IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.11.2011 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 1615 of 2007 and C.M.A. No. 1018 of 2008 C.M.A. No. 1615 of 2007 National Insurance Co., Ltd., No.751, Anna Salai Chennai – 600 002 .. Appellant/2nd Respondent Versus 1. Tmt. P. Santhi @ Vijaya 2. P. Amul Priya 3. P.Murugan (Minor) 4. P. Manikandan (Minor) 5. K. Gopal 6. G. Pattammal (Minors 3 and 4 are represented by their mother and next friend P. Santhi. ..1 to 6 Respondents/ Petitioners 7.A.Divakar Selwyn ..7th Respondent/1st Respondent second respondent, who was a minor was declared as major and the first respondent was discharged from her guardianship vide order dated 14.07.2010 in M.P.Nos. 1 and 2 of 2010) .. Respondents C.M.A. No. 1018 of 2008 1. Tmt. P. Santhi @ Vijaya 2. P. Amul Priya 3. P.Murugan (Minor) 4. P. Manikandan (Minor) 5. K. Gopal 6. G. Pattammal (Minors 3 and 4 are represented by their mother and next friend P. Santhi. second respondent, who was a minor was declared as major and the first respondent was discharged from her guardianship vide order dated 14.07.2010 in M.P.Nos. 1 and 2 of 2010) .. Appellants/Petitioners Versus https://hcservices.ecourts.gov.in/hcservices/ 1. A. Divakar Selvyn ..1st Respondent/7th Respondent 2. National Insurance Co., Ltd., No.751, Anna Salai Chennai – 600 002 .. Respondents/Respondents CMA No. 1615 of 2007:- Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 28.11.2006 made in M.A.C.T.O.P. No. 2424 of 2002 on the file of Motor Accident Claims Tribunal (2nd Small Causes Court) Chennai. CMA No. 1018 of 2008:- Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 28.11.2006 made in O.P. No. 2424 of 2002 on the file of Motor Accident Claims Tribunal (2nd Small Causes Court) Chennai. For Appellants : Mr. S. Vadivel in CMA No. 1615 of 2007 for R2 in CMA No. 1018 of 2008 For Respondents : Mr. A. Shanmugaraj in CMA No. 1615 of 2007 for appellants in CMA No.1018 of 2008 COMMON JUDGMENT Both the appeals arise out of one and the same award dated 28.11.2006 made in M.A.C.T.O.P. No. 2424 of 2002 passed by the Motor Accident Claims Tribunal (2nd Small Causes Court) Chennai. While C.M.A. No. 1615 of 2007 has been filed by the Insurance Company questioning the quantum of compensation awarded in favour of the claimants/respondents therein, C.M.A. No.1018 of 2008 has been filed by the claimants/appellants seeking enhancement of the compensation amount. Therefore, by consent of both sides, both the appeals are disposed of by this common judgment. 2. The facts which gave rise for filing the claim petition is that on 11.10.2001 at about 2.00 pm when the deceased Pichandi was riding the M80 two wheeler bearing Registration No. TN-02-E-7011 along Sai Nagar Main Road, Chennai, the lorry bearing Registration No. TN-37- M-6894 was driven by its driver in a rash and negligent manner and dashed against him. In the impact, the deceased died on the spot. According to the claimants, at the time of accident, the deceased was aged 34 years, a fish vendor and earning Rs.200/- per day. Therefore, for the death of the deceased, the claimants, who are wife, children, father and mother, have filed the claim petition claiming Rs.7,00,000/- as compensation. 3. The insurance company resisted the claim petition before the Court below by filing a counter. 4. The Court below, on consideration of the oral and documentary evidence, passed the impugned award, awarding a sum of Rs.4,66,000/- as compensation for the death of the deceased. Aggrieved by the same, the present appeals are filed by the insurance company as well as the claimants. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned counsel appearing for the insurance company would contend that the Court below, without any legal evidence, has taken the monthly income of the deceased at Rs.3,000/- and after deducting 1/3rd amount, by applying multiplier '17' awarded a huge amount of Rs.4,08,000/- as compensation towards loss of income. The amount awarded at Rs.45,000/- towards love and affection is also on the higher side and he prayed for interference of this Court. 6. Per contra, the learned counsel for the claimants would contend that at the time of accident, the deceased was earning Rs.200/- per day as a fish vendor and it was also pleaded in the claim petition. Therefore, the court below ought to have taken Rs.6000/- as monthly income for 30 days in a month instead of Rs.3,000/-. Further, by applying the ratio laid down in (Sarla Verma and others vs. Delhi Transport Corporation and another) 2009 (2) TN MAC 1 SC the court below ought to have given 1/4th deduction instead of 1/3rd. The Court below has awarded a meager sum of Rs.10,000/- towards loss of consortium to the wife, inasmuch as the wife had lost her husband at her young age. Similarly, the amount awarded towards loss of love and affection is also meager. The Court below has not awarded any amount towards loss of love and affection to the parents. Therefore, the learned counsel for the claimants prayed for enhancing the compensation amount. 7. I heard the counsel for both sides and perused the materials on record. The insurance company admits the date, time, manner in which the accident had occurred as also the liability to pay the compensation amount. The insurance company only questions the quantum of compensation. The insurance company also admits the age of the deceased as 34 at the time of accident. As per the evidence available on record, the deceased was doing fish vending business, earning Rs.200/- per day and he used to work for 30 days in a month. Therefore, even if we construe that the deceased worked for 25 days in a month, it can safely be concluded that the deceased could have easily earned Rs.5,000/- per month as income. The court below given 1/3rd deduction. The learned counsel for the claimants would pray for giving 1/4th deduction. The learned counsel appearing for the insurance company pointed out that the wife and his parents as also the children are doing the very same fish vending business and therefore giving 1/3rd deduction will be reasonable. There is no supporting evidence available to say that the claimants are also doing fish vending business. Therefore, I am of the view that giving 1/4th deduction in the income arrived at, as earning of the deceased, will meet the ends of justice. The Court below, without considering the age of the deceased has applied multiplier '17' which is legally impermissible. Therefore, taking the income of the deceased as Rs.5,000/- per month, after giving 1/4th deduction, rounded off to Rs.3,250/- per month and by applying multiplier '16' the amount payable to the claimants towards loss of income can safely be arrived at (Rs.3,250 X 12 X 16) Rs.6,24,000/- which will be the fair and reasonable compensation amount. 8. As rightly pointed out by the counsel for the claimants, the court below has not awarded any amount towards loss of love and affection to the parents. Considering the age of the parents and the other facts and circumstance of the case, I award a sum of Rs.10,000/- each towards love and affection to the parents, who are the fifth and https://hcservices.ecourts.gov.in/hcservices/ sixth claimants. Thus, a sum of Rs.20,000/- is awarded towards loss of love and affection to the parents. 9. Similarly, the sum of Rs.3,000/- awarded by the Court below towards funeral expenses is very low. Therefore, I award a sum of Rs.10,000/- towards funeral expenses. 10. The court below awarded Rs.10,000/- towards loss of consortium to the wife. Considering the young age at which the first claimant/wife lost her husband and the other facts and circumstance of the case, I enhance the sum of Rs.10,000/- awarded towards loss of consortium to Rs.20,000/-. 11. The court below awarded Rs.45,000/- (Rs.15,000 X 3) towards loss of love and affection to the three children, which is justifiable and reasonable, therefore, I am not inclined to interfere with the same. 12. In the result, the appeal filed by the insurance company is dismissed and the appeal filed by the claimants is allowed enhancing the compensation amount awarded by the Court below from Rs.4,66,000/- to Rs.7,20,000/- as mentioned below:- Loss of income : Rs.6,24,000.00 Loss of consortium : Rs. 20,000.00 Loss of love and affection : Rs. 45,000.00 Funeral expenses : Rs. 10,000.00 Loss of love and affection to parents: Rs. 20,000.00 --------------------- Rs.7,19,000.00 rounded off to : Rs.7,20,000.00 --------------------- 13. It is represented by the learned counsel for the appellant/insurance company that the entire amount awarded by the court below has already been deposited. In view of the enhancement of the compensation amount, the insurance company is directed to deposit the enhanced amount with interest at the rate of 7.5% per annum. Out of the compensation amount determined in this appeal, the first claimant/wife is entitled to Rs.2,50,000/-; the second claimant/daughter is entitled to Rs.1,60,000/-; the third and fourth claimants/sons are entitled to a sum of Rs.1,00,000/- each, the fifth claimant/father is entitled to Rs.50,000/- and the sixth claimant/mother is entitled to Rs.60,000/-. The claimants are permitted to withdraw the compensation amount determined in this appeal with accrued interest. The compensation amount payable to the third and fourth claimants, who are minors, is directed to be deposited in a Nationalised Bank till they attain majority and the accrued interest alone shall be withdrawn by the first claimant/wife once in three months. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rsh To The Motor Accident Claims Tribunal 2nd Small Causes Court Chennai +1cc to Mr.A.Shanmugaraj,Advocate Sr 67317 +2ccs to M/s.S.Vadivel, Advocate Sr 66439,66438 KJ(CO) km/9.12. CMA No. 1615/2007 and CMA No. 1018/2008 https://hcservices.ecourts.gov.in/hcservices/