IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.11.2008 CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKAR C.M.A.NO. 2807 OF 2004 The New India Assurance Company, No.312 Anna Salai, Teynampet, Chennai.18. ... Appellant/ Respondent-II Vs. 1.V. Amudha 2.Parmala 3.Sridhar 4.V. Abirami (Respondents 2 to 4 were declared as majors and the first respondent is discharged from guardianship vide order dated 23.12.2004 and 3.7.2008 in CMP No.20621/2004 & CMP No.1011/2008.) 5.V. Stella Rani 6.Minor V. Pratap 7.Minor V. Aswini (Respondents 6 &7 are rep. By their mother and next friend Stella Rani) 8. K. Manimekalai 9.R. Vennila 10.G. Sumathi .. Respondents/Petitioners/ Respondent-1 Appeal filed under Section 173 of the M.V. Act against the award and decree dated 18.3.2004 made in MACTOP No. 5823 of 1999 on the file of the Motor Accident Claims Tribunal (III Judge, Court of Small Causes) Chennai. For Appellant : Mr. S. Jayasankar For Respondents : Mrs. Salim Fathima R1 - R9 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The New India Assurance Company has filed this appeal challenging the award dated 18.3.2004 made in MACTOP No. 5823 of 1999 on the file of the Motor Accident Claims Tribunal (III Judge, Court of Small Causes) Chennai. 2. The fatal accident in this case happened on 9.12.99 at 15.30 hours. The deceased Venugopal, aged 42 years, a mason engaged in building and construction work, was riding a cycle when he was hit by a tanker lorry and in that accident, the said Venugopal died. The family members viz., first wife aged 37 years, two minor daughters aged 16 years and 11 years respectively and minor son aged 15 years, second wife aged 28 years, two minor sons aged 9 years and 6 years respectively, two married daughters aged 19 years and 18 years respectively have filed the claim petition claiming a sum of Rs.16,00,000/- as compensation stating that the income of the deceased was Rs.10,000/- p.m. 3. In support of the claim petition, one Amudha, first petitioner was examined as P.W.1. Stella Rani, second wife, was examined as P.W.2. One Mohan, the eye witness was examined as P.W.3. and one Amaladoss was examined as P.W.4. Documents Exs.A1 to A7 were marked. Ex.A1 is the legal heirship certificate. Ex.A2 is the post mortem certificate. Ex.A3 is the legal heirship certificate. Ex.A4 is the F.I.R. Ex.A5 is the sketch. Ex.A6 is the charge sheet. Ex.A7 is the post mortem certificate. On behalf of the appellant/ II respondent before the Tribunal, no oral and documentary evidence was let in. 4. Considering the age and occupation of the deceased, the Tribunal fixed the monthly income at Rs.3,000/-. After deducting 1/3rd towards personal expenses of the deceased and adopting 15 multiplier, the Tribunal determined the loss of pecuniary benefits in a sum of Rs.3,60,000/-. In all, the Tribunal granted the following amounts as compensation with interest at the rate of 9% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits Rs.3,60,000/- 2 Loss of expectation of life Rs. 50,000/- 3 Loss of consortium Rs. 10,000/- 4 Loss of love and affection Rs. 50,000/- 5 Funeral expenses Rs. 2,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal 6 Damage to articles Rs. 3,000/- Total Rs.4,75,000/- 5. The finding of negligence on the part of the driver of the appellant transport corporation bus and the liability of the appellant to compensate the claimant is not in dispute and the same is confirmed. 6. The only contention raised by the learned counsel for the appellant is on the quantum of compensation. The contention of the learned counsel for the appellant is that the sum of Rs.50,000/- granted for loss of expectation of life is not justified and without any reason or basis, the sum of Rs.3,60,000/- has been granted for loss of pecuniary benefits. 7. The learned counsel for the claimants on the other hand submitted that the deceased left behind the wife and seven children and the second wife as well. Therefore, the compensation towards loss of love and affection should be enhanced and the amount of Rs.50,000/- granted towards loss of expectation of life can be adjusted on the other heads. The deceased in this case was 45 years old and he died in the year 1999. In the absence of proof of income, the income was fixed as Rs.3,000/- p.m. The Tribunal by adopting 15 multiplier determined the loss of pecuniary benefits. 8. The following decisions will have to be kept in mind while fixing the income of the deceased:- (a) A Division Bench of this Court in B.Anandhi – vs. - Latha reported in 2002 ACJ 233(P.SATHASIVAM,J., as he then was) observed that a coolie would earn Rs.100/- per day. In that case, the accident happened in the year 1995. (b) The Apex Court in State of Haryana and another – vs. - Jasbir Kaur and others reported in 2004-1 Law Weekly, was of the view that an agriculturist would earn Rs.3,000/- per month. In that case, the accident happened in the year 1999. 9. In this case, the accident happened in the year 1999. The income of the deceased can be taken atleast Rs.4,500/- p.m. Particularly in view of the fact that the deceased was supporting a large family. Of course, the other wife as a matter of right is not entitled. The income of the deceased fixed is marginally lower than what he would have earned and therefore, the higher multiplier justifies the compensation. However, the seven children can be https://hcservices.ecourts.gov.in/hcservices/ granted more amount towards loss of love and affection on the death of their father. While setting aside the sum granted towards loss of expectation of life, the minor children are granted further amount of Rs.20,000/- towards loss of love and affection. The first wife will be entitled to further amount of Rs.5,000/- towards loss of consortium on the death of the husband. The Tribunal dismissed the claim petition filed by the petitioners 5,8 and 9 and the same is confirmed. Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of pecuniary benefits Rs.3,60,000/ - Rs.3,60,000/- 2 Loss of expectation of life Rs. 50,000/- --- 3 Loss of consortium Rs. 10,000/- Rs. 15,000/- 4 Loss of love and affection to the children Rs. 50,000/- Rs. 70,000/- 5 Funeral expenses Rs. 2,000/- Rs. 2,000/- 6 Damage to articles Rs. 3,000/- Rs. 3,000/- Total Rs.4,75,000/ - Rs.4,50,000/- 10. Since the accident happened in the year 1999 and the award was passed in the year 2004, the interest granted by the Tribunal at 9.% p.a. is confirmed. 11. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the tribunal is reduced to Rs.4,50,000/- from Rs.4,75,000/-. (ii) It is stated that entire award amount has been deposited. Claimants 1,2,3,4,6 and 7 are entitled to their respective shares as apportioned by the Tribunal. Claimants 1 to 3 have already withdrawn 50% of the deposited amount with interest and they are entitled to withdraw their respective share amount with interest. First claimant is also entitled to withdraw costs paid by the appellant 4th claimant is entitled to withdraw her share with interest. https://hcservices.ecourts.gov.in/hcservices/ (iii) The share of the minors/ respondents 6 and 7/ claimants 6 and 7 shall be invested in any nationalised bank proximate to the place of the residence of the mother of the minors for a period of three years and renewable thereafter till the minors attain majority. The mother of the minors 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 mother of the minors shall open a savings bank account on the same branch and the interest amount shall be transferred to the account to be maintained by their mother. (iv) The nationalised bank to which the amount will be deposited, shall intimate to the mother of the minors of such deposit and confirm the same to the Tribunal that the mother of the minors has been duly informed. The Tribunal to inform the bank accordingly. (v) 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. (vi) There will be no order as to cost. (vii) Consequently, CMP No. 16192 of 2004 and 1161 of 2008 are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ra To 1. The Motor Accident Claims Tribunal (III Judge, Court of Small Causes) Chennai. 2. The Section Officer VR Section, High Court, Madras 1 cc to Mr.S. Jayasankar, Advocate, SR. 65493 1 cc to Mr.M. Swamikkannu, Advocate, SR. 65531 CMA No. 2807 of 2004 KA (CO) kk 22/1 https://hcservices.ecourts.gov.in/hcservices/