Branch Manager, The Oriental Insurance Company Ltd., B.O. 12, Katpadi Road, Gudiyatham 632 602... v. Tmt. Nanjamma & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.12.2008CORAM:-THE HON'BLE MR. JUSTICE R. SUDHAKARC.M.A.Nos. 4029 & 4030 of 2008CMA No. 4029 of 2008:-Branch Manager,The Oriental Insurance Company Ltd.,B.O. 12, Katpadi Road,Gudiyatham 632 602... Appellant/2nd respondentVs.1. Tmt. Nanjamma2. Tmt. Suma3. Gowthami (minor)4. Guruprasad (minor)(minors 3 & 4 rep. by their motherand next friend Tmt. Suma)5. N.V.Lakshmipathy Rao .. Respondents/petitioners/(R5 set exparte in the lower Court first respondentHence notice is dispensed with)CMA No. 4030 of 2008:-Branch Manager,The Oriental Insurance Company Ltd.,B.O. 12, Katpadi Road,Gudiyatham 632 602... Appellant/2nd respondentVs.1. Venkatasamy2. N.V. Lakshmipathy Rao .. Respondents/petitioners/(R2 set exparte in the Lower Courtfirst respondent Hence notice is dispensed with) https://hcservices.ecourts.gov.in/hcservices/ Appeals filed under Section 173 of M.V. Act against theaward and decree dated 11.3.2008 made in MCOP No. 65 of 2007 and 75of 2007 on the file of the Motor Accident Claims Tribunal ( SubCourt ) Hosur. For Appellant : Mr. R. SivakumarFor Respondents : Mr.Kumaravelan.V.COMMON JUDGMENTInsurance company has filed these two appeal challengingthe common award dated 11.3.2008 made in MCOP No. 65 of 2007 and 75of 2007 on the file of the Motor Accident Claims Tribunal ( SubCourt ) Hosur. 2. Brief facts of the cases are as follows:- CMA No. 4029of 2008 is filed against the award in MCOP No.65 of 2007. CMA No. 4030of 2008 is filed against the award in MCOP No. 75 of 2007. On19.10.2006 at about 7.30 p.m., the deceased Balakrishna Reddy andVenkataswamy were travelling on the Suzuki motor cycle from Uliyalamto Bagalur. The deceased Balakrishna Reddy was riding the motorcycle and the Venkataswamy was travelling as a pillion rider. Whenthey were near Kaleeswaram bus stop, the lorry bearing registrationNo. KA-05-C-8599 coming from the opposite direction driven by itsdriver in a rash and negligent manner turned to the right side ofthe road to enter the petrol bunk consequent to which, hit the motorcycle in which, these two persons travelled. Due to the accident,the said Balakrishna Reddy sustained grievous injuries and thepillion rider Venkataswamy also suffered injuries all over the body.They were first taken to Agape Mission Hospital,Jeemangalam andfirst aid was given and thereafter, they were taken to S.B.S.Hospital, Hosur. Thereafter, Balakrishna Readdy was admitted toSparsh Hospital, Bangalore. Inspite of treatment, Balakrishna Reddydied on 21.10.2006. The injured claimant Venkataswamy was treatedat the Government Hospital, Hosur from 19.10.2006 to 20.10.2006 andthereafter, he took treatment for two months with Dr.G.V.Gandhi,Hosur. The injured claimant suffered fracture of both sides ribcage , fracture of outer cantus right eye maxillary region andinjury to the face and other parts of the body. 3. On the death of Balakrishna Reddy, mother aged 60years, wife aged 30 years, minor daughter aged 14 years and minorson aged 10 years have filed the claim petition, claiming a sum ofRs.10,00,000/- as compensation stating that the income of thedeceased Balakrishna Reddy was Rs.20,000/- by way of agricultural https://hcservices.ecourts.gov.in/hcservices/ operations and real estate business. As far as injured claimantVenkataswamy is concerned, for the injuries suffered and thedisability assessed at 25%, he claimed compensation for a sum ofRs.5,00,000/- stating that the income was Rs.5,000/- p.m. as anagriculturist cum coolie. Both the claim petitions were taken upand disposed of by the common award . 4. In support of the claim petitions, the wife of thedeceased Balakrishna Reddy was examined as P.W.1. The injuredclaimant Venkataswamy was examined as P.W.2. Dr. T.V. Gandhi, wasexamined as P.W.3. Documents Exs. A1 to A14 were marked. Ex.A1 isthe copy of the F.I.R. Ex.A2 is the copy of the M.V.I. Report.Ex.A3 is the copy of the post mortem certificate. Ex.A4 is the copyof the insurance policy with regard to the lorry. Ex.A5 is theR.C.Book. Ex.A6 is the driving licence. Ex.A7 series are themedical bills. Ex.A8 is the copy of the ration card. Ex.A9 is thelegal heirship certificate. Ex.A10 is the wound certificate givenby the Hosur Government Hospital to the injured claimant. Ex.A11 isthe wound certificate. Exs. A12 and 13 are the x-rays. Ex.A14 isthe receipt. No oral and documentary evidence was let in on behalfof the appellant/ respondent before the Tribunal. 5. The finding of negligence on the part of the driver ofthe lorry, who caused the fatal accident to one and the injury tothe other claimant and the liability fixed on the insurance companyto compensate the claimant is not disputed by the learned counselfor the appellant. Such finding of the Tribunal is confirmed. 6. The only contention raised by the learned counsel forthe appellant is on the quantum of compensation.7. CMA NO.4029 of 2008:-In this case, the Tribunal fixed the income of the deceased atRs.4,500/- p.m. rejecting the plea of income of Rs.20,000/- andadopted 16 multiplier. After deducting some amount towards personalexpenses of the deceased, fixed the pecuniary loss in a sum ofRs.5,76,000/-. (Rs.36,000/- x 16 = Rs.5,76,000/-) In all, theTribunal granted the following amount as compensation with interestat 9% p.a.Sl.No.HeadAmount granted bythe Tribunal1Loss of pecuniary benefitsRs. 5,76,000/-2Loss of consortium to the wifeRs. 25,000/-3Loss of love and affection to the motherand two childrenRs. 30,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount granted bythe Tribunal4Medical expensesRs. 69,000/-5Funeral expensesRs. 5,000/-TotalRs.7,05,000/-8. CMA 4030 of 2008:-For the fracture to the ribs and injuries to the jaw areaand other injuries suffered by the claimant Venkataswamy, who is anagriculturist cum coolie, aged 45 years, the Tribunal fixed theincome at Rs.3,000/-p.m. rejecting the income claimed at Rs.6,000/-p.m. The Tribunal adopted 13 multiplier and for 25% disabilityfixed the total loss of earning capacity in a sum of Rs.1,17,000/-.(Rs.36,000/- x 25/100=Rs.9,000/- x 13= Rs.1,17,000/-) In all , theTribunal granted the following amount as compensation with interestat the rate of 9% p.a.Sl.No.HeadAmount granted bythe Tribunal1Loss of earning capacity due todisability at 25%Rs. 1,17,000/-2Pain and suffering Rs. 20,000/-3Transport expensesRs. 5,000/-TotalRs.1,42,000/-9. As far as the fatal accident is concerned, thecontention of the learned counsel for the appellant is that theTribunal erred in adopting 16 multiplier in a case of death of 38years old agriculturist and real estate agent. He also stated thatthe income fixed by the Tribunal is on the higher side. As far asinjury case is concerned, the contention of the learned counsel forthe appellant is that the multiplier of 13 adopted in the case ofinjury and the compensation granted based on 25% disability is onthe higher side and the same has to be reduced. In both the cases,he pleaded for reduction of the compensation. 10. In both the cases, this Court is not inclined tointerfere with the quantum of compensation for the followingreasons. In the case of fatal accident case, the deceased was 38years old and the accident happened in October 2006. The deceasedwas an agriculturist. A plea was made that he is also engaged inreal estate business . However, no specific document was filed.The Tribunal taking into consideration both the factors, fixed the https://hcservices.ecourts.gov.in/hcservices/ income at Rs.4,500/- p.m. rejecting the plea that the income of thedeceased was Rs.20,000/-p.m. The deceased was admittedly engaged inagricultural business and it is not disputed. Therefore, the incomefixed by the Tribunal is justified. In any event, if the income ofthe agriculturist is taken as Rs.180/-per day, considering theliving wage and minimum wages during the relevant time viz., 2006,the income will be atleast Rs.5,400/- p.m. The Tribunal hasreasonably fixed the income as Rs.4,500/- p.m. and that cannot befound fault with. 11. As far as the multiplier is concerned, the Tribunaladopted 16 multiplier in terms of second schedule of the M.V. Act.Even though it is contended by the learned counsel for the appellantthat the multiplier of 16 is on the higher side, the fact that thedeceased had other sources of income by way of real estate businessand the possibility of higher income in the future has to be takeninto consideration. The 16 multiplier adopted by the Tribunal inthis case in terms of the second schedule need not be interferedwith as the deceased was supporting a compact family. Thecompensation towards loss of consortium and loss of love andaffection to the minor children and the mother is also reasonable.This Court is of the view that the wife, and the children, who havesuffered on the death of the deceased, need not undergo furtheragony due to delay in getting the compensation particularly for thereason that a marginally higher multiplier has been adopted. Thecost of living and the rise in price will eat away the benefits thatwill accrue to them. Therefore, this Court does not find any goodreason to interfere with the quantum of compensation by way ofreduction. 12. In the case of injury is concerned, the Tribunal hasextensively dealt with the injuries suffered by the claimant whichare supported by the evidence of the doctor. The injuries willseriously limit the earning capacity of the injured claimant, whowas an agriculturist cum coolie. Therefore, the Tribunal wasjustified in adopting the multiplier keeping in view the principlesenunciated in the Division Bench decision of this Court in UnitedIndia Insurance Co. Ltd., - vs. - Veluchamy and another reported in2005 ACJ 1483.13. A Division Bench of this court in United India InsuranceCo. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483,set out the principles as to when multiplier method should beadopted in a case of injury in para 11 which reads as follows:-"11. The following principles emerge fromthe above discussion: https://hcservices.ecourts.gov.in/hcservices/ (a) In all cases of injury or permanentdisablement 'multiplier method' cannot bemechanically applied to ascertain the futureloss of income or earning power.(b) It depends upon various factors suchas nature and extent of disablement, avocationof the injured and whether it would affect hisemployment or earning power, etc. and if so, towhat extent?(c) (1) If there is categorical evidencethat because of injury and consequentialdisability, the injured lost his employment oravocation completely and has to be idle for therest of his life, in that event loss of incomeor earnings may be ascertained by applying the'multiplier method' as provided under the SecondSchedule to Motor Vehicles Act, 1988.(2) Even so there is no need to adopt thesame period as that of fatal cases as providedunder the Schedule. If there is no amputationand if there is evidence to show that there islikelihood of reduction or improvement infuture years, lesser period may be adopted forascertainment of loss of income.(d) Mainly it depends upon the avocation orprofession or nature of employment beingattended by the injured at the time ofaccident."14. As far as the choice of multiplier is concerned, theTribunal adopted multiplier 13 in terms of the second schedule. Thefact that the income of the agriculturist cum coolie was taken atRs.3,000/-p.m. as against Rs.6,000/-p.m. Claimed, shows that theTribunal has reduced the income of the injured claimant withoutapplication of mind.15. The living wages and the minimum wages during therelevant period which will be much more than what has been fixed bythe Tribunal. If Rs.180/- is taken as income per day then the incomeper month will be around Rs.5,000/- to Rs.5,400/- . Therefore,the income fixed by the Tribunal at Rs.3,000/-p.m. is very low. Themarginally higher multiplier of 13 will compensate the short fall incompensation. If the income is taken as Rs.4,500/- and themultiplier is reduced to 10, the loss of income due to disability https://hcservices.ecourts.gov.in/hcservices/ will be much more. Hence, this Court is unable to accept the pleaof reduction in the quantum of compensation. Further, reasonablecompensation has been granted for pain and suffering, extranourishment and transport expenses. In this case, no compensationwas granted towards loss of income during the period of treatmentand attender charges. Considering all these aspects, the quantum ofcompensation granted by the Tribunal does not require anymodification or reduction. Hence, the total compensation granted inboth the cases is justified. 16. As far as the interest is concerned, the prevailingbank rate of interest is at 9% at the time of passing of the award.Therefore, the Tribunal is justified in awarding 9% interest and thesame is confirmed.17. Finding no merits, both the appeals are dismissed. Nocosts. Consequently, connected miscellaneous petitions are alsodismissed. Counsel for the appellant seeks eight weeks time todeposit the award amount and the same is allowed. On such deposit,the claimants are entitled to withdraw the same as per the Order ofthe Tribunal. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.raToThe Motor Accident Claims Tribunal, ( Sub Court ) Hosur. 1 cc to M/s. R. Sivakumar, Sr. 70565 CMA Nos. 4029 & 4030/2008KSK (CO)kk 20/1