IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.02.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH Civil Miscellaneous Appeal Nos. 143 to 146/2006 & C.M.A.No.2759/2005 C.M.A.Nos.143 to 145/2006: The New India Assurance Company Ltd., No.46, Moore street, Chennai-1 .... Appellants in all C.M.As. vs. N.Lakshmi Priya ... 1st Respondent in CMA.No.143/2006 K.S.Lakshmi ... 1st Respondent in CMA.No.144/2006 K.Senthilkumar ... 1st Respondent in CMA.No.145/2006 G.Krishnasami ... 2nd Respondent in CMA Nos.143 to 145/06 C.M.A.No.146/2006: The New India Assurance Company Ltd., No.46, Moore street, Chennai-1 .... Appellant vs. 1. K.Senthilkumar 2. K.S.Lakshmi 3. G.Krishnasami .... Respondents C.M.A.No.2759/2005: 1. K.Senthilkumar 2. K.S.Lakshmi .... Appellants vs. 1. G.Krishnasami 2. The New India Assurance Company Ltd., No.45, Moores street, Chennai-1 .... Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Common Judgment and decree dated 28.08.2003 made in M.C.O.P.Nos.1393 to 1395/1999 and 3333/1999 on the file of Motor Accident Claims Tribunal [V Judge, Small Causes Court], Chennai For Appellants in CMA.Nos.143to146/06 : Mr.S.Manohar For Respondent No.1 in CMA.Nos.143to145/06 Mr.Nagasundaram - R1 & R1 & R2 in CMA.No. for 146/2006 and Mr.K.P.Santhosh Appellants in CMA No.2759/2005 COMMON JUDGMENT R.BANUMATHI,J Being aggrieved by the Award of compensation and also quantum of compensation to the injured Claimants, Appellant-Insurance Company has preferred C.M.A.Nos.143 to 146/2006. Being dissatisfied with the quantum of compensation for the death of their mother Solai ammal, Claimants who are son and daughter have preferred C.M.A.No.2759/2005. 2. For convenient, parties are referred as per their array in C.M.A.Nos.143 to 146/2006. Deceased Solaiammal is the mother of Claimants in C.M.A.Nos.144 to 146/2006 who have also sustained injuries in the accident. 3. Brief facts which led to the filing of Claim Petitions are that on 07.03.1997 at about 19.30 hours, Solaiammal and Claimants - Lakshmi Priya, Lakshmi and Senthilkumar were travelling in Tata Sumo bearing registration No.TN-09 K 4477 owned by from Chennai to Villupuram. When the said Tata Sumo proceeding in G.S.T.Road at Bagalpuliyur Kottu Road, the driver of Tata Sumo drove the vehicle in a rash and negligent manner dashed against the Road Roller bearing registration No.AP-34 1607 which was going in front of Tata Sumo. Due to the accident, Claimant Lakshmi Priya [1st Respondent in C.M.A.No.143/2006] sustained fracture in left leg, left jaw and crush injury over right hand and also multiple injuries all over the body. Claimant Lakshmi [1st Respondent in C.M.A.No.144/2006] sustained fracture over upper jaw and multiple injury all over the body. She had also lost 4 teeth in the accident. Claimant Senthilkumar [1st Respondent in C.M.A.No.145/2006] sustained fracture in left hand and abrasions all over the body and Solaiammal died on the spot. After the accident, all the injured were admitted in Government Hospital, Villupuram and thereafter in Apollo Hospital, Chennai. Regarding the accident, Criminal Case was registered in Crime No.174/1997 of Mayilam Police Station. Alleging that the accident was due to rash and negligent driving of Tata Sumo driven by its driver, injured Claimants and dependents of Solaiammal have filed Claim Petitions [M.C.O.P.Nos.1393 to 1395 & 3333/1999] claiming compensation of Rs.3,00,000/-; Rs.2,00,000/-; Rs.1,50,000/- and Rs.40,00,000/- respectively. 4. Denying the manner of accident, Appellant-Insurance Company has filed counter-affidavit stating that owner and insurer of Road Roller bearing registration No.AP-34 1607 are necessary parties to the proceedings and in the absence of them, Claim Petitions are liable to be dismissed for non-joinder of necessary parties. It is also alleged that injured and deceased are not under the coverage of Insurance Policy and the policy is only benefit of indemnity against third parties and not for the family members. Insurance Company inter alia objected to the quantum of compensation. 5. Before the Tribunal, Claimants themselves were examined as PWs.1 to 3. Dr.Kalkura who issued Dental disability certificate was examined as PW4 and Dr.J.R.R.Thiagarajan who issued disability certificate was examined as PW5 and one Gopalakrishnan was examined as PW6. Exs.P1 to P24 were marked on the side of Claimants. On the side of Appellant-Insurance Company one Murali, who was working as Senior Assistant in Appellant-Insurance Company was examined as RW1 and Ex.R1 was marked. 6. Upon consideration of oral and documentary evidence, the Tribunal has held that the accident was due to rash and negligent driving of driver of Tata Sumo bearing registration No.TN-09 K 4477 and that the insured viz., 2nd Respondent [Krishnasami] and Appellant-Insurance Company are jointly and severally liable to pay the compensation. Tribunal has awarded the compensation of Rs.1,93,500/- in C.M.A.No.143/2006; Rs.1,67,000/- in C.M.A.144/2006; Rs.1,24,000/- in C.M.A.No.145/2006 and Rs.20,21,160/- in C.M.A.No.146/2006. 7. C.M.A.No.143/2006 [M.C.O.P.No.1393/1999]: In the accident the injured Claimant Lakshmi Priya sustained fracture left mandible at the condyle and multiple lacerations over right forearm, left leg and lower lip which caused disfigurement. After the accident, she has taken treatment in Villupuram Government Hospital and later admitted in Apollo Hospital, Chennai and taken treatment as inpatient from 08.03.1997 to 17.03.1997. While she was in Apollo Hospital, as seen from Ex.P2-discharge summary slough excision right arm and delayed SSG done and suturing of lacerations right forearm, left leg and lower lip done. PW4-Dental Surgeon who examined Claimant Lakshmi Priya has issued Ex.P16 Dental disability certificate. During examination, PW4-Dr.Kalkura noticed fracture malunion left condyle has resulted in deviation of left mandible. Orthophontogram reveals left TM joint resulting in non-union left condyle, deranged occlusion and with Asymmetry causing dysfunction and disfigurement of face deviation from left mandible. 8. PW5-Dr.J.R.R.Thiagarajan also examined the Claimant Lakshmi Priya and noticed right arm SSG area movement restricted and there was pain and difficulty in right arm. PW5 assessed the disability at 25% and issued Ex.P20 disability certificate. 9. Based upon the evidence of PWs.1,4 and 5 and Exs.P2,16 and 20, Tribunal awarded the compensation of Rs.1,93,500/- as under:- Transport charges : Rs. 1,000.00 Extra-nourishment : Rs. 1,000.00 Medical expenses : Rs. 54,000.00 Pain and Suffering : Rs. 10,000.00 Permanent disability : Rs.1,27,500.00 -----------------
Total : Rs.1,93,500.00
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In so far as permanent disability, Claimant has prayed for only Rs.1,20,000/- as compensation whereas Tribunal has awarded excess amount i.e. Rs.1,27,500/-. However, Rs.10,000/- was awarded for pain and suffering. As pointed out earlier, Claimant Lakshmi Priya sustained multiple injuries, swelling/tenderness left tempero mandibular joint and chin which resulted in disfigurement. Claimant Lakshmi Priya being an unmarried young lady, Tribunal ought to have awarded more amount proportionate to pain and suffering. Excess amount of Rs.7,500/- awarded under the caption permanent disability could be added to pain and suffering. Having regard to the nature of injuries and treatment, quantum of compensation of Rs.1,93,500/- awarded by the Tribunal is fair and reasonable and the same is confirmed.
10. In so far as interest, Tribunal has awarded interest at 9% p.a. from the date of filing of Claim Petition and the rate of interest awarded by the Tribunal is on higher side. As held by the Supreme Court in Rajapriya’s case [(2005) 6 SCC 236] and other decisions, interest is reduced to 7.5% p.a. from the date of filing of Petition.
11. C.M.A.No.144/2006 [M.C.O.P.No.1394/1999]:
In the accident the injured Claimant Lakshmi sustained fracture in the lower jaw and she lost four teeth. Initially, she was taken treatment in Villupuram Government Hospital and later in Apollo Hospital, Chennai from 08.03.1997 to 17.03.1997. In Apollo Hospital, Dental Surgeon and General Surgeon treated the Claimant Lakshmi. While she was in Apollo Hospital, as seen from Ex.P6-discharge summary Arch bar wiring for alveolar fracture upper and lower jaw were done and suturing of laceration lower lip done and loss of four teeth has resulted in disfigurement of face.
12. PW4 Dental Surgeon who examined Claimant Lakshmi issued Ex.P18-Dental disability certificate assessing 48% of permanent disability from which it is seen loss of four teeth resulted in disfigurement, speech disturbance and is having deranged occlusion.
13. Based upon the evidence of PWs.2 and 4 and Exs.P6 and P18, Tribunal awarded the compensation of Rs.1,67,000/- as under:-
Transport charges : Rs. 500.00 Extra-nourishment : Rs. 500.00 Medical expenses : Rs. 63,000.00 Pain and Suffering : Rs. 7,000.00 Permanent disability : Rs. 96,000.00 ----------------- Total : Rs.1,67,000.00 -----------------
In so far as permanent disability, Claimant herself prayed for only Rs.60,000/- as compensation whereas Tribunal has awarded Rs.96,000/- i.e. Rs.36,000/- in excess. Under the caption pain and suffering, Tribunal awarded Rs.7,000/-. After the loss of four teeth, Claimant suffered pain which has also caused disfigurement. For pain and suffering, compensation of Rs.7,000/- awarded by the Tribunal could be enhanced to Rs.25,000/-. For permanent disability, compensation awarded by the Tribunal is reduced to Rs.60,000/- and for pain and suffering, compensation is enhanced to Rs.25,000/-.
14. We confirm the amount of Rs.63,000/- awarded by the Tribunal towards Medical expenses actually incurred by the Claimant. In so far as, transport charges and extra-nourishment, Tribunal awarded Rs.500/- each being reasonable, we also confirm the amounts awarded towards transport charges and extra-nourishment. The total compensation is reduced to Rs.1,49,000/- as under:-
Transport charges : Rs. 500.00 Extra-nourishment : Rs. 500.00 Medical expenses : Rs. 63,000.00 Pain and Suffering : Rs. 25,000.00 Permanent disability : Rs. 60,000.00 ----------------- Total : Rs.1,49,000.00 -----------------
15. In so far as interest, Tribunal has awarded interest at 9% p.a. from the date of filing of Claim Petition and the rate of interest awarded by the Tribunal is on higher side. As held by the Supreme Court in Rajapriya’s case [(2005) 6 SCC 236] and other decisions, interest is reduced to 7.5% p.a. from the date of filing of Petition.
16. C.M.A.No.145/2006 [M.C.O.P.No.1395/1999]:
In the accident the injured Claimant Senthilkumar sustained multiple laceration over upper lip, chin, upper chest. He has also sustained multiple lacerations over the right hand palmar aspect thenar region, swelling small laceration over the medial flexor aspect of right wrist. After the accident, he has taken treatment in Villupuram Government Hospital and later in Apollo Hospital, Chennai from 08.03.1997 to 17.03.1997 as inpatient. P.W3-Senthilkumar has stated that even after discharge, he is continuing his physiotherapy treatment and Ex.P10 is the physiotherapy card. PW3 further stated that he had continued his treatment as out-patient for more than ten months. While he was in Apollo Hospital, as seen from Ex.P9-discharge summary done with softratulle and soft role, POP slab applied and multiple small lacerations were sutured. Similarly small lacerated wound over right hand cleaned and sutured.
17. PW5-Dr.J.R.R.Thiagarajan examined PW3-Senthilkumar and assessed permanent disability at 30% and issued Ex.P21 disability certificate. While examining the Claimant, PW5 noticed multiple scars on the face and restricted movement of left wrist joint and difficulty in lifting weight with left hand. At the time accident, PW3 was aged 20 years. Because of the accident, his left wrist joint is tightened and movement is restricted. Based upon the evidence of PWs.3 and 5 and Exs.P9 and P21, Tribunal has awarded the compensation of Rs.1,24,000/- as under:-
Transport charges : Rs. 500.00 Extra-nourishment : Rs. 500.00 Medical expenses : Rs. 44,000.00 Pain and Suffering : Rs. 7,000.00 Permanent disability : Rs. 72,000.00 ----------------- Total : Rs.1,24,000.00 -----------------
As against permanent disability, Claimant prayed for Rs.60,000/- only whereas Tribunal has awarded excess amount of Rs.72,000/-. Having regard to the nature of injuries and that PW3 is a young man, there is possibility of restricted movement getting cured. Compensation of Rs.72,000/- awarded by the Tribunal for permanent disability is reduced to Rs.36,000/-. We confirm the amount of Rs.44,000/- awarded by the Tribunal towards the actual Medical expenses incurred by the Claimant and Rs.7,000/- towards pain and suffering. In so far as, transport charges and extra-nourishment, Tribunal awarded Rs.500/- each being reasonable, we also confirm the amounts awarded towards transport charges and extra-nourishment. The total compensation is reduced to Rs.88,000/- as under:-
Transport charges : Rs. 500.00 Extra-nourishment : Rs. 500.00 Medical expenses : Rs. 44,000.00 Pain and Suffering : Rs. 7,000.00 Permanent disability : Rs. 36,000.00 ----------------- Total : Rs. 88,000.00 -----------------
18. In so far as interest, Tribunal has awarded interest at 9% p.a. from the date of filing of Claim Petition and interest is reduced to 7.5% p.a. from the date of filing of Petition.
19. C.M.A.Nos.146/2006 & 2759/2005 [M.C.O.P.No.3333/1999]:
Deceased Solaiammal, mother of Claimants was travelling in the Tata Sumo and died of fatal injuries. As seen from Ex.P14-post mortem certificate, Solai ammal was aged 39 years. In his evidence, PW3-Senthilkumar has stated that his mother Solaiammal was running Wine shop under the name and style ‘Shanthi Wines’ in Anna Nagar, Villivakkam and other places and that she was earning more income. Tribunal has taken Rs.1,88,077/- as annual income and deducted 1/3rd towards personal expenses and adopting multiplier 16, Tribunal has awarded compensation of Rs.20,06,160/- for loss of dependency.
20. Learned counsel for Appellant-Insurance Company has submitted that absolutely there is basis for taking the income based on Ex.P22-Balance sheet and that Tribunal erred in taking the total income of Rs.1,88,077/- as annual income. As seen from the evidence of PW6-Auditor and Ex.P22-Balance sheet, net annual income for ‘Shanthi Wines’ for the year 1995 is Rs.1,34,935/- and for the year 1996 is Rs.55,142/- and for the year 1997 is Rs.5,62,642/-. Tribunal has taken the net profits from ‘Shanthi Wines’ for the year 1995 and 1996 at Rs.1,88,077/- and thereafter deducted 1/3rd towards personal expenses. Instead of taking average of the said amount of Rs.1,88,077/-, Tribunal has taken the whole amount of Rs.1,88,077/- as the annual income. Instead of taking average of Rs.99,038/- and thereafter, deducting 1/3rd for personal expenses, Tribunal erred in taking the annual income at Rs.1,88,077/-.
21. Ex.P24 [13.8.1992] is the rental agreement and Ex.P23 is the telephone bills paid by ‘Shanthi Wines’, Anna Nagar by the proprietrix Solaiammal during the year 1994. The accident was on 07.03.1997. In so far as 1997, in his evidence PW6-Auditor has stated about the income of the deceased. Based upon Ex.P24-rental agreement and Ex.P23-telephone bills, it cannot be said that the deceased was continuing her business after 1995. It is also pertinent to note that from 1995-1996, Government has prohibited selling of IMFL by individuals. There is every reason to presume that deceased Solaiammal might not have carried on with the Wine shop.
22. Learned counsel for Appellant-Insurance Company has submitted that deceased has to be treated only as a house wife and that loss of dependency could be calculated only by taking the loss of her service as house wife. The above contention is not acceptable, for the reason that deceased Solaiammal carrying on her business and even assuming that Government has prohibited sale of IMFL by private parties, she would have done the said business. Having regard to the fact that deceased Solaiammal was doing business, her monthly income is fixed at Rs.9000/-. Deducting 1/3rd for personal expenses, monthly income of deceased is taken as Rs.6,000/-per month and annual loss of dependency is calculated at Rs.72,000/- [Rs.6000 x 12 = Rs.72,000/-]. Deceased Solaiammal was aged 39 years at the time of accident and as per II Schedule, adopting multiplier 16, loss of dependency is calculated at Rs.11,52,000/- [Rs.72,000 x 16 = Rs.11,52,000/-]. Tribunal has also awarded Rs.5,000/- for funeral expenses and Rs.10,000/- for loss of love and affection. Apart from Claimants being injured in the accident, the same Claimants have lost their mother. Loss of mother is a great loss to the children and compensation of Rs.10,000/- awarded for loss of love and affection is enhanced to Rs.20,000/-. In modification, the compensation awarded by the Tribunal is reduced to Rs.11,77,000/- as under:-
Loss of dependency : Rs.11,52,000.00 [Rs.6000/- x 12 x 16] Funeral expenses : Rs. 5,000.00 Loss of love and affection : Rs. 20,000.00 ------------------- Total : Rs.11,77,000.00 -------------------
The above compensation amount has to be apportioned amongst the Claimants on pro rata basis in the same rate of apportionment as ordered by the Tribunal.
23. In so far as interest, Tribunal has awarded interest at 9% p.a. and interest is reduced to 7.5% p.a. from the date of filing of Petition.
24. C.M.A.No.143/2006:- In the result, the compensation amount awarded in M.C.O.P.No.1393/1999 dated 28.08.2003 is confirmed. Interest is reduced to 7.5% p.a. and the Civil Miscellaneous Appeal is dismissed.
25. C.M.A.No.144/2006:- In the result, the compensation amount awarded in M.C.O.P.No.1394/1999 dated 28.08.2003 is reduced to Rs.1,49,000/- payable with interest at the rate of 7.5% p.a. and this Civil Miscellaneous Appeal is partly allowed.
26. C.M.A.No.145/2006:- In the result, the compensation amount awarded in M.C.O.P.No.1395/1999 dated 28.08.2003 is reduced to Rs.88,000/- payable with interest at the rate of 7.5% p.a. and this Civil Miscellaneous Appeal is partly allowed.
27. C.M.A.Nos.146/2006 & 2759/2005:- In the result, the compensation amount awarded in M.C.O.P.No.3333/1999 dated 28.08.2003 is reduced to Rs.11,77,000/- payable with interest at the rate of 7.5% p.a. and C.M.A.No.146/2006 filed by Insurance Company is partly allowed and C.M.A.No.2759/2005 filed by the Claimants is dismissed.
It is stated that Appellant-Insurance Company has deposited the entire amount in all the four appeals. By an order dated 06.01.2006 in C.M.P.Nos.446 to 448/2006 in C.M.A.Nos.143 to 145/2006, 1st Respondent/Claimant was permitted to withdraw 50% of such deposit. 1st Respondent/Claimant in C.M.A.Nos.143 to 145/2006 are permitted to withdraw the entire amount of modified compensation along with accrued interest.
By an order dated 06.01.2006 in C.M.P.No.449/2006 in C.M.A.No.146/2006, Respondents 1 and 2/Claimants were permitted to withdraw Rs.6,24,000/- with proportionate accrued interest. Respondents 1 and 2/Claimants in C.M.A.No.146/2006 are permitted to withdraw the entire amount of the modified compensation along with accrued interest.
Appellant-Insurance Company is permitted to withdraw the excess amount deposited before the Tribunal in all four cases.
In the circumstances of the case, there is no order as to costs in these C.M.As.
(R.B.I., J.) (M.M.S., J.)
09.02.2010
Index: Yes/No
Internet: Yes/No
bbr
To
1. The Motor Accident Claims Tribunal,
V Judge, Small Causes Court,
Chennai.
R.BANUMATHI, J.
and
M.M.SUNDRESH,J.
bbr
Common Judgment in
C.M.A.Nos.143 to 146/2006
& C.M.A.No.2759/2005
09.02.2010