The Inspector of Police(Crime) C.I.D.,Chennai v. R. Viswanathan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:24.11. 2008CORAM:- Hon'ble Mr. Justice R. SUDHAKARC.M.A.Nos.722 and 723 of 2008andM.P.Nos.1 and 1 of 20081. The Inspector of Police(Crime) C.I.D.,Chennai.2. The Inspector of Police, Manavalanagar, Tiruvellore .. Appellants inboth C.M.As./Respondents 1 & 2 Vs.1. R.Viswanathan2. L.Kannan .. Respondents in CMA 722/08/Claimant & Respondent-31. Vatsala2. Thulasidas3. L.Kannan .. Respondents in CMA 723/08/Claimants & Respondent-3. . . Appeals filed under Section 173 of the M.V.Act against theaward and decree dated 06.01.2005 in MCOP Nos. 654 and 655 of 2003on the file of Motor Accidents Claims Tribunal, ( Sub court)Tiruvellore.. . . For Appellants in both CMAs : Mr.R.Muthiah, G.A.(C.S)For respondents in C.M.A.722/08 : Mr.A.S.Vijay Anand for Mr.G.Karthikeyan (R1)Mr.M.Venkateswaran (R2) https://hcservices.ecourts.gov.in/hcservices/ For respondents in C.M.A.723/08 : Mr.A.S.Vijay Anand for Mr.G.Karthikeyan (R1) Mr.M.Venkateswaran (R3) No appearance for R2) . . . JUDGMENTThe Inspector of Police, (Crime) C.I.D.,Chennai has filedthese appeals challenging the award dated 06.01.2005 in MCOP Nos.654 and 655 of 2003 on the Motor Accidents Claims Tribunal, ( Subcourt) Tiruvellore.2. It is a case of injury. The accident, in this casehappened on 21.07.2003. The injured claimant Subbiah and hisfriend Ethiraj were travelling on a motor cycle. The said motorcycle was hit by a Police Jeep bearing registration No.T.N.07 G1327. In that accident, the driver of the motor cycle, Viswanathan,suffered grievous injuries and the pillion rider, Ethiraj died.3. A claim petition in M.C.O.P.No.654 of 2003 was filedby the injured Viswanathan claiming compensation for the injurysustained by him in the accident for a sum of Rs.4,00,000/-. On thedeath of Ethiraj, aged 25 years, the parents of the deceased fileda claim petition in M.C.O.P.No.655 of 2003 claiming compensation ina sum of Ras.5,00,000/- 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 only contention raised by the learned counsel forthe appellants is that the quantum of compensation in both thecases is on the higher side and the same has to be modified andreduced. Learned counsel for the respondents/claimants, on theother hand, stated that the compensation awarded in both the casesby the Tribunal is just and reasonable and does not require anyreduction and the same should be confirmed as also the interest of9%. 5. The injured claimant was examined as P.W.1 andDr.Thiagarajan was examined as P.W.2 and one Thulasidas, the fatherof the deceased Ethiraj was examined as P.W.3. Documents weremarked as Exs.P.1 to P.16. Ex.P.1 is the copy of the FirstInformation Report. Ex.P.2 is the copy of the Notice sent to therespondents. Ex.P.3 is the postal receipt. Ex.P.4 is theacknowledgment. Ex.P.5 is the reply notice. Ex.P.6 to P.8 are the https://hcservices.ecourts.gov.in/hcservices/ medical discharge Certificates. Ex.P.9 is the Doctor's note.Ex.P.10 is the E.S.I Card. Ex.P.11 is the Diploma in tailoringcourse Certificate. Ex.P.12 is the medical bills. Ex.P.13 is theCertificate issued by the Ramachandra Hospital. Ex.P.14 is theDisability Certificate. Ex.P.15 is the Post Mortem Certificate.Ex.P.16 is the Death Report. 6. C.M.A.NO.722 of 2008 in M.C.O.P.NO.654 of 2003: Inthis case, the accident happened on 21.07.2003. The injuredclaimant Viswanathan is a tailor and he claimed that he wasearning Rs.6,000/- per month and supported it by marking Exs.P.10and P.11. Ex.P.10 is the E.S.I Card and Ex.P.11 is a DiplomaCertificate for having undergone the course in tailoring. Theinjured Viswanathan, suffered the following injuries in theaccident: "1. Fracture and dislocation in pelvic bone. 2. Fracture in right wrist distal and radialbone 3. Undisplaced fracture in right side of leftfrontal bone" He was treated as in patient at Sri Ramachandra Hospital, Porurfrom 21.7.2003 to 11.08.2008 and then again from 03.09.2003 to08.09.2003 as in patient. From the evidence of Doctor, who wasexamined as P.W.2, it is clear that the injured claimant sufferedfracture and dislocation of pelvic bone, fracture of right wristand distal and radial bone and undisplaced fracture of left frontalbone. The doctor opined that the injured claimant, a tailor, willnot be able to make his living as a tailor as before and hisearning capacity will be affected. In this case, considering thenature of the injury, the period of treatment, the disabilityassessed at 70% in Ex.P.14, and holding that the claimant atailor by profession cannot work and earn as before, the Tribunalgranted Rs.70,000/- for disability and a sum of Rs.50,000/- towardsloss of earning capacity. The Tribunal also granted amounts onconventional heads as follows with 9% interest.Sl.No.HeadAmount grantedby the Tribunal1Permanent disability Rs. 70,000/-2Loss of earning capacityRs. 50,000/-3Pain and suffering Rs. 40,000/-4Medical expensesRs. 35,000/-5Transport expensesRs, 2,500/-5Extra nourishment Rs. 2,500/-TotalRs. 2,00,000/- https://hcservices.ecourts.gov.in/hcservices/

7. The Tribunal granted amount under the head ofdisability and also under the head of loss of earning capacity. TheFull Bench in the case of Cholan Roadways Corporation Ltd. -v.-Ahmed Thambi and others reported in (2006(4) CTC 433) held that ifcompensation is granted for the loss of earning capacity,compensation need not be granted separately for disability. Therelevant portion reads as follows: "In the non-pecuniary losses the Tribunalshall consider: (a) pain and suffering, (b) lossof amenity, (c) loss of expectation of life,hardship, mental stress etc. (d) loss of prospectof marriage and under the head pecuniary losses,the Tribunal shall consider loss of earningcapacity and loss of future earnings as onecomponent apart from medical and other expensesand loss of earning, if any from the date ofaccident till the date of trial. When loss ofearning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanentdisability need not be separately itemised." Therefore, the Tribunal should have granted compensation either forpermanent disability or under the head of loss of earning capacity.Therefore, the compensation granted by the Tribunal under both theheads cannot be justified. 8. Due to the prolonged treatment and grievous injuriessuffered, and the disability assessed at 70%, the claimant'searning capacity will be affected. This is because the fracture ison the hip region, wrist and grievous injuries to the head. Thecompensation can be granted based on the multiplier method.However, in this case, lesser multiplier will have to be taken asthe possibility of the injured claimant seeking other source ofincome after the injury and treatment has to be considered.Therefore, the compensation both under the head of disability andloss of earning capacity stands set aside. The claimant, however,will be entitled to suitable compensation for disability assessedat 70%.9. A Division Bench of this Court in United IndiaInsurance Co. ltd., VS Veluchamy and another reported in 2005A.C.J.1483 has set out parameters under which compensation can begranted by adopting multiplier method. Para 11 of the decision isas follows:"11. The following principles emerge from the abovediscussion: 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 theSecond Schedule 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 avocationor profession or nature of employment beingattended by the injured at the time ofaccident."Therefore, award in so far as the disability and earning capacityis modified in view of the evidence of the Doctor, who has spokenthat the injured claimant, a tailor by profession, has sufferedgrievous injuries and due to the dislocation of the pelvic bone,he cannot earn as before. Further in view of the decision of aDivision Bench in the case of United India Insurance Co. Ltd., -vs. - Veluchamy and another reported in 2005 ACJ 1483 (cited supra)the quantum of compensation for loss of earning capacity will beRs.3,500 X 12 X 70/100 X 5 = Rs.1,47,000/- The claimant is entitledto Rs.35,000/- towards medical expenses, Rs.10,000/- for pain andsuffering , for loss of income during the period of treatment,Rs.8,000/- In all, the claimant is entitled to Rs.2,00,000/- asmentioned below: https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount grantedby this court1Loss of earning capacity due to disabilityRs. 1,47,000/-2Pain and sufferingRs. 10,000/-3Loss of earning during the period oftreatmentRs. 8,000/-4Medical expensesRs. 35,000/-TotalRs. 2,00,000/-Therefore, the quantum of compensation determined by the Tribunalis justified and confirmed.10. C.M.A.No.723 of 2008 in M.C.O.P.No.655 of 2003:The deceased in this case-Ethiraj is 25 years old and aself employed person. The father aged 55 years and mother aged 47years filed a claim petition for compensation in a sum ofRs.5,00,000/- The income of the deceased was claimed as Rs.6,000/-per month.11. In support of the claim, the father of the deceasedwas examined as P.W.3. The Tribunal fixed the income of thedeceased at Rs.2,000/- per month and Rs.24,000/- per year, ofwhich 1/3 has been deducted towards personal expenses of thedeceased and loss of pecuniary benefits was fixed by adoptingmultiplier 13. The compensation granted is as follows: Rs.2,000/-X12 =Rs.24,000/- (–) Rs.8,000/- =Rs.16,000/- X 13 = Rs.2,08,000/- Asum of Rs.25,000/- was awarded towards loss to the Estate andRs.20,000/- towards shock and mental agony. Further a sum ofRs.20,000/- towards loss of happiness and Rs.25,000/- for loss oflove and affection were granted. A sum of Rs.5,000/- was grantedtowards funeral expenses. In all the Tribunal granted a sum ofRs.3,03,000/- in the following manner with interest at 9%Sl.No.HeadAmount grantedby the Tribunal1Pecuniary loss Rs. 2,08,000/-2.Loss to the estateRs. 25,000/-3.Shock and mental agonyRs. 20,000/-4Loss of happinessRs. 20,000/-5Loss of love and affectionRs, 25,000/-6Funeral expensesRs. 5,000/-TotalRs. 3,03,000/- https://hcservices.ecourts.gov.in/hcservices/

12. The claimants were granted Rs.25,000/-towards loss oflove and affection on the death of their son. Therefore, the sum ofRs.20,000/- for loss of happiness and a sum of Rs.25,000/- forloss to the Estate cannot be justified and is exaggerated. Thevarious heads on which the award is passed does not stand toreason. The award has to be suitably modified. 13. The accident in this case happened on 21.7.2003 andthe deceased Ethiraj aged 25 years old, self-employed, his incomeis unreasonably fixed at Rs.2,000/- p.m. And it is too low. Inview of the two decisions, B.Anandhi – vs. - Latha reported in2002 ACJ 233 and State of Haryana and another – vs. - Jasbir Kaurand others reported in 2004-1 Law Weekly, the income of thedeceased should have been fixed higher instead of Rs.2,000/-. TheTribunal has adopted 13 multiplier. Whereas in the case ofbachelor earning member, the multiplier will be 12. If the incomeof the deceased is taken as Rs.3,000/- per month and Rs.1,000/- isdeducted towards personal expenses, pecuniary loss per annum willbe Rs.24,000/-, and by adopting 12 multiplier, the totalcompensation will be Rs.2,88,000/- towards pecuniary loss. Theclaimants will be entitled to compensation loss of happiness onthe death of their son, transport expenses and funeral expenses.Therefore, the balance over and above Rs.2,88,000/- is onlyRs.15,000/- which can be adjusted on various heads applicable.Therefore, the quantum of compensation does not require furtherreduction. 14. The compensation in both the cases, therefore, isadjusted on one or other heads and the total amount is justified.15. As far as the interest is concerned, since theaccident in this case happened in the year 2003 and the award waspassed in 2006, the interest is modified to Rs.7.5%, following thedecision of the Apex Court in the case of T.N. State TransportCorporation Ltd. - v. S.Rajapriya, reported in 2005(6) SCC 236. Therate of interest is reduced to 7.5 % from 9%.. 16. In the result, the Civil Miscellaneous Appeals areallowed to the extent stated. i) The awards of the Tribunal is confirmed.ii) The interest is reduced to 7.5% instead of 9% iii) It is stated by the leaned counsel for the appellantthat in pursuant to the conditional order dated29.02.2008, the entire amount has been deposited. Theclaimant is entitled to withdraw the award amount as perthe order of this Court and the appellant is entitled towithdraw the excess amount in deposit with allowed https://hcservices.ecourts.gov.in/hcservices/ interest after settling the claimants.iv. No costs.v. The miscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarPALToThe Subordinate Judge,The Motor Accidents Claims Tribunal,Tiruvellore.+2ccs to Mr.M.Venkateswaran, Advocate Sr 65919,65920+1cc to Mr.G.Karthikeyan, Advocate Sr 65612CK(CO)km/22.1. CMA Nos.722 & 723 of 2008