CMA/1323/1996 of ABDUL AZEEZ Vs LAKSHMI on 19 December 2002

1. R. Wahetha Begum

2. Lakshmi

3. New India AssuranceCompany Limited,92, G.N.Chetty Street,Madras-17. .. Respondents

C.M.A.1323 of 1996:

1. Abdul Azeez

2. Mallika Begum3. Rizwan, a minor, representedby his paternal grandfatherAbdul Azeez)

4. Raffi

5. Noorjahan(Petitioners-4 and 5are minors,representedby their father andnext friend, Abdul Azeez)All residing at 9/2,Jawahar Usain Khan Street,III Lane, Royapettah,Madras-600014. .. Petitioners v.1. Lakshmi2. New India AssuranceCompany Limited,92, G.N. Chetty Road,T.Nagar, Madras-17.3. Gousia4. Munira5. Mustiri6. Basheena(Respondents 3 to 6 given up) .. Respondents These appeals are filed against the award passed by the MotorAccidents Claims Tribunal (Chief Judge) in M.C.O.P.No.3023 of 1990, dated2.2.1005, as stated therein.

For Appellant :: Mr. A.N.Viswanatha RaoFor 2nd Respondent :: Mr. S.ManoharFor R.3 in CMA 524/1996For R.2 in CMA 1323/1996No appearance for others.

:C O M M O N J U D G E M E N T

A.K.RAJAN,J.

For the death of one Abdul Rasheed in a motor accident thattook place on 23.11.1990, two M.C.O.Ps. have been filed before the MotorAccidents Claim Tribunal (Chief Judge, Small Causes Court) at Madras.M.C.O.P.No.3023 of 1990 has been filed by the wife and minor son of thedeceased; the wife filed the petition as guardian of her minor son.M.C.O.P.No.903 of 1991 has been filed by the parents, brothers and sisters ofthe deceased. Also the minor son of the deceased has been shown as aclaimant, represented by the paternal grandfather of the minor, as guardian ofthe minor son of the deceased. In M.C.O.P.No.90 3 of 1991, the wife of thedeceased was not impleaded as party; in M.C.O.P.No.3023 of 1990, the parentsas well as brothers and sisters of the deceased were not impleaded. InM.C.O.P.No.3023 of 1990, claim was made for a sum of Rs.2,00,000/-; inM.C.O.P.No.903 of 1991, claim was made for Rs.6,00,000/-. The minor son ofthe deceased is a petitioner in both the M.C.O.Ps. The Tribunal has notpassed any order declaring either the mother of the minor or grandfather ofthe minor as guardian; both the M.C.O.Ps. were tried together and a commonaward has been passed.

2. The wife of the deceased has been examined as P.W.1; the father ofthe deceased has been examined as P.W.2; also five other witnesses wereexamined; Exs.P.1 to P.15 were marked. On the side of the respondents, one witness by name N.G. Arumugam was examined; one document has been marked asEx.R.1. Considering the evidence both oral and documentary, the Tribunalfound the driver of the motor vehicle negligent. The Tribunal awarded a sumof Rs.2,59,000/- as compensation payable together with interest at the rate of12 per cent from the date of petition till the date of payment; It granted onemonth time for payment, in default the interest is payable at the rate of 15per cent for the said amount. Further, the Tribunal apportioned the amount asfollows:(i) In M.C.O.P.3023 of 1990, the claimants,wife was awarded Rs.59,000/-;minor son represented by the mother andguardian was awarded Rs.1,00,000/-.

(ii) In M.C.O.P.903 of 1991,The parents of the deceased were awarded each Rs.50,000/.

The claims of, the respondents 3 to 9, (the minor son of the deceased as wellas the brothers and sisters of the deceased) were dismissed.

3. Aggrieved by the award of the Tribunal, C.M.A.No.524 of 1996 has

been filed challenging the award in M.C.O.P.No.3023 of 1990 by the minorRizwan, represented by the grandfather of the minor; the mother of the minor,the first petitioners therein has been arrayed as first respondent.C.M.A.No.1323 of 1996 has been filed challenging the award in M.C.O.P.No.903of 1991 by the parents of the deceased and the brothers and sisters of thedeceased. The minor son of the deceased is also included as an appellant.The grandfather of the minor has filed as guardian for the minor.

4. The Tribunal has awarded compensation for the minor son of thedeceased only in M.C.O.P.No.3023 of 1990; the Tribunal dismissed the claimmade by the grandfather on behalf of the minor in M.C.O.P.No.903 of 1991.From that it is clear that the Tribunal has impliedly recognized the mother asthe guardian of the minor, that is, the Tribunal has not recognized thegrandfather of the minor as the guardian of the minor. Therefore, the appeal,C.M.A.No.524 of 1996 can not be said to have been properly filed. Also for the same reason, the appeal, C.M.A.3023 of 1990 filed cannot be consideredas properly filed, in so far as it relates to the minor's claim. It is statedby the counsel for the appellant that pending disposal of the appeal, thegrand father of the minor died.

5. With respect to the issue of negligence, the finding of theTribunal is not disputed by the respondents. Therefore, we confirm thefinding of the Tribunal that the accident was caused only due to thenegligence of the driver of the motor vehicle and therefore, the liability ofthe insurance company is also confirmed.

6. With respect to the quantum of compensation, the deceased, AbdulRasheed was aged 32 years; and he was having a tailoring shop with ten tofifteen machines. According to the father of the deceased, he was earning asum of Rs.6,000/- per month. According to the wife, the deceased was earningRs.2,000/- per month and he was giving Rs.2,000/- to the family. From thedocuments filed in support of the claim petition, it is seen that Ex.P.7 is anaccount book maintained in the tailoring shop. From that, it is proved that the deceased was running a tailoring shop. From the fact that he was havingten to fifteen machines and employed persons for his business, it can bepresumed that he would have atleast contributed Rs.2,000/- to the family. His contributionto the family members comes to Rs.24,000/- per year. The age of the deceasedwas 32, as seen from the post-mortem certificate; hence the proper multiplierthat has to be applied is 16. Thus, the total pecuniary loss comes toRs.3,84,000/-. Apart from that, the petitioners are entitled to Rs.3,000/-towards funeral expenses. That apart, the wife is entitled for compensationof Rs.10,000/- towards loss of consortium and the minor son is also entitledto Rs.10,000/- for the loss of love and affection of his father. Thus, inall, the total compensation comes to Rs.4,07,000/-.

7. From and out of the compensation amount, the minor is entitled to Rs.1,50,000/;-. The wife of the deceased is entitled to Rs.1,00,000/-. Thebalance of Rs.1,57,000/- is payable to the mother of the deceased, since thefather of the deceased is dead, pending appeal. In view of the fact that theaccident t ook place in the year 1990 we confirm the interest of 12% grantedby the Tribunal. But the enhanced award is payable together with interest atthe rate of 9 per cent per annum.

8. During the argument, the counsel appearing for the appellant advanced

arguments that the wife of the deceased was divorced by pronouncing "Talak" byher deceased husband a few days prior to the accident and therefore, she isnot entitled for any compensation whatsoever. The same argument has beenadvanced before the Tribunal also. But the Tribunal has rightly rejected thisargument. That question whether the mother of the minor was not the wife ofthe deceased on the date of the accident, cannot be decided by the Tribunal.We are fully in agreement with the views taken by the Tribunal on this point;therefore, we concur with the view taken by the Tribunal and recognize themother of the minor as guardian for the minor.

9. C.M.P.Nos.17959 and 17960 of 2002:

These petitions have been filed by the brother of the deceased torecognize him as guardian for the minor. Inasmuch as we have recognized themother of the minor as the guardian, these petitions are not maintainable, asfiled. Consequently, are dismissed.

10. The Tribunal is directed to deposit the share of the minor with proportionate interest and costs in the Indian Bank, High Court ExtensionCounter, Chennai, till the minor attains majority. The mother of the minorWahetha Begum shall be entitled to receive the accrued interest for themaintenance of her son, once in three months directly from the bank. Withthis modification, the appeals are partly allowed. No costs Index: YesWeb Site: Yesvs