THE HONOURABLE Dr. JUSTICE S.VIMALA C.M.A.No.1563 of 2014
1. Anjalai
2. Periya Arani
3. Chinna Arani (Minor)
4. Shindhu (Minor) Minor petitioners are Rep. by their mother next friend, Anjalai ... Appellants / claimants versus The Managing Director, Tamil Nadu State Transport Corporation Limited, Villupuram Division III, Kancheepuram ... Respondent /Respondent
Prayer.: This Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the fair and decreetal order, dated 07.11.2013, passed in MCOP No.1466 of 2008, on the file of the Motor Accident Claims Tribunal, Chief Judge, Court of Small Causes, Chennai.
For Appellants : Ms. Ramya V.Rao For Respondent : Mr. K.J.Sivakumar - - - -
JUDGMENT
Neither fish nor fishermen know boundaries in the sea; though the life of fishermen is immersed in a sea of woes. Fishing is always done in troubled waters battling surging waves, weathering pouring rain and scorching sun, risking natural disasters like cyclones, storms, lightening and thunder. Failing to wonder the bold life of the fisherman, the Tribunal has taken the exception as a
rule and has given a finding that fisherman are not likely to fish during the time http://www.judis.nic.in of monsoon and calamities, and thus, it has resulted in fixing of monthly income at a lower rate. This is under challenge in this appeal.
2. The wife (aged 40 years), son (aged 19 years), another son (minor, aged 15 years) and daughter (minor, aged 9 years), as the legal representatives of a deceased Fisherman has filed the claim petition in M.C.O.P.No.1466 of 2008, before the Claims Tribunal at Chennai, claiming compensation of Rs.10,00,000/- in respect of death of Suriya Moorthy, aged 45 years, who died on 17.06.2007, while travelling in TNSTC bus (respondent's bus).
3. The claims Tribunal, on consideration of oral and documentary evidence, awarded a sum of Rs.7,85,745/- and the break-up details are as under:
Loss of earnings (Loss of dependency) - Rs.6,84,450/-
Total - Rs.7,85,745/-
4. While calculating the loss of dependency, ignoring the oral evidence, the monthly income has been notionally fixed at Rs.4,500/- relying upon the decision reported in 2013 (3) CTC 883 (Rajesh and other vs. Rajbir singh and others). Adding 30% towards future prospective increase in income, deducting 1/4th towards personal expenses, adopting multiplier of '13' (for the age group of 45-50), the loss of dependency has been arrived at Rs.6,84,450/-.
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5. The following are the main grounds of appeal:-
a) It is claimed that the evidence of P.W.1 should have been relied upon and monthly income should have been fixed at Rs.10,000/- p.m. and not at Rs.4,500/- notionally;
b) Number of dependents should have been taken into account and monthly income should have been fixed at Rs.10,000/-, as claimed by the petitioner;
c) Any able bodied person can very easily earn a sum of Rs.10,000/- p.m. and hence, relying upon the latest judgment of the Apex Court, notional income should have been fixed.
5.1. In support of the contentions, the following decisions are relied upon:
a) 2011 (2) TNMAC 190 (SC) (Sri Ramachandrappa vs. The Manager, Royal Sundaram Alliance Insurance Co. Ltd.) - (during the relevant period i.e. 1994, wages of labourers were taken as Rs.100/- to 150/- per day or Rs.4,500/- p.m.);
b) 2013 (2) TNMAC 566 (SC) – (Sanobanu Nazirbhai Mirza and others vs. Ahamadhabad Municipal Transport services) - (Job of the deceased as a Polisher is considered a skilled job – State Government must fix minimum wages of polisher under minimum wages act – monthly income taken at Rs.5,000/- p.m.);
c) 2014 (3) TAC 707 (SC) (Kalpanaraj and others vs. State Transport Corporation) - (loss of love and affection being on lower side same was enhanced to Rs.1,00,000/- each – a sum of Rs.1,00,000/- towards loss to estate and Rs.1,00,000/- towards loss of expectation of life).
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5.2. Apart from three cases, the following two cases are also relevant in fixing the monthly income of the deceased.
Basis for fixing the monthly income
6. Syed Sadiq Etc vs Divisional Manager, United India ... on 16 January, 2014 (Supreme Court of India) - CIVIL APPEAL NOS.662-664 OF 2014 (ARISING OUT OF SLP(C) NO(s). 16739-16741 OF 2012):-
“There is no reason, in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs.6,500/- per month.”
7. With regard to the consideration of the future prospective increase in income of those who are working in unorganized sector, the case of Santosh Devi v. National Insurance Company Limited is the lighthouse, whereunder, it has been held as follows:-
http://www.judis.nic.in “15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families.
16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac.
17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.”
7.1. Applying the ratio laid down in those cases, the monthly income of the deceased has to be fixed.
7.2. So far as this case is concerned, whether there is justification in fixing notional income at Rs.4500/- per month, on the ground that fishing is not possible on the days of monsoon, etc., is the issue to be considered
7.3. “Fishing is a hard job. If Fishing has to be at night, rain and Daylight, fishermen have to be wise, smart and quick.” Even though the fishermen know that the sea is dangerous and the storm terrible, even then, they have never found these dangers sufficient for remaining ashore. Their confidence, courage and commitment make the fishing joyous, despite oddities. Moreover, fish is one http://www.judis.nic.in of the main sources of nutrition, which is strongly recommended by Doctors to all age groups. Thus, the cost of fish is consistently escalating and therefore, the income from fishing is on the increase.
7.4. Taking into account the over all facts, the monthly income can be fixed at Rs.6,500/-, adding 30% towards future increase in income, deducting 1/4th towards personal expenses and adopting multiplier of 13, the loss of dependency would be Rs.9,88,650/-. Enhancing the funeral expenses to Rs.25,000/-, loss of consortium to the wife to Rs.65,000/- and loss of love and affection to the children to Rs.1,50,000/- and confirming the award under remaining four heads, the total amount of compensation is quantified at Rs.12,69,945/-.
8. In the result, the appeal is partly allowed, enhancing the quantum of compensation from Rs.7,85,745/- to Rs.12,69,945/-, which is payable with interest at the rate of 7.5% p.a. from the date of petition till the date of deposit.
8.1. The respondent / Transport Corporation shall deposit the entire amount as ordered by this Court, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the major claimants are permitted to withdraw their share of the amount, as per the apportionment made by the Tribunal. The minors' share shall be deposited in fixed deposit in any of the Nationalized Banks for a period of three years, till they attain majority. The mother of the minor claimants is permitted to withdraw the interest every three months accrued thereon. No costs.
http://www.judis.nic.in ogy / srk 10.01.2017 To 1. Motor Accident Claims Tribunal, Chief Judge, Court of Small Causes, Chennai.
Dr.S.VIMALA, J.
ogy
C.M.A.No.1563 of 2014
10.01.2017 http://www.judis.nic.in