Madras High Court
B. Anandhi vs R. Latha And Anr. on 31 August, 2001
Equivalent citations: I(2002)ACC233, 2002ACJ233
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT A. Subbulakshmy, J.
1. These appeals arise as against the order passed by the Motor Accidents Claims Tribunal, Madras, in M.C.O.P. Nos. 3737 and 3741 to 3745 of 1995. Since all these claims arise out of the same accident, the claim petitions were disposed of by common order dated 14.8.2000. As these C.M.As. arise out of the common order passed in the above said M.C.O.Ps. these appeals are disposed of by this common judgment.
2. Claimants in M.C.O.P. No. 3737 of 1995 are the parents of the deceased. They filed the claim petition claiming compensation of Rs. 3,00,000 for the death of their son in the motor vehicle accident that took place on 18.8.1995 at about 1.00 a.m. When the deceased Bhaskar Babu, who was working as cleaner in the lorry owned by the respondent No. 1, was travelling in the lorry bearing registration No. TMO 6226 from Manali to Tambaram driven by its driver in a rash and negligent manner dashed against the autorickshaw bearing registration No. TN 01-B-9469 and the deceased Bhaskar Babu was thrown out from the lorry and sustained severe injuries and he died later. It is the case of the claimants that the accident had occurred solely due to rash and negligent driving of the lorry driver and so, the respondent No. 1 owner of the lorry and respondent No. 2 insurer are liable to pay compensation to the claimants. The respondents resisted the claim of the petitioners. The Tribunal, on analysis of evidence, found that the accident had occurred due to rash and negligent driving of the driver of the lorry belonging to the respondent No. 1.
3. Negligence aspect is not disputed and hence, it is unnecessary to discuss with regard to negligence aspect.
4. The Tribunal passed an award for a sum of Rs. 2,30,380.
5. Learned counsel appearing for the appellant insurance company submitted that the amount awarded as compensation is on higher side and it has to be reduced.
6. The Tribunal awarded a sum of Rs. 2,27,880 towards pecuniary loss. The deceased Bhaskar Babu was aged 22 years at the time of the accident and he was working as cleaner in the lorry. The evidence of PW 1 is that he was working as cleaner and getting Rs. 900 per month as salary and Rs. 40 per day as batta. The petitioner has not filed any document to substantiate that. Admittedly the deceased was working as a cleaner. The Tribunal, on the materials available, found that the deceased as cleaner would have earned Rs. 900 per month and even if batta is fixed at Rs. 40 per day, he would have easily earned Rs. 1,000 for 25 days and thus the total income would be Rs. 1,900 per month and after deducting 1/3rd towards personal expenses, the Tribunal found that the deceased would have contributed towards his family a sum of Rs. 1,266 and he would have contributed Rs. 15,192 per annum. The parents of the deceased are the claimants. The mother is aged 43 years. The Tribunal adopted multiplier of 15 and arrived at the total pecuniary loss at Rs. 2,27,880. The amount of pecuniary loss arrived at by the Tribunal is reasonable and we are not disturbing the amount arrived by the Tribunal in this aspect.
7. The Tribunal had awarded Rs. 2,500 towards funeral expenses. We confirm this amount also. The Tribunal has not awarded any amount towards loss of love and affection. We award Rs. 10,000 in this aspect. Accordingly, we hold that claimants are entitled to a sum of Rs. 2,40,380. The award passed by the Tribunal is modified to this extent.
8. The claimants filed Cross-objection No. 81 of 2001 contending that the award of Rs. 2,30,000 is highly inadequate and the claimants are entitled to enhanced compensation.
9. The deceased was working as cleaner in the lorry. Tribunal has not awarded any amount towards loss of love and affection and in other aspects, the Tribunal passed award for just and fair amount. We allow the cross-objection in part by awarding a sum of Rs. 10,000 as compensation for loss of love and affection.
10. In the same accident, persons who were travelling in the autorickshaw are S. Balasubramanian, claimant in M.C.O.P. No. 3741 of 1995 and B. Suresh Babu, claimant in M.C.O.P. No. 3742 of 1995, the deceased C. Alagappan in so far as M.C.O.P. No. 3743 of 1995 is concerned, the deceased Sundar insofar as M.C.O.P. No. 3744 of 1995 is concerned and the claimant in M.C.O.P. No. 3745 of 1995. The claimants in M.C.O.P. Nos. 3741, 3742 and 3745 of 1995 are the injured. M.C.O.P. Nos. 3743 and 3744 of 1995 were filed by the legal representatives of the deceased, viz. wife, two minor children and mother of the deceased in M.C.O.P. No. 3743 of 1995 and parents of the deceased in M.C.O.P. No. 3744 of 1995. The deceased involved in M.C.O.P. No. 3743 of 1995 is the husband of the petitioner No. 1 and father of petitioner Nos. 2 and 3 and son of the petitioner No. 4. The deceased was doing the work of carrying angles, iron rods and other materials in his bullock cart.
11. With regard to M.C.O.P. No. 3741 of 1995, it is the case of the claimant that he was admitted in MIOT Hospital as inpatient from 18.8.1995 to 5.10.1995 and he was in hospital for 1 1/2 months and he filed discharge summary Exh. P-10. He has also taken treatment from 13.11.1995 to 13.12.1995 as per Exh. P-ll. Exh. P-12 document also reveals that the petitioner was again hospitalised on 25.11.1995. So, these documents reveal that the claimant was an inpatient in the hospital for four months. Exh. P-14, the leave certificate, also shows that he was on leave for four months. The claimant was drawing salary of Rs. 12,860 per month. The Tribunal, based on salary of the petitioner, awarded compensation of Rs. 51,440 towards loss of earning for four months.
12. The counsel for appellant submitted that the claimant was drawing salary from office during that period and the award of compensation in this aspect is not justified.
13. Because of the injury sustained by him in the accident, the claimant had to be on leave for a period of four months for taking treatment. So, he was constrained to apply for leave because of this accident and the fact that he received salary for this period is not a ground to contend that the petitioner is not entitled to get compensation for loss of earning for this period. Accordingly, we confirm the award passed by the Tribunal in this aspect.
14. The Tribunal awarded a sum of Rs. 25,000 for transport expenses in future which we confirm taking into consideration the disability sustained by the claimant. The Tribunal also awarded a sum of Rs. 1,00,000 towards pain and suffering. The evidence of PW 9 shows that iron rods were affixed by operation and that nerves were not working in good condition. The petitioner was given disability certificate to the extent of 55 per cent under Exh. P-34. Of course, the claimant underwent operation and suffering. But, the compensation of Rs. 1,00,000 towards pain and suffering is on the higher side and accordingly, we reduce it to Rs. 75,000.
15. The Tribunal awarded Rs. 1,10,000 towards disability. The disability certificate issued shows that the claimant sustained disability at 55 per cent. So, for the disability sustained by the claimant, we feel that compensation of Rs. 1,10,000 is on the higher side. Accordingly, we reduce it to Rs. 75,000. The Tribunal awarded Rs. 5,000 towards transport to hospital and Rs. 5,000 towards extra nourishment. We confirm this. On the whole, we hold that the claimant is entitled to the compensation of Rs. 2,36,440.
16. Insofar as M.C.O.P. No. 3742 of 1995 is concerned, Suresh Babu, claimant is the injured in this case. He was a third year engineering college student at the time of the accident and he was 20 years old. He suffered fracture on his right hand, left shoulder and left hand fingers. His evidence is that he was inpatient in Vijaya Hospital from 18.8.1995 to 14.9.1995 and he underwent four operations and Exh. P-75 is the discharge summary. Exh. P-26 shows that again he was admitted in the hospital as inpatient from 23.10.1995 to 27.10.1995. Exh. P-27 discharge summary reveals that the petitioner was inpatient from 11.12.1995 to 19.12.1995 and at that time also an operation was conducted. Exh. P-30, the engineering certificate issued to the claimant shows that he has finished his course in April, 1997 and it is seen that he underwent apprentice training as per Exh. P-31. PW 7 says that he cannot do the site work and he can do only desk work. His further evidence is that if he is able to do the site work, he would earn more salary. So, the evidence of PW 7 shows that he can attend only desk work and he cannot attend the field work. Being an engineer, his ability to do work has been reduced.
17. PW 9 has given evidence that the claimant sustained 65 per cent disability. He has also issued Exh. P-36. Exh. P-37 is the X-ray report. The Tribunal awarded Rs. 3,00,000 towards pain and suffering and for permanent disability by clubbing both the heads as against the claim of Rs. 4,50,000 on both the heads. It is evident from the evidence of PW 7 and PW 9 that the claimant underwent four operations and he was inpatient in the hospital for a long time and he underwent much pain and suffering and sustained disability to the extent of 65 per cent and the disability sustained by the petitioner is a continuing permanent disability as evidenced by the medical evidence. Accordingly, we confirm the award of Rs. 3,00,000 under both the heads.
18. The Tribunal awarded Rs. 3,60,500 towards loss of earning power. Of course, because of injury sustained by the claimant in this accident, his earning power has been reduced. The petitioner, being an engineer, will not be in a position to attend the field work as a normal person. His evidence is that he is able to do only desk work. If he was able to do the site work, he would earn more amount. Throughout his life, the petitioner had to lose some amount which he would have earned by attending the field work. Taking into consideration the fact that the petitioner was able to continue his studies after the accident and he is also able to attend to his desk work, we feel that award of compensation of Rs. 3,60,500 towards loss of earning power is on the higher side and we reduce this to Rs. 2,00,000 which we feel just and proper.
19. The Tribunal awarded Rs. 4,000 towards transport charges and Rs. 5,000 towards extra nourishment which we confirm. The claimant has claimed Rs. 30,000 towards medical expenses. It is in evidence that only if the officer is injured, full percentage of medical reimbursement is given and for son and daughter only 75 per cent of the medical reimbursement would be given. The petitioner in this M.C.O.P. is the son of the petitioner in M.C.O.P. No. 3741 of 1995 who was working as Deputy Manager of State Bank of India. So, only 75 per cent was reimbursed in this case. We are of the view that medical expenses of Rs. 30,000 claimed in this case has to be awarded to the petitioner. Accordingly, we award Rs. 30,000 towards medical expenses. In all, we hold that the claimant in this petition is entitled to compensation of Rs. 5,39,000.
20. For the death of one C. Alagappan aged 27 years, his wife claimant No. 1, minor children claimant Nos. 2 and 3 and mother, claimant No. 4, filed M.C.O.P. No. 3743 of 1995. PW 3 petitioner No. 1 speaks in her evidence that her husband was carrying rods in his bullock cart and that he was getting income of Rs. 250 to Rs. 300 per day. It is the evidence of PW 10 that the deceased was carrying angles, iron rods and other materials and he was getting a sum of Rs. 200 as coolie per day. His further evidence is that 3 tonnes can be loaded in the bullock cart. On the available evidence, the Tribunal found that the deceased was getting Rs. 100 per day and he would have earned Rs. 3,000 per month. The Claims Tribunal has awarded a sum of Rs. 4,86,000 towards pecuniary loss, Rs. 10,000 towards consortium, Rs. 2,500 towards funeral expenses and Rs. 2,500 towards loss to the estate and in all, the Tribunal arrived at a sum of Rs. 5,01,000 and rounded it off and awarded a sum of Rs. 5,00,000 which we find just and reasonable and accordingly, we confirm this award.
21. M.C.O.P. No. 3744 of 1995 is filed by the parents/claimants for the death of the deceased Sundar who was aged 18 years at the time of accident. The deceased was allotted a seat in engineering college, Chennai, as evidenced by Exh. P-18. The petitioners have claimed Rs. 5,50,000 as compensation. The Tribunal found that the deceased would have earned income only after finishing his engineering course and at the time of the accident, the petitioner No. 1 was 46 years old and petitioner No. 2 was 50 years old and the deceased would have earned a minimum sum of Rs. 3,000 as monthly income and after deducting Rs. 1,000, the Claims Tribunal has fixed his monthly contribution as Rs. 2,000. The Tribunal found that his annual income would be Rs. 24,000 in future and adopted 13 multiplier for the age of the mother. So, the Tribunal awarded Rs. 3,12,000 as total compensation holding that if the deceased had been alive, he would have earned the above said amount.
22. The claimants in M.C.O.P. No. 3744 of 1995 have filed Cross-objection No. 88 of 2001 contending that the award of Rs. 3,12,000 towards pecuniary loss is on the lower side and claimants/cross-objectors are entitled to Rs. 5,50,000.
23. The deceased was aged 18 years at the time of the accident and he was given only a seat in the engineering college and he was not a full-fledged engineer at the time of the accident. So, we feel that for the facts and circumstances of the case, the amount of Rs. 3,12,000 towards pecuniary loss is reasonable and we confirm it.
24. The Tribunal has not awarded any amount towards loss of love and affection for the parents and for funeral expenses. Accordingly, we award Rs. 10,000 towards loss of love and affection and Rs. 3,000 towards funeral expenses. The award passed by the Tribunal is modified to this extent and we hold that the claimants are entitled to Rs. 3,25,000.
25. Claimant in M.C.O.P. No. 3745 of 1995 is the injured in that accident. She was a final year MBBS student of Madras Medical College, Madras, aged about 22 years. PW 4, father of the injured who is the claimant in M.C.O.P. No. 3741 of 1995 has been examined and his evidence is that permanent disability has been caused to his daughter in that accident. PW 5 doctor has given evidence with regard to the injury sustained by the claimant. PW 5 speaks in his evidence that the petitioner became dumb and deaf after the accident and after examination of the petitioner in the capacity of Chairman of the Medical Board, he issued Exh. P-19 certificate. It is stated in Exh. P-19 that she is having bilateral nerve deafness and features of post-traumatic sequellae following diffuse cerebral injury and at present she is not able to speak and hear and unable to carry out the day-to-day activities independently without assistance. It is also the evidence of PW 5 that she cannot get complete cure and work as a doctor. PW 6 has also spoken in his evidence that she cannot regain her voice.
26. The petitioner was inpatient from 18.8.1995 to 14.2.1996. Exh. P-20 is the discharge summary. Exh. P-21 is the card issued by V.H.S. for her treatment there from 11.2.1997 to 11.2.1998. Exh. P-22 is the certificate issued by the Dean and Exh. P-23 is the admission and discharge certificate which reveal that the petitioner was an inpatient from 17.4.1996 to 15.6.1996, 10.7.1996 to 9.9.1996, 23.12.1996 to 13.1.1997, 20.1.1997 to 2.4.1997 and 4.4.1997 to 19.5.1997. The petitioner was also a dancer. The medical evidence proves that the petitioner cannot regain her old position and act as a doctor. PW 8, mother of the petitioner has spoken in her evidence that her daughter, the petitioner, sustained head injury in the accident and she and Dr. Parimala looked after her daughter. PW 6 also says that the petitioner is dumb and deaf and she is unable to work. PW 8 mother of the petitioner is taking care of her daughter since her daughter is unable to take care of herself.
27. It emerges from the evidence that the petitioner cannot have any matrimonial life and she is also unable to work as a doctor. A perusal of the medical evidence and other evidence reveals the pathetic condition of the petitioner who was a final year MBBS student in Madras Medical College, who, but for the accident, would have come up well in her life and earned a lot. Because of this accident, she is not in a position to move in the society. Her matrimonial life is affected very much. Her life has become thoroughly useless and further even for day-to-day work, she has to depend upon somebody else.
28. The Tribunal found that the petitioner would have earned Rs. 10,000 p.m. after finishing her MBBS degree and House Surgeon course and applied multiplier of 18 and arrived at total loss of income at Rs. 21,60,000 which in our view is perfectly justified taking into consideration the disability sustained by the petitioner. Accordingly, we confirm this amount.
29. The Tribunal awarded Rs. 15,000 towards transport charges to go to hospital. Rs. 20,000 towards extra nourishment, Rs. 20,000 for compensation for attendance, Rs. 1,50,000 towards future expenses for attending. We confirm these amounts. For pain and suffering and permanent disability, the Tribunal awarded Rs. 5,00,000. The petitioner was inpatient in the hospital for about 10 months. The petitioner has undergone much pain and suffering during the period of treatment. She became dumb and deaf and she had to discontinue her studies since she has lost her speaking and hearing power. She has sustained injury in her brain and she has also sustained fracture of pelvis, for such pain and permanent disability sustained by her, we are of the view that the award of Rs. 5,00,000 awarded by the Tribunal towards pain and suffering and permanent disability, cannot in any way be said to be excessive. It is fair and reasonable and accordingly we confirm this.
30. The petitioner was aged 22 years. She has lost her matrimonial life. So, the award of Rs. 1,00,000 given in this aspect is confirmed. For the disability sustained by the petitioner, future medical expenses had necessarily to be incurred since it is a continuing permanent disability. Accordingly, we confirm the award of Rs. 1,00,000 awarded by the Tribunal towards future medical expenses. On the whole, we confirm the award amount of Rs. 30,65,000 fixed by the Tribunal.
31. The claimants filed cross-appeal in C.M.A. No. 21 of 2001 contending that for the loss of earning power, the Tribunal has determined monthly income of Rs. 10,000 for fixing compensation for loss of earning power and it is very low and the award passed by the Tribunal in this aspect has to be reconsidered. The claimant further contends that the compensation awarded by the Tribunal at Rs. 1,00,000 for loss of matrimonial life is also on the lower side and the amount claimed in the petition has to be awarded.
32. We have considered all the points raised by the claimant in this cross-appeal and we agree with the view taken by the Tribunal in fixing the loss of income at Rs. 10,000 per month. The Tribunal has awarded just and fair amount with regard to loss of earning power and career and also compensation for loss of matrimonial life. We do not see any reason to interfere with the award passed by the Tribunal and accordingly, we find that the cross-appeal is liable to be dismissed.
33. With regard to apportionment, the claimant No. 1 mother of the deceased in M.C.O.P. No. 3737 of 1995 is entitled to the additional compensation of Rs. 10,000 awarded by this Court and the claimant No. 1 mother of the deceased in M.C.O.P. No. 3744 of 1995 is entitled to the additional compensation of Rs. 13,000 awarded by this Court and otherwise, the apportionment made by the Tribunal in all the claim petitions stands. The major claimants in the respective claim petitions are permitted to withdraw the compensation amount. The shares of the minor claimants in M.C.O.P. No. 3743 of 1995 are directed to be deposited in a nationalised bank till they attain majority and their mother the claimant No. 1 is entitled to withdraw the accrued interest once in six months. The insurance company is permitted to withdraw the excess amount lying in deposit insofar as M.C.O.P. Nos. 3741 and 3742 of 1995 are concerned.
34. The Tribunal awarded interest at 12 per cent in all the claim petitions from the date of petitions till the date of deposit. In view of the decision of the Supreme Court in Kaushnuma Begum v. New India Assurance Co. Ltd. , we reduce the rate of interest to 9 per cent per annum from 12 per cent fixed by the Tribunal.
35. In the result, C.M.A. Nos. 21, 42 to 44 and 297 of 2001 are dismissed and C.M.A. Nos. 45 and 298 and Cross-objection Nos. 81 and 88 of 2001 are allowed in part to the extent indicated above. No costs. Consequently, the connected pending C.M.Ps. are closed.