The New India Assurance Company Ltd., Mototr III Party Claims Cell,46, Moore Street, Chennai. v. Amsha

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.12.2009 CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.1866 of 2007andM.P.No.2 of 20071.K.Sivalingam2.The New India Assurance Company Ltd., Mototr III Party Claims Cell,46, Moore Street, Chennai. .. Appellants/RespondentsVs1.Amsa2.T.Vijayalakshmi3.Jayanthi4.K.Jayakumar .. Respondents/Petitioners Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 28.11.2006, made inM.C.O.P.No.570 of 2003, on the file of the Motor Accident ClaimsTribunal (Chief Small Causes Court), Madras.For appellants : Mr.S.ManoharFor respondents : Mr.N.Nallappan J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellants/respondents against the Award and Decree, dated28.11.2006, made in M.C.O.P.No.570 of 2003, on the file of the MotorAccident Claims Tribunal (Chief Small Causes Court), Madras, awardinga compensation of Rs.1,70,000/- with 7.5% interest per annum from thedate of filing the petition till the date of payment of thecompensation.2.Aggrieved by the above said award, the appellants/respondentshave preferred the above appeal to set aside the order/award.3.The short facts of the case are as follows:On 24.08.2002, at about 8.00 a.m. when the deceased was ridingon his cycle from Maduravoyal Erikkarai to Maduravoyal Rationshop, a https://hcservices.ecourts.gov.in/hcservices/ two wheeler 'TVS Suzuki', bearing registration No.TN20 H6815, drivenin a rash and negligent manner, hit the deceased, as a result ofwhich the deceased sustained fatal injuries and succumbed to thesame. The respondents being the owner and insurer respectively, ofthe offending vehicle, are liable to pay compensation to thepetitioners with costs and interests.4.The deceased was aged about 60 years and was working assecurity guard at Popular Hardwares, Erikkarai, Maduravoyal and wasearning a sum of Rs.3,000/- per month. After the said accident, thedeceased had taken treatment at Kilpauk Medical College and Hospital,Chennai-600 010, Sri Ramachandra Hospital, Porur and GovernmentGeneral Hospital, Chennai and had taken treatment as in-patient from24.08.2002 to 22.10.2003.5.The petitioners, who are the wife, daughters and son of thedeceased had claimed a compensation of Rs.3,00,000/- from therespondents, with interest and costs, under Sections 163A and 166 ofthe Motor Vehicles Act, 1988.6.The second respondent/the New India Assurance Co., Ltd., inits Counter has resisted the claim stating that the age, income andemployment of the deceased are not admitted. Further, the allegedinjuries said to have been sustained by the deceased, the medicaltreatment taken by him and the resultant death of deceased due tothose alleged injuries are not admitted. That the deceased died onlyafter two months from the date of accident shows that the deceasedhad not died due to injuries suffered in the accident. Further, themanner of the accident as alleged in the claim petition was notadmitted. It is stated that the rider of the first respondent'sMotorcycle rode the vehicle carefully and cautiously on thePoonamallee High Road from west to east and at that time the deceasedsuddenly crossed the said road with his cycle, without adhering totraffic rules and dashed against the motorcycle, which had resultedin the alleged accident. The alleged accident took place solely dueto the negligence and fault on the part of the deceased and notbecause of the rash and negligent riding on the part of the rider ofthe motorcycle.7.Further, the claim under various heads is excessive and hencethe second respondent has prayed for dismissal of the claim petitionwith costs.8.The first respondent, in his Counter has resisted the claimstating that the rider of the two-wheeler rode it in a careful andcautious manner and that the deceased had suddenly crossed the roadwith a cycle and dashed against the motorcycle. The age, employmentand income of the deceased was also not admitted. The petitionersshould also prove that the deceased had been suffering from Kidneyfailure, for a long time and as the accident took place only due torash and negligent act of the deceased, the owner and rider of the https://hcservices.ecourts.gov.in/hcservices/ motorcycle cannot be held liable to pay compensation to thepetitioners. As such, the first respondent had prayed for dismissalof the petition against him.9.The Motor Accident Claims Tribunal framed three issues for theconsideration namely:(i)Whether the accident occurred due to the rashand negligent riding of the rider of themotorcycle bearing registration No.TN20 H6815?(ii)Whether the death was caused due to the injuriessustained by him in the accident?(iii)Whether the petitioners are entitled to claimcompensation from the respondents? If so, whatis the reasonable amount that can be awarded ascompensation?10.It is alleged in the petition that on 24.08.2002, at about8.00 a.m. the deceased was riding his bicycle from MaduravoyalErikkarai towards Maduravoyal Rationshop and at that time, a two-wheeler 'TVS Suzuki' bearing registration No.TN20 H6815, driven in arash and negligent manner, hit the deceased, as a result of which,the deceased sustained injuries and succumbed to those injuries. Thepetitioners are not the eye-witnesses. They have examined one Kumaras PW2, who is alleged to have seen the accident, while he waswaiting for the bus in the Maduravoyal Bus stop. According to him,he was standing in the bus stop, which is situated opposite to theMaduravoyal rationshop. He has stated that at about 8.00 a.m. in thebus stop, one bus came and stopped at the bus stand and a motorcycle,which came behind the bus overtook the bus on its left side and inthe process, it knocked down the cyclist, who was waiting for the busto pass on. He has further stated that the cyclist sustainedinjuries on various parts of his body and he could not get up. PW2helped him and sent him to Kilpauk Medical College Hospital in anAuto. He has stated that the accident occurred only due to the rashand negligent riding of the rider of the motorcycle, who overtook thebus on its left side. The son of the deceased had lodged thecomplaint on the same day. But, he is not an eye-witness. He hadnarrated the manner of the accident on the information furnished tohim by the witness, who saw the accident. The oral testimony of PW2coupled with the FIR clearly attributed negligence to themotorcyclist and there is no contra evidence. The evidence clearlyindicated that the cyclist was waiting ahead of the bus to cross theroad with his cycle and that the motorcycle, which came on the wrongside of the bus, had knocked down the cyclist causing grievous fatalinjuries. As such, the Tribunal held that the accident occurred dueto the rash and negligent riding of the rider of the motorcycle. https://hcservices.ecourts.gov.in/hcservices/

11.The petitioners are the wife and children of the deceasedKannan, who was 60 years old at the time of the accident.Immediately after the accident, the deceased was admitted in the KMCHospital, wherein he was given treatment and X'rays were taken on hisSkull, Chest and Spinal. It is stated that Nephrologist opinion wasobtained and he was advised to undergo peritoneal dialysis. Areference is made in the Discharge Summary that the patient was notwilling for peritoneal dialysis in spite of repeated counselling.So, he was discharged against medical advice. The wife of thedeceased examined herself as PW1 and has stated that due to theinjuries sustained by him, his Kidney was damaged and after gettingdischarged from KMC Hospital and after two days, he was admitted atSri Ramachandra Medical College Hospital, Porur, on 02.09.2002. Toprove the same, Ex.P3 was marked, which is the clinical progressnotes issued by the Sri Ramachandra Medical College, Hospital, Porur.It is noted that the patient was conscious, disoriented and washaving head injuries, frontal injuries and laceration. On his back,it is seen that the deceased had undergone treatment for urineencophiopathy. As the patient was willing to get himself admitted,he had been treated as out-patient only. Thereafter, on the sameday, he was admitted in Government General Hospital and wasdischarged on 23.09.2002. It is noted in the history that thepatient sustained injuries in the road traffic accident andincidentally, the doctors treating him defected renal failure on24.09.2002. Hence, it is clear from all these documents that thedeceased suffered renal failure only due to the injuries, sustainedby him in the accident. When he was discharged on 23.09.2002, he wasadvised to attend the O.P. three days a week. According to thepetitioner, after discharge from Government General Hospital, he wasin the house and died on 22.10.2002 due to the renal failure. Hence,the documents in Ex.P2 to Ex.P4 clearly prove that the deceased diedonly due to renal failure, which occurred to him as a result ofinjuries sustained by him on his spine as well as on other parts ofhis body, in the road accident. Ex.P5 is the Death Certificate ofthe deceased.12.According to the claimants, the deceased was aged about 60years and was working as a Security Guard in Popular Hardwares andwas earning a sum of Rs.3,000/- per month. Except the oral testimonyof PW1, there is no other evidence to prove the employment and incomeof the deceased. Though he was aged about 60 years at the time ofthe accident, it is common that aged persons could work as Watchmanin any company and hence the Tribunal held that it was possible forthe deceased to have worked as a Watchman in Popular Hardwards,Maduravoyal and earned a sum of Rs.3,000/- per month as salary.Deducting 1/3rd share of this for personal expenses, the monthlycontribution by the deceased to his family was assessed at Rs.2,000/-and the yearly contribution calculated as Rs.24,000/-.13.In the absence of any evidence to prove the age of thedeceased, the Tribunal considering that his age could be between 60to 65 years, selected the multiplier of 5 for assessing loss of https://hcservices.ecourts.gov.in/hcservices/ pecuniary benefits to the petitioners. As such, the Tribunalassessed loss of pecuniary benefits as Rs.24,000/- X 5 =Rs.1,20,000/- and granted the same as award to the petitioners underthe said head. The Tribunal granted a sum of Rs.20,000/- towardsloss of consortium and a sum of Rs.25,000/- towards loss of love andaffection and loss of expectation of life and also awarded a sum ofRs.5,000/- towards funeral expenses. In total, the Tribunal granteda sum of Rs.1,70,000/- as compensation to the petitioners.14.In the result, the Tribunal directed the first and secondrespondents to pay the above said award amount jointly and severallywith an interest at the rate of 7.5% per annum from the date offiling the petition till the date of deposit with proportionate cost.The apportioned share of the award to the first petitioner wasRs.1,00,000/- with proportionate interest and the apportioned shareof award to the 2nd, 3rd and 4th petitioners was Rs.20,000/- each withproportionate interest. Further, the Tribunal, on consideration ofage of the first petitioner, permitted the first petitioner towithdraw her apportioned share of award with interest, after appealtime. Court fee for the award amount was fixed at Rs.1072.50.Excess Court fees shall be refunded to the petitioners after appealtime. Advocate fees was fixed at Rs.6,400/-.15.The learned counsel for the appellants in his appeal hascontended that the Tribunal had failed to appreciate the evidencethat the deceased died due to the natural causes and not due to theaccident injuries and so was wrong in awarding a huge compensation ofRs.1,70,000/-.16.The learned Tribunal failed to note that the deceasedsuffered only simple injuries and that there was no abdominalinjuries, related to injuries to both Kidneys.17.The learned Tribunal without any medical experts evidence ormedical record, was wrong in holding that the deceased suffered renalfailure only due to the accident injuries.18.The learned Tribunal failed to note that the deceased wasdischarged on 24.09.2002 from the Government General Hospital and inspite of the Hospital Doctors advise to the deceased to attend O.P.for treatment regularly, there is not medical record to show that thedeceased was under medical care after 24.09.2002.19.The learned Tribunal failed to appreciate that even as perEx.P2, the alleged Hospital O.P. Chit issued by Kilpauk MedicalHospital, the deceased was a known H.T. (Hypertension) patient andthat he was on regular consultation with Nephrologist and that it wasa known case of renal decease. https://hcservices.ecourts.gov.in/hcservices/

20.The learned Tribunal failed to appreciate that there wasclear suppression of heath history of the deceased and that takingadvantage of the accident on 24.08.2002, the claimants have foisted afalse case stating that the deceased suffered renal failure only dueto the accident injuries. The learned Tribunal failed to note thatthe deceased suffered only Lacerations Over the head and there was nospinal injury or abdominal injury or rupture of Kidneys or othergrievous injuries capable of damaging the Kidneys.21.As such, the learned Tribunal ought to have found that thedeceased died not due to the accident injuries, but only due to thenatural causes namely renal failure suffered by the claimant evenprior to the accident.22.The learned counsel appearing for the appellants hastherefore contended that the award and decree of the Motor AccidentClaims Tribunal, dated 28.11.2006, in M.C.O.P.No.570 of 2003 shouldbe set aside.23.The learned counsel for the respondents argued that the saidaccident happened on 24.08.2002. Hence, he sustained injuries andunderwent treatment at Ramachandra Medical College Hospital and thatsubsequently he was discharged, but, had undergone treatment forinjuries continuously. As the treatment was not successful, he haddied. The death of the claimant was caused only by injuries sufferedin the accident.24.Considering the facts and circumstances of the case, at thetime of the accident, the age of the deceased was 60 years and he hadbeen employed as a Security Guard. The Tribunal awarded a sum ofRs.1,70,000/- to the claimants as compensation. The Court is of theview that as the deceased had completed 60 years, the claimants 2nd,3rd and 4th, who are daughters and son of the deceased are notdependant on the income of the deceased. Further, there is nocrystal clear evidence to suggest the renal failure of the deceasedhad been caused only due to the injuries suffered in the roadaccident. Likewise, there are no strong reasons laid down by theappellant, either oral or documentary to refute the above contentionof the claimants. As such, the Court awards a sum of Rs.60,000/-(taking into consideration of Rs.12,000/- as annual income andmultiplies of 5) as loss of pecuniary benefits to the claimants afterdeducting personal expenses of the deceased. The Court awards a sumof Rs.10,000/- for loss of consortium to the first claimant and a sumof Rs.10,000/- each to the 2nd, 3rd and 4th claimants for loss of loveand affection. This Court awards a sum of Rs.5,000/- for medicalexpenses and a sum of Rs.5,000/- for funeral expenses. In total,this Court awards a sum of Rs.1,10,000/- as compensation. The firstclaimant is apportioned a sum of Rs.65,000/- out of this award andthe 2nd, 3rd and 4th claimants are apportioned a sum of Rs.15,000/- each https://hcservices.ecourts.gov.in/hcservices/ out of this award together with interest at the rate of 7.5% perannum from the date of filing the petition till the date of payment.The Court considers this as equitable and fair.25.The learned counsel appearing for the appellant submittedthat the entire compensation amount has already been deposited intothe credit of the M.C.O.P.No.570 of 2003, on the file of the MotorAccident Claims Tribunal (Chief Small Causes Court), Madras.26.As the accident happened in the year 2002, it is open to theclaimants to withdraw their apportioned award amount with accruedinterest lying the credit of the M.C.O.P.No.570 of 2003, on the fileof the Motor Accident Claims Tribunal (Chief Small Causes Court),Madras, by filing necessary payment out application in accordancewith law. Likewise, the appellant/New India Assurance Co., Ltd., isat liberty to withdraw the excess compensation amount, which is lyingin the credit of the M.C.O.P.No.570 of 2003, on the file of the MotorAccident Claims Tribunal (Chief Small Causes Court), Madras, afterobserving Court procedure.27.In the result, the Civil Miscellaneous Appeal is partlyallowed and the award and decree passed by the Motor Accident ClaimsTribunal, Chief Small Causes Court, Madras, is modified.Consequently, connected miscellaneous petition is also closed. Nocosts.krk Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. Motor Accidents Claims Tribunal, Chief Judges Small Causes Court, Madras2. The Section Officer, VR Section, High Court, Madras.+ 1 cc to Mr. S.Manohar, Sr.68888 C.M.A.No.1866 of 2007KSK(CO)EU 22.12.2009.