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P. Lakshmi v/s M/s. Madhucon Products Ltd.


Company & Directors' Information:- LAKSHMI PRODUCTS PRIVATE LIMITED [Active] CIN = U21000KL2019PTC060914

    C.M.A. (MD) No. 153 of 2012

    Decided On, 14 December 2017

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE

    For the Appellant: G. Karnan, Advocate. For the Respondent: R1, No appearance, R2, A. Athimoolapandian, A.K. Baskara Pandian, Advocates.



Judgment Text

Heard Mr. G. Karnan, learned counsel for the appellants and Mr. A. Athimoolapandian for Mr. A.K. Baskara Pandian, learned counsel for the second respondent. Despite service of notice, the first respondent has not entered appearance.2. The appellants have preferred this Civil Miscellaneous Appeal against the award passed in M.C.O.P. No. 76 of 2011, dated 14.10.2011, on the file of the Motor Accident Claims Tribunal (Principal District Judge), Thanjavur.3. This appeal has been preferred by the appellants/claimants for enhancement of compensation as well as challenging the finding given by the tribunal that the second respondent Insurance Company is not liable to pay compensation. The tribunal passed an award in favour of the appellants/claimants against the first respondent, the owner of the vehicle for a sum of Rs. 3,94,000/- together with interest at the rate of 7% from the date of the claim petition till the date of payment.4. The appellants have filed this appeal challenging the award of the Motor Accident Claims Tribunal (Principal District Judge), Thanjavur, on the following grounds :-(a) The tribunal ought to have fixed the liability jointly and severally on both the respondents and pay and recovery theory should have been applied for the second respondent Insurance Company.(b) The tribunal ought to have awarded compensation for loss of consortium to the first appellant herein and also awarded higher compensation on account of love and affection.(c) The tribunal ought to have fixed the salary of the deceased at Rs. 5,000/- per month as notional income.(d) The tribunal has erroneously decided the claim petition by awarding compensation against the first respondent alone which is contrary to law.5. According to the learned counsel for the appellants, the deceased was a Mason and was earning Rs. 500/- per day, and was earning Rs. 15,000/- as monthly income. According to him, the tribunal ought to have fixed the notional income at Rs. 5,000/- per month instead of Rs. 3,000/- per month. The learned counsel for the appellants submitted that the date of accident was on 26.10.2010. According to him, during that time, a Mason would have definitely earned a minimum of Rs. 500/- per day. But being a notional income, the tribunal ought to have fixed the notional income at least at Rs. 5,000/- per month, instead of Rs. 3,000/- per month which was not the correct fixation. According to the learned counsel for the appellants, the tribunal ought to have fixed the just compensation payable to the appellants/claimants. The learned counsel further submitted that only a sum of Rs. 5,000/- was fixed for loss of love and affection and another sum of Rs. 5,000/- towards funeral expenses by the tribunal which according to him, is also a meagre amount and has not been awarded in accordance with the settled position.6. The learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court reported in (2014) 4 SCC 735 (Syed Sadiq and others vs. Divisional Manager, United India Insurance Company Limited) wherein the claimant is a vegetable vendor sustained 85% functional disability in a motor accident and claimed compensation under Section 160 of the Motor Vehicles Act. The Hon'ble Supreme Court held that the claimant cannot be expected to produce documents to prove his monthly income and fixed his monthly income at Rs. 6,500/-. Relying upon the said judgment, the learned counsel for the appellants submitted that the monthly income fixed by the Tribunal at Rs. 3,000/- is too low and it has to be enhanced to Rs. 5,000/-. The learned counsel for the appellants further submitted that the appellants are not aggrieved by the multiplier adopted by the tribunal, but is only aggrieved by the notional income fixed by the tribunal.7. By a recent Five Judges Bench judgment of the Hon'ble Supreme Court reported in (2017) 2 TN MAC 609 (SC) (National Insurance Co. Ltd., vs. Pranay Sethi and others), the Hon'ble Supreme Court fixed the compensation payable towards loss of consortium at Rs. 40,000/-, Rs. 15,000/- towards loss of love and affection and Rs. 15,000/- towards funeral expenses.8. This Court has given due consideration to the judgment of the Hon'ble Supreme Court cited by the learned counsel for the appellants and also the latest decision of the Hon'ble Supreme Court. Applying the above ratio laid down by the Hon'ble Supreme Court, this Court comes to the conclusion that Rs. 5,000/- per month will have to be fixed as the notional income of the deceased instead of Rs. 3,000/- fixed by the tribunal.9. Being a fatal case, this Court is of the considered view that the tribunal ought to have awarded compensation for loss of consortium to the first appellant and also awarded a higher compensation towards loss of love and affection. Considering all these factors, this Court is of the view that the just compensation payable to the claimants shall be as follows:-Having Notional income fixed at Rs. 5,000/- and after deducting 1/3rd amount towards his personal expenses, the total monthly income for the family is Rs. 3334/- (Rs. 5000/- - Rs. 1666/-)Annual Income = Rs. 40,008/-Applying 16 multiplier = Annual Income x 16; 40,008 x 16(a) Loss of Income = Rs. 6,40,128/- rounded off to Rs. 6,40,000/-(b) Loss of love and affection = Rs. 15,000/-(c) Loss of consortium = Rs. 40,000/-(d) Funeral Expenses = Rs. 15,000/-Total = Rs. 7,10,000/-10. Therefore, this Court is of the considered view that the just compensation payable to the appellants is Rs. 7,10,000/- instead of Rs. 3,94,000/- fixed by the tribunal.11. The learned counsel for the appellants further submitted that the second respondent Insurance Company, respondent ought not to have been absolved of its liability, since there was valid insurance policy. According to the learned counsel for the appellants, the award passed by the tribunal only against the first respondent, the owner of the vehicle is contrary to law. According to him, the tribunal ought to have applied the Doctrine of Pay and Recovery and held the second respondent also jointly and severally liable to pay the compensation amount and given liberty to the second respondent to recover the same from the first respondent after making payment. The tribunal absolved the liability of the second respondent Insurance Company only on the ground of violation of the policy conditions by the first respondent. Hence, the second respondent is jointly and severally liable to pay the award amount to the appellants.12. The learned counsel for the appellants drew the attention of this Court to the finding of the tribunal on this issue. As seen from the impugned award, the second respondent was absolved of its liability only on account of the violation of the policy conditions by the first respondent. Therefore, the Doctrine of Pay and Recovery ought to have been applied by the learned Tribunal as against the second respondent Insurance Company but the tribunal absolved the second respondent from paying compensation on the ground of violation of policy conditions.13. After considering the materials available on record and the impugned award of the tribunal, this Court is also of the considered view that the second respondent Insurance Company is liable to pay compensation to the appellants/claimants and recover the same from the first respondent.14. In the result, the Civil Miscellaneous Appeal is allowed. Consequently, the award dated 14.10.2011 of the Motor Accident Claims Tribunal (Principal D

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istrict Judge), Thanjavur shall stand modified to the extent that the respondents are jointly and severally liable to pay a sum of Rs. 7,10,000/- as compensation to the appellants/claimants, together with interest at 7% from the date of the claim petition till the date of payment and costs. On such payment, the appellants/claimants are permitted to withdraw their shares as apportioned by the tribunal in the same ratio, by filing proper application before the Tribunal. In view of the violation of the policy conditions by the first respondent, the second respondent on payment of the modified amount, is entitled to recover the same from the first respondent in accordance with law. The Registry is directed to collect excess Court fee for the enhanced amount within two weeks from the date of receipt of the copy of this judgment.
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