The Oriental Insurance Company Ltd. v. M. Janaki

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:12.11. 2008CORAM:- Hon'ble Mr. Justice R. SUDHAKARC.M.A.No.3534 of 2008The Oriental Insurance Company Ltd.,First Floor,Hosur Road,Opp.9th Cross, Wilson Garden,Bangalore. .. Appellant/3 rd RespondentVs.1.M.Janaki2. C.Puturaju3. S.Amendra.. Respondents/Petitioner and Respondents 1 & 2 Appeal filed under Section 173 of the M.V.Act against theaward and decree dated 14.03.2008 in MCOP No. 494 of 2005 on thefile of the Motor Accidents Claims Tribunal,(Subordinate Judge)Tharapuram.For Appellant : Mr. R.SivakumarFor respondents : Mr.Ma.P.Thangavel . . . JUDGMENTThe Oriental Insurance Company has filed this appealchallenging the award dated 14.03.2008 in MCOP No. 494 of 2005passed by the Motor Accidents Claims Tribunal, Tharapuram.2. It is a case of fatal accident. The accident in this casehappened on 04.05.2002. The deceased Lakshmanan, aged about 26years, said to be a Supervisor in a Private Company, was travellingin a scooter, when he was hit by the car bearing registrationNo.K.A05 170 insured with the appellant-Insurance Company and in thataccident, the said Lakshmanan died. The mother, aged about 45 yearshas filed the claim petition claiming a sum of Rs.10,00,000/- ascompensation stating that the income of the deceased was Rs.6,000/-per month. 3. In support of the claim, the mother of the deceasedwas examined as P.W.1 and brother of the deceased, Balasubramanian https://hcservices.ecourts.gov.in/hcservices/ was examined as P.W.2, Dr.Krishnaraj was examined as P.W.3, and oneRamesh, eye witness was examined as P.W.4 and Documents Exs.P1 toP.26 were marked. No oral or documentary evidence was let in by theappellant/respondent before the Tribunal. 4. According to P.W.1, the deceased was working asSupervisor and was an active sportsman and after the accident, he wasin the hospital for 45 days. In spite of the medical treatment given,he died. Ex.P5 is the Post Mortem Certificate The medical bills weremarked as EXs.P.7, P.9 and P.10. The transport expenses is coveredunder Ex.P.8. In the absence of any record to show the actualincome of the deceased, the Tribunal fixed the income of the deceasedat Rs.3,000/- per month, of which 1/3 was deducted towards hispersonal expenses and the pecuniary loss to the dependent, mother wasfixed at Rs.2,000/- per month and Rs.24,000/- per year. Taking intoconsideration the age of the mother-Claimant, who was said to be 45years old and that of the deceased who was 26 years and alsoconsidering the merit in Sports activities, the Tribunal adopted 15multiplier and granted Rs.3,60,000/- as compensation towards loss ofpecuniary benefits.(24,000/- X 15 = 3,60,000/-) The Tribunal alsogranted compensation under conventional heads. In all, the Tribunalgranted the following amounts as compensation with interest at therate of 7.5%.1Loss of pecuniary benefitsRs. 3,60,000/-2Loss of love and affection Rs. 5,000/-3Transport expensesRs. 5,136/-4Medical expensesRs. 1,66,548/-5Funeral expensesRs. 5,000/-TotalRs. 5,41,684/- 5. The finding of negligence on the part of the driver ofthe car insured with the appellant and the liability of appellant tocompensate the claimant is not in dispute and as such, the same isconfirmed. 6. The only contention raised by the counsel for theappellant is that the quantum of compensation calculated by theTribunal based on 15 multiplier in the case of a deceased bachelorearning member is on the higher side and it has to be reduced.Appellant's counsel relied upon the decision of the Apex Court in thecase of Bijoy Kumar Dugar - vs. - Bidya Dhar Dutta reported in 2006AIR SCW 1116 = 2006 (3) SCC 242. 7. Learned counsel for the claimant, on the other hand,stated that the deceased is an active sports man and he was hale andhealthy and he would have supported his mother till her life time. https://hcservices.ecourts.gov.in/hcservices/ The possibility of his taking care of the mother till the rest of herlife time should also be considered. The income of Rs.3,000/- p.m.fixed by the Tribunal is marginally lower, considering the fact thatthe accident happened in the year 2002. He relied on the followingdecisions:a) A Division Bench of this Court, in the case in B.Anandhi –vs. - Latha reported in 2002 ACJ 233 (P.SATHASIVAM,J., as he thenwas) wherein it has been observed that even a coolie would earnRs.100/- per day. In that case, the accident happened in the year1995. B) The Apex Court in State of Haryana and another Vs Jasbir Kaurand others reported in 2004-1 Law Weekly, was of the view that anagriculturist would earn Rs.3,000/- per month. In that case, theaccident happened in the year 1999. 8. 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 2002.In this case, the deceased, 26 years old, was working as aSupervisor. He had a very excellent sports record. Considering thesame, the income of the deceased should be higher.9. The deceased was in the hospital for a period of 45 days. Theaccident happened in Bangalore. He was given first aid at BangaloreC.D. Government Hospital and thereafter he was taken to Ramakrishnahospital, Coimbatore where he died. At the time of the accident, themother was living at Vellaikoil, Erode District and she would needsome amount to travel to the hospital to be with her son till hisdeath.10. In view of the two decisions cited supra, assuming that theincome of the deceased bachelor should be taken as Rs.3,500/- asagainst Rs.3,000/- determined by the Tribunal, then the annualincome will be Rs.42,000/- After deducting 1/3rd towards personalexpenses, the annual loss of pecuniary benefits to the dependent-mother will be 28,000/- By applying multiplier of 12, the totalpecuniary loss to the dependent-mother will be Rs. 3,36,000/-.( 28,000 X 12 -3,36,000/-) A sum of Rs.1,66,584/- granted towardsmedical expenses is not disputed. On the death of the son, the motherhas been granted only Rs.5,000/- towards loss of love and affection.The deceased was in the hospital for 45 days and that is stated byP.W.3, Doctor who gave treatment to the deceased at Ramakrishnahospital. Therefore, the Tribunal should have granted some amount forpain and suffering and mental agony undergone by the deceased. Thecompensation granted by the Tribunal for loss of love and affectionto the mother is very meagre and it needs to be enhanced. Themother/Claimant also needs further amount towards transportexpenses as the deceased was in Coimbatore hospital and she was https://hcservices.ecourts.gov.in/hcservices/ living at Vellaikoil Village, Erode District. Considering all theseaspects, a sum of Rs.24,000/- in excess (i.e.from Rs.3,60,000 -Rs.3,36,000/- = Rs.24,000/-) can be adjusted on the heads like lossof love and affection, transport expenses, pain and suffering andmental agony. Therefore, the total compensation of Rs.5,41,684/-does not require further reduction as also the interest at 7.5% sincethe accident happened in the year 2002 and the award was passed inthe year 2008. 11. Finding no merits, the Civil Miscellaneous Appeal isdismissed. Connected miscellaneous petition is closed. No costs. Learned counsel for the appellant seeks eight weeks' time todeposit the amount and the same is allowed. On such deposit, theclaimant is entitled to withdraw the entire amount.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarPAL ToThe Motor Accidents Claims Tribunal(Subordinate Judge)Tharapuram1 cc To Mr.P.Thangavel, Advocate, SR.631101 cc To Mr.R.Sivakumar, Advocate, SR.62912 CMA No. 3534 of 2008VM(CO)SRA(18/12/2008)