Goutham Bafna v. J. Pramod Kumar Bansal & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27.07.2009CORAMTHE HON'BLE MR.JUSTICE S.PALANIVELUC.M.A.No.1718 of 20041. Goutham Bafna2. M. Vasantha3. M. Kanchan4. U. Ashok Kumar5. Mahender Bafna6. Mahaveer Bafna... Appellants/Petitioner(2 to 6 rep.by Power Agent Ist Petitioner)Vs1. J. Pramod Kumar Bansal2. United India Insurance Co. Ltd., Third Party Cell, South India Co-op Building, III Floor, No.38, Anna Salai, Chennai – 2. ... Respondents/Respondents Civil Miscellaneous Appeal against the judgment and decree inM.C.O.P.No.2382 of 2000 dated 01.04.2003 on the file of MotorAccidents Claims Tribunal, Addl. District Judge, Fast Track CourtNo.V, Chennai.For Appellants : Mr.N.M.C.BabuFor 2nd Respondent : Mrs.Revathi MuralidharanJ U D G M E N TIn the claim petition, it is stated that on 24.11.99 at about09.30 a.m., while the deceased was traveling as a pillion rider in amotor cycle with Registration No.TN-20A-2056 along T.H. Road,Chennai-21, the first respondent's van with Registration No.TN-04X-1251 was driven by its driver in a rash and negligent manner dashedagainst the motor cycle and the deceased sustained grievous injuries. https://hcservices.ecourts.gov.in/hcservices/ Later, he died in the hospital on 30.11.99. The driver of the vanwas responsible for the accident. Hence, a sum of Rs.7,00,000 isprayed for as compensation.2.In the counter filed by the second respondent, it is statedthat the insurance of the van, age, occupation, employment andmonthly income of the deceased are not admitted. The dependency andthe status of the legal heirs of the deceased have to be proved bythem. The amount claimed is excessive. Hence, the petition has to bedismissed.3.After considering the oral documentary piece of evidence onrecord, the Learned Tribunal Judge has concluded that the driver wasnegligent and he has caused accident.4.The learned appellant counsel for the appellants/claimantswould assail the award by stating that the quantum of compensation asfixed by the tribunal is on the lower side. She argued that withoutany special reason, the multiplier has been reduced from 5 to 3 andthat the claim for Rs.30,000/- towards surgery, as evident fromEx.P.3 has not been considered and that under both the heads, thecompensation has to be enhanced. 5. It is stated that the deceased P.Udaychand Bafna was afinancier and was earning above Rs.1,00,000/- per year, for which thedetails of income prepared by the Chartered Accountant Ex.P.6 hasbeen produced, which shows that his annual income is Rs.1,06,610/-.The tribunal has considered average income Rs.1,00,000/- per annum,deducted 1/3rd and Rs.66,666/- is taken as his contribution to thefamily and since the deceased was aged 67 years, there was likelihoodfor his continuing to live for another three years alone. In view ofthe life expectancy upto 70 years, the tribunal has also followed aprinciple reported in A.I.R 2002 S.C.2607, United India InsuranceCo.Ltd., Vs. Patricia Jean Mahajan and others, wherein it is heldthat for special reasons, some deviation from the schedule multipliercan be made. 6.Excepting the reason of the age of the deceased as 67 years,there is no reason for reducing the multiplier. In view of thiscourt, there is no valid ground to reduce the multiplicant. As perSchedule 2 of the Motors Vehicles Act, for the death of persons agedbetween 65 and 70, a multiplier of 5 has to be adopted. This courtdeems fit to adopt multiplier 5 in this case.7.There is no reason to take average annual income.Rs.1,05,610/- as mentioned in Ex.P.6 can be taken as annual income,in which after deducting 1/3rd, the end product will be Rs.70,407/-.If it is multiplied by 5, the dependency could be assessed atRs.3,52,035/-. https://hcservices.ecourts.gov.in/hcservices/

8.The reason recorded by the tribunal that non- examination ofthe doctor to prove Ex.P.3 would dis-entitle the claimants to claimRs.30,000/- towards surgery fees can not be accepted for the reasonthat the postmortem certificate would show that metal plating onfracture have been made during the surgery performed on the deceased,when he was injured. There are sufficient materials to show thatsurgery was undertaken to the injured. Hence, there is nothing wrongin allowing the claim of Rs.30,000/- towards surgery fees, asfurnished in Ex.P.3. The following are the compensation awarded bythe tribunal under various heads - Loss of Income==> Rs.2,00,000/- Funeral Expenses==> Rs. 3,000/- Loss of love and affection==> Rs. 12,000/- Pain and suffering==> Rs. 25,000/- Mental Agony==> Rs. 9,000/- Medical Expenses==> Rs. 75,000/- ============= Rs.3,24,000/- =============9.The learned counsel for respondent Mr.Revathi Muralidharanwould submit that the claimants are sons and daughters of thedeceased who have got married and settled in their lives and they arenot at all dependents on the deceased, and that merely because theyare Legal Representatives to the deceased, they cannot be deemed tobe dependents on the deceased. Repelling this argument, the learnedcounsel for the appellant Mr.N.M.C.Babu would submit that even if itis established that the claimants were not dependents on thedeceased, still they are Legal Representatives. As per the settledpreposition, they have to be made eligible to get the compensation.In support of his contention, he placed reliance upon a decision ofthe Supreme Court reported in 2007 (2) TCJ 622, Hafizun Begum v.Md.Ikram Heque and Others, wherein Their Lordships have discussedabout the scope of Section 166 (1)(C) of the Motors Vehicles Act andexplained the term "Legal heirs" by holding that all LegalRepresentatives to the deceased are entitled to claim compensation. 10. Section 2 (11) of C.P.C defines "legal representative" whichmeans, a person who, in law, represents the estate of a deceasedperson and includes any person who, in law, represents the estate ofa deceased person and includes any person who intermeddles with theestate of the deceased and where a party sues or is sued in arepresentative character, there person on whom the estate devolves onthe death of the party so suing or sued.11.Their Lordships were pleased to observe that even if therewere no dependents, there is a loss to the estate and a person who is https://hcservices.ecourts.gov.in/hcservices/ legal representative, but not dependent can yet be a beneficiary ofthe estate.12.Referring to earlier decisions of the court, the Apex Courtheld further thus;-"12. As observed by this court in Custodian of Branchesof BANCO National Ultramarino v. Nalini Bai Naique AIR 1989SC 1589, the definition contained in Section 2 (11), C.P.C.is inclusive in character and its scope is wide, it is notconfined to legal heirs only. Instead, it stipulates that aperson who may or may not be legal heir, competent toinherit the property of the deceased, can represent theestate of the deceased person. It includes heirs as well aspersons who administrators in possession of the estate ofthe deceased. All such persons would be covered by theexpression 'legal representative'. As observed in GujaratState Road Transport Corporation v. Raman bhai Prabhat bhaiand Another AIR 1987 SC 1690 : 1987-3 SCC 234 a legalrepresentative is one who suffers on account of death of aperson due to a motor vehicle accident and need notnecessarily be a wife, husband, parent and child." 13.Following the principle laid down in the above decision, itis to be held that the claimants as Legal heirs are entitled forcompensation.14. The next limb of contention of the learned counsel for therespondents is that the grant of compensation under the head, painand sufferings would not arise fatal cases. The reply is availablein the Division Bench decision of this court in 1997 ACJ 211 = 1996ACC, 531 (Division Bench),Cheran Transport Corporation Ltd. VsSanthamani, wherein it is held that the deceased was alive for sometime with multiple injuries and naturally, he should have beensuffering from pain, then the claimants have to be made entitled to areasonable amount towards pain and sufferings. The Apex court in1985 A.C.J 75, N.Sivammal and others v. Managing Director, PandianRoadways Corporation and another has held that when the deceasedremained in hospital for 90 days under shadow of death, he must havesuffered pain and sufferings and therefore Rs.5,000/- is awardableunder the head, pain and suffering.15. Following the above said decisions on this point, thefindings of the tribunal in awarding compensation of Rs.25,000/-under the head pain and suffering is held sustainable. Afterincluding the compensation under the heads loss of income and medicalexpenses towards surgery, the following is the compensation awardedby this court under various heads. https://hcservices.ecourts.gov.in/hcservices/ Loss of Income==> Rs.3,52,035/-Medical Expenses in view of surgery==> Rs. 30,000/- Funeral Expenses==> Rs. 3,000/- Loss of love and affection==> Rs. 12,000/- Pain and suffering==> Rs. 25,000/- Mental Agony==> Rs. 9,000/- Medical Expenses==> Rs. 75,000/- ============= Total==> Rs.5,06,035/- =============16. In fine, the Civil Miscellaneous Appeal is allowed in partenhancing the compensation to Rs.5,06,035/- and the respondent shalldeposit the enhanced compensation along with interest @ 7.5% perannum from the date of filing of the petition, within a period of 8weeks from the date of receipt of a copy of this order. All theclaimants are entitled equally in the enhanced compensation. Thefirst claimant, as power agent for claimants 2 to 6 is permitted towithdraw the enhanced compensation on their behalf.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrkmTo1.The Addl. District Judge, Fast Track Court No.V, Motor Accidents Claims Tribunal, Chennai.2.The Superintendent, V.R.Section, High Court, Madras1 cc To Mr.Mrs.Revathi Muralidharan, Advocate, SR.349981 cc To Mr.N.M.C.Babu, Advocate, SR.34618C.M.A.No.1718 of 2004rL(CO)PMK.28.8.2009