IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.7.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.2681 of 2002 National Insurance Com.,Ltd by its Branch Manager Sangagiri Branch Sangagiri .. Appellant Vs. 1) Marayal @ Eswari 2) Palaniammal 3) K.P.Nanjundeswaran 4) K.Vadivel ... Respondents (4th respondent exparte in Lower Court) This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act as against the judgment and decree dated 7.12.2001 made in M.C.O.P.No.151/2001 on the file of the Motor Accident Claims Tribunal( Principal Subordinate Court), Gobichettipalayam. For Appellant : Mr. N.Vijayaraghavan For Respondents : Mr. VR Shunmuganathan for Mr.P.K.Muthukumar R1 to R3. J U D G M E N T
The Insurance Company, which figured as the second respondent before the Motor Accidents Claims Tribunal(Court of Principal Subordinate Judge,) Gobichettipalayam in M.C.O.P.No.151 of 2001m is the appellant herein.
2. The respondents 1 to 3 herein filed the above said claim petition, claiming a sum of Rs.6,00,000/- as compensation for the death of one Pongaliappagounder, the husband of the first respondent herein, who died in a road accident that occurred at 11.30a.m., on 1.7.2000 at Maniyakarampalayam on Kasipalayam Main Road within the jurisdiction of the Kadathur Police Station.
3. According to the petition averments, the deceased, aged about 58 years, while proceeding on his bicyle, met with the said accident, which proved fatal as the lorry bearing Registration NO.KA 05 C 6767 and belonging to the fourth respondent herein, driven by himself with a high speed in a rash and negligent manner dashed against the above said deceased. The further contention of the respondents 1 to 3/petitioners in the claim petition is that the deceased, who sustained grevious injuries, was initially taken to the Government Hospital, Gobichettipalayam where from he was taken to Kovai Medical Centre and that despite treatment,the deceased Pongaliappagounder succumbed to injuries.
4. Contending further that the accident took place solely due to the rash and negligent driving of the lorry by its own cum driver viz., 4th respondent herein, the respondents 1 to 3 had made a claim of Rs.6,00,000/- as compensation against the fourth respondent herein and the appellant herein as the owner and the insurer of the above said offending vehicle respectively.
5. The owner cum driver of the offending vehicle viz., the fourth respondent herein, did not contest the case and remained ex parte before the Tribunal. The appellant Insurance Company alone contested the same by filing a counter statement denying the petition averments regarding the manner in which the accident took place and the reasonableness of amount claimed as compensation.
6. The Tribunal framed necessary issues and conducted trial, in which two witnesses were examined as P.W1 and P.W.2 and thirteen documents were marked as Ex A1 to Ex A13 on the side of the respondents 1 to 3 herein/petitioners. No witness was examined and no document was marked on the side of the respondents.
7. The Tribunal heard the arguments advanced on either side, considered the evidence in the light of the argument advanced on either side and upon such consideration, came to the conclusion that the accident was the result of rash and negligent driving of the lorry bearing Registration No.KA 05 C 6767 belonging to the fourth respondent herein, who himself acted as the driver of the said vehicle also at the time of the accident. The Tribunal also held that the said vehicle was insured with the appellant Insurance Company at the relevant point of time, and hence the appellant and the fourth respondent herein were jointly and severally liable to pay compensation to the respondents 1 to 3 herein/petitioners, the wife and children of the deceased Pongaliappagounder.
8. The Tribunal assessed the age of the deceased and monthly income of the deceased at 60 years and Rs.4,500/- per month respectively, adopted 8 as the appropriate multiplier and awarded a total sum of Rs.3,22,720/- as compensation. The split-up particulars of the compensation awarded by the Tribunal are as follows:-
Loss of dependency Rs.3,07,200/- Medical expenses Rs. 5,520/- Funeral expenses Rs. 5,000/- Loss of Love and affection Rs. 5,000/- - - - - - - - - Total Rs.3,22,720/-
The above said amount was directed to be paid along with an interest at the rate of 9% p.a from the date of the petition till the date of realisation and with proportionate costs. Challenging the said award only regarding the quantum, the appellant herein has filed the present civil miscellaneous appeal on various grounds stated in the memorandum of appeal.
9. This Court heard the submission made by Mr. N.Vijayaraghavan, learned counsel appearing for the appellant and Mr. V.R. Shunmuganathan, learned counsel appearing for the respondents 1 to 3. The materials available on record were also perused.
10. The short point that arises for consideration in this appeal is,” whether the amount awarded as compensation by the Tribunal is excessive requiring downward revision?”
11. There is no dispute regarding the factum of accident. Admittedly, the accident took place at about 11.30 a.m., on 1.7.2000 and Pongaliappagounder, the husband of the first respondent herein, who was proceeding by his bycycle was knocked down by the lorry bearing Registration No.KA 05 C 6767 the fourth respondent, himself acted as the driver of the said vehicle at the time of accident. The Tribunal held that the contention of the respondents 1 to 3 that the accident was the result of rash and negligent driving of the said vehicle by the fourth respondent was substantiated by the respondents 1 to 3 herein by adducing relevant and sufficient oral and documentary evidence by the respondents 1 to 3 herein. In fact, the said finding has not been challenged by the appellant herein in this appeal. On the other hand, the appellant has challenged the quantum alone.
12. It has been brought to the notice of this Court that by an order dated 28.9.2001 made in I.A.No.1196 of 2001, the Tribunal has granted permission to the appellant Insurance Company to raise the grounds of defence available to the insurer in addition to those available to the insured under Section 149 of the Motor Vehicles Act. Therefore, there is no impediment for the appellant- Insurance Company to maintain the appeal challenging the quantum of compensation awarded by the Tribunal.
13. The Tribunal took the age of the deceased to be 60 based on the age noted in the postmortem certificate which has been marked as Ex A1 but adopted 8 as the appropriate multiplier. The learned counsel appearing for the appellant submitted that for a person who has crossed the age of 60, 5 and not of 8 should have been taken as the appropriate multiplier. This Court is in complete agreement with the above said submission made by the learned counsel for the appellant. Hence, for assessing loss of dependency, 5 is adopted as the appropriate multiplier. Though respondents 1 to 3 had contended before the Tribunal that the deceased was having 20 acres of land and was deriving a sum of Rs.1,50,000/- per annum as income from the said lands and yet another sum of Rs.50,000/- from the landhold lands,, they have not chosen to produce any concrete evidence to prove that the deceased was having such landholdings either as absolute owner or as the lessee. In the light of the said fact , the Tribunal took the daily earning of the deceased at Rs.150/- and calculated his monthly income as Rs.4,500/-. The basis on which the said amount has been assessed has not been clarified. Even assuming that the deceased had got 20 acres of lands, the said lands which yielded income would be available to the respondents 1 to 3 even after the death of the deceased Pongaliappa Gounder. It cannot be assumed that the entire income derived from the lands is lost to the respondents 1 to 3 after the death of Pongaliappa Gounder. The personal contribution of labour by and supervisory role of the deceased in the cultivation of the lands above must be taken into account to assess the loss occasioned to the respondents 1 to 3. For a cooly during the relevant period, the daily income can be assessed at Rs.80/-. The deceased being an agriculturist doing personal cultivation can be construed to be a person contributing his supervision also for which another 50% can be added. Therefore the daily earnings of the deceased would be assessed at Rs.120/-. If it is multiplied by 30, the monthly income comes to Rs.3,600/-. By multiplying the said amount by 12 we get Rs.43,200/- which should have been the annual income of the deceased.
14. The Tribunal committed an error in adopting unit system and deducting < alone from the annual income towards personal expenses that the deceased would have incurred on himself had he not died. Now it is well settled that in all the fatal cases, 1/3 must be deducted towards personal expenses of the deceased. If 1/3 is deducted from the above said amount, the balance Rs.28,800/- shall be the loss of dependency per annum . If this amount has to be multiplied by selected multiplier 5, then the total amount to which respondents 1 to 3 are entitled on the head of loss of dependency/benefit shall be Rs.1,44,000/- . A sum of Rs.5,000/- towards funeral expenses can be added. The Tribunal has awarded a sum of Rs.5,520/- towards medical expenses which is covered by the receipts produced by the respondents 1 to 3 in Ex A13. But the Tribunal has not awarded any amount towards transport expenses. In evidence, the respondents 1 to 3 have made it clear that the deceased after sustaining injuries, was first taken to the Government Hospital, Gobichettipalayam and then to Kovai Medical Centre Hospital at Coimbatore where he succumbed to the injuries after a brief treatment. Therefore some amount would have been spent for transporting the deceased before his death to the hospital and transporting the dead body from the hospital which can be assessed at Rs.4,480/-. After the accident and before his death, the respondents 1 to 3 might have put to certain kind of inconvenience and mental agony for which a sum of Rs.5,000/- can be awarded. For the loss of consortium and love and affection, the Tribunal has awarded a sum of Rs.5,000/-. The same can be enhanced to Rs.10,000/. If such a calculation is made, the total amount of compensation will come to Rs.1,74,000/-. At the cost of repetition, the split up particulars of the said amount are given in a tabulation as under:-
Loss of dependency Rs.1,44,000/- Funeral expenses Rs. 5,000/- Medical expenses Rs. 5,520/- Transportation Charges Rs. 4,480/- Mental agony Rs. 5,000/- Consortium and love and affection Rs. 10,000/- -------------- Total Rs. 1,74,000/- ---------------
15. The Tribunal has awarded an interest at the rate of 9% per annum which is neither on the lower side nor on the higher side. The reasonableness of the said rate of interest has not been challenged. This Court is also of the opinion that there is no need to change the rate of interest. Taking into consideration, the respective age of each respondents 1 to 3 herein, the Tribunal has directed apportionment of the compensation equally among them. There is no need to change the same.
16. In view of the foregoing discussions, this court fixes the total amount of compensation to which the respondents 1 to 3/petitioners are entitled at Rs.1,74,000/-. As the result of the same, the award of the Tribunal deserves to be modified by reducing the total amount of compensation from Rs.3,22,720/- to Rs.1,74,000/ and in all other respects the award of the Tribunal shall stand confirmed.
17. In the result, the appeal is allowed in part and the award of the Tribunal is modified by reducing the compensation from Rs.3,22,720/- to Rs.1,74,000/-. In all other respects, the award of the Tribunal shall stand confirmed. However, there shall be no order as to costs.
25.07.2008
Index : Yes
Internet : Yes
sg
To
Motor Accident Claims Tribunal
(Principal Subordinate Court,) Gobichettipalayam.
P.R.SHIVAKUMAR,J
sg
CMA.No.2681/2002
25.7.2008