Madras High Court
National Insurance Company Limited vs )M.Rajammal on 14 March, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Civil Miscellaneous Appeal(MD)No.178 of 2016
and
C.M.P(MD)No.2646 of 2016
National Insurance Company Limited,
Tirunelveli,
By its Branch Manager. .... Appellant
vs.
1)M.Rajammal
2)Muthiah Asari
3)Alagarsamy
4)Indira
5)Dhanalakshmi ... Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against
the judgment and decree dated 22.01.2010 in MCOP.No.82 of 2007 on the file of
the Motor Accident Claims Tribunal, Principal Sub Court, Tenkasi.
!For Appellant : Mr.D.Sivaraman
^For Respondent :
:JUDGMENT
(Judgment of the Court was made by Mr.Justice S.MANIKUMAR) Being aggrieved by the award, made in MCOP.No.82 of 2007, dated 22.01.2010, by the Motor Accident Claims Tribunal, Principal Sub Court, Tenkasi, the present appeal has been filed.
2.That on 01.04.2007, about 11.45 P.M., son of the respondents 1 and 2/claimants and husband of the 5th respondent, namely, Kannan, was riding a Bajaj Motor Cycle bearing registration No.TN-76-A-3610. While he was crossing Tenkasi-Tirunelveli main road under Elephant Bridge, a Mini Lorry bearing registration No.TN 69 X 2624, belonging to the 4th respondent herein, insured with the appellant insurance company, driven by its driver/3rd respondent from north to south, in a rash and negligent manner, dashed against the motor cyclist. He sustained injuries. Immediately, he was taken to Government General Hospital, Tenkasi, where he was declared dead. For the death of Kannan, parents and wife of the deceased filed MCOP.Nos.82 and 113 of 2007 respectively, before the Motor Accident Claims Tribunal, Principal Sub Court, Tenkasi, claiming compensation of Rs.25,00,000/-.
3.Resisting the claim petitions, the appellant have filed a counter affidavit, contending that it was the deceased, who without noticing the vehicles on Tenkasi-Tirunelveli main road, suddenly crossed the road and invited the accident. Thus, the appellant is not liable to pay compensation. They also contended that dual claims have been made for one accident and hence, both the claim petitions have to be dismissed. Apart from the above, the appellant also disputed the quantum of compensation claimed under various heads.
4.Before the Tribunal, both the claim petitions heard together. Wife of the deceased examined herself as PW 1. PW2 is the father of the deceased. PW3 is the eye-witness to the accident. Ex.P1-FIR, Ex.P2-Postmortem report of the deceased, Ex.P3-Motor Vehicle Inspector's Report, Ex.P4-Sketch, Ex.P5- Observation Mahazar, Ex.P6-Charge sheet, Ex.P7-Salary Certificate of the deceased, Ex.P8-Driving Licence of the deceased, Ex.P9-Legal heirship certificate, Ex.P10-R.C.Book of the vehicle bearing registration No.TN-69-X- 2624, Ex.P11-Policy of the vehicle bearing registration No.TN-69-X-2624 and Ex.P12-Permit of the vehicle bearing registration No.TN-69-X-2624, have been marked on behalf of the claimants. RW1 is the driver of the Mini Lorry bearing registration No.TN 69 X 2624. No documentary evidence was let in by the appellant. Mr.Gandhi, working as Special Sub Inspector of Police, Tenkasi Police Station, has been examined as RW2. He has produced a Certificate in Na.Ka.No.G2/48768/2009, dated 18.11.2009 issued by the Superintendent of Police, Tirunelveli District, which has been marked as Ex.X1.
5.On evaluation of pleadings and evidence, the Claims Tribunal held that the accident occurred, due to the rash and negligent driving of the driver of the Mini Lorry bearing registration No.TN 69 X 2624. Observing that parents and wife of the deceased have filed two claim petitions for the death of Kannan, dismissed MCOP.No.113 of 2007 filed by the wife as unnecessary and quantified the compensation in MCOP.No.82 of 2007 as Rs.14,13,369/- with interest, @ 7.5% per annum, out of which, 20% of compensation Rs.2,82,673/- has been apportioned to the mother of the deceased and 5% of compensation Rs.70,668/- has been apportioned to the father of the deceased. Wife of the deceased was apportioned with 75% of compensation Rs.10,60,026/-.
6.Going through the award, it could be deduced that reiterating the averments in the claim petitions, PW1 and PW2 have given evidence. PW3, one Narasingam working as a Police Constable in Achanpudur Police Station, has adduced evidence. He has deposed that the place of accident was, Tenkasi- Tirunelveli main road. At the time of accident, signal was not working and that the deceased was following the traffic rules. He has specifically denied the suggestion that he was not present at the scene of accident. Thus, it could be seen that there is evidence to prove that PW3 was present and witnessed the accident. RW1 in his evidence, has deposed that after unloading goods to Kerala, he was driving the Lorry on Tenkasi-Tirunelveli main road. He has further deposed that at Elephant Bridge, while the deceased was crossing half of the road, he dashed against the left side of his Lorry and fell down. Ex.P1-FIR, has been registered against RW1 in Crime No.206/2007, under Section 304(A) IPC, on the file of Tenkasi Police Station. RW1 has also been charge-sheeted as per Ex.P6 and a criminal case was pending, on the file of Judicial Magistrate, Tenkasi. From Ex.P3-Motor Vehicle Inspector's Report, pertaining to Mini Lorry bearing registration No.TN 69 X 2624, the Tribunal has found that the vehicle belonged to the 4th respondent and RW1-driver, had a valid driving licence, at the time of accident. Ex.P11, has been marked, to prove that at the time of accident, Mini Lorry was covered by a valid insurance policy.
7.Perusal of the impugned judgment shows that evidence of the Pws.1 and 2/claimants, is supported by PW3-eye witness, and corroborated by Ex.P1-FIR, registered against RW1, Ex.P4-Sketch and Ex.P6-Charge sheet. Though RW1- driver of the Mini Lorry, has been examined, his evidence has not been supported by any evidence nor documents. While operating the vehicles on Highways, it is for the drivers of heavy vehicles, to slow down the speed of the vehicle and to see as to whether there is any vehicle crossing the road. Considering the cumulative effect of the evidence adduced, had RW1 driven the vehicle cautiously, the accident could have been averted. It is well settled that in claims cases, the test to prove negligence is, preponderance of probability. Testing the totality of evidence in the abovesaid principle, we do not find any error or flaw, in the finding of the Tribunal, fixing negligence, on the driver of the Mini Lorry, and hence the same is confirmed.
8.The age of the deceased has been determined as 36 years, relying on the entry in Ex.P2-Postmortem Certificate, which cannot be found fault with in view of the judgments in Fakeerappa v. Karnataka Cement Pipe Factory [2004 (4) LW 20] and The Managing Director, Tamilnadu State Transport Corporation, Madurai v. Mary [2005 (5) CTC 515].
9.As regards quantum of compensation, the claimants have averred that the deceased was working as a Police Constable in Courtallam Police Station and earned Rs.8,811/- per month. To prove the same, they have marked Ex.P6- Salary Certificate. It is to be noted that prior to the accident, the deceased and his wife were living separately. RW2-Mr.Gandhi, working as Special Sub Inspector of Police, Tenkasi Police Station, has produced Ex.X1- Certificate in Na.Ka.No.G2/48768/2009, dated 18.11.2009, issued by the Superintendent of Police, Tirunelveli District, in which, the salary of the deceased, has been detailed. Ex.X1 also shows that the deceased was working as Grade-I Police Constable and earned Rs.8,811/- per month. Placing reliance on Ex.P6 & Ex.X1, the Tribunal has determined the monthly income of the deceased as Rs.8,811/-.
10.After deducting 1/3rd of the income towards the personal and living expenses of the deceased and applying '16' multiplier, as per the second schedule to Section 163-A of the Motor Vehicles Act, 1988, the Tribunal has arrived at a sum of Rs.11,27,808/- towards loss of income.
11.In addition to the above, considering the fact that at the time of accident, the deceased was working as Grade-I Police Constable and had he been alive, he would have earned promotion, increments, the Tribunal has awarded Rs.2,25,561/- towards future prospects [20% of Rs.11,27,808/-, Viz., compensation awarded under the head loss of income]. The method adopted by the Tribunal, in awarding the compensation towards future prospects is erroneous. In Smt.Sarala Verma v. Delhi Transport Corporation reported in 2009 (2) TN MAC 1 (SC), the Hon'ble Supreme Court held that if the deceased was holding a permanent post at the time of accident, while computing the compensation, future prospects can be taken into consideration and 50% of the income has to be added, as future prospects for the purpose of computation of the loss of contribution to the family. At Paragraph 11, the Hon'ble Apex Court held as follows:
"In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words ?actual salary? should be read as ?actual salary less tax?). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
12.If 50% of income is added, as per Sarla Verma's case, the income of the deceased would be Rs.13,217/- (Rs.8811 + 4406). After deducting 1/3rd of the income towards the personal and living expenses of the deceased, the monthly income works out to Rs.8,811/-. Applying 16 multiplier, the loss of income would be Rs.16,91,712/- (Rs.8811X12X16), which sum, the Tribunal ought to have awarded under the head, loss of income.
13.Apart from the above, the Tribunal has awarded Rs.50,000/- towards loss of consortium to the 5th respondent herein/wife of the deceased, which is on the lower side. At the time of accident, she was aged 26 years. At the young age, she has lost the consortium of her husband. 'Consortium' as per the decision in Best v. Samuel Fox reported in 1952 AC 716 means, "Duty owned by a wife to her husband and vice versa, companionship, love and affection, comfort, mutual services, sexual intercourse, etc." In Rajesh and others v. Rajbir Singh and others reported in 2013(3) CTC 883, the Hon'ble Apex Court, held as follows:
''In legal parlance, 'Consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for Loss of Consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By Loss of Consortium, the Courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the Courts award atleast Rupees one lakh for Loss of Consortium.?
14.A sum of Rs.10,000/- awarded for funeral expenses is also on the lower side. On the aspect of awarding compensation for funeral expenses, in Rajesh and others Vs. Rajbir Singh and others reported in 2013(3) CTC 883, the Hon'ble Supreme Court held as follows:
?21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-.?
15.Perusal of the impugned award shows that the Tribunal has grossly erred in not awarding compensation to the parents of the deceased under the head loss of love and affection. Parents were stated to be aged 65 and 70 years respectively, at the time of accident. They have lost love and affection of the deceased. In Rajesh v. Rajbir Singh reported in 2013 (2) TNMAC 55, the Hon'ble Apex Court has awarded Rs.1,00,000/- for the loss of love and affection. Though loss of love and affection cannot be precisely measured in terms of money, but the same has to be quantified.
16.Perusal of the award also shows that there is no compensation for the loss of estate and transportation. Legal representatives should be awarded with just compensation. Few decisions on this aspect are as under:-
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In Common Cause, A Registered Society v. Union of India reported in 1999 (6) SCC 667, at Paragraph 128, held as follows:-
?The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non- pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what Mcgregor says, is generally more important than money: it is the best that a court can do. In Re: The Medianna (1900) A.C. 1300, Lord Halsbury L.C. observed as under:
"How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...But nevertheless the law recognises that as a topic upon which damages may be given."
(iii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, at Paragraph 12, the Supreme Court has held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
At Paragraph 15 of the said judgment, the Supreme Court has held that, "Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iv) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), the Hon'ble Supreme Court, comprising of three Hon'ble Judges Bench was dealing with a case arising out of a complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Hon'ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
?We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The ?adequate compensation? that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.?
(emphasis supplied)
(v) In Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422, the Hon'ble Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
?The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor.?
(emphasis supplied)
17.Facts and circumstances disclose that the Claims Tribunal has failed to award a just and reasonable compensation under various heads. Quantum of compensation determined by the Claims Tribunal at any stretch of imagination cannot be said to be grossly excessive, bonanza, warranting interference. There are no merits in the appeal.
18.In view of the dismissal of the appeal, the appellant is directed to deposit the entire award amount with proportionate accrued interest and costs, to the credit of MCOP.No.82 of 2007 on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Tenkasi, less the statutory deposit, within a period of eight weeks from the date of receipt of a copy of this order, if not done already. On such deposit, the respondents/claimants are permitted to withdraw their respective shares with proportionate accrued interest and costs, by filing necessary application before the Tribunal.
In the result, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P(MD)No.2646 of 2016 is closed.
To Principal Subordinate Judge, Motor Accident Claims Tribunal, Tenkasi..