M. Ramasamy vs P. Amutha

R. Mala, J.—The Civil Miscellaneous Appeals arise out of fair and decretal Award dated 31.1.2003 made in M.C.O.P. Nos.308 & 309 of 2002 on the file of the Motor Accidents Claims Tribunal (Additional District Court), Fast Track Court No. 1, Erode.

C.M.A. No.2066 of 2007 is filed by the Respondents 2 & 3 in Tribunal questioning the liability stating that the Petitioner, who is the sister of the deceased Ramkumar, is married and hence, she is not entitled compensation is at all she is entitled only no fault liability.

C.M.A. No.2067 of 2007 is filed by the Respondents 2 & 3 in Tribunal Stating that the Petitioner, who is the married daughter of deceased Loganayagi, is not entitled compensation if at all she is entitled only no fault liability, since she is not a dependent. They also questioning the quantum of compensation awarded. by the Tribunal is excessive.

The matrix of the case is as follows :

On 24.10.1998, at about 1.15 p.m., while the deceased Ramkumar was driving the Jeep bearing Registration No-TN-38-A-3297 along with his mother Loganayagi towards East on the left hand side of N.H.47 main road near Pallagoundanpalayam between Sangapalli and Perundurai, at the time. R1 drove the Lorry bearing Registration No. TN-38-2-2349 towards west with high speed in a rash and negligent manner. On seeing the lorry coming from opposite direction, Ramkumar stopped his jeep. But R1 lost his control, turned the lorry towards north side hit on a parked Lorry bearing Registration No.TN-33-J-3431 and then capsized on the standing Jeep bearing Registration No.TN-38-A-3297, due to which, the said Ramkumar and Loganayagi died on the spot. Both the Lorries and the Jeep also damaged.

The married sister of deceased Ramkumar namely, Amutha, filed the Claim Petitions in M.C.O.P. Nos. 331 & 333 of 1999 before the Motor Accidents Claims Tribunal Erode and that has been Transferred to Principal Subordinate Court, Erode and numbered as M.A.O.P. Nos. 423 & 424 of 1999 and subsequently, they were retransferred to Principal District Court, Erode and renumbered as M.C.O.P. No. 308 & 309 of 2002. It was stated that her brother Ramkumar and mother Loganayagi were died in the above said accident. At the time of accident, the deceased Ramkumar was aged about 25 years and he was a partner in Challenger Exports, Kalinga Exports and Maruthi Finance and thereby earing a sum Rs. 15,000/- per month. Since she is the sole Legal Heir of her brother, she claimed a compensation to the tune of Rs. 10,00,000/- in respect of her brother. At the time of accident, her mother Loganayagi was aged about 45 years and did agriculture and maintained mulch buffaloed and vending milk and thereby earing a stun of Rs. 5,000/- per month. Since she is the sole Legal Heir of her mother, she claimed a compensation to the tune of Rs. 5,00,000/-

The First Respondent is the driver of the Lorry bearing Registration No.TN-38-2-2349, the Second Respondent is its owner and the Third Respondent is its Insurer. The Fourth Respondent is the driver of the Lolly bearing Registration No.TN-33-J-3431, the Fifth Respondent is its owner and the Sixth Respondent is its Insurer.

The Third Respondent/New India Assurance Company filed a detailed Counter disputing the manner of the accident, dependency, age, avocation and income of the deceased.

The Sixth Respondent/Oriental Insurance Company has filed a detailed Counter stating that the accident has been occurred clue to the rash and negligent driving of the First Respondent/Kaliasamy and hence, the Third Respondent/New India Assurance Company alone is liable to pay the compensation. He has also disputed the age, avocation and income of the deceased Ramkumar and Loganayagi.

The Tribunal after considering the oral and documentary evidence of PW1 & PW2 & Exs.P1 to P21, awarded a sum of Rs. 4,60,000/- & Rs. 3,05,000/- as compensation payable by the Respondents in Tribunal in respect of M.C.O.P. No. 308 & 309 of 2002 respectively, aggrieved against the same, the Respondents 2 & 3 in Tribunal questioning the liability and quantum of compensation awarded by the Tribunal, is excessive.

Learned Counsel for the Appellants submitted that the Compensation awarded by the Tribunal is excessive. The Petitioner is a married sister and married daughter of the deceased Ramkumar and Loganayagi respectively. Hence, she is not depending upon the income of the deceased, if at all she is entitled only no fault liability and not the compensation awarded by the Tribunal. Hence, he prayed for allowing the Appeals. To substantiate his arguments, he relied upon the following decisions :

(i) Hafizun Begum v. Md. Ikram Heque and others, 2007 (2) TN MAC 143 (SC) : 2007 (4) CTC 335;

(ii) Manjuri Bera v. Oriental Insurance Co. Ltd. and another, 2007 (1) TN MAC 385 (SC) : 2007 ACJ 1279;

(iii) G. Deivasigamani and others v. Metropolitan Transport Corpn. Ltd, rep. by its M.D., Chennai Div.I, Chennai, 2008 (1) MLJ 1107; and

(iv) Amrit Bhanu Shali and others v. National Insurance Co. Ltd. and others, 2012 (2) TN MAC 321 (SC) : 2012 ACJ 2002.

Refuting the same, learned Counsel for R1/Petitioner submitted that at the time of filing Claim Petition, the Petitioner submitted that at the time of filing Claim Petition, the Petitioner is not. Married. So she is entitled. to the compensation in accordance with law. Hence. he prayed for dismissal of the Appeals. To substantiate his arguments, he relied upon the following decisions :

(i) Branch Manger, New India Assurance Co. Ltd., Vellore District v. Malliga and others, 2012 (2) TN MAC 576 : 2012 (8) MLJ 46;

(ii) Santosh Devi v. National Insurance Co., Ltd. and others, 2012 (2) TN MAC 1 (SC) : 2012 ACJ 1428;

(iii) Managing Director, Tamil Nadu State Transport Corporation Ltd., Villupuram, Division-II, Rangapuram, Vellore v. M Shanthi and others, 2010 (5)MLJ 1039;

(iv)Selvi v. K. Alagarsamy and another, 2010 (2) TN MAC 328 : 2012 ACJ 945;

(v) Glory Bai. and another v. S.K.A. Noorjakan Beevi and three others, 2011 (1) TN MAC 339; and

(vi) Sarayu and two others v. Surendra vithal Nazare and three others, 2010 (2) TN MAC 404 (DB).

Considered the rival submissions made on both sides and the materials available on record.

The point to be decided is that whether the married daughter of deceased Loganayagi and married sister of deceased Ramkumar is a dependent and whether she is entitled any compensation or only no fault. liability and whether the amount awarded by the Tribunal is just compensation

Now this Court has to consider as to whether the Petitioner ''married sister and married daughter is a dependant of deceased Ramktimar and Loganayagi. At this juncture, it is appropriate to consider the decisions relied upon by the learned Counsel for the Appellants :

(1) Hafizun Begum v. Md. Ikram Heque and others, 2007 (2) TN MAC 143 (SC) : 2007 (4) CTC 335, in which, it was held that the liability to pay compensation under Section 140 of Motor Vehicles Act, does not cease because there is absence of dependency. Even if there was no dependence there is a loss to the estate and a person, who is a Legal Representative but not dependant can yet be a beneficiary of the estate. It was, therefore. submitted that a realistic and pragmatic view should be taken. A person who may or may not be legal heir, competent. to inherit the property of the deceased, can represent the estate of the deceased person. It include heirs as well as persons who represent the estate even without title either as Executors or Administrators in possession of the estate of the deceased. All such persons would be covered by the expression ''Legal Representative''. A Legal Representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child. In Para-13 & 14, it was held as follows :

"13. There are several factors which have to be noted. The liability under Section 140 of the Act does not cease because there is absence of dependency. The right to file a Claim Application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of Recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency.

Section 165 of the Act also throws some light on the controversy. The explanation includes the liability under Sections 140 & 163-A."

But the argument advanced by the learned Counsel for the Appellants that the married sister and married daughter are not dependents of the deceased, so they are entitled only no fault liability, does not merit acceptance.

(ii) Manjuri Bers v. Oriental Insurance Co. Ltd. and another, 2007 (1) TN MAC 385 (SC) : 2007 ACT 1279, in Para 16, it is held as follows :

"16 Judged in that background where a Legal Representative, who is not dependant files an Application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the Claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The Appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae."

(iii) G. Deivasigamani and others v. Metropolitan Transport Corpn. Ltd., rep. by its M.D., Chennai Chennai, 2008 (1) MLJ 1107 in which, it was held as follows :

"Ratio Decidendi :

The liability under Section 140 of the Motor Vehicles Act, 1988 does not cease because there is absence of dependency and the brothers and sisters of the deceased would be entitled to receive compensation only under ''no fault liability'' in terms of Section 140 of the Act."

(iv) Amrit Bharat Shali and others v. National Insurance Co. Ltd. and others, 2012 (2) TN MAC 321 (SC) : 2012 ACJ 2002. in Para-16, it is held as follows :

"16. Admittedly both the parents, Appellant No.1-Amrit Bhanu Shali (father) and Appellant No.2-Sarlaben (mother), have been held to be dependents of deceased Ritesh Bhanu Shall and, therefore, the Tribunal held. that the Appellant No.1 & the Appellant No.2 have the right to get the compensation. On the date of the accident the Appellant No.3, Mamta, was not married but by the time the case was heard by the Tribunal the Appellant No.3, Mamta, had already been married. In these circumstances, she is not found to be dependent upon the deceased. Thus, both the parents being dependents, that is, father and the mother, the Tribunal rightly restricted the personal and living expenses of the deceased to 50 per cent and contribution to the family was required to be taken as 50 per cent as per the decision of this Court in the case of Sarla Verma, 2009 ACJ 1298 (SC)."

But all the above three decisions are not applicable to the facts of the case. The argument advanced by the learned Counsel for the Appellant that the married daughter is not a dependent and she is entitled only the amount awarded under no fault liability. In my view, even the absence of dependency, they are entitled compensation and the amount should not be less than the award under No Fault Liability as per the dictum of the Apex Court. reported in Hafizun Begum is Md. Ikrm Heque and others, 2007 (2) TN MAC 143 (SC) : 2007 (4) CTC 335. In such circumstances, the argument advanced by the learned Counsel for the Appellant that the Petitioner Anmtha is entitled only the amount awarded under no fault liability for the death oilier brother and mother, does not merit acceptance.

At this juncture, it is appropriate to consider the decisions relied upon by the learned Counsel for R1/Petitioner :

(i) Santosh Devi v. National Insurance Co. Ltd. and others, 2012 (2) TN MAC 1 (SC) : 2012 ACJ 1428, in which, it was held that the major son is also entitled compensation for the death of his father without any evidence to the contrary about the dependency. He culled out Para-16, which is extracted hereunder:.

"16. The Tribunal''s observation that the two sons of the Appellant cannot be treated as dependant on their father because they were not minor is neither here nor there. In the cross-examination of the Appellant, no question was put to her about the source of sustenance of her two sons. Therefore, there was no reason for the Tribunal to assume that the sons who had become major can no longer be regarded as dependant on the deceased."

(ii) Branch Manager, New India Assurance Co. Ltd., Vellore District v. Malliga and others, 2012 (2) TN MAC 576 : 2012 (8) MLJ 46, in which, it was held that at the time of accident, deceased''s sister was unmarried and she was depending upon her un-married brother by all means and she was living with him and her mother, it would be deemed that she represent the estate of the deceased. So she is entitled compensation. It is appropriate to incorporate Para-22 & 25, which is extracted hereunder:

"22. Learned Counsel for the Appellant raised yet another contention that there was no justification in granting compensation to the Second Claimant who is the sister of the deceased. According to the Respondents/Claimants that the sister was dependent on the income of the deceased. The evidence indicated that she was illumined at the time of accident: There is no suggestion that she was married and was not dependent on her brother.

Certainly when the Second claimant was depending upon her unmarried brother by all means and she was living with him and her mother, it would be deemed that she represent the estate of the deceased and intermeddles with the estate of the deceased. The evidence clearly indicated that the earnings of the deceased is the main source of livelihood to the Claimants who were dependent on the deceased and therefore, the Second Claimant/sister of the deceased is entitled to get compensation."

(iii) Managing Director, Tamil Nadu State Transport corporation Ltd, Villupuram Division II, Rangapuram, Vellore v. M Shanthi and others, 2010 (5)MLJ 1039, in which, it was held that the married sisters also financially depended on the deceased and hence, they are entitled compensation.

(iv) Selvi v. K. Alagarsamy and another, 2010 (2) TN MAC 328 : 2012 ACJ 945, in which, it was held that the widow got remarried, even though she is entitled compensation. But it is not. relevant to the facts of this case.

(v) Sarayu and two others v. Surendra Vithal Nazare and three others, 2010 (2) TN MAC 404 (DB), in which, it was held that even the widow remarried, she is entitled compensation.

(vi) Glory Bai and another v. S.K.A. Noorjakan Beevi and three others, 2011 (1) TN MAC 339, in which, it was held that the parents of the deceased married daughter also entitled compensation.

Considering the decisions of Apex Court, I am of the view, married sister and daughter of the deceased Ramkumar & Loganayagi entitled compensation. It is to be noted that at the time of the accident and filing of Claim Petition, the Petitioner is unmarried. Hence, she was depending upon her mother and brother, so she is entitled compensation awarded by the Tribunal. Therefore, the argument advanced by the learned Counsel for the Appellants that the Petitioner/Amutha is not entitled any compensation, does not merit acceptance.

Now this Court has to decide whether the compensation awarded by the Tribunal is just compensation ?

M.C.O.P. No. 308 of 2008 (C.M.A. Nos. 2066 of 200) :

The Tribunal taken the monthly income of the deceased Ramkumar as Rs. 3,500/- and applying multiplier 10, arrived at Rs. 4,20,000/- towards Loss of Income (Rs. 3,500 x 12 x 10 = Rs. 4,20,000/-). The Tribunal further awarded a sum of Rs. 5,000/- towards Funeral Expenses, Rs. 15,000/- towards Loss of Love and Affection, Rs. 20,000/- towards Loss of Estate, totally the Tribunal awarded a sum of Rs. 4,60,000/- as Compensation. The details of compensation awarded by the Tribunal are as follows :

Loss of Income

:

Rs. 4,20,000

Funeral Expenses

:

Rs. 5,000

Loss of Love and Affection

:

Rs. 15,000

Loss of Estate

:

Rs. 20,000

Total

:

Rs. 4,60,000

The Tribunal in Para-11 of its Judgment held that the deceased Ramkumar was aged about 25 years at the time of accident and his monthly income Was Rs. Rs. 4,500/- and the deceased Ramkumar would have given Rs. 3,500/- to his family after deducting his Personal Expenses. But the above finding rendered by the Tribunal is unacceptable one. Hence, this Court fixes the Loss of Dependency to the Petitioner is only 1/3 and after deducting the same from his monthly income, Loss of Income comes to Rs. 1,80,000/- (Rs. 1,500 x 12 x 10 = Rs. 1,80,000).This Court confirms the amount of Rs. 5,000/- & Rs. 15,000/- awarded by the Tribunal under Funeral Expenses and Loss of Love and Affection respectively. Further, a sum of Rs. 20,000/- awarded by the Tribunal towards Loss of Estate is also hereby confirmed. The details of compensation awarded by this Court are as follows :

LOSS of Income

:

Rs. 1,80,000

Funeral Expenses

:

Rs. 5,000

Loss of Love and Affection

:

Rs. 15,000

Loss of Estate

:

Rs. 20.000

Total

:

Rs. 2,20,000

Therefore, the compensation of Rs. 4,60,000/- awarded by the Tribunal is hereby reduced to Rs. 2,20,000/- to the Petitioner/R1 herein.

M.C.O.P. No. 309 of 2002 (C.M.A. No. 2067 of 2007) :

The deceased Loganayagi was doing agricultural work and milk business and thereby earning a sum of Rs. 5,000/- per month. At the time of accident, her age was 45 years. The Tribunal taken the monthly income of the deceased Loganayagi as Rs. 3,000/-, after deducting the amount of Rs. 500/- towards maintenance of buffaloes, it comes to Rs. 2,500,- and after applying multiplier 13, awarded Rs. 3,90,000/- towards Loss of Income (i.e.) Rs. 2,500 x 12 x 13 = Rs. 3,90,000/- Since human life is unstable and for the Personal Expenses of the deceased, the Tribunal after deducting Rs. 1,30,000/- from Rs. 3,90,000/- awarded Rs. 2,60,000/- towards Loss of Income. The details of compensation awarded by the Tribunal are as follows :

Loss of Income

:

Rs. 2,60.000

Funeral Expenses

:

Rs. 5,000

Loss of Love ami Affection

:

Rs. 15,000

Loss of Family Member and Guardian

:

Rs. 25,000

Total

:

Rs. 3,05,000

But tins Court is of the view that the amount of Rs. 25,000/- awarded by the Tribunal towards Loss of Family Member and Guardian does not arise Hence, it is hereby rejected. This Court confirms the amount Rs. 5,000/- & Rs. 15,000/- awarded by the Tribunal under the heads of Funeral Expenses and Loss of Love and Affection. The Tribunal had taken the monthly income of the deceased Loganayagi as Rs. 3,000/- and after deducting Rs. 500/- towards maintenance of buffaloes, the Tribunal fixed Rs. 2,500/- as her monthly income In my view, it is very low, since the maintenance of buffaloes costs is on higher side, this Court deducts a sum of Rs. 1,000/- towards maintenance of milching cows Since the age of the deceased was 45 years, multiplier 13 is adopted and after deducting 1/3 towards her Personal Expenses, Loss of Income comes to Rs. 2,08,000/- (i.e.) Rs. 2,000 x 12 x 13 x 2/3 = Rs. 2,08,000/- The details of compensation awarded by tins Court are as follows :

Loss of Income

:

2,08.000

Funeral Expenses

:

Rs. 5.000

Loss of Love and Affection

:

Rs. 15.000

Total

:

2,28,000

Therefore, the compensation of Rs. 3,05,000/- awarded by the Tribunal is hereby reduced to Rs. 2,28.000/-

In fine,-

The Civil Miscellaneous Appeals are partly allowed without costs.

In respect of M.C.O.P. No. 308 of 2002 (C.M.A No. 2066 of 2007). the compensation of Rs. 4,60,000/- awarded by the Tribunal is herby reduced to Rs. 2,20,000/-.

In respect of M C O P No.309 of 2002 (C.M.A. No.2067 of 2007), the compensation of Rs. 3,05,000/- awarded by the Tribunal is herby reduced to Rs. 2,28.000/-.

The Respondents 1 to 3 in Tribunal are directed to deposit the compensation awarded by this Court with interest as fixed by the Tribunal along with proportionate costs, within a period of six weeks from the date of receipt of a copy of this order.

The connected Miscellaneous Petitions are closed.