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2004 DIGILAW 1099 (MAD)

ORIENTAL INSURANCE CO. LTD. v. T. S. SWAMIKANNU

2004-08-25

K.GOVINDARAJAN, N.KANNADASAN

body2004
JUDGMENT : K. Govindarajan, J.—The insurance company has filed the above appeal questioning the quantum fixed by the Tribunal. 2. A 65 years old lady, namely, the wife of the claimant, injured in the accident held on 6.12.2000. She filed a claim petition in O.P. No. 853 of 2001. Pending that petition, she died. So the said petition, namely, O.P. No. 853 of 2001 was with drawn with liberty to file a fresh petition on the basis of the death of the deceased. Now the present petition is filed, namely, O.P. No. 1672 of 2001, claiming compensation of Rs. 2,00,000. The Tribunal has awarded a sum of Rs. 1,55,000. Challenging the same, the insurance company has filed the above appeal. 3. The learned counsel appearing for the insurance company has submitted that earlier petition in O.P. No. 853 of 2001 was dismissed, claimants cannot sustain the present petition. He has also argued with respect to the quantum fixed by the Tribunal. 4. Though the deceased filed O.P. No. 853 of 2001, in view of her death, in spite of treatment the said petition was with drawn with liberty to file fresh petition. Since such a liberty was given by the Tribunal taking into consideration of the situation, namely, the death of the petitioner in O.P. No. 853 of 2001, we cannot accept the argument of the learned counsel on the ground of res judicata. Though the learned counsel has submitted that the death cannot be correlated to the injury in view of Exh. P-3, the report given by the hospital, such submission cannot be accepted as the said report clearly establishes that she died only due to the injuries sustained in the accident. 5. With respect to the quantum, the Tribunal has fixed Rs. 1,30,000 towards loss of income. The Tribunal on the basis of evidence of the claimant, accepting the said evidence fixed Rs. 150 per day as her earnings. She is aged about 65 years. There is no other independent evidence to prove that she was earning Rs. 150 per day. So we have to take it that her notional income shall be Rs. 1,500 per month. After deducting Rs. 500, the monthly income shall be Rs. 1,000 towards contribution. So the yearly contribution shall be Rs. 12,000. If multiplier of 5 is adopted the total contribution to the family shall be Rs. 60,000. 150 per day. So we have to take it that her notional income shall be Rs. 1,500 per month. After deducting Rs. 500, the monthly income shall be Rs. 1,000 towards contribution. So the yearly contribution shall be Rs. 12,000. If multiplier of 5 is adopted the total contribution to the family shall be Rs. 60,000. The Tribunal has awarded Rs. 25,000 towards conventional damages based on evidence. So we are not interfering with the same. 6. Taking above into consideration the claimant is entitled to Rs. 85,000 with interest as awarded by the Tribunal. With the above modification the appeal is partly allowed. No costs. Consequently, C.M.P. Nos. 20484 of 2003 and 2551 of 2004 are closed.