,500/- with proportionate interest and entire cost The two minor daughters and one minor son (Rs.1,25,000/- each), the respondents 4 to 6 Rs.3,75,000/- with proportionate interest The mother, the 1st respondent Rs.50,000/- with proportionate interest (iv) The wife, 2nd respondent is permitted to withdraw her share amount with proportionate interest and entire costs, (v) The mother, 1st respondent is permitted to withdraw her share amount with proportionate interest. (vi) The share of the minor respondents 4 and 5/claimants 4 and 5 shall be invested in any nationalised bank proximate to the https://hcservices.ecourts.gov.in/hcservices/ place of the resident of the second respondent/second claimant for a period of three years and renewable thereafter till the minors attain majority. The mother of the minor respondents 4 and 5 is permitted to withdraw the accrued interest in respect of the share of the minors once in three months directly from the bank and for the said purpose the second respondent/second claimant shall open a savings bank account on the same branch and the interest amount shall be transferred to the account to be maintained by the mother. (vii) The share of the minor 6th respondent/6th claimant shall be invested in any nationalised bank proximate to the place of the resident of the third respondent/third claimant for a period of three years and renewable thereafter till the minor 6th respondent attains majority. The mother of the minor 6th respondent is permitted to withdraw the accrued interest in respect of the share of the minor once in three months directly from the bank and for the said purpose the third respondent/third claimant shall open a savings bank account on the same branch and the interest amount shall be transferred to the account to be maintained by the mother. (viii) The nationalised bank to which the amount will be deposited, shall intimate to the second and third respondent respectively of such deposit and confirm the same to the Tribunal that the second and third respondent have been duly informed. The Tribunal to instruct the bank accordingly. (ix) Since the deposit is in the case of minors, the Tribunal is directed to send a report containing the details of the deposit to the High Court on such deposit. (x) There will be no order as to cost. (xi) Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ts To 1. The Additional District Judge, Fast Track Court No.V, (The Motor Accidents Claims Tribunal), Tiruppur at Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2.The Record Keeper, VR Section, High Court, Madras. 1 cc To Ms.P.Thangavel, Advocate, SR.67384 1 cc To Mr.J.Chandran, Advocate, SR.67182 C.M.A.No.3644 of 2008 PUR(CO) SRA(10/02/2009) https://hcservices.ecourts.gov.in/hcservices/