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New India Assurance Company Limited v. K. Maragatham & Others

New India Assurance Company Limited
v.
K. Maragatham & Others

(High Court Of Judicature At Madras)

Civil Miscellaneous Appeal No. 2017 To 2022 Of 2005 | 29-03-2010


(Prayer: Civil Miscellaneous Appeal Nos.2017 to 2022 of 2006 are filed under Section 173 of the Motor Vehicles Act against the Order dated 13.12.2004 made in M.C.O.P.Nos.3617 of 1997, 1104, 1105, 2040 and 2041 and 4098 of 1998 respectively on the file of Motor Accident Claims Tribunal (5th Judge, Court of Small Causes) at Chennai.) R. Banumathi, J. 1. In these Appeals, Appellant-New India Assurance challenges the award of compensation for the death of persons traveled in the Mahendra zeep bearing Registration No.KL-11-E-5493 due to hit by the Lorry bearing Registration No.KL-7-N-4921 and the quantum of compensation awarded to the dependants of deceased persons and also the injured claimants. Since all the Appeals arise out of common judgment involving common points for determination, all Civil Miscellaneous Appeals shall stand disposed by this common judgment. 2. The brief facts leading to the filing of the Appeals are that on 11.4.1997 at 3.15 a.m., the deceased persons and injured claimants were traveling in a private Jeep bearing Reg. No.KL-11-E-5493 to go to Sabarimalai from Kuttipuram in Guruvayur public road from north to south. At that time, the container Lorry bearing Regn. No.KL-7-N-4921 came from the opposite direction, driven in a rash and negligent manner and hit against the Jeep, as a result the Jeep was overturned and 4 persons viz., Krishnan alias Allakrishnan, Palani, Dhamodaran, S. Arumugam and driver in the Jeep died and 2 persons sustained injuries. Regarding the accident, a Criminal case was registered in Crime No.127 of 1997 of Trichur Police Station, Kummankulam, Trisur District against the driver of Container Lorry. Alleging that the accident was due to rash and negligent driving of the Lorry driver, claimants have filed the Claim Petitions. In the Tribunal, joint trial was held in all the Claim Petitions. Dependants, injured claimants and the Doctor, who treated the injured claimants were examined as P.Ws.1 to 14. Ex.P.1 to P.46 were marked. No oral or documentary evidence was adduced by the Respondents. 3. P.Ws.1 and 2, who traveled in the Jeep have consistently spoken about the negligent driving of Lorry and that the container Lorry came in the wrong direction and hit against the Jeep, due to which the Jeep turned upside down resulting in four deaths and the persons traveling in the Jeep sustained injuries. Registration of F.I.R. against the Lorry driver is a prima facie indication of the negligent driving of the Lorry driver. It was suggested to P.Ws.1 and 2 that more number of persons were traveling in the Jeep, which resulted in the accident. As pointed out by the Tribunal, neither the owner of the container Lorry nor the insurer have adduced any rebuttal evidence to rebut the effect of evidence adduced by the claimants. But having regard to the cogent evidence of P.Ws.1 and 2 and Ex.P.10-F.I.R., the Tribunal has rightly held that the accident was due to rash and negligent driving of the Lorry driver. The coverage of policy of container Lorry with Appellant Insurance Company is not under dispute and therefore Tribunal rightly held that the owner of the Container Lorry and the Appellant Insurance Company are jointly and severally liable to pay the compensation. 4. C.M.A. No.2017 of 2005 (M.C.O.P.No.3617 of 1998): For the death of Krishnan alias AllaKrishnan, Claimants – wife and children of deceased – Krishnan alias AllaKrishnan have filed the Claim Petition claiming compensation of Rs.16 lakhs. Marakatham – wife of Krishnan was examined as P.W.3. In her evidence, P.W.3 has stated that at the time of accident, her husband was aged 47 years and that he was working as Inspector in Income-Tax Department and getting Rs.6,972/- per month. P.W.3 has further stated that but for the accident, her husband would have got promotion as Assistant Commissioner and he would have got higher salary in the promotional position. Deceased Krishnan was working as Inspector in Income-Tax Department and getting salary of Rs.6,975/- per month. Ex.P21 is the Legal Heirship Certificate. An Officer from the Income-tax Department was examined as P.W.4. In his evidence, P.W.4 has stated that Allakrishnan was getting basic salary of Rs.6,725/- and getting gross salary of Rs.9,631/-. Evidence of P.W.4 is strengthened by Ex.P.24 – Salary Certificate. PW.4 has further stated that after promotion, Allakrishnan would have got the salary of Rs.16,000/-. The service register of Allakrishnan is Ex.P.25 from which it is seen that his date of birth was 2.8.1949. 5. Based on the evidence of P.Ws.3 and 4 and Ex.P.24-salary certificate and having regard to the future prospects, Tribunal has taken the monthly income of Allakrishnan at Rs.9,000/- per month. We are of the view that after the Pay Commission, deceased Allakrishnan would have earned more than 1 ½ times salary which he was getting at the time of accident. The Tribunal has adopted a conservative approach in fixing the monthly salary at Rs.9,000/- and the same is maintained. Deducting 1/3rd for Personal Expenses, Tribunal has calculated loss of dependency at Rs.6,000/- per month i.e., Rs.72,000/- per annum. As seen from Ex.P.25 – service register, at the time of accident, deceased was aged 47 years. As per the Second Schedule, multiplier 13 is the appropriate multiplier to be adopted. Total loss of dependency is Rs.9,36,000/- (Rs.6,000 x 12 x 13). The Tribunal has rounded off the income to Rs.9,50,000/-. For Loss of Love and Affection of the Claimants, the Tribunal has awarded Rs.50,000/- and awarded Total Compensation of Rs.10,00,000/-. In our considered view, the compensation amount of Rs.10,00,000/- awarded by the Tribunal with interest at 9 percent per annum is quite reasonable warranting no interference and the same is confirmed. 6. C.M.A.No.2018 of 2005 (M.C.O.P.No.1104 of 1998): For the death of Palani, wife and minor daughters of Palani have filed the Claim Petition claiming compensation of Rs.10,00,000/-. Shanthi, wife of Palani was examined as P.W.7. At the time of accident, Palani was working as a Clerk in a co-operative society and getting salary of Rs.4,787/-. In her evidence, PW.7 has stated that she and her minor daughters are the legal heirs of deceased – Palani and Ex.P.34 is the legal heirship certificate. P.W.7 has further stated that her husband was employed as clerk-cum-cashier in a Co-operative Society and getting Rs.4,782/- per month. To prove the income of the deceased, P.W.8-Manoharan, Secretary of said society has deposed that the deceased Palani was employed as Clerk-cum-cashier in their society and was getting Rs.4,787/- as salary. His evidence is strengthened by Ex.P.36-Salary Certificate. P.W.8 has further stated that had the deceased been alive, he would have got further promotion and would have earned more than Rs.10,000/- per month. Based on the evidence of P.Ws.7 and 8 and Ex.P.36. Tribunal has taken the monthly income of the deceased at Rs.4,787/-. Deducting 1/3rd for Personal Expenses i.e., Rs.1,595/-, the Tribunal has taken contribution to the family at Rs.3,192/- per month. 7. In her evidence, P.W.7 has stated that at the time of accident, her husband – Palani was aged 38 years and the same is reiterated in Ex.P.35-Legal heirship certificate. Taking the age of deceased as 38, as per Second Schedule, multiplier of 16 has to be adopted. Total Loss of Dependency is Rs.6,12,864/- (Rs.3,192/- x 12 x 16) and restricted to Rs.6,10,000/-. The compensation awarded for loss of dependency is based upon the salary of the deceased and a reasonable one. The conventional damages awarded by the Tribunal i.e., Rs.20,000/- for Loss of Consortium to the 1st Claimant (P.W.7), Rs.10,000/- for Funeral Expenses, Rs.10,000/- for Transport Expenses and Rs.10,000/- for Loss of Estate are reasonable and warranting no interference. The Total Compensation amount of Rs.6,60,000/- along with interest at the rate of 9 percent per annum awarded by the Tribunal is confirmed. 8. C.M.A. No.2019 of 2005 (M.C.O.P.No.1105 of 1998): For the death of Dhamodaran, wife and minor children of Dhamodaran have filed Claim Petition claiming compensation of Rs.5,20,000/-. At the time of accident, Dhamodaran was aged 41 years and he was working as mason in construction work and earning Rs.150/- per day. In her evidence, P.W.13-Jaya has stated that her husband Dhamodaran was working as a mason and was earning Rs.150/- per day and that the family was depending on his income. P.W.14-Velu, who was a co-worker along with Dhamodaran, has stated that he was working with Dhamodaran and P.W.14 was getting Rs.120/- per day. Ex.P.44 is the identification card issued to Dhamodaran showing that he was a member of construction workers association. Ex.P.45 would show that Dhamodaran was working as a mason. Based upon the evidence of PWs.13 and 14 and that Dhamodaran was working as construction worker, Tribunal has taken monthly income at Rs.3,000/- per month. Deducting 1/3rd for Personal Expenses Tribunal has taken Loss of Dependency to the family at Rs.2,000/- per month i.e., Rs.24,000/- per annum. 9. At the time of accident, deceased was aged 41 years. As per the Second Schedule it would be appropriate to adopt multiplier 15. Total Loss of Dependency is calculated at Rs.3,60,000/- (Rs.2,000 x 12 x 15) and the Tribunal has rounded off the loss of dependency to Rs.3,65,000/-. Insofar as conventional damages, Tribunal has awarded Rs.10,000/- for Funeral Expenses, Rs.20,000/- for Loss of Estate, Rs.25,000/- for Loss of Consortium and awarded Total Compensation of Rs.4,20,000/-. 10. We are of the view that the compensation awarded for Loss of Dependency is based upon salary of the deceased and a reasonable one and warrants no interference. The conventional damages awarded by the Tribunal viz., Rs.10,000 for Funeral Expenses, Rs.20,000/- for Loss of Estate, Rs.25,000/- for Loss of Consortium are also reasonable and warranting no interference. The Total Compensation amount of Rs.4,20,000/- awarded by the Tribunal with interest at the rate of 9 percent per annum is confirmed. C.M.A. No.2022 of 2005 (M.C.O.P.No.4098 of 2001): 11. For the death of Arumugam, wife and daughters of deceased Arumugam have filed Claim Petition claiming compensation of Rs.8 lakhs. At the time of accident, Arumugam was employed as Senior Technician in Crompton Company and was earning around Rs.6,000/-. In her evidence, P.W.10-Thenmozhi has stated that her husband has studied I.T.I. Turner and he was working as turner in Crompton Company and was getting Rs.6,000/- per month. Janakiraman-employee of Crompton Company was examined as P.W.12. In his evidence, P.W.12 has stated that Arumugam was employed as Machine Operator and was getting salary of Rs.5,500/-. Ex.P.40 is the Salary Certificate of deceased Arumugam, which shows that he was getting salary of Rs.5,500/-. In his evidence P.W.12 has further stated that had the deceased been alive, he would have been promoted to higher post and he would have earned salary of Rs.7,500/-. Based upon the evidence of P.Ws.10 and 12 and Ex.P.40-Salary Certificate, Tribunal has taken the monthly income of deceased Arumugam at Rs.5,500/-. Deducting 1/3rd for Personal Expenses i.e., Rs.1,800/-, Loss of Dependency is Rs.3,700/- per month. 12. The deceased Arumugam was aged 48 years at the time of accident. As per the Second Schedule, it would be appropriate to adopt multiplier 13. The total Loss of Dependency is Rs.5,77,200/- (Rs.3,700 x 12 x 13). The amount of Rs.5,77,200/- was rounded off by the Tribunal at Rs.5,70,000/-, which, in our considered view, is quite reasonable and warranting no interference. Insofar as conventional damages, Tribunal has awarded Rs.10,000/- for Funeral Expenses, Rs.20,000/- for Loss of Estate, Rs.25,000/- for Loss of Consortium to the Wife and Rs.25,000/- for Transport Expenses and the Total Compensation of Rs.6,25,000/- awarded by the Tribunal payable with interest at the rate of 9 percent per annum is based upon evidence and reasonable warranting no interference and the same is confirmed. 13. C.M.A. No.2020 of 2005 (M.C.O.P.No.2040 of 1998): The injured claimant-Mani has filed the Claim Petition claiming compensation of Rs4,00,000/- for the injuries sustained by him. In the accident, he sustained injuries on his left humerus which resulted in dislocation of left hip and he also sustained multiple injuries. After the accident, P.W.2-Mani had taken treatment in Medical College Hospital at Trichur from 20.4.1997 to 28.4.1997 and thereafter he continued his treatment in Bone and Joint Clinic at Madras. From Ex.P.13-Discharge Summary, it is seen that there was fracture of fibula of left upper arm and fracture of humerus shaft. From Ex.P.14-Dischare Summary card issued by Bone and Joint Centre, it is seen that during the treatment, steel plates were inserted. 14. P.W.2 in his evidence has stated that he was working as a machine operator in Beacon Weir Limited and getting salary of Rs.5,450/-. Even after intensive treatment he continues to have giddiness and due to the fracture in left upper arm, he is unable to lift heavy objects and he has difficulty in carrying his day to day activities as a machine operator. In his evidence, P.W.2 has further stated that while he was under treatment, he could not attend work for about six months and he suffered loss of earnings during that period. At the time of accident, P.W.2 was aged about 48 years. P.W.6-Dr. Amarnath, who examined Mani on 11.4.1997 has also noticed that there was stiffness of left shoulder and restricted movement to the extent of 20 percent. P.W.6 also noticed dislocation of left hip and there was shortening of leg. Assessing the permanent disability at 55 percent, P.W.6 issued Ex.P.31-Permanent Disability Certificate. 15. P.W.2 was a machine operator and after restricted movement of left upper arm and the fracture of humerus shaft in the left hip, P.W.2 has sustained 55 percent disability. Having regard to the duration of treatment, the Tribunal has awarded Rs.32,700/- towards Loss of Earning. The Tribunal has awarded total compensation of Rs.1,44,700/- under the following heads: “Loss of Earning : Rs. 32,700/- Transport Expenses: Rs.3,000 Extra-Nourishment: Rs.2,000/- Medical Bills: Rs.42,000/- Pain and Suffering: Rs.15,000/- Disability: Rs.50,000/- Total : Rs.1,44,700/- 16. Having regard to the nature of injuries sustained by P.W.2-Mani and percentage of his permanent disability, in our considered view, the quantum of compensation awarded under loss of earning, disability and other heads and the interest at 9 percent per annum are quite reasonable and warranting no interference. 17. C.M.A. No.2021 of 2005 (M.C.O.P.No.2041 of 1998): For the injuries sustained by P.W.1-Thanigaivelu, he filed Claim Petition claiming compensation of Rs.8,00,000/-. In his evidence, P.W.1 has stated that in the accident he sustained injuries on his chest, right fore-arm and left hip. After the accident, P.W.1 was admitted in Trichur medical college hospital and taken treatment in Trichur and thereafter taken treatment in Trisur Heart Hospital from 12.4.1997 to 18.5.1997. In the accident, P.W.1 sustained the following injuries: (i) blunt trauma chest (ii) multiple fracture ribs both sides (iii) severe flail chest (iv) lung contusion, bilateral haemo pneumothorax (v) laceration (r) eye brow and face (vi) fracture pelvis floor of acetabulam (vii) rt. dislocation right hip (as per MCH record) (viii) fracture both bones right forearm – radius segmental (ix) multiple lacerations and abrasions on face laceration (R) eyebrow.” 18. P.W.6-Dr. Amarnath examined P.W.1-Thanigaivelu on 14.3.2003 and noticed shortening of right leg by 2 1/2cm. Plates were inserted in the right fore-arm and due to which there was restricted movement of right fore-arm. Because of fracture of right wrist, there was restricted movement and there was weakening of right hand and restricted movement. Because of multiple fracture of ribs, P.W.1 has difficulties in breathing and after taking X-rays P.W.6 assessed the permanent disability at 80 percent. At the time of accident, P.W.1 was aged 50 years and working as machine operator in Company Beacon Weir Limited and was getting salary of Rs.4,995/-. In his evidence, P.W.1 has stated that after the accident he was not in a position to attend to work. P.W.1 further stated that even after intensive treatment, because of restricted movement of right fore-arm and because of the fracture of pelvis and because of dislocation of right hip he had difficulties in working and therefore he has taken voluntary retirement even at the age of 50. 19. Having regard to the age of the claimant and considering the injuries sustained, the Tribunal has taken percentage of disability at 75 percent and taking into account that the claimant had gone on voluntarily retirement scheme (VRS), Tribunal has awarded total compensation of Rs.5,60,000/- under various heads as under: “Loss of Earning & Earning Power: Rs. 3,00,000/- Transport: Rs.10,000 Extra-Nourishment: Rs.5,000/- Medical Bills: Rs.1,20,000/- Pain and Suffering: Rs.50,000/- Disability: Rs.75,000/- Total : Rs.5,60,000/-“ 20. As held by the Full Bench of this Court in Cholan Roadways Corporation Ltd. v. Ahmed Thambi and others, 2006 (2) TN MAC 342 (FB) : 2006 (4) CTC 433 : 2006 ACJ 2703, there cannot be award of compensation under two heads – Loss of Earning Capacity and Permanent Disability. Since the claimant has sustained nearly 75 percent disability and that he has also gone on V.R.S., the compensation awarded under “Loss of Income” can be clubbed together and taken as a compensation for permanent disability and loss of earning power. The compensation amount of Rs.5,60,000/- along with interest at 9 percent per annum awarded by the Tribunal cannot be said to be exorbitant or on the higher side and the same has to be confirmed. 21. In all the Claim Petitions, Tribunal has awarded interest at the rate of 9 percent per annum. Though the consistent view taken by the Supreme Court is that the interest to be awarded is 7.5 percent, as the accident was in the year 1997 and the judgment was passed by the Tribunal only in 2004, having regard to the long pendency of the matters before the Tribunal and considering the facts and circumstances of the case, at this distant point of time, we are not inclined to interfere with the rate of interest i.e., at the rate of 9 percent awarded by the Tribunal and the same is maintained. 22. C.M.A. No.2017 of 2005: In the result, the quantum of compensation amount awarded by the Tribunal in M.C.O.P.No.3617 of 1997 and the ratio of apportionment of compensation is confirmed and the Civil Miscellaneous Appeal is dismissed. The entire compensation amount along with accrued interest was already deposited by the Appellant-Insurance Company. Respondents No.1 and 2/Claimants No.1 and 2 have withdrawn 50 percent of their respective share of compensation. They are permitted to withdraw the respective balance compensation amount along with accrued interest payable to them. Respondent/Claimant No.3 who was then minor and was declared as major by this Court is also permitted to withdraw the entire compensation amount payable to her along with accrued interest. 23. C.M.A. No.2018 of 2005: The quantum of compensation amount awarded by the Tribunal in M.C.O.P.No.1104 of 1998 and the ratio of apportionment of compensation is confirmed and the Civil Miscellaneous Appeal is dismissed. The entire compensation amount along with accrued interest was already deposited by the Appellant-Insurance Company. Respondents No.1/Claimants No.1 has withdrawn 50 percent of her share of compensation. She is permitted to withdraw the balance compensation amount along with accrued interest payable to her. Respondents/Claimants No.2 and 3 who were then minors and were declared as majors by this Court are also permitted to withdraw the entire compensation amount payable to them along with accrued interest. As Respondent No.4/Claimant No.4 appears to have already attained majority, after obtaining necessary orders from the Tribunal declaring her as major, she is permitted to withdraw the entire share of compensation amount payable to her along with accrued interest. 24. C.M.A. No.2019 of 2005: The quantum of compensation amount awarded by the Tribunal in M.C.O.P.No.1105 of 1998 is confirmed and the Civil Miscellaneous Appeal is dismissed. The entire compensation amount along with accrued interest was already deposited by the Appellant-Insurance Company. Respondent No.1/Claimant No.1 has withdrawn 50 percent of her share of compensation. She is permitted to withdraw the balance compensation amount along with accrued interest payable to her. Respondents/Claimants Nos.2 to 4, who were then minors, and were declared as majors by this Court, are also permitted to withdraw the entire compensation amount payable to them along with accrued interest. 25. C.M.A. No.2020 of 2005: The quantum of compensation amount awarded by the Tribunal in M.C.O.P.No.2040 of 1998 is confirmed and the Civil Miscellaneous Appeal is dismissed. The entire compensation amount along with accrued interest was already deposited by the Appellant-Insurance Company. Respondents No.1/Claimant is permitted to withdraw the entire compensation amount payable to him along with accrued interest. 26. C.M.A. No.2021 of 2005: The quantum of compensation amount awarded by the Tribunal in M.C.O.P.No.2041 of 1998 is confirmed and the Civil Miscellaneous Appeal is dismissed. The entire compensation amount along with accrued interest was already deposited by the Appellant-Insurance Company. Respondents No.1/Claimant is permitted to withdraw the entire compensation amount payable to him along with accrued interest. 27. C.M.A. No.2022 of 2005: The quantum of compensation amount awarded by the Tribunal in M.C.O.P.No.4098 of 2001 and the ratio of apportionment of compensation is confirmed and the Civil Miscellaneous Appeal is dismissed. The entire compensation amount along with accrued interest was already deposited by the Appellant-Insurance Company. Respondents No.1 and 2/Claimants No.1 and 2 have withdrawn 50 percent of their respective share of compensation. They are permitted to withdraw their respective balance compensation amount along with accrued interest payable to them. Respondents/Claimants No.3 and 4 who were then minors and were declared as majors by this Court are also permitted to withdraw the entire compensation amount payable to them along with accrued interest. In all the Appeals no order as to costs.

Advocates List

For the Appellant K.S. Narasimhan, Advocate. For the Respondents R1 to R4, V. Vijayashankar, M. Mani, M. Maruthapandian, Advocates.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MRS. JUSTICE R. BANUMATHI

HON'BLE MR. JUSTICE M. VENUGOPAL

Eq Citation

LQ 2010 HC 15382