The United India Insurance Co. Ltd., 3rd party claims Office, No.38, Anna Salai, Chennai v. Pushpakumar & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.4.2009CORAM:-THE HON'BLE MR. JUSTICE R. SUDHAKARC.M.A.Nos. 109 to 113 of 2009........The United India Insurance Co. Ltd.,3rd party claims Office,No.38, Anna Salai,Chennai.2. .. Appellant/2nd respondent (in CMA Nos. 109 to 113/2009)Vs. 1. Pushpakumar2. Gomathy3. Malathy4. Viswanathaom Shetty .. Respondents/Petitioners and1st Respondent ( in CMA.No. 109/2009)1. Neelamegam2. Viswanathaom Shetty .. Respondents/Petitioner/1st Respondent ( in CMA.No. 110/2009)1. Pushpakumar2. Gomathy3. Malathy4. Viswanathaom Shetty .. Respondents/Petitioners/1st Respondent ( in CMA.No. 111/2009)1. Arivoli (Minor)rep. by his father and nextfriend Ravichandran2. Viswanathaom Shetty .. Respondents/Petitioner/1st Respondent ( in CMA.No. 112/2009)1. Malliga2. Viswanathaom Shetty .. Respondents/Petitioner/1st Respondent ( in CMA.No. 113/2009)Appeals filed under Section 173 of the Motor Vehicles Act againstthe judgment and decree dated 15.4.2008 passed in MCOP Nos. 3318 to3322 of 2002, on the file of the Motor Accidents Claims Tribunal (III https://hcservices.ecourts.gov.in/hcservices/ Judge, Court of Small Causes), Chennai. For Appellant : Mr. M.KrishnamoorthyFor Respondents: Mr. N. Bhaskaran1 to 3 in AAO 109, 111No.1 in AAO in AAO 110, 112 and 113/09COMMON JUDGMENTFive appeals have been filed by the insurance companychallenging the award dated 15.4.2008 passed in MCOP Nos. 3318 to3322 of 2002, on the file of the Motor Accidents Claims Tribunal (IIIJudge, Court of Small Causes), Chennai. 2. On 16.5.2002 one Santhanam was driving a car bearingRegistration No. TMV 6366 from Thambaram to Paraniputhur along withfour other passengers. A lorry insured with the appellant driven byits driver in a rash and negligent manner, hit the car and causedserious damages. In that accident, the driver Santhanam and anotheroccupant lady by name Thilagavathy died. Other passengers viz.,Neelamegam, Mani, Arivoli and Malliga suffered injuries. The injuredpersons were treated at Ramachandra Medical College Hospital.Individual claims were filed by the dependents of the deceased and bythe injured claimants. All the claims were taken up and disposed ofin a common award by the Tribunal.3. In support of the individual claims, the followingwitnesses were examined. Pushpakumar, son of the deceased Santhanam and Thilagavathy, thehusband and wife, was examined as P.W.1. Malliga, injured claimantwas examined as P.W.2. Ravichandran, father of injured claimantminor Arivoli was examined as P.W.3. Neelamegam another injuredclaimant was examined as P.W.4. Dr. Saichandran and Dr. Kalkura wereexamined as P.Ws. 5 and 6. Documents Exs. P1 to P18 were marked. Nooral or documentary evidence was let in on behalf of the appellantinsurance company/ second respondent before the Tribunal.4. In the memorandum of grounds of appeal, no plea is takenwith regard to liability to compensate the claimants. 5. CMA No.109 of 2009 – O.P.No. 3318 of 2002:- This case relates to a claim for compensation on the death ofSanthanam. He said to be a contractor cum agriculturist and earninga sum of Rs.6,000/- p.m. but no proof of document has been filed.Therefore, the Tribunal fixed the income of the deceased atRs.4,000/- p.m. As per Ex.P3, post mortem certificate, the age of thedeceased was fixed as 55 years. The Tribunal, adopting 11 multiplier https://hcservices.ecourts.gov.in/hcservices/ and after deducting 1/3rd towards the personal expenses of thedeceased, determined the loss of pecuniary benefits in a sum ofRs.3,52,000/- (Rs.4,000/- x 12 x 11=Rs.5,28,000/- -1/3=Rs.3,52,000/-). In addition, the Tribunal granted compensation onconventional heads. In all, the Tribunal granted the followingamount as compensation with interest at the rate of 12% p.a.Sl.No.HeadAmount granted bythe Tribunal1Loss of pecuniary benefitsRs.3,52,000/-2Funeral expensesRs. 2,000/-3Loss of estateRs. 2,500/-4Loss of love and affectionRs. 50,000/-TotalRs.4,06,500/-6. No. 111 of 2009 - OP No. 3320 of 2002The deceased in this case is Thilagavathy, wife ofSanthanam, the person who drove the car. She was aged about 51 yearssurvived by a son aged 31 years and two daughters as in the previouscase. It is the plea of the claimants that the deceased was a pawnbroker and milk vendor. The Tribunal fixed the income of the deceasedat Rs.2,500/- as against Rs.4,000/- claimed. As per Ex.P4, postmortem certificate, the age of the deceased was fixed as 51 years andby adopting 11 multiplier, the total loss of pecuniary benefits wasfixed at Rs.3,30,000/- and after deducting 1/3rd towards personalexpenses of the deceased, the loss of pecuniary benefits wasdetermined in a sum of Rs.2,20,000/- (Rs.2,500/- x 12 x 11=Rs.3,30,000/- - Rs. 1,10,000/- = Rs.2,20,000/-) In addition, theTribunal granted compensation on conventional heads. In all, theTribunal granted the following amount as compensation with interestat the rate of 12% p.a.Sl.No.HeadAmount grantedby the Tribunal1Loss of pecuniary benefitsRs.2,20,000/-2Funeral expensesRs. 2,000/-3Loss of estateRs. 2,500/-4Loss of love and affectionRs. 50,000/-TotalRs.2,74,500/-7. In both the cases, it is contended by the learnedcounsel for the appellant that the multiplier of 11 adopted by theTribunal is on the higher side, since the son and two daughters are https://hcservices.ecourts.gov.in/hcservices/ majors and there is no material to show that they are totallydependents on the deceased and further there is no material proofas to whether the two daughters are married or unmarried. It iscontended that the amount of Rs.50,000/- granted towards loss oflove and affection is also on the higher side. 8. Considering the age of the two daughters viz., 20 and 25years old and based on Ex.P5 the legal heir certificate, theTribunal was justified in granting compensation holding them asdependents. On the death of Santhanam, in so far as compensation isconcerned, the Tribunal has taken the multiplier of 11 even though atthe time of his death, he was 55 years old. In terms of secondschedule to Section 163-A of M.V. Act, for the age between 55 to 60years, the proper multiplier would be 8 and not 11. Therefore, thecompensation granted by the Tribunal based on 11 multiplier cannot bejustified and has to be reduced accordingly. The proper multiplier inthis case is 8 as against 11. Accordingly, the total loss ofpecuniary benefits after deducting 1/3rd towards personal expenses ofthe deceased will be Rs.2,56,000/- (Rs.4,000/- x 12 x 8 =Rs.3,84,000/- - Rs.1,28,000/- = Rs.2,56,000/-). Further consideringthe fact that the two daughters and the son have lost their fatherand mother, the compensation towards loss of love and affection hasto be reasonable and not excessive and therefore, stands modified asfollows. Two daughters are entitled to Rs.15,000/- each for thedeath of the father and the son will be entitled to Rs.10,000/-towards loss of love and affection. CMA No. 109 of 2009:-Sl.No.HeadAmount grantedby theTribunalAmountgranted bythis Court1Loss of pecuniary benefitsRs.3,52,000/-Rs.2,56,000/-2Funeral expensesRs. 2,000/-Rs. 2,000/-3Loss of estateRs. 2,500/-Rs. 2,500/-4Loss of love and affectionRs. 50,000/-Rs. 40,000/-TotalRs.4,06,500/-Rs.3,00,500/-9. As far as the death of the mother is concerned, themultiplier of 11 is on the higher side for the reasons stated earlierand considering the age of the mother, who will be dependent on thehusband or the children shortly. However, in this case, hercontribution to the family as a house wife has to be taken intoconsideration, in any even, the untimely death has to be compensated.The income fixed by the Tribunal at Rs.2,500/- p.m. is marginallylower. Therefore, as against 11 multiplier, this Court is inclinedto take the multiplier of 10. Accordingly, the total loss of https://hcservices.ecourts.gov.in/hcservices/ pecuniary benefits after deducting 1/3rd towards personal expenses ofthe deceased will be Rs.2,00,000/- (Rs.2,500/- x 12 x 10 =Rs.3,00,000/- - Rs.1,00,000/- = Rs.2,00,000/-). Insofar as thecompensation towards loss of love and affection is concerned, as inthe earlier case, the two daughters will be entitled to Rs.15,000/-each and the son will be entitled to Rs.10,000/- . In CMA No. 111 of2009, the award stands modified as follows:Sl.No.HeadAmount grantedby the TribunalAmount grantedby the Tribunal1Loss of pecuniary benefitsRs.2,20,000/-Rs.2,00,000/-2Funeral expensesRs. 2,000/-Rs. 2,000/-3Loss of estateRs. 2,500/-Rs. 2,500/-4Loss of love and affectionRs. 50,000/-Rs. 40,000/-TotalRs.2,74,500/-Rs.2,44,500/-10. CMA.110 of 2009 - MCOP No. 3319 of 2002:-In this case, the injured claimant Neelamegam is aged about 42years an agriculturist. He suffered fracture of the right hand, ribsand loss of teeth. The disability has been assessed at 45% underEx.A15, disability certificate and 35% under Ex.A17, disabilitycertificate. As against 75% disability, the Tribunal reduced thedisability to 60%. The injured claimant was in Ramachandra medicalcollege hospital from 16.5.2002 to 25.5.2002. He claimed a sum ofRs.5,000/-p.m. as income. The Tribunal however fixed the income ofthe injured claimant at Rs.3,000/- p.m. The Tribunal granted thetotal compensation in a sum of Rs.2,39,097/-, however, restricted thesame to Rs.1,50,000/- as per the claim with interest at 12% p.a.11. In appeal, though a plea has been taken that thequantum under various heads is not proper, since the claim itself isrestricted to Rs.1,50,000/- and the award has been passed for thesaid amount, which quantum is not in dispute, the only pointcanvassed in the present appeal is with regard to the rate ofinterest granted at 12% and that will be dealt with at a later pointof time. Hence, the total compensation in the case of Neelamegamstands confirmed except the interest.12. CMA No. 112 of 2009 - MCOP 3321 of 2002.The injured claimant Arivoli is a minor 30 months old. Hesuffered injures as per Ex.P9. He was also treated at Ramachandramedical college hospital. The Tribunal in this case granted the https://hcservices.ecourts.gov.in/hcservices/ following amount as compensation with interest at the rate of 12%p.a. Sl.No.HeadAmount grantedby theTribunal1Loss of income for four monthsRs. 5,000/-2Extra nourishmentRs. 1,000/-3Damage to clothsRs. 1,000/-4Other expensesRs. 1,000/-5Pain and sufferingRs. 6,000/-6Loss of amenitiesRs. 1,000/-7Loss of expectationRs. 1,000/-8Medical expensesRs. 1,000/-9Transport expensesRs. 1,000/-TotalRs. 17,000/-13. The various heads under which the compensation has beengranted by the Tribunal is not appropriate. There cannot be any lossof income in the case of a 30 months old child. However, consideringthe nature of injuries, which was minor in nature, the Tribunal isnot justified in granting compensation for loss of amenities and lossof expectation of life. There is no serious threat to the life ofthe child and there is no material to substantiate the same. On thecontrary, these amounts can be adjusted on other heads and the totalcompensation can be adjusted as follows:Sl.No.HeadAmountgranted bythe TribunalAmountgranted bythis Court1Loss of income for four monthsRs. 5,000/- ---2Extra nourishmentRs. 1,000/-Rs. 3,000/-3Damage to clothesRs. 1,000/- ---4Other expensesRs. 1,000/- ---5Pain and sufferingRs. 6,000/-Rs. 7,000/-6Loss of amenitiesRs. 1,000/- ---7Loss of expectationRs. 1,000/- --- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmountgranted bythe TribunalAmountgranted bythis Court8Medical expensesRs. 1,000/-Rs. 1,000/-9Transport expensesRs. 1,000/-Rs. 3,000/-10Attender charges ---Rs. 3,000/-TotalRs. 17,000/-Rs.17,000/-Hence, the total compensation stands confirmed except the interestgranted at 12%p.a.14. CMA 113 of 2009 - MCOP 3322 of 2002:-The claimant Malliga is a tailor by profession and shesuffered fracture of left wrist. The disability has been assessed at35% under Ex.P13 disability certificate and she was treated atRamachandra medical college hospital from 16.5.2002 to 25.5.2002.She claimed the income at Rs.3,000/- p.m. and the Tribunal fixed theincome of the injured claimant at Rs.2,000/- p.m. The Tribunalconsidering the nature of injuries, age and occupation of the injuredclaimant granted the following amount as compensation with interestat the rate of 12% p.a.Sl.No.HeadAmount grantedby the Tribunal1Loss of income for four monthsRs. 8,000/-2Extra nourishmentRs. 2,000/-3Damage to clothsRs. 1,000/-4Other expensesRs. 1,000/-5Pain and sufferingRs. 22,000/-6Loss of amenitiesRs. 10,000/-7Loss of expectationRs. 10,000/-8Medical expensesRs. 9,722/-9Transport expensesRs. 2,000/-10DisabilityRs. 35,000/-TotalRs.1,00,722/-15. The contention of the learned counsel for the appellant https://hcservices.ecourts.gov.in/hcservices/ in this appeal is that the claimant suffered fracture of ribs whichhas healed. For the disability assessed at 35%, and for pain andsuffering, suitable compensation has been granted and hence, there isno justification of granting further compensation towards loss ofexpectation of the life and loss of amenities and there is noevidence or material placed to show that the compensation on theseheads are justified. 16. The learned counsel for the claimant on the other handpleaded that meager amount has been granted for extra nourishment andtransport expenses and no amount has been granted for attendercharges.17. Considering the occupation of the injured claimant atailor and also considering the fracture of ribs which has healedafter treatment, the Tribunal was not justified in grantingcompensation for loss of amenities and loss of expectation of thelife for which there is no material to support such a plea. However,as rightly pleaded -by the learned counsel for the claimant, suitablecompensation can be granted for attender charges which was omittedand for extra nourishment and transport expenses for which meageramount has been granted.18. Considering all these aspects, the award of theTribunal stands modified as follows:Sl.No.HeadAmountgranted bythe TribunalAmountgranted bythis Court1Loss of income for four monthsRs.8,000/-Rs.8,000/-2Extra nourishmentRs.2,000/-Rs.4,000/-3Damage to clothsRs.1,000/-Rs.1,000/-4Other expensesRs.1,000/- ---5Pain and sufferingRs.22,000/-Rs.22,000/-6Loss of amenitiesRs.10,000/- ---7Loss of expectationRs.10,000/- ---8Medical expensesRs.9,722/-Rs.9,722/-9Transport expensesRs.2,000/-Rs. 4000/-10DisabilityRs.35,000/-Rs.35,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmountgranted bythe TribunalAmountgranted bythis Court11Attender charges ---Rs.2,500/-TotalRs.1,00,722/-Rs.86,222/-19. In all these cases, the accident happened in the year2002 and the award was passed in the year 2008. Therefore, theinterest awarded by the Tribunal at 12% stands modified to 7.5% inview of the decision of the Apex Court reported in 2005 (3) C.T.C.373 (Tamil Nadu State Transport Corporation vs. S.Rajapriya). 20. In the result, (i) The Civil Miscellaneous Appeals in CMA Nos. 110 of 2009and 112 of 2009 are disposed of with the modification with regard tointerest alone.(ii) the Civil Miscellaneous Appeals in CMA Nos. 109, 111 and 113of 2009 are allowed as follows:-(a) The Award of the Tribunal in MCOP No. 3318/2002( CMA No. 109of 2009) is reduced to Rs.3,00,500/- from Rs.4,06,500/-.(b) The Award of the Tribunal in MCOP No. 3320/2002( CMA No. 111of 2009) is reduced to Rs.2,44,500/- from Rs.2,74,500/-.(c) The Award of the Tribunal in MCOP No. 3322/2002 (CMA No. 113of 2009) is reduced to Rs.86,222/- from Rs.1,00,722/-.(iii) In all the cases, the interest granted by the Tribunal at12% stands reduced to 7.5% p.a.(iv) Learned counsel for the appellant seeks eight weeks time todeposit the balance award amount and the same is allowed. On suchdeposits, the claimants in MCOP Nos. 3319 and 3321 of 2002 arepermitted to withdraw the compensation amount as per the order ofthe Tribunal and on the interest as per the order of this Court.Claimants in MCOP Nos. 3318 and 3320 of 2002 are entitled to sharethe amount equally and they are permitted to withdraw the amount asper the order of this Court. Claimant in MCOP No. 3322 of 2002 ispermitted to withdraw the amount as per the order of this Court. (v) There shall be no orders as to costs. https://hcservices.ecourts.gov.in/hcservices/ (vi) Consequently, connected miscellaneous petitions areclosed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarraTo1. The Motor Accidents Claims Tribunal,(III Judge, Court of Small Causes),Chennai.2. The Section Officer, VR Section,High Court, Madras.1 cc To Mr.M.Krishnamoorthy, Advocate, SR.11650 CMA Nos. 109 to 113/2009BV(CO)SRA(19/5/2009)