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2006 DIGILAW 675 (MAD)

Kanagamma & Another v. Revathi & Another

2006-03-09

V.DHANAPALAN

body2006
Judgment :- (Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 16th October 1997 made in MACT O.P. No.2 of 1996 on the file of the Motor Accidents Claims Tribunal (Chief Judge, Small Causes Court), Madras.) This appeal is filed by the claimants challenging the award of the Motor Accidents Claims Tribunal (hereinafter referred to as "Tribunal"), made in MACT.O.P. No.2 of 1996, dated 16.10.1997. 2. The claimants are the wife and minor daughter. The claim petition was filed under Sections 166 and 163-A of the Motor Vehicles Act (hereinafter referred to as the "Act"), read with Rule 3 of the M.A.C.T. Rules (hereinafter referred to as the "Rules"), claiming a compensation of Rs.3,29,500/- for the loss of life of the first claimant''s husband, who died due to the motor accident. 3. It is the case of the claim that the deceased Sukumaran was aged about 46 years working as a Serang Grade II under the Works Manager, Mechanical Department, Furnishing Division, Integral Coach Factory, Madras-38 and was getting a monthly salary of Rs.3,725/- at the time of death. It is contended in the claim that on 25.04.1995, at about 8.30 a.m., when the deceased was riding the motor cycle bearing Registration No.TN-02-7816 and proceeding from east to west, very close to the left side of the New Avadi Road, opposite to I.C.F., Furnishing Division Bus Stop, the driver of the lorry bearing Registration No.TN-01-C-1971 drove the vehicle in a rash and negligent manner and suddenly came on the extreme wrong side and dashed against the motor cycle and thereby, the accident took place, which resulted in death of the rider of the motor cycle, Viz., Sukumaran. The deceased Sukumaran died on the spot and also damages were caused to his motor cycle. For the death of the deceased Sukumaran, the claimants filed claim petition for an award of compensation of Rs.3,29,500/- against the respondents and both the respondents herein are vicariously and statutorily liable to pay the compensation to the claimants. 4. The first claimant has been examined as P.W.1. P.W.2, the Sub-Inspector of Police, Traffic Investigation Bureau, Vepery has evidence to prove the involvement of vehicle in the accident. Also, one Raja was examined as P.W.3 as eye witness to the accident. 4. The first claimant has been examined as P.W.1. P.W.2, the Sub-Inspector of Police, Traffic Investigation Bureau, Vepery has evidence to prove the involvement of vehicle in the accident. Also, one Raja was examined as P.W.3 as eye witness to the accident. To establish their case, they have filed the Exhibits P1 to P8 as follows: Ex.P.1: Legal Heir Certificate Ex.P.2: Salary Certificate Ex.P.3: Certificate issued by I.C.F. Ex.P.4: Certificate of Promotion Ex.P.5: S.S.L.C. 1st Page (Xerox Copy) Ex.P.6: First Information Report copy Ex.P.7: Sketch copy Ex.P.8: Post Mortem Certificate Based on these documentary evidences, the compensation claimed by the appellants has to be considered. The P.W.1, wife of the deceased was examined as witness and she deposed that her husband Sukumaran, on 25.04.1995 at about 08.30 a.m., was riding the motor cycle bearing Regn. No.TN-02-7816 and proceeding from east to west very close to the left side of the New Avadi Road, opposite to I.C.F., Furnishing Division Bus Stop. At that time, the driver of the lorry bearing Registration No.TN-01-C-1971 suddenly came on the extreme wrong side and dashed against the motor cycle and thereby he met with the accident and died on the spot and the vehicle driven by him also got damaged. P.W.2, the Sub Inspector of Police was also examined in support of the documents filed i.e., Ex.P.6 to Ex.P.8. The Tribunal, after giving credence to the evidence and the documentary proof filed in support of their claims, has considered all aspects and awarded a compensation of Rs.2,20,000/- with 12% interest per annum from the date of taking the petition on file till date of deposit and proportionate costs and further directed that the first claimant is entitled to get Rs.1,20,000/- and the second claimant is entitled to get Rs.1,00,000/- and the first claimant was permitted to withdraw a sum of Rs.70,000/- and the balance Rs.20,000/- has to be deposited in a nationalised bank for a period of 3 years. The first claimant was permitted to withdraw the accrued interest from the deposit of minor daughter (second claimant). The claimants have filed this appeal challenging the said award, on the ground that the Tribunal had not properly considered as per the various heads claimed by them with regard to the quantum, proper multiplier and the dependency factor. The first claimant was permitted to withdraw the accrued interest from the deposit of minor daughter (second claimant). The claimants have filed this appeal challenging the said award, on the ground that the Tribunal had not properly considered as per the various heads claimed by them with regard to the quantum, proper multiplier and the dependency factor. They have also questioned the conventional damages for the loss of consortium and love and affection and therefore, they claimed higher compensation before this Court. 5. Per contra, the second respondent Insurance Company has filed counter and in that counter, it was contended that the claim petition is not maintainable either in law or on facts. The appellants are put to strict proof that the vehicle alleged to have been involved in the accident is insured with this respondent and the driver had a valid driving license to drive the vehicle on the date of the accident. The respondent denies the allegations that the deceased was riding the motor cycle from east to west very close to the left side of the New Avadi Road opposite to Furnishing bus stop, and the vehicle involved in the accident was not the cause for the negligence and rash driving. The second respondent also contended that the alleged accident has occurred only due to the deceased''s own negligence in driving the motor cycle and the driver of the lorry was not responsible for the same and the claimants are put to strict proof of the manner in which the alleged accident took place. In order to support this case, they have not made any cross examination of any witnesses or the documents. The first respondent, the owner of the vehicle remains ex-parte before the Tribunal. After going into all the aspects, the Tribunal has decided two issues about the involvement of the vehicle in the accident, as follows: 1. Whether the accident was due to the rashness and negligence on the part of the driver of the lorry? 2. Whether the compensation claimed by the claimants are justifiable? Regarding the involvement of the vehicle, the Tribunal has considered that the second claimant, the minor daughter of the deceased Sukumaran has come forward with a definite case that the deceased Sukumaran died in a motor accident that took place on 25.04.1995 in New Avadi Road just opposite to I.C.F. Furnishing bus stop, Chennai-38. Regarding the involvement of the vehicle, the Tribunal has considered that the second claimant, the minor daughter of the deceased Sukumaran has come forward with a definite case that the deceased Sukumaran died in a motor accident that took place on 25.04.1995 in New Avadi Road just opposite to I.C.F. Furnishing bus stop, Chennai-38. It is the specific case of the claimants that the deceased was aged 46 years working as a Serang Grade II under the Works Manager, Mechanical Department, Furnishing Division and getting a monthly salary of Rs.3,725/- at the time of accident. Also, the case of the claimants is that the accident was due to the rashness and negligence on the part of the driver of the lorry bearing Registration No.TN-01-C-1971. No contra evidence is available on the side of the second respondent to rebut the evidence adduced by the claimants. In order to prove the manner in which the accident had taken place, P.W.3 has spoken to the fact that on 25.04.95 at about 10.30 a.m., when he was proceeding in his bi-cycle in New Avadi Road, just opposite to I.C.F. Furnishing bus stop, he saw the deceased going in his motor cycle bearing Registration No.TN-02-7816 in front of him and at that time, the lorry bearing Registration No.TN-01-C-1971 was driven by the driver in a rash and negligent manner, came from the opposite direction and dashed against the motor cycle and as a result of that, the motor cycle and the rider were thrown away and fell on the road. P.W.3 has been interrogated by the police as if he had lodged the complaint. The fact is borne out by the production of document Ex.P.6. A perusal of Ex.P.6 would give a clue to the fact that the driver of the lorry came rashly and negligently and dashed against the front portion of the motor cycle. Ex.P.7 indicates the fact that the motor cycle was keeping the traffic rules at the time of the accident and the lorry came in a zig-zag manner and dashed against the motor cyclist. No motive could be attributed as against the evidence of P.W.3 as to why he has deposed falsehood against the interest of the driver of the lorry. Hence, the evidence of P.W.3 is accepted as true and correct. 6. P.W.3''s version is strengthened by the evidence of P.W.2. No motive could be attributed as against the evidence of P.W.3 as to why he has deposed falsehood against the interest of the driver of the lorry. Hence, the evidence of P.W.3 is accepted as true and correct. 6. P.W.3''s version is strengthened by the evidence of P.W.2. According to P.W.2, on a complaint lodged by the witness P.W.3, Sub-Inspector of Police Thiru.Anthonisamy has registered a case in Crime No.1602/95 for an offence under Section 304 (A) I.P.C. and Section 184 of the Motor Vehicles Act. P.W.2 further speaks to the fact that the driver of the lorry Gajendran was charge sheeted and the charge sheet was filed before the learned Chief Metropolitan Magistrate, Egmore, Chennai and the case was taken on file in C.C. No.3666/95. In that case, he was imposed a fine of Rs.2,500/- which was remitted by the driver Gajendran on 15.05.1995 and hence, the Tribunal found that the driver Gajendran was responsible for the accident. Ex.P.8 would go to show that the deceased would have appeared to be died by crush injuries on his head, face and right shoulder in the motor accident and also the Tribunal found that the deceased has not contributed any negligence to the accident. In the absence of any contra evidence on the side of the second respondent to rebut to evidence adduced on the side of the claimants, the Tribunal found that the accident was caused due to the rash and negligent driving of the driver of the lorry. 7. The next issue that arises before this Court is about the quantum of compensation awarded by the Tribunal. In this regard P.W.1, who is the wife of the deceased Sukumaran has spoken to the fact that her husband Sukumaran has left her as legal representative. Since the parents of the deceased Sukumaran predeceased her husband, Ex.P.1 would conclude to prove that the claimants are the legal heirs of the deceased Sukumaran. The genuineness of Ex.P.1 has not been challenged by the respondent herein and the Tribunal found that they are the legal heirs of the deceased Sukumaran. P.W.1 deposed that her husband was employed as a Serang Grade-II in I.C.F., getting a monthly salary of Rs.3,725/-. It is the further evidence of P.W.1 that her husband used to do overtime work and he was also getting incentive bonus. P.W.1 deposed that her husband was employed as a Serang Grade-II in I.C.F., getting a monthly salary of Rs.3,725/-. It is the further evidence of P.W.1 that her husband used to do overtime work and he was also getting incentive bonus. Neither the documents Ex.P.2 would show that the deceased Sukumaran was getting a monthly salary of Rs.3331/-. An argument is advanced by the learned counsel for the appellants herein that the deceased was due to retire on 31.04.2006 and hence the prospective salary and gratuity has to be taken into consideration for the purpose of fixing up the quantum of compensation. In this connection, the document Ex.P.3 and Ex.P.4 were produced on the side of the appellants herein. P.W.1 contended, in the cross examination that one cannot easily say that her husband will retire without facing any problem and get a higher pay and other emoluments. 8. Considering all these aspects, the Tribunal has come to the conclusion, taking into account the Ex.P.2, that the deceased was getting a salary of Rs.3,331/- per month and accordingly the income of the deceased was fixed as Rs.3,331/-. The argument was advanced by the counsel for the claimants that P.W.1 was employed as Peon on compassionate ground, drawing a monthly salary and also receiving family pension. 9. The learned counsel for the appellants relied on a decision in 1995 A.C.J. Page 1075 in the case of Tata Engineering Locomotive Company Ltd. and another Vs. Vasanthi Alias Anaandalakshmi and others, to say that the salary received by the widow for her employment on compassionate ground need not be deducted from the compensation amount and also the family pension given to the widow need not be deducted from the compensation amount. Paragraph 5 of 1995 A.C.J. 1075, reads as under: "5. Learned counsel for the appellants contends that the first claimant has been given employment on compassionate grounds and her salary should be deducted from the compensation awarded to the claimants. There is no merit in this contention. No doubt, employment may be given on compassionate grounds but it depends upon the qualification of the person concerned. Further, it is not an amount paid ex gratia or as compensation for the death of the deceased. Work is extracted from the first claimant, for that the amount is paid to her. She earns her salary by working therefor. No doubt, employment may be given on compassionate grounds but it depends upon the qualification of the person concerned. Further, it is not an amount paid ex gratia or as compensation for the death of the deceased. Work is extracted from the first claimant, for that the amount is paid to her. She earns her salary by working therefor. Hence, that amount cannot form part of the compensation to be given to the claimants. Secondly, the appellants have not admitted their liability to pay compensation and it is not as if they gave employment to the first claimant as a matter of compensation for the death of her husband. Hence, there is no substance in the argument that the salary of the first claimant from her employment shall be deducted from the compensation. This view has been taken by Gujarat High Court in Arunaben v. Mehmoodbhai Imamali Kaji, 1983 ACJ 409 (Gujarat). That has been followed by the Himachal Pradesh High Court in the case of State of Himachal Pradesh v. Chaina Ram, 1989 ACJ 13 (HP). Similar view has been taken by Rajasthan High Court in the case of Sudershan Puri v. Rajasthan State Road Trans. Corpn., 1983 ACJ 489 (Rajasthan) and the Delhi High Court in Nirmala Sharma v. Raja Ram, 1982 ACJ 143 (Delhi). Hence, we reject this contention." In the circumstances, the Tribunal found that there was no circumstance to come to the conclusion that the deceased was earning a monthly salary of Rs.3,331/-. One third of this amount had to be deducted for his own expenses and maintenance, and the balance sum of Rs.2,220/- was the contribution made by the deceased to the family. According to P.W.1, her husband was aged 46 years at the time of the accident. The document Ex.P.1 would conclusively prove that the deceased Sukumaran was born on 15.01.1948. 10. Admittedly, the accident had taken place on 23.04.1995 and on that day, the deceased has completed 47 years at the time of accident. The Tribunal has taken note that he was 47 years of age, applying the multiplier of 8 and the annual dependancy would come to Rs.26,640/-. Thus, the total amount comes to Rs.2,13,120/- and to this amount, a sum towards conventional damages should be added and rounded off to Rs.2,20,000/-. 11. The Tribunal has taken note that he was 47 years of age, applying the multiplier of 8 and the annual dependancy would come to Rs.26,640/-. Thus, the total amount comes to Rs.2,13,120/- and to this amount, a sum towards conventional damages should be added and rounded off to Rs.2,20,000/-. 11. The learned counsel for the appellant claims that the relevant date of accident was 23.04.1995 after the amendment of the Motor Vehicles Act i.e., after 14.11.1994 and therefore, the proper multiplier that could be applied to the appellants'' claim is 13 and the quantum of amount is to be calculated for the dependancy and the pecuniary compensation is to be accounted for the minor. 12. On the other hand, the learned counsel for the respondent Insurance Company has submitted that the multiplier applied, though not proper as per the amendment of the Motor Vehicles Act i.e., after 14.11.1994, considering the facts and circumstances and the dependancy and the decision of the Supreme Court as well as this Court, the multiplier 11 has to be applied, but not 13 as claimed by the learned counsel for the appellants. This contention of the learned counsel for the respondent Insurance Company has to be considered, since the issues involved in this appeal are narrowed to the point of application of multiplier to this appeal, which is the only point to be considered. 13. Taking reference to the facts and circumstances as well as the submissions of the learned counsel, I am inclined to consider that aspect alone in this appeal and accordingly, I decide that the proper multiplier has to be put based on the Schedule-2 of Section 166 of the Motor Vehicles Act. The age has been taken as 47 years for which 13 is the proper multiplier to be applied in this case, but the learned counsel for the respondent relied on a decision of AIR 2005 SCW 2542 in the case of Tamilnadu State Transport Corporation Ltd. Vs. S. Rajapriya and others, wherein the Supreme Court has applied multiplier 12 for the person who was having 38 years of age. Paragraphs 14, 15 and 16 of AIR 2005 SCW 2542 , reads as under: "14. In regard to the choice of the multiplicand the Halsbury''s Laws of England in vol.34, para 98 states the principle thus: "98. S. Rajapriya and others, wherein the Supreme Court has applied multiplier 12 for the person who was having 38 years of age. Paragraphs 14, 15 and 16 of AIR 2005 SCW 2542 , reads as under: "14. In regard to the choice of the multiplicand the Halsbury''s Laws of England in vol.34, para 98 states the principle thus: "98. Assessment of damages under the Fatal Accident Act, 1976 - The courts have evolved a method for calculating the amount of pecuniary benefit that dependants could reasonably expect to have received from the deceased in the future. First the annual value to the dependants of those benefits (the multiplicand) is assessed. In the ordinary case of the death of a wage-earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses. The assessment is split into two parts. The first part comprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one-half of the short-term investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years which have based on the number of years that the expectancy would probably have lasted; central to that calculation is the probable length of the deceased''s working life at the date of death." As to the multiplier, Halsbury states: "However, the multiplier is a figure considerably less than the number of years taken as the duration of the expectancy. Since the dependants can invest their damages, the lump sum award in respect of future loss must be discounted to reflect their receipt of interest on invested funds, the intention being that the dependants will each year draw interest and some capital (the interest element decreasing and the capital drawings increasing with the passage of years), so that they are compensated each year for their annual loss, and the fund will be exhausted at the age which the court assesses to be the correct age, having regard to all contingencies. The contingencies of life such as illness, disability and unemployment have to be taken into account. Actuarial evidence is admissible, but the courts do not encourage such evidence. The calculation depends on selecting an assumed rate of interest. The contingencies of life such as illness, disability and unemployment have to be taken into account. Actuarial evidence is admissible, but the courts do not encourage such evidence. The calculation depends on selecting an assumed rate of interest. In practice about 4 or 5 per cent is selected, and inflation is disregarded. It is assumed that the return on fixed interest bearing securities is so much higher than 4 to 5 per cent that rough and ready allowance for inflation is thereby made. The multiplier may be increased where the plaintiff is a high tax payer. The multiplicand is based on the rate of wages at the date of trial. No interest is allowed on the total figure." 15. In both Susamma thomas and Trilok Chand''s cases (supra) the multiplier appears to have been adopted taking note of the prevalent banking rate of interest. 16. In Susamma Thomas''s case (supra) it was noted that normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in Trilok Chandra''s case (supra) appears to be appropriate. In fact in Trilok Chand''s case (supra), after reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian Citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age." 14. Considering the submissions made by the learned counsel for the respondent Insurance Company in giving a reasonable consideration to the claim of the appellants therein, it is proper that multiplier 12 to be applied in this case also and accordingly, the compensation has to be enhanced to Rs.3,19,680/- in all respects. Considering the submissions made by the learned counsel for the respondent Insurance Company in giving a reasonable consideration to the claim of the appellants therein, it is proper that multiplier 12 to be applied in this case also and accordingly, the compensation has to be enhanced to Rs.3,19,680/- in all respects. The award of the Tribunal is modified to that extent and it is made clear that the interest rate fixed by the Tribunal as 12% for the amount of compensation already awarded, to remain as it is and 7.5% interest to the enhanced amount should be given. This appeal is allowed to the extent indicated above, except all other aspects of the Tribunal which will remain as it is. The Civil Miscellaneous Appeal is ordered on the above terms.