BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/04/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.(MD)No.1063 of 1997 1. Vellaiammal 2. Minor Ranjini 3. Karuppiah 4. Sakunthala 5. Minor Arumugam 6. Minor Saroja 7. Minor Selvam (2nd appellant through mother and guardian Vellaiammal I appellant herein) Minors 5 to 7 through father and guardian Karuppiah, third appellant herein. ... Appellants Vs 1. S. Vijayakumar 2. Branch Manager New India Assurance Company Limited Seethaiammal Buidling 5719/2, Sathiamoorthy Road Pudukkottai. 3. A.Jayalakshmi ... Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 31.12.1996 made in MCOP No. 302/1994 on the file of the Motor Accident Claims Tribunal( Additional District Judge cum chief Judicial Magistrate), Pudukkottai. !For Appellants .... Mr. Govindaraj ^For Respondents .... R1 to R3 served but no appearance :JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No.302
of 1994 on the file of Motor Accidents Claims Tribunal( Additional District
Judge-cum-Chief Judicial Magistrate) Pudukkottai. The petitioners in
M.C.O.P.No.302 of 1994 are the appellants herein.
2. The short facts of the case for the purpose of deciding the appeal are
as follows:
On 3.5.1994 at 8.45 a.m., the claimant’s husband who was working as Security in
the Arantangi Chemicals Company was proceeding in his Hero cycle on the left
side of the road, the vehicle bearing Registration No.TN-55-8127 was belonging
to the third respondent, which was insured with the second respondent was driven
by its driver in a rash and negligent manner dashed against the first claimant’s
husband causing grievous injuries all over the body and he was taken to the
Government Hospital,Arantangi, where he died, ithout responding to treatment on
6.5.1994. The claimants are the widow, minor daughter,parents of the deceased,
minor brothers and sister of the deceased. The claimants have filed a claim
petition claiming Rs.8,00,000/- towards compensation.
3. The first respondent remained exparte.
4. The second respondent in his counter has contended that the claimants
have to prove that they are the dependants of the deceased and the claimants 5
to 7 are not entitled to claim any compensation, since they are not the
dependants of the deceased. Only due to the negligent act of the deceased, the
accident had occurred.
5. Before the Tribunal, P.W1 and P.W.2 were examined and Exs P1 to P6
were marked on the side of the claimants. Neither oral nor documentary
evidence was let in by the respondents.
6. After going through the oral and documentary evidence, the Tribunal has
come to a conclusion that only due to the rash and negligent driving of the
driver of the lorry bearing Registration No.TN-55-8127 has awarded a sum of
Rs.76,800/- towards compensation. Not satisfied with the award of compensation,
the claimants have preferred this appeal.
7. Now the point for determination in this appeal is whether the award
passed in M.C.O.P.No.302 of 1994 on the file of the Motor Accidents Claims
Tribunal(Additional District Judge-cum-Chief Judicial Magistrate)Pudukottai is
liable to be enhanced for the reasons stated in the memorandum of appeal in
C.M.A.No.1063 of 1997?
8. The Point:
The learned counsel for the appellants would contend that the learned
Tribunal, while assessing the loss of income had adopted the multiplier 16
instead of 17 as per Schedule 2 to Section 163A of the Motor Vehicles Act, since
the age of the deceased was 32 as per Ex.P3 postmortem certificate. The monthly
income of the deceased was fixed by the learned Tribunal as Rs.600/-, since
there was no documentary evidence except Ex P5 was produced to show the income
of the deceased as Rs.600/- per mensum by doing Security service at
Pudukottai,after deducting 1/3 towards his personal expenses, the learned
Tribunal has taken the monthly income of the deceased as Rs.400/- and assessed
the annual income of the deceased as Rs.4,800/- and adopting the multiplier 16
instead of 17. After the correct multiplier of 17 is adopted, then the loss of
income of the deceased will come to Rs.81,600/-(400 x 12 x 17 =Rs.81.600/-).
The learned counsel for the appellants would contend that towards loss of
consortium and loss of love and affection, the Tribunal has not awarded any
compensation, whereas it is in evidence that the wife of the deceased has become
widow at the young age of 22 and the second claimant is the minor daughter aged
2 years at the time of accident and the parents of the deceased are aged about
50 and 47 respectively. The other respondents are the brothers and sister of
the deceased. Hence, I award a sum of Rs.15,000/- towards loss of consortium to
the first claimant and I award a sum of Rs.5,000/- towards loss of love and
affection to the other claimants. The learned Tribunal has not awarded any
compensation under the head “damages to cloth and articles”. It is in evidence
that the deceased was pedalling his cycle at the time of accident. So due to
the accident his cycle would have got damaged. So under the head damages to the
cloth and articles, I award a sum of Rs.2,500/-. Soon after the accident, the
injured was taken to Government Hospital and he died three days after the
admission ie., on 6.5.1994. So if the injured would have been taken in a private
taxi to the hospital and then corpus of the deceased was taken to his house in
the ambulance, certainly, the claimants would have incurred an expenses of not
less than Rs.2,000/-. Hence, I award a sum of Rs.2,000/- towards transport to
hospital and back. The learned Tribunal has not even awarded any compensation
under the head funeral expenses. As per Schedule 2 to Section 163 A of the Motor
Vehicles Act, the claimants are entitled to Rs.2,000/- towards funeral expenses
under General damages. Hence,I award a sum of Rs.2,000/- towards funeral
expenses. According to the claimants, the accident had occurred at 8.45 a.m on
3.5.1994 and the injured Karuppaiah died in the hospital on 6.5.1994 without
responding the treatment. So during the period of treatment, the deceased would
have experienced enormous pain and suffering as per the dictum reported in
Thilammai and others-v-A.V.Mallayya Pillai(1979 T.L.N.J.461)
wherein it has been held by the learned Judge as follows:
” It is true there is a distinction between case of death resulting from the
accident and a case of other personal injuries not causing the death of the
party, but the party dying subsequently during the pendency of the proceedings
not due to the accident, distinction so far as the right to claim damages. The
claims in all these cases are now statutory rights. Therefore, there appears to
be no reason to restrict the right to the injured alone. Any way that point
need not be decided in this case at this stage. C.P.Kandaswamy Vs. Mariappa
Stores (A.I.R.1974
Mad.178) is distinguishable. In that case, the claim was for a sum of
Rs.25,000/-. This was made up of Rs.1,000/- towards medical expenses,
Rs.4,000/- towards loss of professional income, Rs.10,000/- for shock, pain
and suffering and another sum of Rs.10,000/- for the permanent partial
disability suffered by him on account of the accident. Rs.5,000/- which was
granted by the Tribunal made up of Rs.2,000/- towards loss of professional
income, Rs.2,000/- towards shock , pain and suffering as a result of the
injuries sustained by him and Rs. 1,000/- for medical expenses and the rest of
the claim was disallowed. It is against that order an appeal was pending. With
reference to shock, pain and suffering and loss of professional income, it was
held that the cause of action did not survive…..
But in this case even that difficulty does not arise as the claim for damages
included the value of the cycle which is damages to property. Certainly that
claim relating to value cycle surviving for the legal representatives is a
damage done by any person to the estate of the deceased. Even on the question
of recovering the actual expenses incurred by the deceased, I have no doubt that
the claim will survive since that amount if had not been spent might have been
available as the estate of the deceased to be succeeded by his legal
representatives. The actual dispute will be only with reference to the pain and
suffering and on the permanent disability and loss of earning claimed in the
petition. With reference to these items, though I have my own doubts, as I have
already stated, I am bound by the decision of the Bench reported in
C.P.Kandaswamy Vs.Mariappa Stores(A.I.R.1974 Mad.178) and I do not consider it
necessary to refer to a Bench for further consideration. Suffice it to say that
the petitioners should have been brought on record since other claims which
could survive to the petitioners are also made.”
The claimants are entitled to compensation under the head pain and suffering
also. So under the head pain and suffering, I award a sum of Rs.10,000/-. Hence
I award a sum of Rs.1,18,100/- towards compensation. Hence I hold on the point
that the award passed in M.C.O.P.No.302 of 1994 is liable to be enhanced for
the reasons stated in the memorandum of appeal in C.M.A.No.1063 of 1997. The
point is answered accordingly.
9. In the result, this appeal is allowed and the award passed in
M.C.O.P.No.302 of 1994 is enhanced and fixed as Rs.1,81,100/-(Rs.81,600 +
Rs.15,000 + Rs 5,000 + Rs.2,500 + Rs.2,000 + Rs.2,000 + 10,000/- = Rs.1,18,100/-
) (Rupees One lakh, eighteen thousand and one hundred) Only. The claimants are
entitled to 9% interest for the enhanced award amount. Out of the award amount,
first claimant is entitled to Rs.50,000/- , the minor second claimant is
entitled to Rs.43,100/- and claimants 3 and 4 are entitled to each Rs.12,500/-.
The first claimant is permitted to withdraw a sum of Rs.25,000/- at the first
instance and the claimants 3 and 4 are each permitted to withdraw Rs.10,000/- at
the first instance. The minor second claimant’s share with accrued interest is
to be deposited in any one of the Nationalised Bank till she attains majority.
The balance of the award amount with accrued interest in respect of the shares
of claimants 1,3 and 4 are to be deposited in any one of the Nationalised Bank
for a period of three years. During such period, claimants 1,3 and 4 are
entitled to withdraw, the accrued interest once in three months from the Fixed
Deposit in respect of the share of the minor, the guardian-first claimant is
permitted to withdraw the accrued interest once in three months for the welfare
of the minor. In other aspects, the award of the Tribunal is confirmed. The
enhanced award amount is to be deposited in two months. No costs.
sg
To
The Motor Accidents Claims Tribunal
(Additional District Judge-cum-Chief Judicial Magistrate)
Pudukottai.