Madras High Court
The Branch Manager vs Santhamani on 22 August, 2014
Author: V.Dhanapalan
Bench: V.Dhanapalan, Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.08.2014 CORAM THE HON'BLE MR.JUSTICE V.DHANAPALAN and THE HON'BLE MRS.JUSTICE PUSHPA SATHYANARAYANA C.M.A.No.3278 of 2012 and M.P.No.1 of 2012 The Branch Manager, The New India Assurance Co. Ltd., 11-19-20. Govt. Arts College, Road, Coimbatore. ... Appellant / 3rd Respondent -vs- 1. Santhamani 2. Bharathi 3. Gayathri 4. Maruthathal ... Respondents 1 to 4 / Petitioners 5. S.Mohan 6. Shankar ... Respondents 5 & 6 / Respondents 1 & 2 Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle Act against the judgment and decree passed in M.C.O.P.No.1486 of 2007 dated 31.03.2011, on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.5, Coimbatore at Tiruppur. For Appellant : Mr.N.Vijayaraghavan For R1 to R4 : Mr.Ma.Pa.Thangavel For R5 & R6 : Exparte ***** J U D G M E N T
(Judgment of the Court was delivered by V.Dhanapalan,J.,) This Civil Miscellaneous Appeal arises against the Decree and the judgment passed in M.C.O.P.No.1486 of 2007 dated 31.03.2011, on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.5, Coimbatore at Tiruppur.
2. The appellant was the 3rd respondent before the Tribunal. The respondents 1 to 4 / petitioners / claimants are wife, two daughters and mother of the deceased Ponnusamy respectively, who, while driving his motor cycle bearing Regn. No.TN-38-L-6422, at the extreme left side of the road from North to South, near Ellapalayam Diversion, Annoore Kovai Main Road, met with an accident on 30.05.2007 at about 05.00 p.m. on account of the rash and negligent driving of the TATA Sumo bearing registration No.TN-38-X-4993, due to which, the deceased sustained multiple grievous injuries and died in C.M.C.H.Hospital, Coimbatore. The deceased, aged 50 years, was running Jeyam Cottage Industries and earning not less than Rs.14,000/- per month. The 1st respondent / 5th respondent herein is the driver and 2nd respondent / 6th respondent is the owner of the said TATA Sumo. The petitioners / claimants, by filing claim petition before the Tribunal, sought compensation of a sum of Rs.30,00,000/-.
3. Before the Tribunal, on behalf of the claimants, four witnesses were examined and the following exhibits were marked:
Exhibits Description of Documents Ex.P1 Copy of FIR Ex.P2 Post Mortem Report Ex.P3 Death Certificate Ex.P4 Legalheirship Certificate Ex.P5 EB Card to prove EB connection in the name of the deceased Ponnusamy Ex.P6 Receipt for remittance of EB amount Ex.P7 Certificate for cancellation of EB connection Ex.P8 Sale deed of agricultural land Ex.P9 Patta for the agricultural land Ex.P10 Chitta for the agricultural land Ex.P11 A copy of RC of the company of P.W.3 Ex.P12 Receipt for remittance of EB amount Ex.P13 Metre Reading Card for EB Connection No.1561 Ex.P14 EB Card Ex.P15 Letter of EB for the Proof of disconnection of EB connection No.1561 Ex.P16 A copy of insurance policy On behalf of the appellant / 3rd respondent, neither any witness was examined nor exhibit marked.
4. On appreciation of materials placed before it, the Tribunal awarded compensation of a sum of Rs.15,09,000/- together with interest at 7.5% p.a. from the date of petition till the date of deposit and the break-up details are as follows:
Loss of Pecuniary Benefits (Rs.10,500/- x 12 x 11) - Rs.13,86,000/-
Loss of consortium - Rs. 25,000/- Loss of love and affection (Rs.25,000x3) - Rs. 75,000/- Loss of love and affection (mother) - Rs. 20,000/- Funeral expenses - Rs. 3,000/- --------------------- Total - Rs.15,09,000/- ---------------------
The said award is being challenged by the appellant / Insurance Company on the following grounds:
i) that the award passed by the learned Tribunal is contrary to law, against the weight of the evidence and probabilities of the case;
ii) that the income of Rs.14,000/- pm fixed by the learned Tribunal is without any basis or justification
5. Learned counsel for the appellant / 3rd respondent would submit that the assessment of earnings / dependency is highly speculative and the ultimate compensation awarded by the learned Tribunal under various heads is unsustainable.
6. On the other hand, learned counsel appearing for the claimants / respondents has vehemently contended that the Tribunal, on analyzing entire oral and documentary evidence, has come to the just and fair compensation and there is no tenable ground to interfere with the award of compensation. Even the non pecuniary loss due to the death of Ponnusamy, under the Motor Vehicles Act, being the welfare legislature, has to be looked into in the manner as contemplated. Thus, the award of the Tribunal cannot be questioned and the appeal to be dismissed in toto.
7. We have heard the learned counsel on either side and perused the material documents available on record.
8. A circumspection of the fact would reveal that on 30.05.2007 at about 5.00 pm, when the deceased was proceeding in his motor cycle bearing Regn. No.TN-38-L-6422 from North to South on the Annoore Kovai Main Road, the TATA Sumo, insured with the appellant insurance company, bearing registration No.TN-38-X-4993, driven by its driver in a rash and negligent manner dashed against the deceased, resulting in sustenance of multiple injuries and death subsequently. As against the claim of a sum of Rs.30,00,000/- the Tribunal has awarded a sum of Rs.15,09,000/- as compensation. Aggrieved over the same, the appellant / Insurance Company is before this Court for determination of their liability by this Court.
9. To the above claim, appellant / 3rd respondent has made a statement to the effect that it was the deceased, who did not follow the rules of the road and drove the motorcycle rashly and negligently and he could have avoided the accident in case he had exercised due care and caution. The accident had not taken place in the manner as described by the claimants and at the time of accident, the deceased was not in possession of licence and insurance policy. Moreover, the owner of the motorcycle and the insurer were necessary parties to the claim petition and the appellant / 3rd respondent also denied the income, age and profession of the deceased. Therefore, it is the stand of the insurance company that in absence of all these vital information, the liability cannot be fastened against them alone.
10. The Tribunal, on looking into the claim and rival submissions, has framed the following two questions for consideration:
i) On whose negligence, the accident had happened?
ii) From whom, the claimants are entitled to get compensation?
ii) Whether the claimants are liable to get any compensation? If so, what is the amount of compensation payable?
11. The claim petition before the Tribunal was filed by the claimants / petitioners under Sections 166 of Motor Vehicles Act, which makes a provision for application for compensation arising out of an accident, which after few amendments reads as under:
Section 166 Application for compensation:-
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the Legal Representatives of the deceased; pr
(d) by any agent duly authorised by the person injured or all or any of the Legal Representatives of the deceased, as the case may be:
Provided that where all the Legal Representatives of the deceased have not joined in any such Application for compensation, the Application shall be made on behalf of or for the benefit of all the Legal Representatives of the deceased and the Legal Representatives who have not so joined, shall be impleaded as Respondents to the Application.
(2) Every Application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such Application, the Application shall contain a separate statement to that effect immediately before the signature of the Applicant. In an application filed under Section 166, claiming compensation, it is necessary for the claimant to prove negligence on the part of the driver or owner of the vehicle. But, learned counsel for the appellant / insurance company has contended that based on the complaint, since an FIR has been registered against the driver of TATA Sumo in Crime No.150 of 2007 for the offences under Sections 279 and 304(A) IPC and charge sheet has also been filed under Section 154 Cr.P.C., he does not insist upon deciding the negligence aspect and has only limited his argument to the extent of questioning liability aspect in this appeal.
12. The learned Tribunal, in order to arrive at a decision as to liability part, had examined all the witnesses produced on the side of the claimants, viz., P.W.1 (Santhamani), P.W.2 (Gopalsamy), P.W.3 (Nagaraj) and P.W.4 (Sureshkumar) and also taken into consideration the exhibits marked by them. P.W.1, wife of the deceased, had clearly deposed that due to the sudden death of her husband, caused by the rash and negligent driving of the driver of the TATA Sumo, the entire family is let down in lurch and also lost his love and affection. She had also deposed that her husband was aged 50 years at the time of accident and running Jayam Cottage Industries, thereby earning Rs.9,000/- per month. A bare look at the deposition of P.W.2, who had witnessed the accident directly, reveals that the deceased was riding in his motorcycle cautiously and slowly and at that point of time, the driver of the TATA Sumo, coming from the wrong side, hit the motorcycle of the deceased and caused his death. The said version is supported by Ex.P1, FIR, filed by the Sub-Inspector of Police, Annore Police Station for the offences as already stated above. Besides taking note of the above depositions, the Tribunal has primarily perused Ex.P2 (postmortem report), Ex.P3 (death certificate) and Ex.P8 (sale deed in respect of an agricultural land) in order to derive the exact age of the deceased, which all have shown the age of the deceased as 50. Since the wrong committed by the driver of the TATA Sumo was proved beyond doubt through oral and documentary evidence, the learned Tribunal has rightly come to the conclusion that the insurance company with which the offending vehicle has been insured, is liable to pay compensation to the claimants. Therefore, multiplier of 11 has been applied, which is in consonance with the ratio laid down in Sarla Varma case. Apart from the above, the deceased, being a businessman running Jayam Cottage Industries, Rs.10,500/- (after deducting 1/4th of his income towards personal expenses) was fixed as monthly income. Thus, by applying the multiplier as per the table arrived by the Hon'ble Supreme Court in the case of Sarla Varma, reported in 2009 ACJ 1298, the total loss of income to the family due to the demise of the deceased was fixed as Rs.13,86,000/-. The Hon'ble Supreme Court in the said case has held as under:
20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A.
13. In Sarla Verma's case, the Supreme Court has also compared the multiplier indicated in various decisions with the multiplier mentioned in the second schedule of Section 163-A of Motor Vehicles Act and identified a table. Relevant portion of the said judgment would read as under:
"19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years):
Age of deceased Multiplier Scale as envisaged in General Manager, Kerala State Road Transport Corporat-ion, Trivandr-um v. Susamma Thomas and others, 1994(2) SCC 176 Multiplier Scale as adopted by U.P. State Road Transport Corporat-ion and others v. Trilok Chandra and others, 1996 (4) SCC 362 Multiplier Scale in U.P. State Road Transport Corporation and others v. Trilok Chandra and others, 1996(4) SCC 362 as clarified in New India Assurance Company Ltd. v. Charlie and another, 2005 (10) SCC 720 Multiplier Specified in Second Column in the Table in Second Schedule to the MV Act Multiplier actually used in Second Schedule to M.V. Act (as seen from the quantum of compensation) (1) (2) (3) (4) (5) (6) Upto 15 years
-
-
-15 20
15 to 20 years 16 18 18 16 19 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above 65 years 5 5 5 5 5
20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
14. In addition to determination of the amount of Rs.13,86,000/- towards loss of income to the family, a sum of Rs.25,000/- towards loss of consortium to the 1st respondent / claimant, Rs.25,000/- each to the respondents 1 to 3 and Rs.20,000/- to the 4th respondent for love and affection and finally Rs.3,000/- towards funeral expenses, were added to draw a full-fledged compensation of Rs.15,09,000/-. The entitlement of compensation to each of the claimants was also apportioned by the Tribunal.
15. Almost a century back in Taff Vale Railway Co. vs. Jenkins, 1913 AC 1, the House of Lords laid down the test that award of damages in fatal accident, action is compensation for the reasonable expectation of pecuniary benefit by the deceased's family. The purpose of award of compensation is to put the defendants of the deceased, who had been bread-winner of the family, in the same position financially as if he had lived his natural span of life. This Court also in C.K.Subramania Iyer and others vs. T.Kunhikuttan Nair and others, 1970 (2) SCR 688, reiterated the legal philosophy highlighted in Taff Vale Railway, for award of compensation in claim cases and said that there is no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations .
16. In entirety, the Tribunal has touched upon every corner of the claim and given thoughtful consideration for the liability aspect. The adoption of multiplier is also well within the settled principles of law based on the oral and documentary evidence, placed before the Tribunal. The Tribunal has determined the compensation in a very reasonable and fair manner, which, in our consideration opinion, does not warrant any interference by this Court, as such the liability and determination of quantum of compensation arrived at by the Tribunal are perfectly valid in law.
17. Therefore, we find no reasons whatsoever to interfere with the award of the Tribunal and the same is upheld. Accordingly, the Civil Miscellaneous Appeal is dismissed.
18. It is represented by the Insurance Company that the entire amount has already been deposited along with the proportionate interest to the credit of M.C.O.P.No.1486 of 2007 dated 31.03.2011, on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.5, Coimbatore at Tiruppur.
V.Dhanapalan, J.
and Pushpa Sathyanarayana, J.
ar
19. Therefore, in view of the confirmation of the award by this Court, the respondents / claimants are permitted to withdraw the amount as apportioned by the learned Tribunal. No costs. Connected miscellaneous petition is closed.
[V.D.P.,J.] [P.S.N.,J.] 22.08.2014 Index: Yes Internet: Yes ar To Motor Accidents Claims Tribunal / Fast Track Court No.5, Coimbatore, Tiruppur
C.M.A.No.3278 of 2012