IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE M.VENUGOPAL C.M.A.NO.653 of 2006 and C.M.P.Nos.19760 of 2005 and 2716 of 2006 M/s.New India Assurance Co.Ltd., Branch Office 1-A, South Raja Street Tuticorin – 628 001. .... Appellant /III Respondent Vs. 1.R.Tamilselvi 2.Minor Prabhakaran 3.Minor Saravanan Minors 2 and 3 rep by the 1st Respondent herein ...Respondent 1 to 4/ Petitioners 4.Valliammal 5.K.Palavesam 6.A.Gerald Machado .... Respondents 5 & 6/ I & II (R5 and R6 were set Respondents exparte in the lower Court) Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 7.7.2004 made in M.C.O.P.No.1014 of 2000 on the file of the Motor Accident Claims Tribunal (Additional District Judge) (Fast Track Court No.5) at Tiruppur. For Appellant : Mr.K.S.Narasimhan For Respondents : No Appearance 1 to 4/Claimants https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT R.BANUMATHI,J. This Appeal arises out of the judgment in M.C.O.P.No.1014 of 2000 on the file of Motor Accident Claims Tribunal (Additional District Judge (Fast Track Court No.5), at Tiruppur awarding compensation of Rs.11,28,000/- for the death of Ramasamy. Respondents 1 to 5 are the wife, children and mother of deceased Ramasamy. 2. Respondents No.2 and 3, being minors, are represented by Respondent No.1. Even though Respondents 1 and 4 were served, they have not entered appearance. Their names were printed in the cause list. Since the accident was in the year 2000, even though the Respondents have not entered appearance, we have proceeded to hear the counsel for the Appellant and consider the matter on merits. 3. The facts that led to the filing of the claim petition are that on 6.4.2000 at about 19.15 hrs, when the deceased Ramasamy was driving the Moped TVS 50 bearing Registration No.TN 39 K 1030 from east to west on the left side of Palladam to Dharapuram Road, a container lorry bearing Registration No.TN-69-E-1989 was driven by the 1st Respondent in the opposite direction from west to east in a rash and negligent manner and dashed against the moped and caused severe head injury and multiple injuries to the deceased Ramasamy, who died on the spot. Criminal case was registered in Cr.No.215 of 2000 on the file of Palladam Police Station. Deceased was an agriculturist owning about 20 acres of land with P.A.P.irrigation and he was earning more than Rs.3 lakhs per year by raising onion and other crops. Alleging that the accident was due to rash and negligent driving of container lorry driver, Claimants have filed the Claim Petition claiming compensation of Rs.51,66,000/-. 4. The Insurance Company resisted the Claim Petition denying negligence of the container lorry driver and also raising objection as to the quantum of compensation. 5. Before the Tribunal, Tamil Selvi - 1st Claimant – wife of the deceased examined herself as P.W.1. Eye witness – Subbaraya Gounder was examined as P.W.2. Raja - the Secretary of P.K.G.Onion Exports in Tiruppur was examined as P.W.4 to prove that deceased Ramasamy was selling onion (Bellari) for export to P.K.G.Onion Export and Exs.P.1 to P.12 were marked. On the side of Respondents, no oral and documentary evidence was adduced. https://hcservices.ecourts.gov.in/hcservices/ 6. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of the container lorry and held that the owner of the container lorry bearing Registration No.TN-69-E-1989 and the Appellant Insurance Company are jointly and severally liable to pay the compensation. 7. Insofar as the quantum based upon the evidence of P.Ws.1 and 4, the Tribunal observed that the deceased Ramasami was supplying Ballari to P.K.G.Onion Exports. From agriculture for contribution of his labour and managerial assistance, Tribunal has taken income of the deceased at Rs.250/- per day, insofar as milk vending, based upon evidence of P.W.3, Tribunal has taken the income at Rs.50/- per day and totally Rs.300/- per day. Taking the monthly income at Rs.9,000/- per month and deducting 1/3rd for personal expenses Tribunal has taken loss of dependency at 6,000/- per month. Adopting the multiplier 15, Tribunal has calculated loss of dependency at Rs.10,80,000/- (Rs.6,000 x 12 x 15), and further awarded conventional damages of Rs.10,000/- each for for loss of consortium and loss of love and affection for the 1st Claimant- wife, Rs.10,000/- each for loss of love and affection to the claimants 2 and 3 – sons, Rs.5,000/- for loss of love and affection to the 4th Claimant - mother of deceased and Rs.3,000/- for funeral expenses. Accordingly, Tribunal has awarded total compensation of Rs.11,28,000/-. 8. It is not necessary for us to elaborate upon the manner of accident and as to who was negligent and who is liable to pay the compensation. It is for the reason that the Tribunal has recorded the findings in favour of the claimants and those findings are not seriously disputed. Likewise, the coverage of policy and the liability of the Insurance Company to pay the compensation are also not seriously under challenge. Only the quantum of compensation is under dispute. 9. In her evidence, P.W.1 has stated that deceased Ramasamy was doing agriculture and was getting more than Rs.3 lakhs per annum. Ex.P.8 is patta pass book issued in the name of Ramasamy Gounder to the effect that he was owning 14.50 acres in S.Nos.533/1A1, 584/2, 591/4, 562/1D, 559/2, 539/2A, 577/2C and 578/2B. Ex.P.7 is the partition deed dated 10.5.1995 in which C- schedule was allotted to Ramasamy Gounder. Total extent of C schedule is 13.82 acres. Ramasamy was given right of irrigation from the well in Survey No.577. From Exs.P.7 and P.8, it is clear that the deceased Ramasamy was owning vast extent of lands of 13- 14 acres. In her evidence, P.W.1 has stated that after death of Ramasamy they are not in a position to carry on tea cultivation in the lands. https://hcservices.ecourts.gov.in/hcservices/ 10. P.W.4 – Raja is the Manager working in P.K.G.Onion Exports. In his evidence, P.W.4 has stated that P.W.1's husband – Ramasamy sold onion (Ballari) on 2.8.1999 for Rs.2,24,460/-. In his evidence, P.W.4 has stated that P.K.G.Exports is exporting onion and other agricultural products to foreign countries and Ramasamy was continually supplying onion to P.K.G.Onion Exports on 2.8.1999. 11. P.W.3 – Balasubramaniam is the Secretary of Keradamuthur milk producers Cooperative Society from 1975. In his evidence, P.W.3 has stated that deceased Ramasamy was member of their society from 1978 (Member No.74) and deceased Ramasamy was having 10 milch animals and he would supply about 50 litres of milk to the Society and that Ramasamy was getting more than Rs.10,000/- per month. P.W.3 has further stated that deceased Ramasamy used to supply milk for about Rs.2,800/- per week. From the evidence of P.W.3 and from Ex.P.11, it is evident that deceased Ramasamy was supplying milk and was earning good income. 12. Learned counsel for the Appellant - Insurance Company contended that after death of Ramasamy, who was an agriculturist, there was no deprivation of income to the family. It was further contended that if at all there was any loss to the family it could have been only the loss of managerial assistance and supervision in doing the agriculture. 13. Observing that in the case of death of agriculturists, normal rule about deprivation of income is not strictly applicable to cases fixing monthly income of Rs.3000/-, in 2003 ACJ 1800 [State of Haryana and another v. Jasbir Kaur and others], the Supreme Court held as under:- "8. It is clear on a bare reading of the Tribunal's decision as affirmed by the High Court that no material was placed before the former to prove as to what was the income. As rightly contended by learned counsel for the appellants, there was not even any material adduced to show type of land which the deceased possessed. The matter can be approached from a different angle. The land possessed by the deceased still remains with the claimants as his legal heirs. There is, however, a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered". Normal rule about the deprivation of income is not directly applicable to cases where agricultural income is the source of https://hcservices.ecourts.gov.in/hcservices/ deceased's or injured's income. In that case, other circumstances have to be considered. The principle laid down in 2003 ACJ 1800 [State of Haryana and another v. Jasbir Kaur and others] was reiterated in New India Assurance Company Limited Vs. Charlie and Another (AIR 2005 SC 2157). 14. As pointed out earlier, the deceased Ramasamy was having more than 13 acres of lands. Even after his death, the lands continued to remain with the family. Having regard to the fact that the lands continued to remain with the family and placing reliance upon 2002 ACJ 1702 (G.LAKSHMAMMA VS. NAVADHA ROAD TRANSPORT) and other decisions the Tribunal has taken the amount of Rs.250/- per day for contribution of physical labour, supervision and other managerial assistance. Since Ramasamy was having more than nearly 13-14 acres of land and having regard to the evidence of P.W.4 and the quantity of the onion supplied by the deceased Ramasamy, we are of the view that the quantum of Rs.250/- per day taken by the Tribunal for the contribution of labour, supervision and other managerial assistance is quite reasonable warranting no interference. 15. So far as income from milk vending, the learned counsel for Appellant contended that even after death of deceased Ramasamy, the milch animals continued to remain with the family and therefore there is no deprivation of income in respect of vending milk or supplying of milk to the society. While so, Tribunal erred in taking the amount at Rs.50/- per day. Even though milch animals continued to remain with the family, for tethering of cattle for supplying of milk to the society, much contribution of labour and supervision is required. The 1st Claimant is a widow aged 38 years. The 2nd and 3rd Claimants are 11 years and 9 years and 4th Claimant – mother is aged about 70 years. Having regard to the age of the claimants, necessarily, the claimants will have to engage atleast one or two persons for tethering of cattle and for supply of milk to the Society. Even though there may not be total deprivation of income from milch animals, since the Claimants will have to engage other persons, we are of the view that the amount of Rs.50/- taken by the Tribunal in respect of loss of supervision in vending milk is quite reasonable. The total income of deceased taken at Rs.300/- per day i.e., Rs.9000/- per month is quite reasonable warranting no interference. As per the well settled position, the Tribunal has taken 1/3rd for personal expenses and calculated pecuniary loss at Rs.10,80,000/-. 16. Insofar as the conventional damages, the Tribunal has awarded Rs.10,000/- for loss of consortium to the wife - 1st Claimant and another Rs.10,000/- for loss of love and affection for the 1stt Claimant, Rs.10,000/- each for loss of love and https://hcservices.ecourts.gov.in/hcservices/ affection for the sons -2nd and 3rd claimants and Rs.5,000/- for the loss of love and affection to the 4th Claimant – mother of deceased. Tribunal has awarded Rs.3,000/- for funeral expenses. The quantum of compensation awarded for conventional damages is also reasonable and warranting no interference. 17. Insofar as interest, Tribunal has awarded 9 percent. The first Claimant has become widow at the young age of 38 years and the 2nd and 3rd Claimants have lost their father at the young age of 11 and 9 years. Having regard to the age of the claimants and facts and circumstances of the case, we are not inclined to interfere with the rate of interest awarded by the Tribunal. 18. It is stated before us that the entire compensation together with interest as awarded by the Tribunal was deposited by the Appellant – Insurance Company and in C.M.P.No.19760 of 2005, by order dated 27.2.2006, Respondents No.1 and 4 were permitted to withdraw 50 percent of the amount deposited as apportioned to each of them. The share of compensation to minor claimants was ordered to be invested in a nationalised Bank permitting 1st Claimant to withdraw interest periodically. 19. In the result, the quantum of compensation awarded by the Tribunal in M.C.O.P.No.1014 of 2000 on the file of the Motor Accident Claims Tribunal (Additional District Judge) (Fast Track Court No.5) at Tiruppur together with interest at 9 percent per annum and the ratio of apportionment among the claimants is confirmed and the Civil Miscellaneous Appeal is dismissed. However, there is no order as to costs. Earlier, Claimants 1 and 4 were permitted to withdraw 50% of the amount. If the Claimants have not sofar withdrawn the amount, they are permitted to withdraw the same. As the quantum of compensation awarded by the Tribunal is confirmed, Respondents No.1 and 4 are permitted to withdraw the remaining share of 50% together with accrued interest. Respondents 2 and 3, who were minors at the time of filing the Claim Petition, appears to have attained majority and after obtaining necessary orders from the Tribunal, they are also permitted to withdraw the entire compensation amount awarded to them together with accrued interest. On receipt of the copy of the judgment, Tribunal is directed to send notice to the Claimants to enable them to take steps to withdraw the amount as per the https://hcservices.ecourts.gov.in/hcservices/ order of this Court. Consequently, the connected miscellaneous petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. usk To: 1. The Motor Accident Claims Tribunal Addl.District Judge (Fast Track Court No.5) Tiruppur. 2. The Section Officer VR Section, High Court, Madras 1 cc to Mr.K.S. Narasimhan, Advocate, SR. 26253 C.M.A.No.653 of 2006 JSV (CO) kk 31/5 https://hcservices.ecourts.gov.in/hcservices/