IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2010 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE M.VENUGOPAL C.M.A. No.2419 of 2005 1.Neyveli Lignite Corporation Ltd., by its Chairman, Corporate Office, Neyveli 607 801. 2.The Branch Manager, Oriental Insurance Co. Ltd., F-4, Visitors Road, Block 2, Neyveli 607 801. .. Appellants vs 1.Saroja 2.Ravichandran 3.Ramesh Babu 4.Ranjani .. Respondents (R3 and R4 declared as majors and the 1st respondent is discharged from guardianship by order dated 05.12.2006 in C.M.P.Nos.10277 to 10280 of 2006) Appeal against the award and decretal order dated 30.04.2004 in M.C.O.P.No.372 of 2003 on the file of Motor Accidents Claims Tribunal (Additional District Court), Virudhachalam. For appellants .. Mr.R.Sivakumar For respondents .. Mr.K.Selvarangan JUDGMENT
(Judgment of the Court was delivered by R.BANUMATHI, J.)
Being aggrieved by the award of compensation of Rs.14,15,280/- for the death of Chandrakasan in the road traffic accident on 20.06.2001, the insured – Neyveli Lignite Corporation Limited and the insurer – Oriental Insurance Company have filed this appeal.
2.The deceased Chandrakasan was working as Operator Grade II B in Neyveli Lignite Corporation Limited. The brief facts are that on 20.06.2001 at about 8.45 hours, when the deceased Chandrakasan was travelling as a pillion rider on the TVS 50 bearing Registration No.TN 31 T 4140 along with one Raju from Mantharakuppam to Neyveli Township, near Thandavankuppam, the Fire Service Lorry belonging to the first appellant bearing Registration No.TCF 2106 driven in a rash and negligent manner came behind and hit against the TVS 50. In the accident, the deceased sustained grievous injuries. Immediately after the accident, he was admitted in N.L.C. Hospital, Neyveli and thereafter, he was referred to Apollo Hospital, Chennai. But on the way to hospital, he died and the postmortem was conducted at Government Hospital, Panruti. A criminal case was registered in Crime No.152 of 2001 on the file of Neyveli Thermal Police Station against lorry driver for the offence under Sections 279, 337 and 304(A) I.P.C. The deceased was working as Grade II B Operator in Mines-II, Neyveli Lignite Corporation Limited and earning a sum of Rs.12,000/- per month. The deceased was also an income tax assessee. After the death of Chandrakasan, the family of the deceased is deprived of his contribution to the family. The wife and sons of the deceased have filed a Claim Petition in M.C.O.P.No.474 of 2001, claiming compensation of Rs.25,00,000/-. Denying the rash and negligent driving of the Fire Service lorry and also raising objections to the quantum of compensation, the second appellant- insurance company has filed the counter.
3.To substantiate the case, the first claimant/wife of the deceased examined herself as P.W.1. The Manager of Personnel Department in Neyveli Lignite Corporation was examined as P.W.2 and rider of TVS 50 was examined as P.W.3. On the side of claimants, Exs.P1 to P11 were marked. On the side of respondents, Exs.R1 and R2 were marked and no oral evidence was adduced.
4.Upon consideration of oral and documentary evidence, the Tribunal has held that the accident was due to the rash and negligent driving of the Fire Service lorry of the first appellant-Neyveli Lignite Corporation Limited and held that the insured-Neyveli Lignite Corporation Limited and the insurer-Oriental Insurance Company are jointly and severally liable to pay the compensation of Rs.14,15,280/- as under:
Loss of dependency .. Rs.11,85,280.00 Loss of consortium .. Rs. 15,000.00 Loss of love and affection .. Rs. 15,000.00 (Rs.5,000/- x 3) Loss of future prospects .. Rs. 2,00,000.00 = = = = = = = = Total .. Rs.14,15,280.00 = = = = = = = =
5.Based upon the evidence of P.W.2, the Tribunal has taken the monthly income at Rs.9,260/-. Pointing out that the deceased was aged 40 years at the time of accident, the Tribunal has adopted the multiplier of 16 and after deducting 1/3rd amount for personal expenses, the Tribunal has calculated the total pecuniary loss at Rs.11,85,280/- (Rs.1,11,120/- x 16 x 1/3 = Rs.11,85,280/-). Towards loss of future prospects, the Tribunal has awarded Rs.2,00,000/- and after awarding Rs.15,000/- for loss of consortium and Rs.5,000/- each for loss of love and affection to claimants 1 to 3 totalling Rs.15,000/-, the Tribunal has awarded total compensation of Rs.14,15,280/-.
6.Mr.R.Sivakumar, learned counsel for the appellants submitted that the Tribunal erred in arriving at the conclusion that the accident was due to the rash and negligent driving of the driver of the Fire Service lorry. Learned counsel further submitted that the Tribunal ought to have apportioned the negligence on the part of the rider of TVS 50 also and the Tribunal erred in fastening the entire liability upon the appellants.
7.To prove the negligence, the claimants have examined Raji (P.W.3), who was riding the TVS 50 bearing Registration No.TN 31 T 4140. In his evidence, P.W.3 has stated that the Fire Service lorry bearing Registration No.TCF 2106 was driven in a rash and negligent manner and hit against the TVS 50. Based upon the complaint lodged, a criminal case was also registered in Crime No.152 of 2001 on the file of Neyveli Thermal Police Station under Sections 279, 337 and 304(A) I.P.C. As seen from Ex.P5, the judgment in C.C.No.15 of 2002, the lorry driver has admitted the offence and paid fine. The admission of guilt by the lorry driver and the conviction is a strong piece of evidence indicating that the accident was due to the rash and negligent driving of the lorry driver. Even though the second appellant – insurance company has taken a plea that the rider of TVS 50 (P.W.3) has also contributed to the negligence, the insurance company has not adduced any evidence to rebut the evidence adduced by the claimants. In the light of such facts and circumstances of the case and the evidence adduced, we are of the view that the Tribunal rightly held that the accident was due to the rash and negligent driving of the Fire Service lorry driver. The coverage of policy of the said lorry with the second appellant – insurance company is not in dispute. The Tribunal rightly held that the Neyveli Lignite Corporation Limited and the second appellant – insurance company are jointly and severally liable to pay the compensation.
8.Coming to the quantum of compensation, the deceased Chandrakasan was working as Operator Grade II B in Neyveli Lignite Corporation Limited. Ex.P7 is the identity card issued by Neyveli Lignite Corporation Limited which shows that the deceased was working as Operator Grade III C Mine II. In her evidence, P.W.1 has stated that her husband was getting around Rs.13,000/- per month and that he was getting promotion once in five years. P.W.1 has further stated that her husband was also getting incentive of Rs.2,500/- once in three months. P.W.1 has also stated that had Chandrakasan been alive, he would have earned more salary i.e. he would have earned Rs.25,000/- at the time of his retirement.
9.To prove the income of the deceased, P.W.2, Manager of Personnel Department in Neyveli Lignite Corporation Limited was examined. In his evidence, P.W.2 has stated that the deceased was working as Operator Grade II B and that he was getting salary of Rs.8,260/- per month and also other allowance of Rs.1,000/-. P.W.2 has further stated that Chandrakasan would have continued in service till he attained the age of 60 years and that he had further 20 years of service. P.W.2 has also stated that had the deceased been alive, he would have continued in service for another 20 years and he would have earned more than Rs.12,000/- per month.
10.By consideration of evidence of P.Ws.1 and 2, it is evident that the deceased was working as Operator Grade II B and was drawing salary of Rs.8,260/- per month and other allowance Rs.1,000/- per month. The Tribunal has rightly taken the monthly income at R.9,260/-. While calculating the monthly income of the deceased, the Tribunal has not taken into account the future prospects. As seen from the evidence of P.Ws.1 and 2, the deceased would be getting promotion once in five years and that he would have continued in service for 20 years. P.W.2 has asserted that had Chandrakasan been alive and continued in service, he would have been earning not less than Rs.12,000/- per month. As per the decision in K.K.Janardhanam Vs. Thiruvalluvar Transport Corporation Limited (2008 ACJ 875) and in Reshma Kumari and Others Vs. Madan Mohan and another (2009 AIR SCW 6999), the Court/Tribunal has to take into account the future prospects while calculating the monthly income of the deceased. In the instant case, instead of taking into account the future prospects and thereafter calculating the monthly income of the deceased, the Tribunal has separately calculated the future prospects at Rs.2,00,000/-. Learned counsel for the appellants raised strong objection for awarding of Rs.2,00,000/- under the separate head “Future Prospects”. Of course, there cannot be award of compensation under the separate head “Future Prospects”. But as seen from the evidence and as we pointed out earlier, had the deceased been alive he would have continued in service for another 20 years and he would have earned not less than Rs.12,000/- per month. In such view of the matter, it cannot be said that the Tribunal erred in awarding Rs.2,00,000/- for future prospects.
11.The Tribunal has taken the monthly income at Rs.9,260/-, which the deceased was earning (salary Rs.8,260/- plus Rs.1,000/- allowance) and calculated the annual income at Rs.1,11,120/-. As seen from Ex.P10 service register of CH the date of birth was only 15.05.1961. On the date of accident i.e. on 20.06.2001, the deceased was aged 40 years. As per the Second Schedule, for the age group of 35-40, the proper multiplier to be adopted is 16. As the deceased was aged 40 years at the time of accident, we are of the view that the Tribunal has rightly adopted the multiplier of 16 and we maintain the same. Taking the annual income at Rs.1,11,120/- and after deducting 1/3rd amount for personal expenses of the deceased, the Tribunal has calculated Rs.11,85,280/- for pecuniary loss/loss of contribution. As the Tribunal has not taken into account the future prospects in calculating the monthly income, we also confirm the award of compensation of Rs.2,00,000/- lakhs under the separate head “loss of future prospects”.
12.Insofar as the conventional damages, the Tribunal has awarded Rs.15,000/- to the first claimant for loss of consortium. Towards loss of love and affection, the Tribunal has awarded Rs.15,000/- (Rs.5,000/- each to claimants 1 to 3). The conventional damages awarded under the head “loss of consortium” and “loss of love and affection” is quite reasonable and the same is maintained. Sofar as the interest, the Tribunal has awarded interest at the rate of 9% per annum. The claimants have lost their sole bread winner who was aged 40 years. The first claimant/wife of the deceased was aged 31 years at the time when the deceased died in the accident. Though, normally, we award interest at the rate of 7.5% per annum, in the facts and circumstances of the case, at this distant point of time, we are not inclined to interfere with the rate of interest at 9% awarded by the Tribunal.
13.In the result, the quantum of compensation of Rs.14,15,280/- awarded by the Tribunal in M.C.O.P.No.372 of 2003 is confirmed and the Civil Miscellaneous Appeal is dismissed. No costs.
14.It was stated before us that as per the order dated 08.08.2005 made in C.M.P.No.12874 of 2005 in C.M.A.No.2419 of 2005, the second appellant – insurance company has deposited the entire compensation amount along with accrued interest. It was also stated that claimants 1 to 3 have withdrawn 50% of the compensation amount payable to them. Claimants 1 to 3 are permitted to withdraw the balance compensation amount payable to them along with accrued interest.
Advocate’s fee is fixed at Rs.22,528/-
mmi
To
1.The Additional District Judge,
(Motor Accidents Claims Tribunal),
Virudhachalam.
2.The Record Keeper, V.R. Section,
High Court,
Madras