Madras High Court
United India Insurance Co.Ltd vs Shankar Maharaj on 29 November, 2011
Author: K.Mohan Ram
Bench: K.Mohan Ram, G.M.Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.11.2011 CORAM THE HONOURABLE MR.JUSTICE K.MOHAN RAM and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI C.M.A.Nos.2853 of 2011, 2908 of 2011 and 1712 of 2011 and M.P.Nos.1 of 2011 and 2 of 2011 C.M.A.No.2853/2011 United India Insurance Co.Ltd., No.38, Anna Salai Chennai 600 002 ..Appellant vs. 1.Shankar Maharaj Son of Ganesh Sharma 2.K.Gopal (set ex-parte before the trial Court) 3.R.Palanivel (set ex-parte before the trial Court) 4.National Insurance Company Ltd., No.751, Anna Salai Chennai 600 002 ..Respondents C.M.A.No.2908/2011 The National Insurance Co.Ltd., No.751, Anna Salai Chennai 600 002 ..Appellant vs. 1.Shankar Maharaj S/o Ganesh Sharma 2.K.Gopal 3.United India Insurance Co.Ltd., No.38, Anna Salai, Chennai 2 4.R.Palanivel ..Respondents (Respondents 2 and 4 are set ex-parte in lower Court) C.M.A.No.1712 of 2011 Shankar Maharaj ..Appellant Vs. 1.K.Gopal (was set exparte in the Trial Court) 2.The United India Insurance Co.Ltd., No.38, Anna Salai, Chennai 600 002 now abolished and functioning as The United India Insurance Co.Ltd., Motor Third Party Claims office-HUB Silingi Buildings No.134, Greams Road, Chennai 600 006 3.R.Palanivel (was set exparte in the trial Court) 4.The National Insurance Co.Ltd., No.751, Anna Salai, Chennai 600 002 ..Respondents C.M.A.No.2853 of 2011 is filed by the United India Insurance Company Limited against the Decree and judgment made in M.C.O.P.No.64 of 2005 dated 16.11.2010 on the file of the Motor Accidents Claims Tribunal (IV Court of Small Causes) Chennai. C.M.A.No.2908 of 2011 is filed by the National Insurance Company Limited against the judgment and decree dated 16.11.2010 made in M.C.O.P.No.64 of 2005 on the file of the Motor Accidents Claims Tribunal (IV Judge, Court of Small Causes) at Chennai. C.M.A.No.1712 of 2011 is filed by the claimant against the judgment and decree dated 16.11.2010 made in MACT O.P.No.64 of 2005 on the file of the IV Judge, Motor Accidents Claims Tribunal (Court of Small Causes), Chennai In C.M.A.No.2853/2011 For appellant : Mr.C.R.Krishnamoorthy For respondent No.1 : Mr.M.Swamikannu For Respondent No.4 : Mr.K.S.Narasimhan R2 and R3 set ex-parte before lower court In C.M.A.No.2908 of 2011 for appellant : Mr.K.S.Narasimhan for respondent No.1 : Mr.M.Swamikkannu for respondent No.3 : Mr.C.R.Krishnamoorthy R2 and R4 set ex-parte before lower court In C.M.A.No.1712/2011 for appellant : Mr.M.Swamikkannu for respondent No.2 : Mr.C.R.Krishnamoorthy (for R2) for respondent No.4 : Mr.K.S.Narasimhan (R1 and R3-set exparte before lower court) JUDGMENT
(Judgment of the Court was made by K.MOHAN RAM,J.) Being aggrieved by the award dated 16.11.2010 passed in M.C.O.P.No.64/2005 on the file of the Motor Accidents Claims Tribunal (IV Court of Small Causes) Chennai, the second respondent in the Claim Petition, namely, United India Insurance Company Ltd., has filed C.M.A.No.2853/2011. The fourth respondent, namely, National Insurance Company Ltd., has filed C.M.A.No.2908/2011. Not being satisfied with the quantum of compensation awarded, the Claimant has filed C.M.A.No.1712/2011. Since all the above Civil Miscellaneous Appeals arise out of the same award, all these appeals are being disposed of by this common judgment.
2. Since the learned counsel for the appellants in C.M.A.Nos.2853/2011 and 2908/2011, at the outset, submit that they are not questioning the finding regarding negligence and the liability, we are not going into that aspect. The only submission made by the respective counsel for the appellants in the said two appeals is only with regard to quantum of compensation awarded.
3. Similarly, Mr.M.Swamikkannu, learned counsel for the Claimant/appellant in C.M.A.No.1712/2011 is contending that the quantum of compensation is on the lower side since the Tribunal has not awarded any compensation amount towards continuing permanent disability and what has been awarded towards Attender charges, namely, Rs.25,000/- is on the lower side. Since the injured is confined to the wheel chair throughout his life and he has to attend all his needs only with the help of an Attender, the Tribunal, according to him, has not taken into consideration, the abovesaid aspect.
4. (i) Mr.C.R.Krishnamoorthy, learned counsel appearing for the appellant in C.M.A.No.2853/2011 and Mr.K.S.Narasimhan, learned counsel appearing for the appellant in C.M.A.No.2908/2011 submitted that in the absence of any acceptable evidence regarding the income derived by the injured, the Tribunal has erred in arriving at the income of the injured at Rs.7,500/-. The learned counsel submitted that only a sum of Rs.6,000/- can be taken as the monthly income of the injured.
(ii) As far as the sum of Rs.1,00,000/- awarded towards pain and suffering is concerned, the learned counsel submitted that it is on the higher side. The learned counsel submitted that the sum of Rs.25,000/- towards Attender charges is on the higher side and hence, the question of further enhancement does not arise.
(iii) The learned counsel submitted that even in respect of injured cases if the multiplier method is adopted, then one-third has to be deducted towards personal expenses of the injured. In support of the said contention, the learned counsel placed reliance on 2005 (1) TN MAC 334 (SC) (NEW INDIA ASSURANCE CO.LTD V. CHARLIE AND ANOTHER) and 2011 (2) TN MAC 67 (SC)(SANT SINGH V. SUKHDEV SINGH AND OTHERS).
(iv) The learned counsel submitted that the Tribunal has applied the multiplier of 16. Considering the age of the injured, namely, 38 years, which according to the learned counsel, as per the decision in SARLA VERMA V. DTC (2009 (6) SCC 121) the proper multiplier to be applied is only 15.
5. Countering the said submissions, Mr.M.Swamikkannu, learned counsel submitted that the fact that the injured is a Caterer has not been seriously disputed before the Tribunal. By producing the visiting card-Ex.P.23, the injured has proved that he is a Caterer by profession. Considering the fact that the injured is having permanent profession as Caterer, future prospects of earning is also taken into consideration. According to the learned counsel, a sum of Rs.6,000/- is taken as his monthly income and by adding another sum of Rs.1,500/-, the Tribunal has arrived at his income as Rs.7,500/-. The learned counsel submitted that the question of deduction of one-third towards personal expenses does not arise since what is claimed as compensation is only for the total pecuniary loss due to permanent disability.
6. We have considered the aforesaid submissions and perused the materials available on record.
7.(i) As far as the profession of the injured is concerned, the same has been proved by Ex.P.23 and the oral evidence of the injured. Nothing has been elicited in his cross-examination to discredit his evidence.
(ii)Similarly, as far as the income of the injured is concerned, what has been arrived at by the Tribunal is only on the conservative side. A sum of Rs.7,500/- fixed as his monthly income cannot be said to be higher. The contention of the learned counsel for the Insurance Company that the Caterers may not have business throughout the year but it is only seasonal is concerned, it has been pointed out that Caterers are required not only for marriages, but also for other functions like betrothal, Birthday parties etc. Therefore, nolonger it can be considered as a seasonal business. We are of the considered view that throughout the year they will be engaged, atleast for a period of 10 months. Therefore, we are of the considered view that the Tribunal is right in fixing Rs.7,500/- as the monthly income of the injured and we do not find any reason to interfere with the said finding.
(iii)As far as the contention of the learned counsel for the Insurance Company that one-third should be deducted towards personal expenses of the injured is concerned, it is pertinent to point out that a perusal of Schedule II of the Motor Vehicles Act shows that the compensation payable to the third party for fatal accident is concerned, it is specifically provided in the Schedule itself that one-third has to be deducted towards personal expenses of the victim.
(iv)Insofar as the compensation payable towards total personal disability is concerned, Clause 5(a) provides that compensation payable has to be arrived at by applying the multiplier method. It nowhere provides that from the pecuniary loss arrived at, one-third has to be deducted towards personal expenses of the injured. In the decision reported in 2011 (2) TN MAC 67 (SC) SANT SINGH V. SUKHDEV SINGH AND OTHERS) the Tribunal awarded a sum of Rs.1,20,000/- as compensation for permanent disability taking the permanent disability at 60%. An appeal was preferred against that in the High Court and the High Court enhanced the compensation by another Rs.15,000/-. Not being satisfied with that an appeal was preferred to the Apex Court. In that, the Apex Court has deducted one-third towards personal expenses while enhancing the compensation. We do not find any discussion with reference to the deduction towards personal expenses to be made in the case of injured. The Apex Court has not even referred to the Schedule or any other decided cases. Therefore, it cannot be said that the said decision is a binding precedent.
(v) In the decision report in 2005 (1) TN MAC 334 (SC)(NEW INDIA ASSURANCE CO.LTD., V. CHARLIE AND ANOTHER) the Tribunal had deducted one-third towards personal expenditure while applying the multiplier method. The same has been confirmed by the Apex Court. In paragraph 5 the Apex Court has pointed that 'What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula by universal application. It would depend upon circumstances of each case and considering the facts and circumstances of that case the one-third deduction has been confirmed. Therefore, the said decision also cannot be said to be a binding precedent on this aspect.
(vi) In respect of compensation claimed by the injured towards total permanent disability, no deduction towards personal expenses has been made by the Apex Court in any of the other cases which have come to our notice. Therefore, we are unable to countenance the contention of the Insurance Companies. In our considered view, as per the Schedule II to the Motor Vehicles Act, there is no deduction towards personal expenses from the pecuniary loss suffered in the case of a person who suffered permanent disablement. This view of ours is supported by the decision of the Apex Court reported in 2011 (I) ACJ 1 (RAJ KUMAR V. AJAY KUMAR AND ANOTHER). In the said decision, in para 20, it has been laid down as follows:
"20.In the case of an injured-claimant with a disability, what is calculated is the future loss of earnings of the claimant, payable to claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore, there is no need to deduct one-third or any other percentage from out of the income, towards personal and living expenses."
Therefore, no deduction could be made towards personal expenses of the injured towards pecuniary loss suffered by him. But, however, the learned counsel for the Insurance Company is correct in contending that the multiplier of 16 is not in accordance with the law laid down in SARLA VERMA case since the age of the injured is 38 and the correct multiplier is 15. Thus, if the multiplier of 15 is applied, then the pecuniary loss will come to Rs.13,50,000/-.(Rs.7,500X12X15).
(vii)As far as the compensation awarded towards other heads are concerned, we are of the considered view that the Tribunal has not awarded the proper compensation as far as the Attender charges is concerned. It is not in dispute that the victim has suffered 100% disability and is confined to the wheel chair. In fact, Ex.C1-disability certificate issued by the Medical Board shows that he is confined to wheel chair due to left Hemiplegia and cannot carry out his day-to-day activities. The Tribunal has also pointed that with this disability he cannot attend to his day-to-day needs and he needs an Attender to attend on him. Therefore a sum of Rs.25,000/-awarded towards Attender charges is on the lower side and since he needs the attender, we enhance it to Rs.70,000/-.
(viii) Mr.Swamikkannu, learned counsel for the injured submitted that the Tribunal has not awarded towards continuing permanent disability. The Apex Court has held in a case where the pecuniary loss is calculated by multiplier method, still the injured is entitled to get amount towards continuing permanent disability. Considering the nature of the continuing permanent disability, we deem it fit to award a sum of Rs.45,000/- towards continuing permanent disability and all other amount awarded under other heads in our considered view is reasonable and the same are confirmed.
(ix) Thus, the total compensation payable comes to Rs.26,30,000/-(Rupees Twenty Six Lakhs and Thirty Thousand only). The same amount has been awarded by the Tribunal. Therefore, we do not find any reason to interfere with the award passed by the Tribunal.
8. All these three Civil Miscellaneous Appeals fail and the same are dismissed. No costs. Consequently, connected MPs are disposed of.
9. The entire compensation has been deposited and Rs.10,00,000/-(Rupees Ten Lakhs only) has been withdrawn by the Claimant. Therefore, the Claimant is permitted to withdraw the balance amount.
(K.M.J.)(G.M.A.J.) index:yes 29.11.2011 internet:yes sal To 1.National Insurance Company Ltd., No.751, Anna Salai, Chennai 600 002 2.The United India Insurance Co.Ltd., Motor Third Party Claims office-HUB Silingi Buildings No.134, Greams Road, Chennai 600 006 K.MOHAN RAM,J. and G.M.AKBAR ALI,J. (sal) C.M.A.Nos.2853 of 2011, 2908 of 2011 and 1712 of 2011 and M.P.Nos.1 of 2011 and 2 of 2011 29.11.2011