The second marriage is not legally recognised by law. However, in this case, with the consent of the respondent No. 1-first wife, the deceased married the respondent No. 2-second wife and they were living under the same roof and, therefore, though the respondent No. 2-second wife is not entitled to any amount towards loss of consortium, she is entitled to a sum of Rs. 50,000 as she only gave birth to the respondent Nos. 3 to 6. If at all there was any grievance against the second marriage, it is only the respondent No. 1-first wife alone to object the same. In this case, as stated above, the respondent No. 1-first wife has not objected to it and in fact, the claim petition has been filed making them as claimants as the respondent Nos. 1 and 2-claimant Nos. 1 and 2. Therefore, the respondent No. 2-second wife is entitled to a sum of Rs. 50,000 for loss of love and affection. Merely because she was married as a second wife, she should not be condemned for 'no fault of her'. In this case, as explained supra, she only gave birth to the respondent Nos. 3 to 6-claimant Nos. 3 to 6 as the respondent No. 1-first wife did not have any issue. It is not only the respondent No. 1-the first wife, but the respondent No. 2-second wife should be undergoing psychological, emotional and physical suffering and sorrows, which cannot be estimated in terms of money.
{Para 17}
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
CMA (MD) Nos. 987 and 988 of 2014
Decided On: 13.02.2017
Branch Manager, Oriental Insurance Co. Ltd. Vs. Indirani and Ors.
Hon'ble Judges/Coram:
N. Kirubakaran, J.
Citation: 2018 ACJ 110 (Mad), MANU/TN/4588/2017.
1. CMA (MD) No. 987 of 2014 has been filed by the appellant insurance company against the award of Rs. 13,61,520 passed in MCOP No. 258 of 2011, by the Motor Accidents Claims Tribunal-cum-Additional District and Sessions Judge, Pudukottai, dated 20.1.2014. CMA (MD) No. 988 of 2014 has been filed by the appellant insurance company against the award of Rs. 12,76,200 passed in MCOP No. 259 of 2011, by the Motor Accidents Claims Tribunal-cum-Additional District and Sessions Judge, Pudukottai, dated 20.1.2014.
2. Since both the appeals arise out of a common award passed in respect of the same accident occurred on 22.9.2010, these appeals are disposed of by this common judgment.
3. The claim petitions in MCOP Nos. 258 and 259 of 2011 have been filed by the respective claimants, stating that on 22.9.2010, Chellakannu was riding his motor cycle and Selvaraj was the pillion rider and when they were riding on the south-west direction near Keeramangalam West Electricity Board Office, the tractor-trailer belonging to one Palani respondent No. 9 in CMA (MD) No. 987 of 2014 respondent No. 8 in CMA (MD) No. 988 of 2014, insured with the appellant insurance company, was driven in a rash and negligent manner and dashed behind the motor cycle, causing the accident and resulting in the death of the said Chellakannu and Selvaraj. Therefore, the claim petitions.
4. On contest, the Tribunal found that the tractor-trailer was driven in a rash and negligent manner and fixed the negligence on the driver of the tractor-trailer and fixed 90 per cent negligence on the part of the driver of the tractor-trailer and 10 per cent negligence on the part of the rider of the two-wheeler as he did not possess a valid driving licence and awarded a sum of Rs. 13,61,520 for the death of Selvaraj and Rs. 12,76,200 for the death of Chellakannu, respectively. The said awards are being challenged before this court.
5. Heard Mr. K. Bhaskaran, the learned counsel for the appellant insurance company and Mr. S.I. Muthiah Nathan, learned counsel appearing on behalf of Mr. K.C. Maniyarasu, learned counsel for the respective claimants in both the appeals.
6. The owner of the tractor-trailer remained ex parte before the Tribunal and though notice was served on him and his name appeared in the cause list, there is no representation on behalf of him.
7. The Tribunal, based on the evidence of eyewitness, PW 2, and filing of F.I.R., Exh. P1, and charge-sheet, Exh. P4, against the driver of the tractor-trailer and also the report of the Motor Vehicle Inspector, Exh. P3, rightly came to the conclusion that the driver of the tractor-trailer alone was responsible for the accident. However, taking note of the lack of driving licence on the part of the rider of the two-wheeler, the Tribunal fixed 10 per cent negligence on the part of the rider of the two-wheeler.
8. Though the finding of the Tribunal is correct, the persons who are in possession of the documents, namely, driving licence to drive the two-wheeler, are bound to produce the driving licence. As per the judgment of the Hon'ble Supreme Court, it is the burden of proof cast upon the insurance company to show that the rider of the two-wheeler did not have any driving licence by issuing a notice to the owner of the two-wheeler and also by summoning the officials of the Regional Transport Office, but the appellant insurance company did not discharge the same and, therefore, the said fixation of 10 per cent negligence on the part of the rider of the two-wheeler is set aside.
9. However, neither the rider of the two-wheeler nor the pillion rider, was wearing helmet at the time of accident as per section 129 of the Motor Vehicles Act, 1988.
10. Without wearing a helmet, no rider can drive the two-wheeler and as per section 129 of the Motor Vehicles Act, 1988, it is mandatory. Section 129 of the Motor Vehicles Act, 1988, is usefully extracted hereunder:
"129. Wearing of protective headgear.- Every person driving or riding (otherwise than in a side car), on a motor cycle of any class or description shall, while in a public place, wear protective headgear conforming to the standards of Bureau of Indian Standards:
Provided that the provisions of this section shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban:
Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.
Explanation.- 'Protective headgear' means a helmet which,-
(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and
(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear."
11. This court has elaborately dealt with the instances of wearing of helmet by quoting the details of death cases due to non-wearing of helmet in R. Mallika v. A. Babu, MANU/TN/1243/2015 : 2017 ACJ 825 (Madras) and, therefore, 15 per cent negligence has to be fixed on the rider of the two-wheeler for not wearing the helmet and accordingly, 15 per cent negligence is fixed on the rider of the two-wheeler.
CMA (MD) No. 987 of 2014:
12. Though the respondent Nos. 1 to 8-claimant Nos. 1 to 8 claimed that the deceased Selvaraj was doing agriculture as well as catering business and earning about Rs. 15,000 per month, in the absence of proof regarding the same, the Tribunal fixed the monthly income at Rs. 3,500 and the determination of the monthly income at Rs. 3,500 for the death of 45-year-old person and that too, in the year 2010, is very meagre and, therefore, this court determines the monthly income of the deceased as Rs. 6,500 by following the judgment of the Hon'ble Apex Court in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., MANU/SC/0033/2014 : 2014 ACJ 627 (SC), wherein for a vegetable vendor, who got injured in an accident occurred on 14.2.2008, a sum of Rs. 6,500 per month was fixed.
13. However, Tribunal rightly added 30 per cent towards future prospects as per the judgment of the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation, MANU/SC/0606/2009 : 2009 ACJ 1298 (SC) and, accordingly, the monthly income of the deceased would be Rs. 8,450 (Rs. 6,500 + Rs. 1,950).
14. The size of the family of the deceased is 8 and, therefore, 75th amount has to be deducted for personal expenses of the deceased and accordingly, the monthly contribution of the deceased would be Rs. 6,760 (Rs. 8,450 - Rs. 1,690).
15. As per post-mortem certificate, Exh. P2, the age of the deceased was fixed at 45 years and as per the judgment of the Supreme Court in Sarla Verma, MANU/SC/0606/2009 : 2009 ACJ 1298 (SC), the appropriate multiplier is 14. Accordingly, the loss of income would be Rs. 11,35,680 (Rs. 6,760 x 12 x 14).
16. No amount was awarded for loss of consortium to the respondent No. 1-first wife and, therefore, a sum of Rs. 1,00,000 is awarded.
17. The second marriage is not legally recognised by law. However, in this case, with the consent of the respondent No. 1-first wife, the deceased married the respondent No. 2-second wife and they were living under the same roof and, therefore, though the respondent No. 2-second wife is not entitled to any amount towards loss of consortium, she is entitled to a sum of Rs. 50,000 as she only gave birth to the respondent Nos. 3 to 6. If at all there was any grievance against the second marriage, it is only the respondent No. 1-first wife alone to object the same. In this case, as stated above, the respondent No. 1-first wife has not objected to it and in fact, the claim petition has been filed making them as claimants as the respondent Nos. 1 and 2-claimant Nos. 1 and 2. Therefore, the respondent No. 2-second wife is entitled to a sum of Rs. 50,000 for loss of love and affection. Merely because she was married as a second wife, she should not be condemned for 'no fault of her'. In this case, as explained supra, she only gave birth to the respondent Nos. 3 to 6-claimant Nos. 3 to 6 as the respondent No. 1-first wife did not have any issue. It is not only the respondent No. 1-the first wife, but the respondent No. 2-second wife should be undergoing psychological, emotional and physical suffering and sorrows, which cannot be estimated in terms of money.
18. The Tribunal had awarded a sum of Rs. 5,00,000 towards loss of love and affection to the respondent Nos. 1, 3, 4, 5 and 6 and the said amount is on the higher side and moreover, a sum of Rs. 1,00,000 is awarded to the respondent No. 1-first wife towards loss of consortium and, therefore, the respondent Nos. 3 to 6 are entitled to a sum of Rs. 50,000 each, towards loss of love and affection and they are entitled to a sum of Rs. 2,00,000 together.
19. The respondent Nos. 7 and 8-the claimant Nos. 7 and 8 are entitled to a sum of Rs. 25,000 each towards loss of love and affection.
20. A sum of Rs. 20,000 awarded by the Tribunal towards funeral expenses is confirmed. However, a sum of Rs. 5,000 awarded towards transportation charges is enhanced to a sum of Rs. 15,000.
21. Further, a sum of Rs. 1,00,000 awarded by the Tribunal towards loss to estate is on the higher side and the same is reduced to a sum of Rs. 75,000.
22. Accordingly, the total compensation would come to Rs. 16,45,680. For not wearing of the helmet, 15 per cent negligence is fixed on the part of the deceased and, therefore, 15 per cent has to be deducted and accordingly, after deducting a sum of Rs. 2,46,852, the respondent Nos. 1 to 8-claimant Nos. 1 to 8 are entitled to a sum of Rs. 13,98,828 (Rs. 16,45,680 -Rs. 2,46,852) rounded off to Rs. 14,00,000.
23. The rate of interest at 7.5 per cent per annum awarded by Claims Tribunal remains unaltered.
24. Even though the appeal has been preferred by the appellant insurance company against the award of Rs. 13,61,520 awarded by the Tribunal, this court, on re-appreciating the evidence and applying the current proposition of law, suo motu enhances the compensation to Rs. 14,00,000 even in the absence of appeal/cross-appeal invoking Order 41, rule 33 of the Code of Civil Procedure and Article 227 of the Constitution of India, for which, this court has got power and jurisdiction as declared by the Hon'ble Apex Court in Nagappa v. Gurudayal Singh, MANU/SC/1107/2002 : 2003 ACJ 12 (SC).
25. Therefore, the respondent Nos. 1 to 8-claimant Nos. 1 to 8 are entitled to a sum of Rs. 14,00,000 along with interest at 7.5 per cent per annum from the date of petition till date of realization and proportionate costs and the apportionment of the compensation is as follows:
CMA (MD) No. 988 of 2014:
26. In this case, the deceased Chellakannu, aged about 30 years, as per postmortem certificate, Exh. P6, was stated to be an assistant cook, earning about Rs. 15,000 per month and in the absence of positive proof regarding the monthly income, the Claims Tribunal fixed a sum of Rs. 4,000 and added 50 per cent towards future prospects and deducted 74th amount towards personal expenses of the deceased and determined the loss of income at Rs. 9,18,000.
27. The determination of Rs. 4,000 as the monthly income is on the lower side and, therefore, this court takes a sum of Rs. 6,500 as monthly income and adds 50 per cent for future prospects and determines the monthly income at Rs. 9,750. Though the size of the family is 7, the Tribunal rightly took the same as 4 excluding 3 members being the sister and brothers of the deceased and, therefore, 74th amount has to be deducted for personal expenses as the size of the family is 4 and, therefore, the monthly contribution would come to Rs. 7,312.50 (Rs. 9,750 - Rs. 2,437.50).
28. The multiplier according to the age of the deceased (30 years) is 17 and the Tribunal has rightly applied the same. Accordingly, the loss of income would be Rs. 14,91,750 (Rs. 7,312.50 x 12 x 17).
29. The Tribunal awarded a sum of Rs. 3,00,000 to the respondent Nos. 1 to 3. The respondent No. 1-wife is entitled to a sum of Rs. 1,00,000 towards loss of consortium. Since a sum of Rs. 1,00,000 is awarded by this court to the respondent No. 1-wife towards loss of consortium, a sum of Rs. 25,000 awarded by the Claims Tribunal under the very same head is to be deleted.
30. The balance amount of Rs. 2,00,000 awarded to the respondent Nos. 2 and 3 is on the higher side and, therefore, the same is reduced to Rs. 1,00,000 and accordingly, the respondent Nos. 2 and 3 are entitled to a sum of Rs. 50,000 each towards loss of love and affection.
31. A sum of Rs. 50,000 awarded to the respondent No. 4-mother of the deceased towards loss of love and affection is confirmed.
32. A sum of Rs. 25,000 awarded by the Tribunal for funeral expenses is confirmed. However, a sum of Rs. 5,000 awarded under the head transportation charges is enhanced to a sum of Rs. 10,000.
33. Further, a sum of Rs. 1,00,000 awarded by the Tribunal towards loss to estate is reduced to a sum of Rs. 50,000.
34. Accordingly, the total compensation would come to Rs. 18,26,750. For not wearing of the helmet, 15 per cent negligence is fixed on the part of the deceased and, therefore, 15 per cent has to be deducted and accordingly, after deducting a sum of Rs. 2,74,013, the respondent Nos. 1 to 4-claimant Nos. 1 to 4 are entitled to a sum of Rs. 15,52,737 (Rs. 18,26,750 -Rs. 2,74,013) rounded off to Rs. 15,50,000.
35. The rate of interest at 7.5 per cent per annum awarded by Claims Tribunal remains unaltered.
36. Even though the appeal has been preferred by the appellant insurance company against the award of Rs. 12,76,200 awarded by the Tribunal, this court, on reappreciating the evidence and applying the current proposition of law, suo motu enhances the compensation to Rs. 15,50,000 even in the absence of appeal/cross-appeal invoking Order 41, rule 33 of the Code of Civil Procedure and Article 227 of the Constitution of India, for which, this court has got power and jurisdiction as declared by the Hon'ble Apex Court in Nagappa v. Gurudayal Singh, MANU/SC/1107/2002 : 2003 ACJ 12 (SC).
37. Therefore, the respondent Nos. 1 to 4-claimant Nos. 1 to 4 are entitled to a sum of Rs. 15,50,000 along with interest at 7.5 per cent per annum from the date of petition till date of realization and proportionate costs and the apportionment of the compensation is as follows:
In the result,
(i) CMA (MD) No. 987 of 2014 is partly allowed (sic dismissed) and the respondent Nos. 1 to 8-claimant Nos. 1 to 8 are entitled to a sum of Rs. 14,00,000 along with interest at 7.5 per cent per annum from the date of petition till date of realization and proportionate costs. Each of the respondent Nos. 1 to 8-claimant Nos. 1 to 8 are entitled to get their respective share amounts as per the apportionment made by this court along with accrued interest and costs. Insofar as the minor respondent Nos. 3 to 6-claimant Nos. 3 to 6 are concerned, their respective shares are directed to be kept in an interest bearing fixed deposit in any one of the nationalised banks under the renewable scheme, till they attain majority and the respondent No. 2-mother of the minor claimants is permitted to withdraw the accrued interest once in three months for the welfare of the minor respondent Nos. 3 to 6-claimant Nos. 3 to 6. The respondent Nos. 1 to 8-claimant Nos. 1 to 8 are directed to pay the additional court-fee, if any, within a period of two weeks from the date of receipt of a copy of this judgment;
(ii) CMA (MD) No. 988 of 2014 is partly allowed (sic dismissed) and the respondent Nos. 1 to 4-claimant Nos. 1 to 4 are entitled to a sum of Rs. 15,50,000 along with interest at 7.5 per cent per annum from the date of petition till date of realization and proportionate costs. Each of the respondent Nos. 1 to 4-claimant Nos. 1 to 4 are entitled to get their respective share amounts as per the apportionment made by this court along with accrued interest and costs. Insofar as the minor respondent Nos. 2 and 3-claimant Nos. 2 and 3 are concerned, their respective shares are directed to be kept in an interest bearing fixed deposit in any one of the nationalised banks under the renewable scheme, till they attain majority and the respondent No. 1-mother of the minor claimants is permitted to withdraw the accrued interest once in three months for the welfare of the minor respondent Nos. 2 and 3-claimant Nos. 2 and 3. The respondent Nos. 1 to 4-claimant Nos. 1 to 4 are directed to pay the additional court-fee, if any, within a period of two weeks from the date of receipt of a copy of this judgment;
(iii) The appellant insurance company is directed to deposit the respective entire compensation amounts to the credit of MCOP Nos. 258 and 259 of 2011, on the file of Motor Accidents Claims Tribunal-cum-Additional District & Sessions Judge, Pudukottai, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment;
(iv) On such deposit, the Tribunal shall transfer the entire compensation amount along with accrued interest and proportionate costs, as per the apportionment made by this court, to the respective personal savings bank account numbers of the respective major respondents/major claimants, through RTGS/NEFT system after getting their account details, within a period of two weeks thereafter; and
(v) In the facts and circumstances of the case, there shall be no order as to costs in both the appeals.
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