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2012 DIGILAW 727 (MAD)

P. Anbarasi v. P. Nandagopal

2012-02-10

R.BANUMATHI, S.VIMALA

body2012
Judgment :- (R.BANUMATHI, J.) 1. Being dissatisfied with the quantum of compensation awarded in M.C.O.P.No.22 of 2005 on the file of the Motor Accident Claims Tribunal (Sub-Court), Panruti, (dated 01.12.2006), the claimants, who are the wife, son and mother of deceased Panneerselvam have preferred this appeal. 2. Brief facts are that on 06.02.2005, the deceased G.Panneerselvam was standing near the Dr.Mani Clinic at West side of Chennai Salai,L.N.Puram and discussing about the Photo business with one Palani, Son of Subramanian at about 2.00 p.m. At that time, the 1st respondent's Maxi Cab came from south to north driven in a rash and negligent manner without blowing horn and dashed against G.Panneerselvam and the deceased sustained head injury and injuries all over the body and immediately he was taken to Government Hospital, Panruti and referred to Krishna Hospital, Cuddalore, and on 06.02.2005 night, he was admitted in Apollo Hospital, Chennai. The deceased had taken treatment in Apollo Hospital till 21.02.2005 and succumbed to injuries on 21.02.2005. Deceased Panneerselvam was working as a working partner in Jothi Photo Studio and earning Rs.10,000/- per month and he was also doing the work of LIC Agent and earning Rs.5,000/- per month, totalling Rs.15,000/-per month. Alleging that the accident was due to the rash and negligent driving of Maxi cab and that the family has lost the support, claimants, who are wife, son and mother of deceased Panneerselvam have filed the Claim Petition in M.C.O.P.No.22 of 2005 claiming compensation of Rs.30,00,000/-. 3. The Insurance Company resisted the Claim Petition denying the age, income of the deceased and also the medical expenditure incurred for the treatment of deceased Panneerselvam and also contending that the compensation claimed is highly excessive and without any basis. 4. It is not necessary for us to refer to the manner of accident, who was responsible for the death and fastening of liability since those findings are not under challenge. Only the quantum of compensation awarded is under challenge. 5. In the Tribunal, claimants examined 1st claimant as P.W.1, eye witness as P.W.2, elder brother of deceased Panneerselvam and Managing Partner of Jothi Photo Studio as P.W.3, Assistant Branch Manager of LIC as P.W.4 and the Village Administrative Officer as P.W.5 and marked Exs.P.1 to P.15. Onbehalf of the respondents, no witnesses were examined and no documents were marked. 6. In the Tribunal, claimants examined 1st claimant as P.W.1, eye witness as P.W.2, elder brother of deceased Panneerselvam and Managing Partner of Jothi Photo Studio as P.W.3, Assistant Branch Manager of LIC as P.W.4 and the Village Administrative Officer as P.W.5 and marked Exs.P.1 to P.15. Onbehalf of the respondents, no witnesses were examined and no documents were marked. 6. Even though P.Ws.1, 3 and 4 have spoken about the income of the deceased both from Photo Studio as well as from his agency in L.I.C, the Tribunal has held that no partnership deed was produced nor other document to show that the deceased was a partner in the photo studio and to substantiate that the deceased was getting income of Rs.20,000/- per month. The Tribunal has taken the monthly income at Rs.3,000/-per month and after deducting 1/3rd for personal expenses, calculated the loss of contribution to the family at Rs.2,000/-per month. Since the deceased was aged 45 years, the Tribunal has adopted multiplier 15 and awarded Rs.3,60,000/- for loss of dependency. Adding medical expenses of Rs.3,00,000/-and conventional damages, the Tribunal awarded total compensation of Rs.7,25,000/-payable with interest at the rate of 7.5%. Being dissatisfied with the quantum of compensation, the claimants have preferred this appeal. 7. The learned counsel for appellants contended that the Tribunal failed to note that the deceased was working as a partner in the Photo Studio and the same is proved by the evidence of P.Ws.1,3 and Ex.P.9 and the trial Court erred in not assigning any reason for rejecting the evidence of P.Ws.1 and 3 and Ex.P.9. It was further submitted that the Tribunal failed to appreciate the evidence of P.W.4, who has spoken about the income of the deceased from his commission agent business of LIC and the Tribunal erred in rejecting Exs.P.11 and P.15. 8. Per contra, the learned counsel for 2nd respondent Insurance Company would submit that in the absence of any evidence, the Tribunal rightly taken the income at Rs.3,000/-per month. 9. P.W.1 -wife of the deceased has stated that her husband Panneerselvam was the working partner in Jothi Photo Studio run by his elder brother and that the deceased was paid salary at Rs.15,000/-. P.W.1 would further state that the deceased was also a LIC Commission agent and he was getting Rs.5,000/- from his commission agency. 10. P.W.3 – Buddhan is the elder brother of deceased Panneerselvam. P.W.1 would further state that the deceased was also a LIC Commission agent and he was getting Rs.5,000/- from his commission agency. 10. P.W.3 – Buddhan is the elder brother of deceased Panneerselvam. In his evidence, P.W.3 has stated that he is running Jothi Photo Studio and Jothi Colour Lab in Panruti and that his younger brother deceased Panneerselvam was the working partner in the Photo Studio and he was paid salary of Rs.15,000/- per month. To substantiate his evidence, P.W.3 has produced Ex.P.9 certificate issued by him. Admittedly, deceased Panneerselvam was the LIC Agent. The Assistant Manager of LIC, Panruti Branch was examined as P.W.4, who, in his evidence, has stated that deceased Panneerselvam was getting commission of Rs.3,000/- - Rs.4,000/- every month. To substantiate the evidence of P.Ws.3 and 4, P.W.5 – Village Administrative Officer was examined. P.W.5 has issued Ex.P.11 – Income Certificate evidencing that the deceased was getting about Rs.15,000/- as salary from Photo studio and Rs.5,000/- from his commission agency. P.W.5 - Village Administrative Officer would further state that only based upon enquiry, he issued Ex.P.11 certificate. 11. Even though P.Ws.1, 3, 4 and 5 have consistently spoken about the income of the deceased as Rs.15,000/- plus Rs.5,000/-, the Tribunal held that no partnership deed or other document was produced evidencing that the deceased was working as a partner in the Photo studio. Referring to Ex.P.15 - Cheque issued for payment of commission for Rs.1,177/-, the Tribunal had held that the deceased was getting only less income from his commission agency and fixed the monthly income at Rs.3,000/- per month. 12. In our considered view,the claimants have adduced ample evidence to show that the deceased was working partner in Jothi Photo Studio and he was also getting income from commission agency in LIC. The evidence adduced by the claimants is corroborated by the evidence of Village Administrative Officer-P.W.5. The Tribunal was not justified in brushing aside the evidence of P.Ws.1,3,4 and 5and the documetns -Exs.P.9 andP.11. 13. It is a matter of common knowledge that photographers are in demand for all the occasions. From the evidence of P.Ws.1 and 3 and Ex.P9 -salary certificate, we hold that the deceased would have earned not less than Rs.4,500/-as income/salary from being a partner in Jothi Photo Studio. 13. It is a matter of common knowledge that photographers are in demand for all the occasions. From the evidence of P.Ws.1 and 3 and Ex.P9 -salary certificate, we hold that the deceased would have earned not less than Rs.4,500/-as income/salary from being a partner in Jothi Photo Studio. Considering the evidence of P.Ws.1 and 4 and also Ex.P15, we find that the deceased would have earned not less than Rs.4,500/-by doing commission agent work in L.I.C. Thus the total income of the deceased is fixed at Rs.9,000/- per month. Deducting 1/3rd amount for personal expenses, the loss of contribution to the family is calculated at Rs.6,000/- per month. 14. At the time of death, the deceased was aged 45 years. As per the second schedule, proper multiplier to be adopted is 15, which the Tribunal has adopted. The multiplier adopted by the Tribunal at 15 is maintained. The total loss of dependency to the family is calculated at Rs.10,80,000/- (Rs.6,000/- x 12 x 15 = Rs.10,80,000/-). 15. The accident was on 06.02.2005. After the accident, the deceased was admitted in Krishna Hospital, Cuddalore and thereafter he was admitted in Apollo Hospital, Chennai, where he had taken treatment till 21.02.2005. Towards medical expenses, the claimants have claimed an amount of Rs.3,55,000/-. Based on Exs.P7 and P8 medical bills, the Tribunal has awarded Rs.3,00,000/-for medical expenses and the same is maintained. Insofar as conventional damages, the Tribunal has awarded Rs.25,000/-for loss of consortium to the first claimant and the same is maintained. For the loss of love and affection, the Tribunal has awarded Rs.25,000/-to the second claimant/son of the deceased and Rs.10,000/- to the third claimant/mother of the deceased, totalling Rs.35,000/-. Insofar as funeral expenses, the Tribunal has awarded Rs.5,000/-. Since the deceased died at Chennai and body was thereafter taken to Cuddalore, it would be appropriate to award Rs.10,000/-for funeral expenses. Thus the compensation awarded to the claimants is enhanced to Rs.14,50,000/- as under: Loss of dependency .. Rs.10,80,000.00 (Rs.6,000/- x 12 x 15) Medical expenses .. Rs. 3,00,000.00 Loss of consortium to thefirst claimant .. Rs. 25,000.00 Loss of love and affection to claimants 2 and 3 (Rs.25,000/- + Rs.10,000/-) .. Rs. 35,000.00 Funeral expenses .. Rs. 10,000.00 == = = = = = = Total ..Rs.14,50,000.00 = = = = = = = = 16. Rs.10,80,000.00 (Rs.6,000/- x 12 x 15) Medical expenses .. Rs. 3,00,000.00 Loss of consortium to thefirst claimant .. Rs. 25,000.00 Loss of love and affection to claimants 2 and 3 (Rs.25,000/- + Rs.10,000/-) .. Rs. 35,000.00 Funeral expenses .. Rs. 10,000.00 == = = = = = = Total ..Rs.14,50,000.00 = = = = = = = = 16. The enhanced compensation shall be apportioned amongst the claimants as under: First claimant/wife – Rs.7,50,000/- Second claimant/son – Rs.5,00,000/- Third claimant/mother – Rs.2,00,000/- The Tribunal has awarded interest at the rate of 7.5% per annum and the same is maintained. 17. The compensation awarded to the claimants in M.C.O.P.No.22 of 2005 on the file of Motor Accidents Claims Tribunal (Sub Court), Panruti is enhanced to Rs.14,50,000/-payable with interest at the rate of 7.5% per annum. The enhanced compensation is to be deposited within a period of eight weeks from the date of receipt of a copy of this judgment. All the claimants are permitted to withdraw their respective shares of enhanced compensation along with proportionate accrued interest. The second claimant, who was then a minor at the time of filing the claim petition, is also permitted to withdraw the compensation, after obtaining necessary orders from the Tribunal, declaring himself as major. 18. In the result, the appeal is allowed. No costs.