The New India Assurance Company Limited v. Iyyappan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 06.01.2009Coram: The Honourable Mr.Justice V.PERIYA KARUPPIAHC.M.A.(NPD)Nos.3186 and 3187 of 2003THE NEW INDIA ASSURANCE COMPANYLIMITED,Kamarajar Street,Chennai-600 001... Appellant in both C.M.As./Second Respondent vs. 1. Iyyappan2. Samundeswarai3. Rajeswari4. Ponnamani5. Dhanraj6. M/s.Nagambiga Bell Carriers represented by its Proprietor A.Nagpal residing at No.J-26, RH-2, Sector No.6, Vashi, New Bombay.7. The Managing Director, J.J.T.C., Kamarajar Sali, Chennai-5. .. Respondents in C.M.A.No.3186/2003 Petitioners 1 to 5, 1st and 3rd Respondents 1. Iyyappan2. Samundeswari3. Rajeswari4. Ellammal @ Nagammal5. M/s.Nagambika Bell Carriers represented by its Proprietor A.Nagpal6. The Managing Director, J.J.T. Corporation, Kamarajar Salai, Chennai-5. .. Respondents in CMA.No.3187/2003 Petitioners 1 to 4 and Respondents 1 & 3Civil Miscellaneous Appeals filed against the common Judgment anddecree, dated 16.07.2003 made in M.C.O.P.No.236 of 1999 and 237 of1999 on the file of the Motor Accidents Claims Tribunal, SubordinateJudge at Kancheepuram. https://hcservices.ecourts.gov.in/hcservices/ For appellant : Mr.C.Ramesh BabuFor Respondents : No appearance C O M M O N J U D G M E N TThese appeals are directed against the common award passed by thelower court in M.C.O.P.NoS.236 of 1999 and 237 of 1999, dated16.07.2003 by the Second Respondent, the Insurance Company.2. The brief facts submitted by both parties before the lowercourt in M.C.O.P.Nos.236 and 237 of 1999 are as follows:-(i) According to the claimant/appellant, on 12.03.1995 at 11.30a.m. at GW Road between Greenland and New Star Hotels, while thedeceased was proceeding as a bonafide passenger from Madras toVellore in JJTC Bus Registration No.TN-07-N-9130 and at that time,the lorry bearing Registration No.MH-04-P-2555 belonging to the 1strespondent, being driven by its driver in a rash and negligent mannerin an uncontrollable speed, which was coming from Bangalore toMadras, hit and dashed against the JJTC Bus bearing RegistrationNo.TN-07-N-9130 and thus caused death of several persons includingthe drivers of both the vehicles due to the impact of fire and due tothe burnt of the Tanker Lorry.(ii)According to the 2nd respondent Insurance Company, thetractor tailor was insured with them and it was authorised to be usedfor agricultural purpose and not as a public service vehicle orpublic carrier. At the time of the accident, the vehicle was engagedas a public service vehicle to carry people for celebrating thebetrothal of one Miss Komala and since the victims were nottravelling in the tractor for any purpose contemplated under Section147 of the Motor Vehicle Act and the vehicle was used contrary topermit and policy conditions, this respondent is not liable to payany compensation under law. Further, it is stated that the rash andnegligent driving on the part of the driver of the bus alone wasresponsible for the occurrence and the driver of the tractor trailorwas also guilty of the negligence for not having observed the rulesof the road. Therefore, the Managing Director of P.T.Dr.J.J.T.C. Busand the owner of the tractor trailor alone are liable to pay thecompensation.3. The lower court after going through the common evidenceadduced in both the claim petitions, had passed awards in favour ofthe claimants, fixing the liability on the second respondentappellant and the third respondent transport corporation equally.Aggrieved upon the apportionment of liability and the quantum ofcompensation, the 2nd respondent before the lower court had preferredthese appeals. https://hcservices.ecourts.gov.in/hcservices/

4. Heard the learned counsel for the appellant. There is noappearance for the respondents.5. Learned counsel for the appellant would submit in his argumentthat the lower court, without appraising the evidence properly, hadfixed the liability of negligence against the driver of the 1strespondent equally, whereas the driver of the third respondent wasthe basic cause for the commission of the accident. He would furthersubmit that the quantum of compensation fixed for the deceased personin M.C.O.P.No.236/1999, who was the woman and mother of the claimants1 to 3 was repeated by awarding another sum of Rs.15,000/- per eachclaimant 1 to 3 and the award of compensation in favour of theclaimants 4 and 5, who are the parents of the deceased woman is notcorrect in the eye of law and the income of the deceased fixed andthe multiplier arrived at for assessing the compensation are onhigher side and therefore, the award passed in M.C.O.P.No.236 of 1999should have been modified.6.He would also submit that the quantum of compensation forthe deceased person, who is the father of the claimants 1 to 3 andson of claimant No.4 was also assessed on higher side. He wouldfurther submit that the claimants 1 to 3 were given Rs.50,000/- apartfrom awarding a compensation for the loss of life of the deceasedfather, which is not sustainable in law. He would further submitthat the multiplier fixed and the compensation calculated for theloss of love of the deceased person were on the higher side andsuitable compensation may be fixed and the award passed by the lowercourt may be modified accordingly.7. There is no appearance for the respondents.8. I have given anxious consideration to the arguments made bythe learned counsel for the appellant/Insurance Company. I have alsogone through the evidence placed before the lower court and thecontentions raised by the respondents before the lower court.9. The deceased persons were husband and wife and they weretravelling in the third respondent's bus at the time of the accident.The claimants 1 to 3 are their children. The claimant No.4 inM.C.O.P.No.237/1999 was the mother of the deceased woman in theaccident. The claimants 4 and 5 in M.C.O.P.No.236/1999 were theparents of the deceased man. The accident had happened, while theywere travelling in the bus had collided with the lorry belonging tothe first respondent, insured with the appellant/2nd respondentherein. The lower court had come to a conclusion that in the sameaccident, there were so many injured and deceased persons and theclaim petitions filed on those instances were decided by theTribunal against the driver of the bus i.e. the 3rd respondent and thedriver of the lorry equally. The said decision of the Tribunal was https://hcservices.ecourts.gov.in/hcservices/ considered by this Court and it was upheld and the findings of theTribunal was affirmed in its order Ex.R.1. Therefore, this Court hadupheld the decision reached by the Tribunal in the claim petitions inwhich the insured and the legal representatives of the deceased hadapplied for compensation arising out of the same accident. Thedecision of the lower court in this case was affirmed on the saidjudgment of this Court in Ex.R.1 and therefore, the apportionment ofliability on the 2nd and 3rd respondents equally is perfectly allright. 10.As regards the compensation awarded to the deceased woman,the mother of the claimants 1 to 3 is concerned, she died in theaccident at her age of 45. Based on her date of birth, the lowercourt had fixed her income at Rs.15,000/- per year. On that basis,it had calculated the compensation for the loss of her life atRs.1,50,000/-. Thereafter, it had awarded Rs.20,000/- to claimants 1to 3 each towards loss of love and affection. Apart from that, a sumof Rs.50,000/- was awarded to each of the claimants 1 to 3 towardsthe loss of dependants. The lower court had calculated the loss withthe use of the multiplier which is considered to be the best methodas per the dictum of our Apex Court.11.While calculating the loss of income through such multipliermethod, it is not legal to award further compensation towards theloss of dependance in favour of the claimants 1 to 3. Therefore,such award of compensation to an extent of Rs.1,50,000/- is notsustainable. However, it is to be borne in mind that if theclaimants are entitled to the quantum of total compensation arrivedat by the lower court, otherwise than this method, the same could beawarded to the claimants. Therefore, it has to be considered whetherthe income fixed by the lower court, notionally at Rs.15,000/- peryear, is sustainable.12.According to the judgment of our Apex Court reported in(2001) 8 SCC 197 Lata Wadhwa and others Vs. State of Bihar andothers, it has been categorically found that a house wife who metwith an accident and had lost her life in between the age of 34 to59, her annual income should not be fixed mechanically at Rs.15,000/-per annum and her annual income towards domestic service and otherservice to the children could be assessed at Rs.36,000/- per annum.The relevant passage would read as follows:"10. So far as the deceased housewives are concerned, inthe absence of any data and as the housewives were notearning any income, attempt has been made to determine thecompensation on the basis of services rendered by them tothe house. On the basis of the age group of thehousewives, appropriate multiplier has been applied, butthe estimation of the value of services rendered to thehouse by the housewives, which has been arrived atRs 12,000 per annum in cases of some and Rs 10,000 https://hcservices.ecourts.gov.in/hcservices/ for others, appears to us to be grossly low. It is truethat the claimants, who ought to have given data fordetermination of compensation, did not assist in anymanner by providing the data for estimating the value ofservices rendered by such housewives. But even in theabsence of such data and taking into consideration themultifarious services rendered by the housewives formanaging the entire family, even on a modest estimation,should be Rs 3000 per month and Rs 36,000 per annum. Thiswould apply to all those housewives between the age groupof 34 to 59 and as such who were active in life. Thecompensation awarded, therefore, should be recalculated,taking the value of services rendered per annum to beRs 36,000 and thereafter, applying the multiplier, as hasbeen applied already, and so far as the conventionalamount is concerned, the same should be Rs 50,000 insteadof Rs 25,000 given under the Report. So far as the elderlyladies are concerned, in the age group of 62 to 72, thevalue of services rendered has been taken at Rs 10,000 perannum and the multiplier applied is eight. Though, themultiplier applied is correct, but the values of servicesrendered at Rs 10,000 per annum, cannot be held to be justand, we, therefore, enhance the same to Rs 20,000 perannum. In their case, therefore, the total amount ofcompensation should be redetermined, taking the value ofservices rendered at Rs 20,000 per annum and then afterapplying the multiplier, as already applied andthereafter, adding Rs 50,000 towards the conventionalfigure."13.The aforesaid dictum would make me clear that the income ofthe deceased woman, in between the age of 34 and 59 should be fixedwith the annual income of Rs.36,000/- towards her loss of life. Thelower court ought to have followed this decision of law and shouldhave calculated the compensation. When it is calculated withrelevant multiplier 15, it comes to Rs.5,40,000/-. The loss of loveand affection as fixed by the lower court should have been awarded toRs.20,000/- per claimants 1 to 3 each. Apart from that, a sum ofRs.2,000/- has to be awarded for funeral expenditure. All thosewould go to show that the total compensation should have been atRs.6,02,000/-. But the lower court had awarded a sum ofRs.3,60,000/- only in favour of the claimants 1 to 3. Therefore, thesaid compensation passed by the lower court to be paid by therespondents 2 and 3 is not liable to be revised. Accordingly, thesaid appeal in CMA (NPD) No.3186/2003 filed by the second respondentagainst the award passed in MCOP.No.236/1999 is liable to bedismissed.14.So far as the quantum arrived at in M.C.O.P.No.237/1999 is https://hcservices.ecourts.gov.in/hcservices/ concerned, the deceased person was the father of the claimants 1 to 3and son of the claimant no.4, whose age was fixed at 50 as perEx.P.5. He was a retired Army Man and was receiving a sum ofRs.2151/- as salary in the present post in the Standard Motor Companyand was also receiving pensionary benefits from the military.Totally, he was earning a sum of Rs.4,500/- per month. The lowercourt had deducted 1/3rd from the said income and arrived atRs.36,000/- per year towards the annual dependancy of the claimants.It had also fixed the multiplier at 13 as per Schedule II of theMotor Vehicles Act and had arrived at Rs.4,68,000/- for the loss oflove of the deceased father towards each of the claimant 1 to 3.Similarly, the claimants 1 to 3 were awarded a sum of Rs.20,000/-each towards loss of love and affection for their father. Apart fromthat, the lower court had calculated a sum of Rs.50,000/- to each ofthe claimants 1 to 3 for the loss of dependency. In the earlierparagraph, it has been discussed that awarding of compensation atRs.50,000/- to claimants 1 to 3 regarding loss of dependancy eventhough they were given compensation for the loss of life of theirfather, could not be maintained. Similarly, this award ofRs.50,000/- per each of the claimant towards loss of dependency isnot sustainable. However, the lower court had awarded Rs.2,000/-towards funeral expenditure. The lower court did not award anycompensation towards loss of love and affection for the claimantNo.4, who was the mother of the deceased person. Therefore it isjustifiable to award a sum of Rs.10,000/- to the old mother, who losther son. The lower court also should have awarded compensation forloss of estate to all the claimants and on that basis, each of theclaimant is entitled to Rs.2,500/- towards the said category. Thefixation of multiplier and the income by the lower court forcalculating the compensation for the loss of love of the deceasedfather are justifiable except the award of compensation fordependancy. Therefore, the total compensation to be awarded to theclaimants 1 to 4 shall be calculated as follows:Sl.No.Head on which the amount isawardedAmount1.Loss of incomeRs. 4,68,000/-2.Loss of Love and affectionRs. 70,000/-3.Loss of EstateRs. 10,000/-4.Funeral ExpensesRs. 2,000/-TotalRs. 5,50,000/- 15.Out of the said amount, the claimants 1 to 4 are equallyentitled to a sum of Rs.4,80,000/-. Apart from that, the claimants 1to 3 each are entitled to Rs.20,000/- each and claimant No.4 isentitled to Rs.10,000/- towards loss of love and affection. For the https://hcservices.ecourts.gov.in/hcservices/ foregoing reason, the lower court ought to have awarded a sum ofRs.5,50,000/-, whereas it had awarded a sum of Rs.6,80,000/- which isfound excessive. Therefore, the appeal is partly allowed and theaward passed by the lower court is reduced from Rs.6,80,000/- toRs.5,50,000/- to be paid by the respondents 2 and 3 equally withproportionate costs and subsequent interest.16.With the aforesaid modifications, the appeal in CMA (NPD)No.3187 of 2003 is allowed in part. There is no order as to cost inthe appeal.17.In fine, the appeal in CMA (NPD) No.3186/2003 is dismissedconfirming the award passed by the lower court in MCOP.No.236/1999.No costs in this appeal.18.In fine, the appeal CMA (NPD) 3187 of 2008 is allowed inpart and the award passed by the lower court in MCOP.No.237/1999 isreduced from Rs.6,80,000/- to Rs.5,50,000/- with subsequent interestas ordered by lower court and proportionate costs. No costs in thisappeal.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsiToThe Subordinate Judge,Motor Accidents Claims Tribunal,Kanchipuram.2 ccs To Mr.C.Ramesh Babu, Advocate, SR.242 & 243 C.M.A.(NPD)Nos.3186 & 3187/ 2003SSR(CO)SRA(18/02/2009)