The New India Assurance Co., Ltd. v. R.Saravanan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.02.2010CORAM :THE HONOURABLE Mrs.JUSTICE R.BANUMATHIandTHE HONOURABLE Mr.JUSTICE M.M.SUNDRESHCivil Miscellaneous Appeal No. 2320 of 2007The New India Assurance Co., Ltd.,Kumaran road, Tiruppur-641 601,Coimbatore District... Appellant/3rd Respondentvs.1. Kayalvizhi2. Minor Swetha rep. by her mother & next friend Kayalvizhi.3. K.K.Vasuki4. K.M.Karuppusamy.. Petitioners | |5. R.Saravanan |Respondents6. D.Padmanabhan.. Respondents |(R5 & R6 set exparte 1 & 2 |by the Lower Court)Civil Miscellaneous Appeal filed under Section 173 of MotorVehicles Act, 1988 against the Judgment and decree dated 29.9.2005made in M.C.O.P.No. 8 of 2005 on the file of Motor Accident ClaimsTribunal [Principal Subordinate Judge], Gobichettipalayam.For Appellant : Mr.C.Ramesh BabuFor Respondents: Mr.P.ValliappanJUDGMENTR.BANUMATHI,JBeing aggrieved by the award of compensation of Rs.31,89,000/- tothe dependents of Sriram, Appellant-National Insurance Co., haspreferred this Appeal.2. Brief facts are that on 10.9.2004, deceased Sriram was ridinghis Motorcycle bearing registration No.TN-36 F 3006 from his native https://hcservices.ecourts.gov.in/hcservices/ place Karatadipalayam to Tiruppur. When deceased Sriram wasproceeding at Ayyampalayam on Perumanallur to Tiruppur road, theBajaj Tempo Trax bearing registration No.TN-39-Z 6890 driven by itsdriver [1st Respondent] in a rash and negligent manner hit againstdeceased Sriram. Due to the accident, deceased Sriram sustainedinjuries over chest, abdomen, fracture in hands and multipleinjuries all over the body. After the accident, deceased Sriram wasadmitted in Mayur Hospital, Perumanallur and succumbed to theinjuries. Regarding the accident, Criminal case was registered inCrime No.372/2004 of Perumanallur Police Station. Alleging that theaccident was due to rash and negligent driving of Bajaj Tempo Traxdriven by the driver, dependents of Sriram [Wife, daughter, motherand father] have filed Claim Petition claiming compensation ofRs.50,00,000/-.3. Before the Tribunal, 1st Claimant herself was examined as PW1and one Saravanamurthy was examined as PW2 and one Arangaraj wasexamined as PW3 and one Ramasamy was examined as PW4. Exs.P1 to P44were marked on the side of Claimants. On the side of Appellant-Insurance Company, one Pushpanathan, working as AdministrativeOfficer was examined as RW1. No documents were marked.4. Upon analysis of evidence, Tribunal held that accident was dueto rash and negligent driving of Bajaj Tempo Trax driver. DeceasedSriram was an agriculturist and was also running apparels shop,Tribunal has taken monthly income of deceased at Rs.25,000/- toRs.30,000/- and after giving personal expenses, Tribunal has fixedthe contribution to the family at Rs.14,000/- and adopted multiplier18, Tribunal awarded compensation of Rs.31,89,000/- as under:-Loss of earning(Rs.14,000 x 12 x 18):Rs.30,24,000.00Medical expenses:Rs. 10,000.00Loss of love and affection:Rs. 1,50,000.00Funeral expenses:Rs. 5,000.00-------------------Total:Rs.31,89,000.00-------------------5. Learned counsel for Appellant-Insurance Company has submittedthat even after the death of deceased Sriram, agricultural landscontinues to remain with the family. Learned counsel for Appellantfurther submitted that normal rule of deprivation of income to thefamily is not applicable in case of death of agriculturists. It wasfurther submitted that Tribunal has not given mandatory deductionfor personal expenses and absolutely there is no basis for fixingthe monthly contribution at Rs.14,000/- and the quantum of totalcompensation of Rs.31,89,000/- awarded is exorbitant. https://hcservices.ecourts.gov.in/hcservices/

6. Taking us through the documents and order of Tribunal, learnedcounsel for Respondents 1 to 4 submitted that deceased Sriram ownedvast extent of lands and also running business and Tribunal hasrightly fixed the monthly contribution to the family at Rs.14,000/-and adopted multiplier 18 and the quantum of compensation is verymuch reasonable warranting no interference.7. It is not necessary for us to narrate entire facts in detailsuch as, as to how the accident occurred and who was negligent andinsurance policy coverage and who is liable to pay compensation. Itis for the reason that these things are recorded infavour ofClaimants and secondly, none of the findings are under challenge.Only quantum of compensation is in dispute.8. In her evidence, PW1-Kayalvizhi [1st Claimant] has stated thatdeceased was an agriculturist cultivating 20 acres of lands.Deceased was also running apparels shop under the name and style'Glossy Apparels' and Exs.P18 to P32 were produced. Tribunal hastaken the monthly income at Rs.25,000/- to Rs.30,000/- andcalculated the loss of income at Rs.30,24,000/-. President of GopiPrimary Co-operative Society was examined as PW3. In his evidence,PW3 has stated that deceased and his family were owning 10 acres oflands in S.Nos.289/1 & 2 and 290/1 & 2 in Sengalaraikarai villageand four acres of Dry lands. In his evidence, PW3 has furtherstated that deceased was also owning six acres of Wet lands inLakkampatti village.9. Exs.P18 and P19 are the joint Pattas from which it is seenthat S.Nos.289/1 & 2 and 290/1 & 2 to an extent of 5.84.5 Hec.stands in the name of Vengidusamy and Karuppusamy [father ofdeceased]. Exs.P20 and P21 are the 'A' Register showing thatVengidusamy and Karuppusamy owned 5.84.5 Hec. of lands inS.Nos.289/1 & 2 and 290/1 & 2 of Sengalaraikarai village. Ex.P23 isthe joint Patta for S.No.46/3 – 0.22.5 Hec. standing in the name ofVengidusamy and Karuppusamy [father of deceased]. Ex.P24 is thejoint Patta for S.No.42 - 1.60.5 Hec. Ex.P25 is the 'A' Registershowing that S.No.46/3 stands in the name of Vengidusamy andKaruppusamy [father of deceased]. From Exs.P18 to P25, it is seenthat family was owning vast extent of wet lands and also dry lands.10. PWs.1 and 3 have stated that deceased Sriram was managing theagriculture and that he was earning huge income from theagriculture. In so far as, income from agricultural lands, it hasto be determined that the lands possessed by the deceased stillremains with the Claimants as legal heirs. Observing that in thecase of death of agriculturists, normal rule about deprivation ofincome is not strictly applicable to cases fixing monthly income ofRs.3000/-, in 2003 ACJ 1800 [State of Haryana and another v. JasbirKaur and others], the Supreme Court held as under:-"8. It is clear on a bare reading of the Tribunal's https://hcservices.ecourts.gov.in/hcservices/ decision as affirmed by the High Court that no materialwas placed before the former to prove as to what was theincome. As rightly contended by learned counsel for theappellants, there was not even any material adduced toshow type of land which the deceased possessed. Thematter can be approached from a different angle. Theland possessed by the deceased still remains with theclaimants as his legal heirs. There is, however, apossibility that the claimants may be required to engagepersons to look after agriculture. Therefore, the normalrule about the deprivation of income is not strictlyapplicable to cases where agricultural income is thesource. Attendant circumstances have to be considered".11. Normal rule about the deprivation of income is not directlyapplicable to cases where agricultural income is the source ofdeceased's or injured's income. In that case, other circumstanceshave to be considered.12. Deceased Sriram and his family were owning vast extent oflands. Though deceased died, lands possessed by him continues toremain with the family. However, deceased being an educated person,he would have developed the marketing for agricultural products andwould have improved the agriculture which has to be taken intoaccount for taking the monthly income. From Ex.P34-MarriageInvitation, deceased has studied MBA. In her evidence, PW1 hasstated that deceased was running apparels shop under the name andstyle 'Glossy Apparels'. Ex.P32 is the Bank statement of saidGlossy Apparels of Karnataka Bank. Even though, Bank statement ofthe said Firm was produced, no document has been produced showingthe income derived from the business. Claimants have not producedany Commercial Tax or Income Tax return. However, having regard tothe facts and circumstances that deceased studied MBA, he would havetaken initiative to do good business.13. There can be no golden rule applicable to all cases formeasuring the value of human life or a limb. Measure of damagescannot be arrived at by precise mathematical calculations. It woulddepend upon the particular facts and circumstances, and attendingpeculiar or special features, if any. Every method or mode adoptedfor assessing compensation has to be considered in the background of'just' compensation which is the pivotal consideration. Though bythe use of the expression "which appears to it to be just", a widediscretion is vested on the tribunal, the determination has to berational, to be done by a judicious approach and not the outcome ofwhims, guesses and arbitrariness. The expression"just" denotesequitability, fairness and reasonableness, and non-arbitrariness.14. Tribunal has made an observation that from agricultural andfrom business, deceased would have earned the income of Rs.25,000/-to Rs.30,000/- per month. Upon analysis of evidence, Tribunal has https://hcservices.ecourts.gov.in/hcservices/ not chosen to fix the monthly income nor has given any deduction forpersonal expenses. Having regard to the age of the deceased [28years] and income from agricultural lands and from business, monthlyincome of the deceased is fixed at Rs.18,000/- per month. Afterdeducting 1/3rd for personal expenses, monthly contribution to thefamily is fixed at Rs.12,000/- per month.15. What would be the percentage of deduction for personalexpenditure cannot be governed by any rigid rule or formula byuniversal application. It would depend upon circumstances of eachcase. In the instant case, deceased was aged 28 years and washaving family of his wife, daughter and parents. Having regard tothe size of family and facts of the case, 1/3rd deduction has to bemade for personal expenses. The contribution to the family is fixedat Rs.12,000/- per month.16. At the time of death, deceased was aged 28 years and Tribunalhas rightly adopted multiplier 18. Taking multiplier 18, total lossof dependency is calculated at Rs.25,92,000/- [Rs.12,000/- x 12 x 18= Rs.25,92,000/-]. In so far as conventional damages, Tribunal hasawarded Rs.1,50,000/- for loss of love and affection. Learnedcounsel for Appellant-Insurance Company has submitted thatcompensation awarded for loss of love and affection is very much onthe higher side and absolutely, there is no basis for fixing suchhigher compensation. Though the quantum of compensation awarded forloss of love and affection appears to be slightly on the higherside, it is pertinent to note that Tribunal has not awarded anydamages for loss of consortium. If we take Rs.50,000/- for loss ofconsortium, balance amount of Rs.1,00,000/- could be taken for lossof love and affection which would be very reasonable. In so far ascompensation for Medical expenses, Tribunal has awarded Rs.10,000/-and Tribunal has also awarded Rs.5,000/- towards funeral expensesbeing reasonable, we confirm the amounts awarded towards Medicalexpenses and funeral expenses. In modification, the compensationawarded by the Tribunal is reduced to Rs.27,60,000/- as under:-Loss of earning(Rs.12,000/- x 12 x 18):Rs.25,92,000.00Loss of consortium:Rs. 50,000.00Loss of love and affection:Rs. 1,00,000.00Medical expenses:Rs. 10,000.00Funeral expenses:Rs. 5,000.00-------------------Total:Rs.27,57,000.00-------------------Rounded off to :Rs.27,60,000.00 https://hcservices.ecourts.gov.in/hcservices/ The above compensation amount has to be apportioned amongst theClaimants on pro rata basis in the same rate of apportioned asordered by the Tribunal.17. In so far as interest, Tribunal has awarded interest at 9%p.a. from the date of filing of Claim Petition and the rate ofinterest awarded by Tribunal is on higher side. As held by theSupreme Court in S.Rajapriya's case [2005 AIR SCW 2542] and otherdecisions, interest is reduced to 7.5% p.a. from the date of filingof Petition.18. In the result, the compensation amount awarded inM.C.O.P.No.8/2005 dated 29.9.2005 on the file of Motor AccidentClaims Tribunal [Principal Subordinate Judge], Gopichettipalayam isreduced to Rs.27,60,000/- and this Civil Miscellaneous Appeal ispartly allowed. No costs.Earlier by order dated 21.09.2007 in C.M.P.No.2/2007, Bench hasgranted interim stay on condition to deposit the entire amount. Byorder dated 10.11.2009 in C.M.P.No.3/2007, 1st Claimant was permittedto withdraw Rs.7,65,000/- [Rs.6,00,000/- plus Rs.1,65,000/-] alongwith accrued interest. Likewise, Claimants 3 and 4 were permittedto withdraw Rs.1,50,000/- each along with accrued interest.Claimants 1,3 and 4 are permitted to withdraw the entire amountof the modified compensation along with accrued interest. Theshare of compensation amount of modified compensation payable to 2ndClaimant along with accrued interest shall be invested in anationalised bank on reinvestment plan till 2nd Claimant attainsmajority. 1st Claimant/mother is permitted to withdraw the accruedinterest on the fixed deposit of minor 2nd Claimant once in sixmonths directly from the Bank, till the minor 2nd Claimant attainsmajority. Appellant-Insurance Company is permitted to withdraw theexcess amount if any deposited before the Tribunal.bbrSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Motor Accident Claims Tribunal, Principal Subordinate Judge, Gobichettipalayam.2. The Section Officer, VR Section, High Court, Madras.+ 1 cc to Mr. P.Valliappan, Advocate SR No.5598+ 1 cc to Mr. C.Ramesh Babu, Advocate SR No.5543GV(CO)SR/8.2.2010 C.M.A.No.2320/2007