IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.04.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Civil Miscellaneous Appeal No.2710 of 2006
M/s.United India Insurance
Company Limited,
No.4 & 5, Kandasamy Mudali street,
Ranipet. ... Appellant.
vs.
1. Vasantha
2. Minor Ramyanath
3. Minor Balaji
Minors are represented by
their mother and natural
guardian Vasantha.
4. S.K.Ganesan
5. Lakshmi
6. Sivakumar
7. Minor Vijayalakshmi
8. Minor Sasikumar
Minors 7 and 8 represented by
their mother and natural
guardian Lakshmi
9. The Senior Divisional Manager,
New India Assurance Co., Ltd.,
No.1, Officer's line,
CSI Building First Floor,
Velore. ... Respondents
Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 against the Order dated 31.05.2006 made in M.C.O.P.No.207 of 2004 on the file of Motor Accident Claims Tribunal [Fast Track Court No.II, Ranipet] dated 31.05.2006.
For Appellant : Mr.J.Jayendra Krishnan
for
Mr.J.Raja Kalifulla
For Respondents : Mr.R.Singaravelan R1 to R3
for
Mr.V.Parivallal
Ms.Banulatha R5 to R8
Mr.S.Manohar - R9
JUDGMENT
R.BANUMATHI,J
Being aggrieved by the award of compensation of Rs.40,00,000/- in MCOP.No.207 of 2004 on the file of Fast Track Court No.II, Ranipet for the death of Gopinath in the road traffic accident on 25.05.2001, the Insurer of the lorry bearing registration No. TN-58 C 4719 has come forward with this Appeal.
2. Brief facts are that on 25.05.2001 at 11.15 A.M. in Madras-Trichy Main Road, Perambalur District near Padalur deceased Gopinath was proceeding in the car bearing registration No.TMK 7022 from Walajapet to Trichy in his car. While the car was stopped near petrol bunk due to traffic jam and at that time the lorry bearing registration No.TN-58-C 4719 driven by its driver in a rash and negligent manner came behind dashed against the car. Due to the impact, deceased Gopinath sustained severe head injuries and died on the spot. At the time of accident, deceased was aged 50 years and he was running Sakthi Radiographic Inspection Company undertaking inspection of Radiographic and earning Rs.65,000/- per month. Alleging that the accident was due to rash and negligent driving of the lorry bearing registration No.TN-58-C 4719, the Claimants who are wife and children of the deceased Gopinath have filed the Claim Petition claiming compensation of Rs.75,00,000/-.
3. Insurer of the lorry resisted the Claim Petition contending that the accident took place due to negligent driving of the car by its owner cum driver who had suddenly stopped the car at a high speed on the National Highways without giving prior signal or gesture. The driver of the car wherein the deceased was travelling suddenly stopped his car without giving any warning or signal to the on coming vehicles from its back, deceased Gopinath himself has invited the accident for which neither the lorry bearing registration No. TN-58-C 4719 nor the Appellant-Insurance Company is responsible in any manner and therefore, the Appellant-Insurance Company is not liable to pay any compensation.
4. Before the Tribunal, 1st Claimant-Vasantha was examined as PW1. One Madhiyazhagan, who was the eye-witness to the accident was examined as PW2 and one Viswanathan, who was then working as Inspector in Income-Tax Office, Vellore was examined as PW3. Exs.P1 to P26 were marked. On the side of Respondents, one Raghu, who was then working as Senior Assistant in Appellant-Insurance Company was examined as RW1. One Kesavan, who was then working as Development Officer in 9th Respondent-Insurance Company was examined as RW2. Exs.R1 to R7 were marked.
5. Upon analysis of evidence, Tribunal held that the accident was due to rash and negligent driving of lorry driver and held that the owner of the lorry and Appellant-Insurance Company are jointly and severally liable to pay compensation. Tribunal further held that at the time of accident, deceased was running Sakthi Radiographic Inspection Company and was getting orders from various companies. Referring to Exs.P17 to P26 as per which the deceased was getting around Rs.1,00,000/- per annum, Tribunal has taken the monthly income at Rs.30,000/-. Deducting 1/3rd towards personal expenses, contribution to the family was calculated at Rs.20,000/- per month. Adopting multiplier “10”, Tribunal has awarded Rs.24,00,000/- for “loss of dependency”. For “loss of expectation of life” and “loss of estate”, Tribunal awarded an exorbitant amount of Rs.14,00,000/-. Totally, Tribunal has awarded compensation of Rs.40,00,000/- as under:-
Loss of dependency : Rs.24,00,000.00
[Rs.20,000/- x 12 x 10]
Loss of expectation of life : Rs.10,00,000.00
[2nd and 3rd Claimants]
Loss of estate : Rs. 4,00,000.00
Loss of consortium : Rs. 50,000.00
Loss of Love and Affection : Rs. 1,50,000.00
——————-
Total : Rs.40,00,000.00 ——————-
6. Mr.Jayendra Krishnan, learned counsel for Appellant-Insurance Company contended that the accident involved two vehicles and the car in which deceased was travelling was stopped all of a sudden when the lorry hit the vehicle. It was further contended that the accident happened in the Highway when the car entered into the main road from the petrol bunk without noticing the oncoming lorry and having contributed to the accident, Claimants cannot mulct the entire responsibility on the owner of the lorry and the Appellant-Insurance Company and Tribunal has not properly considered the contributory negligence.
7. Mr.Singaravelan, learned counsel appearing for Claimants submitted that upon analysis of oral and documentary evidence, Tribunal has rightly fixed the negligence on the part of the lorry bearing registration No.TN-58 C 4719. Learned counsel for Claimants would further submit that the quantum of compensation awarded by the Tribunal is quite reasonable warranting no interference.
8. We have heard the arguments of Mr.Manoharan, learned counsel for 9th Respondent-Insurance Company of the car in which the deceased Gopinath travelled.
9. To prove the accident, PW2-Madhiazhagan, eye-witness was examined as PW2. In his evidence PW2 has stated that on 25.05.2001 while he was driving his car from Walajapet to Trichy and in front of him, car bearing registration No. TMK 7022 was proceeding. The relevant portion of evidence of PW2 reads as under:-
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PW2 further stated that at that time, from the petrol bunk a lorry bearing registration No.TN-58 C 4719 suddenly came and noticing the lorry came from the petrol bunk, the driver of the car in which the deceased was travelling stopped the car in order to leave way to the said lorry and the lorry [No.TN-58 C 4719] which was coming behind the car hit against the car and both Gopinath and driver of the car died on the spot. PW2 has categorically stated that the accident was due to rash and negligent driving of the lorry driver.
10. Even though Appellant-Insurance Company has taken the defence of contributory negligence of the car driver, no rebuttal evidence was adduced to show that the car driver also contributed to the accident. Criminal case in Crime No.137/2001 of Padalur Police Station was also registered against the lorry driver. In the absence of any rebuttal evidence, defence plea that the car driver also contributed to the accident is not acceptable. The Tribunal rightly held that the accident was due to the rash and negligent driving of the lorry driver.
11. Coming to the quantum of compensation, learned counsel for Appellant-Insurance Company submitted that as per the Income tax returns [Exs.P17 to P26] produced by the Claimants, the gross total income for the assessment year 2000-2001 is Rs.94,202/- and after deducting 1/3rd towards personal expenses, the contribution to the family hardly comes to Rs.5233/- per month and while so, the income taken by the Tribunal at Rs.30,000/- per month is very much on the higher side. It was further submitted that the observation of the Tribunal that by the death of Gopinath, the land and machineries worth around Rs.10,00,000/- would become useless is the another finding not based on any material. Learned counsel for the Appellant would further submit that award of Rs.14,00,000/- for “loss of expectation of life” and “loss of estate” is excessive when the assets are intact and Claimants inherited the said assets. There is no basis for awarding such an exorbitant amount of Rs.14,00,000/- for “loss of expectation of life” and “loss of estate” is misconceived and the same has to be set aside.
12. Deceased Gopinath was running Sakthi Radiographic Inspection Company and the same was registered under Directorate of Industries and Commerce as Small Scale Industries. Deceased was undertaking Radiographic test of castings and welding on job work. Ex.P10 is the certificate issued by Chief Inspector of Boilers, Tamil Nadu, Chennai to the effect that M/s.Sakthi Radiographic Inspection Company is to undertake Radiography, Ultrasonic tests and other non-destmotive tests under the purview of Indian Boiler Regulations. From Ex.P11, it is seen that deceased Gopinath was a participant in the 30th Training Course on the Safety Aspects in the Industrial Applications and Radiation Sources conducted by the Division of Radiological Protection of Bhabha Atomic Research Centre, Department of Atomic Energy from 06.09.1976 to 01.10.1976. From Ex.P8, it is seen that deceased Gopinath entered into an agreement of contract of Radiographic Inspection work with Bharat Heavy Electricals Limited [BHEL], Ranipet. Exs.P12, P13, P14 and P16 are the letters of correspondence from M/s. Kartiksteels Limited, Chennai; M/s.Madura Steel Industries Private Limited, Dindigul; Head, Radiological Protection Division, Atomic Energy Regulatory Board, Bombay; and Bellfabs, Ranipet respectively to M/s. Sakthi Radiographic Inspection Company entrusting the work to do radiographic work in their factory premises. Ex.P15 is the valuation certificate issued by Chartered Engineer, Sri Lingeshwarar Fabricators, Ranipet valuing the Industrial Plot M/s.Sakthi Radiographic Inspection Company located at Mukundarayapuram and estimated the valuation of machineries at Rs.10,27,622/-. From Ex.P12, it is seen that M/s.Kartiksteels Limited had agreed to pay a lumpsum of Rs.2500/- per month towards carrying out the MP test for all castings that are being despatched from their factory premises.
13. In her evidence, PW1 has stated that from doing Radiographic work in various Industries and her husband being equipped in radiographic work was earning Rs.1,00,000/- per annum. Apart from the oral evidence of PW1, no document was produced to show that deceased Gopinath was earning more than Rs.1,00,000/- per annum. Exs.P17 to P22 are the income-tax returns of the deceased. From Exs.P17 to P22, he was getting Rs.73,120/- for the assessment year of 1997-98; Rs.78,820/- for the assessment year 1998-99; Rs.1,28,408/- for the assessment year 1999-2000; Rs.94,202/- for the assessment year 2000-2001; Rs.64,370/- for the assessment year 2001-2002; Rs.65,880/- for the assessment year 1996-1997 respectively. Deceased had paid income tax on the said taxable income. From Exs.P17 to P22, it is seen that deceased was getting income of around Rs.1,00,000/- per annum. Even though, deceased was getting around Rs.1,00,000/- per annum, stating that deceased was qualified to do radiographic work and was doing job work in number of companies, Tribunal has taken the monthly income of Rs.30,000/- per month. Even if we take the future prospects, in our considered view, Tribunal was not justified in taking triple or four times the income i.e. Rs.30,000/- per month [Rs.3,60,000/- per annum] as against the taxable income shown in Exs.P17 to P22-Income tax returns. In our considered view, the monthly income taken by the Tribunal at Rs.30,000/- p.m. i.e. Rs.3,60,000/- per annum as against the income shown in Exs.P17 to P22 is very much on the higher side.
14. As we pointed out earlier, deceased was running Sakthi Radiographic Inspection Company having industrial Plot located at Mukundarayapuram village. Deceased was qualified to do Radiographic work and has also taken specialised training. Keeping in view the future prospects and from the job works, it would be appropriate to take the monthly income at Rs.20,000/-per month. Deducting 1/3rd for personal expenses i.e. Rs.6,600/- rounded to Rs.6000/- per month for personal expenses, contribution to the family would be Rs.14,000/- per month i.e. Rs.1,68,000/- [Rs.14,000/- x 12] per annum.
15. Date of birth of Gopinath is 01.06.1950. At the time of accident, deceased was aged 50 years 6 months. As per second schedule to M.V. Act, multiplier “11” has to be adopted. Even though, Tribunal adopted multiplier “10”, it would be appropriate to adopt multiplier “11” and the total pecuniary loss/loss of dependency is calculated at Rs.18,48,000/- [1,68,000 x 11 = 18,48,000/-].
16. Tribunal has awarded an astonishing amount of Rs.14,00,000/- for “loss of expectation of life” and “loss of estate”. Tribunal was of the view that had the deceased been alive, Gopinath would have further improved his business and that he would have also taught expertise to the Claimants 2 and 3 and the Claimants 2 and 3 would have been greatly benefitted by sharing of such expertise. Tribunal took the view that Claimants 2 and 3 have lost the expertise and valuable guidance of their father and awarded Rs.5,00,000/- each to Claimants 2 and 3 for “loss of expectation of life”. Tribunal has also took the view that machineries and land were rendered useless, Tribunal awarded Rs.4,00,000/- for “loss of estate”. In our considered view, award of compensation of Rs.14,00,000/- for “loss of expectation of life” and “loss of estate” is not based on any materials. It is not as if the Tribunal has observed that the machineries and land would have been rendered useless. Even after the death of Gopinath, the business continue to remain with the family.
17. Compensation to be awarded is just and reasonable compensation and not a windfall and bonanza; not a source of profit but the same should not be a pittance. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the back ground of “just” compensation which is the pivotal consideration. Determination has to be rational, to be done by a judicious approach and not the out come of whims, wild guesses and arbitrariness.
18. Considering the question of just compensation, in 2009 (1) CTC 743 [Syed Basheer Ahamed and others v. Mohd. Jameel and another], the Supreme Court held as under:-
“9. Section 168 of the Act enjoins the Tribunal to make an award determining “the amount of compensation which appears to be just.” However, the objective factors, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression “which appears to the just” vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation. Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on certain data, establishing reasonable nexus between the loss incurred by the dependents of the deceased and the compensation to be awarded to them. In nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal standards.
10. In General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and others., 1994(2) SCC 176, M.N.Venkatachaliah,J (as his Lordship then was) had observed that the determination of the quantum must answer what contemporary society “would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing”. The amount awarded must not be niggardly since the “law values life and limb in a free society in generous scales”. At the same time, a misplaced sympathy, generosity and benevolence cannot be the guiding factor for determining the compensation. The object of providing compensation is to place the claimant(s), to the extent possible, in almost the same financial position, as they were in before the accident and not to make a fortune out of misfortune that has befallen them.”
19. The object of compensation is to save dependants from being deprived of the source of maintenance as far as possible and not to overcompensate. In (2002) 6 SCC 281 [United India Insurance Company Ltd. And others v. Patricia Jean Mahajan and others], the Supreme Court held as under:-
“21. The purpose to compensate the dependants of the victims is that they may not be suddenly deprived of the source of their maintenance and as far as possible they may be provided with the means as were available to them before the accident took place. It will be a just and fair compensation. But in cases where the amount of compensation may go much higher than the amount providing the same amenities, comforts and facilities and also the way of life, in such circumstances also it may be a case where, while applying the multiplier system, the lesser multiplier may be applied. In such cases, the amount of multiplicand becomes relevant. The intention is not to overcompensate.
Applying the ratio of the above decisions, we are of the view that the Tribunal having already awarded compensation for “loss of dependency”, Tribunal was not justified in awarding exorbitant amount of Rs.14,00,000/- for “loss of expectation of life” and “loss of estate”. Award of excess compensation of Rs.14,00,000/- under the heads “loss of expectation of life” and “loss of estate” appears to be not merely to save the dependants, but appears to be to over compensate them. That apart even after the death of Gopinath, the machineries and the Industrial plot continue to remain with the family. While being so, the compensation amount of Rs.14,00,000/- awarded by the Tribunal for “loss of expectation of life” and “loss of estate” cannot be sustained. Having regard to the facts and circumstances of the case, compensation of Rs.50,000/- is awarded under the head “loss of estate”.
20. In so far as conventional damages, Tribunal has awarded Rs.50,000/- each for “loss of love and affection” to Claimants 2 and 3 and also to the 1st Claimant-wife. Since Rs.50,000/- is awarded for “loss of consortium” to 1st Claimant, there need not be award of compensation of Rs.50,000/- under separate head of “loss of love and affection” to 1st Claimant. The compensation amount of Rs.50,000/- awarded for “loss of consortium” is maintained. In modification, the compensation of Rs.40,00,000/- awarded to the Claimants is reduced to Rs.20,48,000/-, rounded to Rs.20,50,000/- as under:-
Loss of dependency : Rs.18,48,000.00 [Rs.1,68,000 x 11] Loss of estate : Rs. 50,000.00 Loss of love and affection : Rs. 1,00,000.00 Loss of consortium : Rs. 50,000.00 ------------------- Total : Rs.20,48,000.00 Rounded to : Rs.20,50,000.00 -------------------
The amount of Rs.20,50,000/- is to be apportioned amongst the Claimants as follows:- (i) Rs.10,00,000/- to the 1st Claimant-wife; and (ii) Rs.5,25,000/- each to Claimants 2 and 3. The Tribunal has awarded interest at the rate of 9% p.a. Since the accident is of the year 2001 and having regard to the facts and circumstances of the case, interest awarded at the rate of 9% p.a. is maintained.
21. In the result, the compensation of Rs.40,00,000/- awarded by the Tribunal in M.C.O.P.No.207 of 2004 dated 31.5.2006 is reduced to Rs.20,50,000/- payable with interest at the rate of 9% p.a. from the date of Petition till the date of deposit and the Appeal is partly allowed.
By the order dated 15.09.2006, this Court directed the Appellant-Insurance Company to deposit Rs.30,00,000/-. It was stated before us out of the deposited amount of Rs.30,00,000/-, the 1st Claimant has withdrawn Rs.10,00,000/- along with accrued interest.
Since, 1st Claimant has already withdrawn her share of Rs.10,00,000/- along with accrued interest, there need be no order of withdrawal required in respect of her share.
The 2nd Claimant appears to have already attained majority. After obtaining necessary orders declaring her as major, 2nd Claimant is permitted to withdraw her share along with accrued interest. The share in respect of minor 3rd Claimant is ordered to be invested in a nationalised bank till 3rd Claimant attains majority and the 1st Claimant-mother is permitted to withdraw the accrued interest once in three months directly from the bank.
Appellant-Insurance Company is permitted to withdraw the excess amount along with interest accrued thereon already deposited.
Consequently, connected MPs. are closed.
In the circumstances of the case, there is no order as to costs in this Appeal.
(R.B.I., J.) (M.V., J.) 12.04.2010 Index: Yes/No Internet: Yes/No bbr To The Motor Accident Claims Tribunal, Fast Track Court No.II, Ranipet. R.BANUMATHI, J. and M.VENUGOPAL,J. Bbr Judgment in C.M.A.No.2710 of 2006 12.04.2010