BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/11/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.345 of 2007 and M.P.(MD) Nos.1, 2 and 4 of 2007 The Oriental Insurance Co. Ltd., Branch Office, P.L.A. Building, 12 A, Kovai Road, Karur. ... Appellant Vs. 1.K.Lakshmi 2.S.Anbumani 3.T.Tamilarasi 4.Meenakshi 5.Minor Satheesh 6.Minor Kumar ... Respondents (R5 and R6 Minors rep. by their mother and guardian fourth respondent) Prayer Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Decree and Judgment dated 12.07.2006, passed in M.C.O.P.No.220 of 2003, on the file of the Motor Accidents Claims Tribunal (District Court), Karur. !For Appellant ... Mr.A.K.Bhaskarapandian ^For Respondents 1 to 3 ... Mr.N.Shanmugaselvan For Respondents 4 to 6 ... No appearance :JUDGMENT
This appeal is focussed as against the judgment and decree dated
12.07.2006, passed in M.C.O.P.No.220 of 2003, on the file of the Motor Accidents
Claims Tribunal (District Court), Karur.
2. Heard both sides.
3. The challenge in this Civil Miscellaneous Appeal is relating to the
quantum of compensation awarded by the Tribunal, vide judgment dated 12.07.2006,
to a tune of Rs.4,00,800/-(Rupees Four Lakh and Eight Hundred only) on the
following sub-heads:
(i) For Loss of Income - Rs.3,88,800.00 (ii)For Loss of Love and affection - Rs. 10,000.00 (iii)For Funeral Expenses - Rs. 2,000.00 -------------- Total - Rs.4,00,800.00 --------------
4. The gist and kernel of the grounds as stood exposited from the grounds
of appeal could be set out thus:
The deceased Murugan did not met with any fatal accident at all. There
was no nexus between the alleged injuries sustained by the said Murugan and the
cause of his death, which occurred after six months to the alleged accident.
The Compensation awarded was also on the higher side.
5. During trial, on the side of the claimants P.W.1 and P.W.2 were
examined and Exs.P.1 to 14 were marked and on the side of the respondents R.W.1
was examined. No documentary evidence adduced on the side of the respondents.
6. Points for consideration are
(i) Whether the deceased Murugan died due to the injury sustained by him
in the accident?
(ii) Whether the quantum arrived at by the Tribunal is just and proper?
7. Point No.1: The learned counsel for the appellant/insurance company
would submit that in the absence of medical record including Post-mortem
Certificate, the Tribunal erred in jumping to the conclusion that the deceased
died due to the injuries sustained by him in the accident. By way of torpedoing
the arguments put forth on the side of the appellant the learned counsel for the
claimants placing reliance on Ex.P.13, the certified copy of the Order of the
District Consumer Redressal Forum, Karur, passed on 12.05.2004, in C.O.P.No.37
of 2003, would develop his argument to the effect that the very same insurance
company, which is appellant herein was respondent before the District Consumer
Redressal Forum, Karur, and raised the very same plea, which was correctly and
properly rejected by the District Consumer Redressal Forum, Karur, and awarded a
compensation of Rs.1,00,000/- under the Janata Personal Accident Police, which
was taken by the deceased and in such a case there is no rhyme or reason on the
part of the appellant now to veer round and take antithetical plea. An excerpt
from the finding the District Consumer Redressal Forum, Karur, would run thus:
“9. Further the learned counsel for the complainant relied upon 2003 ACJ
1353, wherein, the Gujaraj High Court has held that “the injured sustained
injuries as a result of accident; injured remained in the hospital for a day and
discharged on request; doctor stated that it was not possible to ascertain
whether the injured had any injury to internal organs; widow of the deceased
deposed that he remained unconscious till he died and she had no money to
arrange for his hospital treatment though some treatment of a private doctor was
taken for one month after discharge of the deceased from the hospital, no
evidence of any other ailment or disease which could have terminated his life
abrutly; Tribunal accepted oral evidence of the widow and held that the deceased
died due to serious internal injuries which he had sustained in the accident”.
10. In view of the above decision, it is clearly established that the
deceased Murugan has died due to an accident and the furnishing of post-mortem
certificate is not necessary in such a case. But there is no other defence on
the side of the opposite party. The deceased Murugan has obtained an
individual Janata Personal Accident Police for the sum of Rs.1,00,000/- and the
insured amount should have been paid by the opposite party after receipt of the
claim form with necessary documents. The opposite party even after receipt of
the claim form with necessary documents from the complainant has not come
forward to settle the claim or even to answer the notice issued by the
complainant. Despite proper compliance of the requirements as laid down in the
policy conditions, the non-settling of the claim of the complainant is gross
deficiency in service on the part of the opposite party.”
Admittedly and indubitably the insurance company honoured the award passed by
the District Consumer Redressal Forum, Karur, and the learned counsel for the
claimant would submit that the deceased’s mother was in receipt of the said
Rs.1,00,000/- also. As such the perusal of the records would leave no doubt in
the minds of the Court that the deceased died only due to the injuries sustained
by him in the accident.
8. The insurance company being a public corporation is not justified in
having a volte face before this Court and argue as though death was not due to
the accident. No doubt before District Consumer Redressal Forum, Karur, the
insurance company contested the matter, but subsequently, on seeing the order of
the forum they got convinced and paid the amount due under the Janata Personal
Accident Policy. In such a case it is no more open for the insurance company to
contend before this Court as though the deceased did not die due to the injury
sustained by him in the accident. It is a trite, proposition of law that simply
because the mother obtained compensation under Janata Accident Policy, it is not
a bar to claim compensation before the Motor Accident Claims Tribunal. That
amount was received only based on the premium paid by the deceased and the claim
before Motor Accident Claims Tribunal is having nothing to do with the claim
before the Tribunal. Hence, this point is answered accordingly in favour of the
claimants.
9. Point No.2: The learned counsel for the claimant in all fairness would
submit that during the pendency of the claim petition before the Tribunal, the
father of the deceased died, thereupon the unmarried sisters of the deceased
have been impleaded. I am of the considered opinion that the mother of the
deceased being the main claimant in the case, only her status should be taken
into consideration for assessing the compensation. However, the Tribunal fell
into error in simply adopting the multiplier 18 taking into account the age of
the deceased as 29. It is no more a debatable issue, in view of the catena of
decisions of the Honourable Apex Court to the effect that if the unmarried son
died and the parents are the claimants, their age should be taken into account
for choosing the multiplier and not the age of he deceased. In commensurate
with such view, I am of the considered opinion that multiplier 11 is the proper
one as the mother at the relevant time of the death of her son, was aged 50
years old. The Tribunal assessed the loss of dependency at Rs.1,800/- per
month, which in my opinion appears to be on the higher side. The unmarried
daughters ex-facie and prima-facie are not entitled to claim compensation. In as
much as they were impleaded after the death of their father. In view of the fact
that they have lost the social support of their deceased brother they are
entitled to some meagre amount of compensation. Hence, in such a case Rs.800/-
(Rupees Eight Hundred only) could be taken as monthly dependency of the claimant
and accordingly the formula can be evolved. For loss of love and affection
Rs.10,000/- could be awarded. The compensation, awarded therefore is modified as
under:
(i) For Loss of Income(800x12x11) – Rs.1,05,600.00
(ii)For Loss of Love and
affection – Rs. 10,000.00
(iii)For Funeral Expenses – Rs. 2,000.00
————–
Total - Rs.1,17,600.00 --------------
10. In the result, this appeal is partly allowed and the compensation
awarded by the Tribunal is reduced from Rs.4,00,800/-(Rupees Four Lakh and Eight
Hundred only) to Rs.1,17,600/- (Rupees One Lakh Seventeen Thousand and Six
Hundred only). Out of the said amount the first respondent is entitled to
Rs.1,00,000/- (Rupees One Lakh
only) and the remaining amount of Rs.17,600/- (Rupees Seventeen Thousand and Six
Hundred only) shall be divided equally between the second and third respondents.
In other aspects the award shall hold good. Consequently, connected M.P.(MD)
No.1, 2 and 4 of 2007 are closed. No costs.
sj
To
1.Motor Accidents Claims Tribunal,
(District Court),
Karur.