Madras High Court
The Branch Manager vs Amirtham on 9 November, 2020
Author: V.Bharathidasan
Bench: V.Bharathidasan
C.M.A.No.2576 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 28..10..2020
Orders Pronounced on : 09..11..2020
CORAM
THE HON'BLE MR.JUSTICE V.BHARATHIDASAN
Civil Miscellaneous Appeal No.2576 of 2019
and
C.M.P.No.12364 of 2019
The Branch Manager,
Shriram General Insurance Co. Ltd.,
Puducherry.
... Appellant
-Versus-
1.Amirtham
2.Minor Kavipriya
[Minor 2nd respondent is represented by her Mother and
the Natural Guardian, the 1st respondent herein]
3.Devaki
4.Jayakumar
... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the order and decree dated dated 30.08.2018 made in
M.C.O.P.No.901 of 2011 by the Motor Accidents Claims Tribunal (Additional
Subordinate Court), Puducherry.
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C.M.A.No.2576 of 2019
For Appellant : Mr.Dhakshnamoorthy S.
For Respondents : Mr.K.Sasindran for RR1 to 3
JUDGEMENT
The Insurance Company which is the 2nd respondent before the Motor Accidents Claims Tribunal (Additional Subordinate Court), Puducherry, is the appellant herein. One Dhanapalan was the injured in this case. The claim petition was originally filed by the injured himself seeking compensation of Rs.12,00,000/- for the injuries sustained by him in the road accident on 29.08.2011. Pending such claim petition, he died on 04.10.2014 and therefore, his legal representatives impleaded themselves as claimants and pursued the claim petition seeking compensation of Rs.45,00,000/- for loss of dependency and other losses. The Tribunal, by order dated 30.08.2018, awarded a compensation of Rs.13,97,668/-. Challenging the same, the Insurance Company is now before this court with the present appeal.
2. The case of the respondents 1 to 3/claimants in brief are as follows:- The respondents 1 to 3 are the legal heirs of the deceased Dhanapalan, who met with a road accident on 29.08.2011 at about 06.00 p.m. at Korkadu - Sembiapalayam Road in Puducherry Union Territory and Page 2 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 sustained injuries. According to the claimants, on the date of accident, when the deceased was riding his two wheeler, a Mahindra Van bearing Regn. No.PY 01 W 5288 belonging to the 4th respondent, which had been driven by its driver in a rash and negligent manner, dashed against the two wheeler of the deceased as a result of which, the deceased had sustained head injuries besides injuries on his right fingers and multiple injuries all over his body. Immediately after the accident, he was taken to JIPMER Hospital at Puducherry where he underwent surgery and was taking treatment as inpatient for 22 days. Even thereafter, the injured deceased was taking treatment continuously till 2014. When he was alive he himself filed a claim petition for compensation of Rs.12,00,000/-. Pending such claim petition, he died on 04.10.2014 due to the impact of the accident and, therefore, the respondents 1 to 3, who are the wife, daughter and the mother of the injured deceased impleaded themselves as legal representatives and perused the claim.
3. It is the further case of the claimants that the deceased was a tender coconut seller and was earning a sum of Rs.7,000/- per month. He was the sole bread winner of the family. At the time of death, the injured deceased was aged 32 years. As the deceased died due to the impact of Page 3 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 the injuries sustained in the road accident, the respondents 1 to 3 claiming to be the dependants of the injured deceased made a claim for Rs.45,00,000/- for the death of their dependent.
4. The 4th respondent, who is the insured of the offending vehicle remained absent and he was set ex parte before the tribunal. The appellant insurance company contested the claim petition inter alia disputing that the accident was taken place in the year 2011 and the deceased died in the year 2014, i.e., three years after the accident. There is no nexus between the death and the injuries sustained by the deceased in the accident. If at all the claimants are entitled for any compensation, it could only be for the injuries sustained by the injured deceased and not for the death. It is further contended by the appellant that the subsequent discharge summaries produced by the claimants are not related to the treatment given for the head injuries. The deceased was an alcoholic and, in fact, he was treated for pancreatitis and diabetes mellitus. There is absolutely no material to show that the deceased died due to the injuries sustained in the road accident.
5. In order to prove the claim, on the side of the claimants, Page 4 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 Mrs.Devaki, 3rd claimant, the mother of the deceased was examined examined as P.W.1 and one Ezhil Mohan, who is stated to be an eye- witness to the occurrence, was examined as P.W.2 and as many as 22 documents were marked as Exs.P.1 to P.22 and on the other hand, to disprove the case of the claimants, the appellant insurance company examined its Law Officer as R.W.1 and marked as many as 3 documents as Exs.R.1 to R.3.
6. On considering the materials available on record, the tribunal has come to a conclusion that the accident was taken place only due to the rash and negligent driving of the driver of the 4th respondent/insured and on considering the available medical evidence, the tribunal has come to a further conclusion that the deceased died due to the impact of the injuries sustained by him in that road accident. Insofar as compensation is concerned, the tribunal has assessed the age of the deceased as 32 years at the time of death and assessed the monthly income as Rs.7,000/-. Having come to such conclusion, the tribunal added 30% towards future prospects and applied the multiplier of 17 to compute the loss of dependency and after deducting 1/3rd of the income for the personal expenses of the deceased had he been alive, the tribunal computed the loss Page 5 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 of dependency as follows:-
Monthly Income of the : Rs.7,000/-
deceased
Add 30% Future Prospects : Rs.2,100/-
: Rs.9,100/-
Less 1/3 towards Personal : Rs.3,033/-
Expenses
Loss of Dependency per month : Rs.6,067/-
Loss of Dependency (Estate) : Rs.72,804/-
p.a.
Applied the multiplier of 17 as : Rs.12,37,668/-
per the age of the deceased (32 years) That apart, the tribunal, awarded a sum of Rs.1,00,000/- towards Loss of Consortium to the 1st claimant (wife) and a sum of Rs.50,000/- towards Love and Affectation to the 2nd claimant (daughter) and a sum of Rs.10,000/- towards Funeral Expenses and thereby awarded a total compensation of Rs.13,97,668/- with interest 7.5% p.a. from the date of claim petition till the date of payment.
7. The learned counsel appearing for the appellant would vehemently contend that the accident was taken place in the year 2011 and the injured died three years after the accident and there is absolutely no evidence Page 6 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 available on record to show that deceased died due to the injuries sustained in the accident. The discharge summary produced by the claimants themselves would only show that the deceased was not taking treatment for the head injury and he was treated for pancreatitis and diabetes mellitus, but, the tribunal without considering this aspect of the medical evidence has erroneously come to a conclusion that the deceased died due to the injuries sustained in the road accident. Therefore, the claimants are entitled for compensation only for the injuries sustained by the deceased in the road accident and they are not entitled for compensation for the death.
8. The learned counsel appearing for the appellant without prejudice to his above contention would further contend that the tribunal has also wrongly applied the multiplier of 17, but as per the judgement of the Hon'ble Supreme Court in Sarala Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, the appropriate multiplier would only be 16 and not 17. That apart, towards loss of consortium, the 1st claimant (wife) is entitled only for Rs.40,000/- and whereas the tribunal has awarded a sum of Rs.1,00,000/- under this head. So far as love and affection is concerned, the 2nd claimant (daughter) is entitled only for Page 7 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 Rs.40,000/- and whereas the tribunal has awarded a sum of Rs.50,000/-.
9. The learned counsel appearing for the appellant would further add that on negligence aspect also, there is absolutely no evidence to come to the conclusion that the accident was taken place due to the rash and negligent driving of the driver of the 4th respondent's van. The tribunal without considering all these aspects in a proper perspective concluded that the accident was due to the rash and negligent driving of the driver of the 4th respondent, the deceased died due to the head injuries sustained in the road accident and awarded a huge amount as compensation which requires interference at the hands of this court.
10. Per contra, the learned counsel appearing for respondents 1 to 3 would vehemently contend that though the accident was taken place in the year 2011, the injured who had sustained severe head injuries was at coma stage and was not able to recognize his family members. The mother of the deceased who was examined as P.W.1 had clearly stated in her deposition before the court in this regard. Her evidence was not challenged by the appellant insurance company. That apart, right from the year 2011, the injured deceased was taking treatment continuously at different hospitals. In order to prove the same, the claimants have submitted discharge Page 8 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 summaries issued by the different hospitals under Ex.P.12 to Ex.P.22 which would show that the deceased died in the year 2014 due to the head injury sustained in the road accident. The tribunal after having rightly considered this aspect of the matter held that the deceased died due to the injuries sustained by him in the road accident.
11. So far as the quantum of compensation is concerned, according to the learned counsel for the respondents 1 to 3, the tribunal has rightly assessed the income of the deceased at Rs.7,000/- per month. The deceased was aged 32 years at the time of accident. As per the judgement of the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi (2017) 16 SCC 680, the claimants are entitled to the benefit of future prospects at 40% and whereas the tribunal has granted only 30%. That apart, towards funeral expenses and loss of estate, the claimants are entitled to Rs.15,000/- each but, the tribunal has awarded only a sum of Rs.10,000/- towards funeral expenses and awarded no amount towards loss of estate.
12. However, according to the learned counsel for the respondents 1 to 3, the tribunal in other aspects has considered the materials available on Page 9 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 record meticulously and has rightly come to the conclusion and awarded a just compensation. Therefore, there is no need to interfere with the order of the tribunal.
13. I have considered the rival submissions carefully.
14. The accident was taken place on 29.08.2011.On the date of accident, when the deceased was riding his two wheeler, the van belonging to the 4th respondent which came in the opposite direction in a rash and negligent manner dashed against the two wheeler of the deceased as a result of which, the deceased sustained severe head injuries, besides fracture on the right fingers and injuries all over the body.
15. According to the claimants, the accident was taken place due to the rash and negligent driving of the driver of the van belonging to the 4th respondent. In order to establish the same, they have examined an eye- witness to the occurrence as P.W.2. P.W.2 in his deposition had clearly narrated the manner in which the accident had taken place. According to him, the van which was driven by its driver in a rash and negligent manner dashed against the two wheeler of the deceased. Immediately after the Page 10 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 accident, a complaint was filed by the brother of the deceased before the Station House Officer, Villanur Traffic Police Station, Puducherry. There is no contrary evidence to show that the accident was taken place due to the negligence of the injured deceased. Considering all these aspects of the matter, the tribunal has come to a conclusion that the accident was taken place due to the negligence on the part of the 4th respondent's van driver. At the time of accident, the van driver of the 4th respondent was having a valid license to drive the van and the van was also insured with the appellant Insurance company. Hence, the tribunal has rightly fixed the liability upon the insurance company. There is no reason to interfere with such finding.
16. Insofar as the quantum of compensation is concerned, there is a serious dispute regarding the compensation awarded by the tribunal. According to the appellant, the accident was taken place in the year 2011 and during his life time, the injured himself filed a claim petition. During the pendency of such claim petition, he died in the year 2014, after three years of the accident and there is no evidence to show that the injured deceased died due to the impact of the injuries sustained in the road accident. According to him, if at all any compensation is payable, it could Page 11 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 be only for the injuries sustained by the injured deceased and not for the death of the deceased.
17. It is the case of the claimants that after the accident, the deceased was admitted at JIPMER Hospital at Puducherry and he had underwent surgery. He was in patient for 22 days. In order to prove the the same, the claimants have filed discharge summaries issued by the JIPMER Hospital under Ex.P.6 and Ex.P.12 A perusal of the same would show that the injured was admitted in the hospital on 30.08.2011 and underwent surgery on the same day and he was discharged on 21.09.2011. From the discharge summary it could also be seen that the deceased had suffered subarachnoid hemorrhage with compound fracture on right 2nd and 3rd metacarpal and simple fracture on right 2nd, 3rd and 4th metarsal. The injured deceased took treatment continuously and he was treated as inpatient at different hospitals as could be seen from the discharge summaries issued by the different hospital authorities which were marked under Ex.P.15 to Ex.P.22. Ex.P.15 would show that he was admitted on 19.06.2012 and discharged on 25.06.2012, Ex.P.16 would show that he was admitted on 12.09.2012 and discharged on 16.09.2012, Ex.P.17 would show that he was admitted on 12.10.2012 and discharged on 15.10.2012, Page 12 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 Ex.P.18 would show that he was admitted on 01.03.2013 and discharged on 02.03.2013, Ex.P.19 would show that he was treated as out patient, Ex.P.20 would show that he was admitted on 28.08.2013 and discharged on 31.08.2013, Ex.P.21 would show that he was admitted on 18.10.2013 and discharged on 20.10.2013 and Ex.P.22 would show that he was admitted on 23.10.2013 at the Government Hospital at Puducherry and discharged on 28.10.2013. He died subsequently on 04.10.2014. Apart from that the mother of the deceased who was examined as P.W.1 in her deposition had clearly stated that right from the date of accident, the deceased was bed ridden and he was not even able to recognize his family members. Considering all these aspects of the matter, the tribunal has come to a conclusion that the deceased died due to the impact of the head injury sustained by him in the road accident.
18. Though the learned counsel appearing for the appellant Insurance company made an attempt to convince this court that the discharge summaries produced by the claimants themselves would prove that the deceased was treated for pancreatitis besides diabetes mellitus, there is no evidence produced by the insurance company to show that the deceased died due to the other ailments and not due to the head injury and its Page 13 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 complications. As already discussed supra, the available medical records coupled with the evidence of P.W.1, it could be seen that the deceased undergone treatment continuously from the date of accident till his death. Even though in the discharge summaries it has been stated that the deceased was an alcoholic and he was having pancreatic problem that itself would not be sufficient to hold that the death of the injured was due to pancreatitis and diabetes. The insurance company has not let in any evidence to establish that the death was due to the other complications as the onus is on them to prove the same. The available medical evidence coupled with the evidence of P.W.1 would clearly establish that the deceased died due to the impact of the head injuries sustained in the road accident. The evidence of P.W.1 was not shattered by the insurance company. Thus, this court does not find any infirmity in the findings arrived at by the tribunal that the deceased died only due to the head injury and its complications.
19. So far as the quantum of compensation is concerned, it is stated that the deceased was engaged in selling the tender coconuts and was earning Rs.300/- per day. Considering this fact, the tribunal as assessed the monthly income at Rs.7000/-. So far as the age of the deceased is Page 14 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 concerned, there is no direct evidence to establish the age of the deceased. However, from a perusal of the discharge summaries, more particularly, Ex.P.6, it could be seen that at the time of accident, the deceased was 32 years old. In the certificate issued by the Nettapakkam Commune Panchayat, which was marked under Ex.P.12, the age of the deceased has been mentioned as 35 years as on 2014. The tribunal has assessed the age of the deceased as 32 years. Even assuming that the age of the deceased was 35 years at the time of accident, the multiplier is going to be the same. The tribunal has assessed the future prospects of the deceased as 30% on the monthly income. However, considering the judgement of the Hon'ble Supreme Court in Pranay Sethi case, cited supra, for self employed person below 40 years, the future prospects should be taken as 40%. However, the tribunal has taken only 30%. So far as the multiplier is concerned, in Sarala Verma case cited supra, between the age group of 31-35 years, the multiplier must be 16. However, the tribunal has fixed the multiplier as 17 which is not correct and in the said circumstances, the following would be the loss of dependency of the claimants:- Page 15 of 20
http://www.judis.nic.in C.M.A.No.2576 of 2019 Monthly Income of the : Rs.7,000/-
deceased
Add 40% Future Prospects : Rs.2,800/-
: Rs.9,800/-
Less 1/3 towards Personal : Rs.3,266.66
Expenses
Rounded off to : Rs.3,270/-
Loss of Dependency per month : Rs.6,530/-
[9800 - 3270]
Loss of Dependency(Estate) : Rs.78,360/-
p.a.
Applied the multiplier of 16 as : Rs.12,53,760/- per the age of the deceased (32 years)
20. Insofar as the other heads are concerned, towards loss of consortium, as per the judgement reported in Pranay Sethi case cited supra, the 1st respondent (Wife) is entitled only for Rs.40,000/- and the 2nd and 3rd respondents are entitled to Rs.40,000/- each where as the tribunal has awarded a sum of Rs.50,000/- towards love and affection only to the 2nd petitioner. That apart, for funeral expenses and loss of estate, the claimants are entitled for Rs.15,000/- under each head whereas the tribunal has granted only a sum of Rs.10,000/- towards funeral expenses and no amount was awarded by the tribunal towards loss of estate. Therefore, applying the guidelines issued by the Hon'ble Supreme Court in Page 16 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 Sarala Verma and Pranay Sethi cases, cited supra, the appropriate compensation would be as follows:-
Serial Description Compensati Compensation to be Number on awarded awarded by the (Rs.) Tribunal (Rs.) 1 Loss of Dependency 12,37,668 12,53,760 2 Loss of Consortium to the 1st 1,00,000 40,000 respondent 3 Loss of Love and Affection to the 50,000 40,000 2nd respondent
-- 40,000 4 Loss of Love and Affection to the 3rd respondent 5 Funeral Expenses 10,000 15,000 6 Loss of Estate - 15,000 Total 13,97,668 14,03,760
21. Even though the tribunal has awarded less compensation, since the difference is minimal and as there is no cross appeal filed by the claimants, at this stage this court is not inclined to enhance the compensation awarded.
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22. Considering the above facts and circumstances, this court finds no illegality or infirmity in the order passed by the tribunal and finds no reason to interfere with the same.
In the result, this Civil Miscellaneous Appeal is dismissed, however, without costs. Consequently, connected CMP is closed.
09..11..2020
Index : yes / no
Internet : yes / no
Speaking / Non Speaking order
kmk
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C.M.A.No.2576 of 2019
To
1.The Addl. Sub Judge (Motor Accidents Claims Tribunal), Puducherry.
2.The Section Officer, VR Section, High Court, Madras. Page 19 of 20 http://www.judis.nic.in C.M.A.No.2576 of 2019 V.BHARATHIDASAN.J., kmk Pre Delivery Judgement in C.M.A.No.2576 of 2019
09..11..2020 Page 20 of 20 http://www.judis.nic.in