The National Insurance Company Ltd. v. C.Kalaiselvi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.01.2009CORAM:- Hon'ble Mr. Justice R. SUDHAKARC.M.A.No.170 of 2009andM.P.No.1 of 2008The National Insurance Company Ltd.,No.751 Anna Salai,Chennai.2. .. Appellant/2nd respondent Vs.1.C.Kalaiselvi2. C.Prabhu3.Minor C.Priya4.S.Kalyani ... Respondents5.M.Pappathi ... Respondent/petitioner/ I respondent . . . Appeal filed under Section 173 of the M.V. Act against theaward and decree dated 01.08.2003 made in O.P No.372 of 2000 on thefile of the Motor Accidents Claims Tribunal, (Fast Track Court No.4,)Poonamallee. For Appellant : Mr. S.ArunkumarFor Respondents 1 to 3 : Mr. V.K.Rajagopalan J U D G M E N TThe National Insurance Company has filed this appeal challengingthe award dated 01.08.2003 made in O.P No.372 of 2000 on the file ofthe Motor Accidents Claims Tribunal, (Fast Track Court No.4,)Poonamallee.2. Respondents appeared through counsel. At the request of bothsides, the appeal itself is taken up for final disposal. https://hcservices.ecourts.gov.in/hcservices/

3. It is a case of fatal. The accident in this case happened on08.07.2000 at 11.40 hours. The deceased Chandrasekar aged about 43years a brick works owner and agriculturists was riding a motor cycleand was proceeding near Vadapalani on the 100 ft. road. He was hitby a lorry bearing registration No. TN-28-X-2610 insured with theappellant. In that accident, he died. The wife aged about 35 years,two minor children aged 16 and 14 years respectively and mother aged70 years are the claimants. They claimed a sum of Rs.15,00,000/- ascompensation stating that the income of the deceased is Rs.7,500/-permonth. 4. In support of the claim, the son who travelled along with thedeceased was examined as P.W.1 and the mother was examined as P.W.2.One Mohan was examined as P.W.3 and the Doctor was examined as P.W.4.In the case of injury claim Documents Exs.P1 to P18 were marked.Ex.P1 is the Copy of the First Information Report. Ex.P2 is theAccident Register. Ex.P3 is the Discharge Summary, Ex.P4 is theMedical Bills. Ex.P5 is the Discharge Summary. Ex.P6 is the MedicalBills. Exs.P7 to Ex.P11 are the Medical Expenses and Medical Billsseries, Ex.P12 is the copy of the charge sheet, Ex.P13, is theJudgment copy before the VI Metropolitan Magistrate, Ex.P14 is thePost Mortem Certificate, Ex.P15 is the Legal heirship Certificate,Ex.P16 is the tax receipt paid with regard to the agricultural landof the deceased. No oral and documentary evidence was let in onbehalf of the appellant/ respondent before the Tribunal. 5. Finding of negligence on the part of the driver of the lorrywho caused the fatal accident and the liability fixed by theinsurance company is not in dispute by the learned counsel for theappellant and such finding of the Tribunal stands confirmed.6.The Tribunal fixed the income of the deceased at Rs.7,500/-taking note of the agricultural income and the income by way ofmanufacture of bricks. After deducting 1/3rd towards the personalexpenses of the deceased and by adopting multiplier of '15' theTribunal granted a sum of Rs.9,00,000/- towards pecuniary loss. TheTribunal also granted compensation towards loss of love and affectionto the first respondent in a sum of Rs.5,000/-. To the second andthird respondent Rs.20,000/- (Rs.10,000/-each) was granted for lossof love and affection. In all the Tribunal granted a sum ofRs.9,25,000/- with 9% interest.7. In appeal, it is contended that the income of the deceased whodied in an accident in the year 2000 as brick works owner and also anagriculturalist is on the higher side. The multiplier is also onthe higher side. Therefore, appellant pleaded for reduction in thequantum of compensation and the rate of interest also.8.Learned counsel appearing for the claimant stated that thedocuments relating to income by agriculture and the amounts paid to https://hcservices.ecourts.gov.in/hcservices/ the Panchayat to support the business of brick manufacturing is ampleproof of higher income of the deceased. He further stated thatmeagre amount has been granted for loss of love and affection to twominor children and a paltry sum was granted for the loss ofconsortium to the wife. Further, no amount has been granted forfuneral expenses and for loss of estate which is normally given inthese cases.9.The accident in this case happened on 08.07.2000. The deceasedwas aged 43 years. He was doing brick manufacturing business and wasalso engaged in agriculture. The said plea is supported by documentsExs.B16 and B17. In so far as agricultural income is concerned,following decisions will have to be kept in mind while fixing theincome of the deceased:-(a) A Division Bench of this Court in B.Anandhi vs. Lathareported in 2002 ACJ 233 (P.Sathasivam, J. as he then was) observedthat a coolie would earn Rs.100/-per day. In that case, the accidenthappened in the year 1995.(b) The Apex Court in State of Haryana and another vs. JasbirKaur and Others reported in 2004-1 Law Weekly, was of the view thatan agriculturist would earn Rs.3,000/- per month. In that case, theaccident happened in the year 1999. 10.In the above cited cases, the income of the deceased was takenat Rs.3,000/-per month for the year 1995 and 1999 respectively,whereas in the present case, the accident happened in the year 2000.In this case, the deceased was also engaged in manufacture of bricksand that is supporting by documentary evidence. Considering thesame, the income can be fixed at Rs.5,000/-per month. The higherincome of Rs.7,500/-fixed by the Tribunal is not support by any clearevidence on record and there is no good reasoning for the same.Therefore, the income of the deceased stands modified to Rs.5,000/-per month as against Rs.7,500/-fixed by the Tribunal. The deceasedis aged 43 years. Even as per the second schedule to Section 163 ofthe M.V.Act the multiplier would be '15'. The deceased was in hisprime age. His son and daughter are aged 16 and 14. The wife agedabout 35 years. Therefore, the multiplier adopted by the Tribunal isjustified. Therefore, pecuniary loss in this case will be Rs.5,000/-X 12 = Rs.60,000/- - 1/3 = 40,000 X 15 = Rs.6,00,000/-. The wifewould be entitled to a reasonable compensation towards loss ofconsortium on the death of her husband. Accordingly, a sum ofRs.25,000/- is awarded to her. The two minor children would beentitled to Rs.20,000/-each for loss of love and affection. Forfuneral expenses Rs.5,000/- is awarded and for loss of EstateRs.5,000/-. The award therefore stands modified as follows:- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmountgranted bythe TribunalAmountgranted bythis Court1Pecuniary LossRs.9,00,000/-Rs.6,00,000/-2Loss of love and affection towifeRs.5,000/-Rs.25,000/-3Loss of love and affection thethechildrenRs.20,000/-Rs.40,000/-4Funeral Expenses ---Rs.5,000/-5Loss of Estate ---Rs.5,000/- TotalRs.9,25,000/-Rs.6,75,000/-11. The interest awarded by the Tribunal at 9% stands reduced to7.5% in view of the decision of the Apex Court reported in 2005 (3)C.T.C. 373 (Tamil Nadu State Transport Corporation vs. S.Rajapriya). 12. In the result, the civil miscellaneous appeal is partlyallowed as follows:-(i) The award of the Tribunal stands reduced to Rs.6,75,000/-from Rs.9,25,000/-.(ii) The interest granted by the Tribunal at 12% stands reducedto 7.5% p.a.(iii) Learned counsel for the appellant seeks eight weeks timeto deposit the balance award amount and the same is allowed. Onsuch deposit, the claimant is entitled to withdraw the amount as perthe order of this Court. (iv) There shall be no orders as to costs.(v) Consequently, M.P.No. 1 of 2008 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSmi https://hcservices.ecourts.gov.in/hcservices/ ToThe Motor Accidents Claims Tribunal, (Fast Track Court No.4,) Poonamallee.2.The Section Officer, V.R.Section, High Court, Madras.1 CC To Mr. V.K.Rajagopalan, Advocate, SR NO.3225 CMA No. 170 of 2009ka(co)pmk/13.2.2009.