The United India Insurance Co.,Ltd.,MotorThird party Cell Claim Office,No.38, Anna Salai,Chennai v. Mariammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:01.12. 2008CORAM:- The Hon'ble Mr. Justice R. SUDHAKARC.M.A.Nos.1857 and 1858 of 2008andM.P.Nos.1 and 1 of 2008The United India Insurance Co.,Ltd.,MotorThird party Cell Claim Office,No.38, Anna Salai,Chennai.2. .. Appellant in both C.M.As. Vs.1. Mariammal2. Chinnapan3. John Paul4. Anthony Raj5. Pushpa Raj6.R.jayalakshmi .. Respondents in CMA 1857/081. C.Anthony Raj2. R.jayalakshmi .. Respondents in CMA 1858/08. . . Appeals filed under Section 173 of the M.V.Act againstthe award and decree dated 12.01.2007 in MCOP Nos. 417 and 418 of2006 on the Motor Accidents Claims Tribunal, ( Chief smallCauses Court) Chennai.. . . For Appellants in both CMAs : Mr.S.ArunkumarFor respondents in C.M.A.1857/08 : Mr.K.Govindan (R1 to R5) Not ready for R6 For respondents in C.M.A.1858/08 : Mr.K.Govindan (R1) No ready for R2. . . . https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTThe Insurance company has filed these appealschallenging the award dated 12.01.2007 in MCOP Nos. 417 and 418of 2006 on the Motor Accidents Claims Tribunal, ( Chief smallCauses Court) Chennai.2. The accident in this case happened on 01.01.2004 onthe East Coast Road. The deceased John Bosco said to be 27 yearsold, a Civil Contract Labour was driving the two wheeler and theinjured Antony Raj, aged 22 years, said to be engaged in WoodPolishing, was travelling as a pillion rider. The accident inthis case happened at about 11.15 p.m just before the dawn of theNew Year.3. According to the claimants, a lorry was going infront of the two wheeler. The driver of the lorry applied thebreak suddenly and the two wheeler in which the two persons namedabove were travelling hit the rear end of the lorry and in thataccident, John Bosco suffered grievous injuries and died. Thepillion rider, Antony Raj escaped with minor injuries. On thedeath of John Bosco, the mother aged about 53 years, father aged56 years, and three brothers aged 35, 22 and 18 years filed aclaim petition in M.C.O.P..No.417 of 2006 for compensation in asum of Rs.26,00,000/- stating that the income of the deceased wasRs.20,000/- per month and supported it by Ex.P.7 and P.9.The injured claimant, Antony Raj filed a claim petitionM.C.O.P.No. 418 of 2006 claiming compensation in a sum ofRs.8,00,000/- for the injuries suffered stating that his incomewas Rs.300/- per day. Both the cases were tried together and acommon award was passed by the Tribunal. These two appeals werefiled against the said common award. 4. The mother of the deceased John Bosco was examinedas P.W.1 and the injured claimant Antony Raj was examined asP.W.2 and one Mr.Maris, the Accounts Manager of M/S. VantageTower Builders was examined as P.W.3 and one Kamalakannan, aCarpenter was examined as P.W.4. Dr.Amarnath Chouli wasexamined as P.W.5. Documents were marked as Exs.P1 to P.11.Exs.P1 is the copy of First Information Report. Ex.P.2 is thecopy of Post Mortem Certificate. Ex.P.3 is the Death CertificateEx.P.4 is the Legal Heirship Certificate. Ex.P.5 is the DrivingLicence of the deceased. Ex.P.6 is the medical bills. Ex.P.7 isthe Certificate given by M/S.Vantage Tower Builder. Ex.P.8 is theAuthorisation Letter. Ex.P.9 is the Certificate given byM/S.Karpaga Vinayaga wood Works. Ex.P.10 is the DisabilityCertificate. Ex.P.11 is the X-ray. No oral or documentary https://hcservices.ecourts.gov.in/hcservices/ evidence was let in on the side of the appellant/respondentbefore the Tribunal.5. The findings of the negligence on the part of thedriver of the lorry and the liability of the appellant tocompensate the claimants, is not disputed by the learned counselfor the appellant and the same is confirmed. 6. The only contention raised by the learned counselfor the appellants is that the quantum of compensation in boththe cases is on the higher side and the same has to be modifiedand reduced. Learned counsel for the respondents/claimants, onthe other hand, stated that the compensation awarded in both thecases by the Tribunal is just and reasonable and does not requireany reduction and the award should be confirmed. C.M.A.No.1857 of 2008 in M.C.O.P.No.417 of 2006: 7. In the case of death of John Bosco, the Tribunalfixed the income of the deceased as Rs.7,500/- per month andafter deducting 1/3rd towards personal expenses of the deceased,a sum of Rs.5,000/- was fixed as the contribution to the familyof the deceased. By adopting the multiplier of 7, the Tribunalgranted compensation in a sum of Rs.4,20,000/- (i.e Rs.5,000/- X12 X 7 = Rs.4,20,000/-) In addition to above, compensation wasgranted on conventional heads. In all the followings amounts weregranted as compensation with 7.5% interest.Sl.No.HeadAmount granted bythe Tribunal1Pecuniary lossRs. 4,20,000/- 2Loss of love and affectionRs. 15,000/-3Loss of expectation of life & lossto the estateRs. 10,000/-4Funeral expenses Rs. 5,000/-TotalRs. 4,50,000/-8. In appeal, in the case of fatal accident, thecounsel for the appellant contended that without proper records,merely on the basis of the oral evidence of certain witness, theincome of the deceased was taken as Rs.7,500/- per month andafter deduction of 1/3 towards personal expenses of thedeceased, the contribution to the family was taken as Rs.5,000/-per month, (i.e) Rs.60,000/- per year, which he stated is on thehigher side. Learned counsel did not dispute the multiplier of 7.The other amounts are also not in dispute. https://hcservices.ecourts.gov.in/hcservices/

9. Learned counsel for the respondents/claimants, onthe other hand, stated that considering the age of the mother andfather, who were 53 and 56 years, the relevant multiplier inthis case would be 11 as per Schedule II to Section 163 (A) ofthe Motor Vehicles Act. Since the multiplier is reduced in thiscase to 7, the quantum of compensation need not be reduced ormodified as it is just and reasonable.10. In this case, the deceased is a bachelor andearning member. The evidence of P.W.3, is with regard to thenature of employment of the deceased. But the employer of thedeceased was not examined. Even though an accountant wasexamined, he did not produce relevant documents like salary slip,vouchers, Registers etc. to prove the actual income of thedeceased. The Tribunal is, therefore, not justified in fixing theincome at Rs.7,500/-. At the best, the income of the deceasedshould be only Rs.5,000/- per month as the accident in this casehappened in December 2004. The annual Contribution to the family,after deduction to personal expenses, will, therefore, beRs.40,000/-(i.e Rs.5000 X 12 = Rs.60,000/- - 1/3 = Rs.40,000/-)11. In this case, the deceased is a bachelor aged 27years. The possibility of the deceased getting married shortlyand the benefits to the dependents/parents getting reduced has tobe considered. Further, a lumpsum is paid by way ofcompensation, the multiplier has to be suitably modified. Thedecision of the Apex Court in Bijoy Kumar Dugar - vs. - BidyaDhar Dutta reported in 2006 AIR SCW 1116 = 2006 (3) SCC 242will be relevant to the facts of the present case. The choice ofmultiplier will depend on the facts and circumstances of eachcase and it has to be appropriately chosen to arrive at a justcompensation. Hence, the lesser multiplier of 7 taken by theTribunal is not justified. The multiplier in this case will be10. In view of the same, as against the multiplier 7, this Courtis inclined to take the multiplier of 10 and the total pecuniaryloss will be Rs.4,00,000/_. A sum of Rs.10,000/- towards loss ofexpectation of life cannot be justified in this case, since theclaimants have been granted Rs.15,000/- for loss of love andaffection. A sum of Rs.5,000/- granted for funeral expenses willinclude the transport expenses also. In all, the award of theTribunal is modified and the claimants are entitled toRs.4,20,000/- with interest at 7.5% as under: https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount granted bythis Court1Pecuniary loss Rs.40,000 X 10Rs. 4,00,000/- 2Loss of love and affectionRs. 15,000/-4Funeral expenses & transportexpensesRs. 5,000/-TotalRs. 4,20,000/-C.M.A.1858 of 2008 in M.C.O.P.No.418 of 2006:12. It is a case of injury. Based on Ex.P.10 and theevidence of P.W.5, Doctor, who assessed the disability at 20%,and on the basis of the income of the injured claimant fixed asRs.5,000/-p.m., the Tribunal granted the following amount ascompensation with interest 7.5 %. Sl.No.HeadAmount granted bythe Tribunal1Permanent disability assessed at 20%Rs. 10,000/- 2Loss of income during the period oftreatmentRs. 10,000/-3Medical billsRs. 7,058/-4.Pain and Suffering Rs. 10,000/- 5. Extra NourishmentRs. 5,000/- 4Transport expenses Rs. 5,000/-TotalRs. 47,058/-13. Learned counsel for the appellant relied uponparagraph 9 of the award and stated that there is a clearindication in the award that no document is filed to show thenature of injuries sustained by the injured claimant. The doctorhas assessed the disability at 20% under Ex.P.10, when there isno medical records to support it. Hence, the Disability assessedat 20% cannot be accepted. Further, towards loss of income fortwo months at Rs.5,000/- p.m totaling to Rs.10,000/- is notjustified. He stated that the other amounts granted towardsdisability, transport expenses, extra nourishment and pain andsuffering has to be modified. According to the counsel, theorder of the Tribunal cannot be a bonanza to the injuredclaimant when he has not shown in his evidence the nature ofinjuries, the disability and the medical expenses incurred. https://hcservices.ecourts.gov.in/hcservices/

14. The claimant will be entitled to compensation ofRs.7,058/- as per Ex.P.6, towards medical expenses and it is notin dispute. There is an accident and therefore, for Pain andsuffering, he is entitled to compensation. Claimant is alsoentitled to compensation for transport expenses and extranourishment. In all, the claimant will be entitled to Rs.27,058/-with interest at 7.5 % as follows: Sl.No.HeadAmount granted bythis Court1InjuryRs. 5,000/- 2Medical expensesRs. 7,058/-3Pain and suffering Rs. 5,000/- 4Extra nourishment Rs. 5,000/-5Loss of income during treatment Rs. 5,000/- TotalRs. 27,058/- 15. In the result, the appeals are partly allowed.i. The award of the Tribunal in M.C.O.P.No.417 of 2006is reduced to Rs.4,20,000/- from Rs.4,50,000/-.ii) The award of the Tribunal in M.C.O.P.No.418 of2006 is reduced to Rs. 27,058/- from Rs.47,058/- iii. The interest awarded at 7.5% is confirmed as theaccident in this case happened in the year 2004 andthe award was passed in the year January, 2007.iv. Learned counsel for the appellant stated that theamount has already been deposited. The claimants inboth the cases are entitled to withdraw the amount asper the order of this Court. The excess amount can bewithdrawn by the appellant after settling theclaimants in both the cases. No costs.v. Consequently, connected miscellaneous petitions areclosed. PALSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Motor Accidents Claims Tribunal,Chief Small Causes Court,Chennai.+ 2 ccs to Mr. K. Govindan, Advocate SR No. 67229, 67230+ 2 ccs to Mr. S. Arunkumar, Advocate SR No. 67203 CMA Nos.1857 & 1858 of 2008LA(CO)SR/20.1.2009