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2010 DIGILAW 4074 (MAD)

K. Nalini v. S. Shanthi

2010-09-08

M.Y.EQBAL, T.S.SIVAGNANAM

body2010
Judgment :- T.S. Sivagnanam, J. 1. These appeals have been filed by the claimants against the common award and Judgment in MACT.O.P.Nos.3011 & 3012 of 2007 dated 24.02.2010, passed by the Motor Accidents Claims Tribunal, Chennai. 2. MACT.O.P.No. 3011 of 2007 was filed by the appellant/claimants claiming compensation of Rs.75,75,000/- for the loss of life of P.Kumar, who is the husband of the first appellant, the father of the appellants 2 & 6, the son of the appellants 3 & 4 and the grand son of the fifth appellant. On 04.07.2007, the deceased P.Kumar was riding a Motor cycle bearing registration No.TN-48-E-5187 along with the claimant in MACT.O.P.No. 3012 of 2007, who was the pillion rider, they were proceeding from South to North direction in Trichy-Chennai Bye-pass road and a Trailer Lorry dashed against the Motor cycle. As a result of the accident, the deceased died on the spot and the other claimant sustained grievous injuries. The deceased was owning lorries and JCB excavator and doing contract work as Earth Movers with M/s.S.P.L. Infrastructure Pvt. Limited. The claimants contended that the deceased was earning of Rs.25,000/- to 30,000/- per month and claimed a total compensation of Rs.75,75,000/-. The owner of the vehicle remained ex-parte. 3. The Insurance Company contested the claim by denying the manner of the accident and stated that the deceased is a tort-feasor and the accident occurred due to the sole negligence of the rider of the motor cycle, who was under the influence of alcohol and therefore, the Insurance company was not liable. The age, occupation and income of the deceased was also not admitted. 4. The injured pillion rider filed MACT.O.P.No.3012 of 2007 contending that he had sustained grievous injuries namely, fracture and dislocation of bone in left hand shoulder, severe injuries in the skull and in the chest and multiple internal and external injuries all over the body and claimed Rs.3,00,000/-as compensation for the injuries sustained. 5. The respondent Insurance company resisted the claim petition by disputing the nature of injuries, period of treatment, alleged disability and loss of income and stated that the claim is highly excessive. 6. The Tribunal took up both the claim petitions for adjudication and framed following six points for consideration:-i) Whether the accident had happened due to the rash and negligent driving of the driver of the Trailer Lorry bearing registration No.TN-28L-1184? 6. The Tribunal took up both the claim petitions for adjudication and framed following six points for consideration:-i) Whether the accident had happened due to the rash and negligent driving of the driver of the Trailer Lorry bearing registration No.TN-28L-1184? ii) Whether the respondents are liable to pay the compensation? iii) Whether the deceased in O.P.No.3011/07 died due to accident injury? iv) Whether the petitioners are the liable heirs of the deceased? v) Whether the petitioners in O.P.No.3011/07 are entitled to compensation? If so, what is the quantum? vi) Whether the petitioner in O.P.No.3012/07 is entitled for the compensation? If so, what is the quantum? 7. The wife of the deceased examined herself as PW-1 and the injured claimant examined himself as PW.2 and the Doctor was examined as PW.3. The claimants marked 22 documents as P1 to P22. The respondents did not lead any oral or documentary evidence. The Tribunal while answering the points raised held:- i) That the accident occurred due to the rash and negligent driving of the first respondents vehicle. ii) The respondent Insurance company being the insurer of the vehicle is liable to pay the compensation. iii) That the deceased P.Kumar died due to the injuries sustained into the accident. iv) That the legal heirs of the deceased P.Kumar are entitled for compensation. v) The claimants/legal heirs of the deceased P.Kumar are entitled to a total compensation of Rs.14,93,000/-. vi) The injured claimant N.Mahendran was entitled to a total compensation of Rs.63,000/-. 8. Not being satisfied with the common award of the Tribunal, the claimants have filed the present appeals. 9. The learned counsel appearing for the appellant would contend that the Tribunal ought to have assessed the monthly income of the deceased between Rs.25,000/-to 30,000/- instead of fixing it at Rs.9,000/-; the deduction of 1/4th towards personal expenses is excessive and the compensation awarded under the other heads are grossly inadequate. 10. As regards the claim made by the injured claimant, the learned counsel contended that the Tribunal erred in awarding only Rs.7,000/-towards loss of income as against the claim of Rs.10,000/- and the compensation awarded under the other heads more particularly under the head of pain and suffering was grossly inadequate and that the claimant continuous to suffer permanent disability as he is not able to lift his hand fully. 11. 11. The respondent Insurance company would contend that despite the fact that no income records were produced to prove the income of the deceased, the Tribunal fixed the monthly income at Rs.9,000/-per month and the compensation awarded under the other heads were also fair and reasonable and the award calls for no interference. 12. As regards, the claim for the injuries sustained by the claimant N.Mahendran, it is contended that the compensation of Rs.63,000/-is just and reasonable compensation and therefore, the appeal is liable to be dismissed. 13. We have considered the submission on either side and perused the materials available on record. 14. In the claim petition, the monthly income of the deceased P.Kumar was stated to be between Rs.25,000/- to Rs.30,000/-, it is admitted that the deceased was engaged in the business of providing transport services and it was a partnership business, which was jointly managed by the deceased and his father. It is seen from Ex.P.5, the deceased was possessing a driving licence for driving heavy vehicles. That apart, the R.C. Book of the lorries were marked as Exs.P.7 , 8 & 11 and a letter from M/s.S.P.Lakshmanan Engineering Contractor was marked as Ex.P.12. These documents were exhibited to prove that the deceased had a flourishing business and on account of the death of P.Kumar, the family had lost its breadwinner. It is to be noted that at the time of the death, the deceased was aged about 22 years and considering the fact that he had good future prospectus and apart from owning the lorries he also earned income from the excavator, which was also owned by them and to prove the income and cash flow the claimants marked Exhibits P.16 & 17. Though the Tribunal fixed the monthly income of deceased as Rs.6,000/-and adding future prospectus, the Tribunal fixed the income at the time of the accident at Rs.9,000/-. In our considered view, though it might have been a family business consisting of father and son, the deceased being an energetic man of 22 years also possessing a driving licence to drive heavy vehicle would have contributed substantially for the development of the business and had he lived longer definitely, the monthly income would have been much more than assessed by the Tribunal. 15. 15. Thus, by careful appreciation of the evidence on record and also taking into consideration, the future prospectus, it can be safely concluded that the monthly income can be fixed at Rs.12,000/-. The Tribunal deducted 1/4th towards personal expenses of the deceased, which according to us is correct and therefore, does not call for any interference. 16. We also find that the compensation awarded under the various other heads are also just and reasonable compensation. Hence, except for interfering with the annual income as assessed, we do not propose interfere with the award passed by the Tribunal in other aspects. 17. In the result, the above appeal is allowed in part and the monthly income of the deceased shall be fixed as Rs.12,000/-after deducting 1/4th of the income the dependency is fixed at Rs.9,000/-per month and the annual dependency shall be Rs.1,08,000/-, which is rounded of Rs.1,00,000/-. 18. The Tribunal has adopted the multiplier 18. However, considering the various pronouncements of the Honble Supreme Court and taking note of the age of the deceased, we are of the view that 17 will be the appropriate multiplier to be adopted in this case. 19. Accordingly, the total compensation shall be Rs.17,00,000/-which in our view would be just and reasonable compensation. The appellants/claimants in C.M.A.No.1421 of 2010 are entitled to a total sum of Rs.17,00,000/-together with interest at the rate of 7.5% per annum as awarded by the Tribunal. 20. In so far as the injury case,(C.M.A.No.1422 of 2010) the Tribunal awarded a sum of Rs.63,000/- as total compensation. The injured claimant was working as an office assistant in a private company and he had suffered fracture and dislocation of bone in left hand shoulder, severe injuries in the skull and in chest and multiple internal and external injuries all over the body. The Doctor, who was examined as P.W.3 has stated that the claimant cannot lift beyond shoulder level and cannot be able to lift things weighing above 5Kgs. Therefore, we are of the view that the claimant is entitled to additional compensation under the head of disability. Accordingly, we add a sum of Rs.37,000/- under the head of disability, thus rounding of the total compensation payable as Rs.1,00,000/- instead of Rs.63,000/-. 21. In the result, C.M.A.No.1421 of 2010 is allowed in part and the compensation of Rs.14,93,000/- is enhanced to Rs.17,00,0000/-. Accordingly, we add a sum of Rs.37,000/- under the head of disability, thus rounding of the total compensation payable as Rs.1,00,000/- instead of Rs.63,000/-. 21. In the result, C.M.A.No.1421 of 2010 is allowed in part and the compensation of Rs.14,93,000/- is enhanced to Rs.17,00,0000/-. The appellants/claimants are entitled to a total sum of Rs.17,00,000/- together with interest at the rate of 7.5% per annum as awarded by the Tribunal. 22. C.M.A.No.1422 of 2010 is partly allowed and compensation of Rs.63,000/-is enhanced to Rs.1,00,000/- together with interest at the rate of 7.5% per annum as awarded by the Tribunal. No costs.