Madras High Court
Icici Lombard General Insurance vs M.Gomathi on 18 October, 2011
Author: T. Mathivanan
Bench: T. Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/10/2011 CORAM THE HONOURABLE MR.JUSTICE T. MATHIVANAN CMA.(MD)No.894 of 2010 and M.P.(MD)No.1 of 2010 & 1 of 2011 ICICI Lombard General Insurance Co. Ltd., Mumbai. Through Divisional Manager ... Appellant/Respondent-2 Vs. 1.M.Gomathi 2.M.Kousalya ... Respondents/Petitioners 3.T.Vijayakumar ... R3/Respondent No.1 Prayer Appeal is filed under Section 173 of Motor Vehicles Act 1988 against the award and decree dated 28.01.2010 and made in M.C.O.P.No.25 of 2008 on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Virudhunagar at Srivilliputhur. !For Appellant ... Mr.S.Srinivasa Ragavan ^For Respondents ... Mr.M.Thirunavukkarasu :JUDGMENT
Challenge is made in this civil miscellaneous appeal to the award of Rs.5,87,000/-, dated 28.06.2010 and made in MCOP No.25 of 2008, on the file of the learned Motor Accident Claims Tribunal (Chief Judicial Magistrate), Virudhunagar District at Srivilliputhur.
2.The appellant herein is the Insurance Company, who is the second respondent in the claim petition. The respondents 1 and 2 herein are the claimants. Whereas the third respondent is the owner of the tractor involved in the accident.
3.The facts which giving rise to the memorandum of this civil miscellaneous appeal may be summarised briefly as follows:-
The respondents 1 and 2 herein are the wife and daughter of the deceased Marimuthu. They have filed the claim petition in MCOP No.25 of 2008 claiming a sum of Rs.7,00.000/- for the death of the deceased Marimuthu, in a road traffic accident said to have been taken place on 7.10.2008 at 11.45 a.m., when the New Holland Tractor bearing Registration No.TN-76-Y-6919 attached with a trailer bearing Registration No.TN-72-Y-0183 had rammed against the TVS-50 Moped bearing registration No.TN-67-V-3955, in which the deceased Marimuthu was travelling as a pillion rider while it was driven by one A.Jayakumar.
4.The accident was taken place near Neelakandan Temple situated at Koompatti-Watrap Main Road. On account of the impact, Marimuthu had succumbed to injuries on the spot. Based on the complaint lodged by the first respondent herein, a case in crime No.378 of 2008 under sections 279, 337 and 304(A) IPC, was registered against the tractor driver, on the file of the Watrap Police Station.
5.At the time of the accident, the deceased was aged about 44 years and he was doing commission business in Paddy, Cotton, Coconut, Green-gram, black-gram, etc. and thereby, he was earning a sum of Rs.7,000/- per month.
6.The third respondent, who is the owner of the tractor, has not chosen to contest the claim.
7.The appellant Insurance Company has contested the claim on the following three grounds:-
(i)The accident was taken place only due to contributory negligence of the rider of the TVS 50.
(ii)The age and the monthly income of the deceased Marimuthu are disputed;
and
(iii)The claim of Rs.7,00,000/- is highly excessive, exorbitant and without any basis.
8.In order to establish their respective cases, the appellant as well as the respondents 1 and 2 were put on trial. Two witnesses, including the first respondent, being the widow of the deceased, were examined on behalf of the claimants. During the course of their examination, Exs.P1 to P5 were marked. On the other hand, neither oral nor documentary evidence was led on behalf of the appellant, who is the contesting respondent No.2.
9.On evaluating the evidences, both oral and documentary, the learned Motor Accident Claims Tribunal has passed an award in the following manner:-
(i)Assessing the monthly income of Rs.3,000/-the Tribunal has determined a loss of income of the family at Rs.5,40,000/-.
(ii)Towards consortium for the first respondent Rs.20,000/-.
(iii)Towards the loss of love and affection for the second respondent Rs.20,000/-; and
(iv)Towards the funeral expenses Rs.7000/-.
In aggregate : Rs.5,87,000/-
10.The appellant being the insurer and the third respondent herein being the insured, were directed to pay this amount to the respondents 1 and 2 with interest at the rate of @ 7.5% per annum from the date of petition. They were also directed to deposit the above said amount with accrued interest within a period of two months. Impugning the award, the appellant being the Insurance Company stands before this court with this appeal.
11.Heard Mr.S.Srinivasa Ragavan, the learned counsel for the appellant and Mr.M.Thirunavukkarasu, the learned counsel for the respondents 1 and 2. The third respondent remained exparte in the Motor Accident Claims Tribunal.
12.Mr.S.Srinivasa Ragavan, the learned counsel for the appellant has restricted his argument only on the quantum of the award and he, therefore, has based his argument on the following three grounds:-
1.The tribunal ought not to have fixed the monthly income of Rs.4,500/- as there is no proof of avocation and fixed monthly income of the deceased.
2. The grant of Rs.5,40,000/- for loss of income of the deceased is inflated for the reason that a higher notional income is fixed and a higher multiplier is adopted without any proof of income and avocation of the deceased.
3.The tribunal ought to have granted only a lesser amount of compensation by taking notional income of Rs.3,000/- per month, by adopting a lesser multiplier in terms of the established judicial pronouncements.
13.To substantiate his argument, Mr.S.Srinivasa Ragavan has placed reliance upon the following decisions:-
1.New India Assurance Company Limited vs. Smt.Kalpana and others, reported in 2007(1) TN MAC 1 (SC); and
2.Sarla Verma and others, vs. Delhi Transport Corporation and others, reported in (2009)4 MLJ 997(SC).
14.In so far as the decision in Smt.Kalpana's case [2001(1)TN MAC 1(SC)], is concerned, Mr.S.Srinivasa Ragavan, has argued that this judgement could not be followed in part. He has also added that had this decision been gone through by the learned Tribunal in full, the lesser multiplier would have been applied, and the quantum of award would also have been in perfect shape, which would not have been warranted to resist, as held by the Apex court in para 12 therein. He has also maintained that instead of applying the multiplier of '15', the lesser multiplier could have been applied.
15.While referring the decision in Sarla Verma's case [(2009)4 MLJ 997(SC)], Mr.S.Srinivasa Ragavan, the learned counsel for the appellant has submitted that the age of the deceased is the criteria for fixation of the multiplier and hence, the multiplier scale in Trilok Chandra's case [1996(4) SC 362], as clarified in Charlie's case [2005(100) SCC 720] could be followed and that the more appropriate multiplier would be '14', which could be in consonance with the age of the deceased.
16.In Smt.Kalpana's case [2007(1) TN MAC 1 (SC)], the Hon'ble Division Bench of the Apex Court has held that considering the age of the deceased i.e., 33 years, the multiplier of '13' held to be appropriate.
17.While speaking on behalf of the Hon'ble Division Bench, His Lordship Hon'ble Mr.Justice Dr.Arijit Pasayat, has considered several decisions. In para 5 of the above cited case, after referring the case of Municipal Corporation of Delhi v. Subhagwanti, [1996(3) SCR 649], His Lordship has held that:-
"In a fatal accident action, the accepted measure of damages awarded to the dependants is the pecuniary loss suffered by them as a result of the death.
18.His Lordship has also observed in para 6 of the same judgement that:-
"There were two methods adopted to determine and for calculation of compensation in fatal accident actions. The first multiplier mentioned in Davies case and the second in Nance v. British Columbia Electric Railway Co. Ltd., 1951(2) All ER 448."
19.In para 7 of the said judgement, His Lordship has also held that:-
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected."
20.In para 10, His Lordship has also observed that:-
"By both G.M., Kerala SRTC v. Susamma Thomas, 1994(2) SCC 176, and U.P. State Road Transport Corporation vs. Trilok Chandra, 1996(4)SCC 362, the multiplier appears to have been adopted taking note of the prevalent banking rate of interest."
21.In para 11, it is observed that:-
"In fact, Trilok Chandra's case, after reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, as the former is the normal retirement age. [Reference was made in New India Assurance Co. Ltd., vs. Charlie and another, 2005(10)SCC 720].
22.In the above cited case viz., Smt.Kalpana's case, the age of the deceased was 33 years, at the time of accident. The High Court had adopted the multiplier of 17, which was held to be improper and instead of, the multiplier 13 was held to be proper.
23.In Sarla Verma and others vs. Delhi Transport Corporation and another, [(2009)4 MLJ 997 (SC)], the Apex Court has also held that three basis facts need to be determined for assessing compensation viz., (i)Age of deceased,
(ii)Income; and (iii)Number of dependants.
24.In para 7 of the above cited decision, the Apex court has observed that there are considerable variation and inconsistency in the decisions of Courts Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. (1951) AC 601 and some adopting the Davies v. Powell Duffryn Associated Collieries Ltd., (1942) AC 601. The difference between the two methods was considered and explained by this court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [AIR 1994 SC 1631:(1994)2 SCC 176].
25.After exhaustive consideration, the Apex Court preferred the Davies method to Nance method and while penning down the judgement, His Lordship Hon'ble Mr.Justice R.V.Raveendran has also referred to the decision in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas's case as well as the decision in UP State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362].
26.In Susamma Thomas's case, it has been held that the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest.
27.On coming to the instant case on hand, at the time of accident, the deceased was aged about 44 years. In para 19 of the above cited judgment, a tabular column was given by the Apex Court. After extensively considering various decisions at the age group of 44 years, the multiplier scale, as envisaged in Susamma Thomas's case, has been determined at 11. As determined in Trilok Chandra's case, the multiplier is 13. As clarified in Charlie's case, it has been determined at 14. However, in the Second Schedule to section 164-A of the Motor Vehicles Act, it is determined as '15'.
28.On careful consideration of the above cited decisions, and other judicial pronouncements, this court finds that the multiplier method varies from case to case, depending upon the age and monthly income of the deceased. In both decisions viz., Smt.Kalpana's case [2007(1) TN MAC 1 (SC) and in Sarla Verma's case [(2009)4 MLJ 997(SC)], it has been held by the Apex Court that the multiplier is determined by the age of the deceased or that of the claimant, which-ever is higher.
29.In the instant case of hand, admittedly there is no proof with regard to the income of the deceased. However, the claimants, being the respondents 1 and 2 herein had contended that the deceased was doing commission business of Paddy, Cotton, Coconut, Green-gram and black-gram etc., and thereby, he was earning a sum of Rs.7,000/- per month. However, the Tribunal has determined the monthly income of the deceased at Rs.4,500/-.
30.In support of his contention, Mr.M.Thirunavukarassu, the learned counsel for the respondent also placed reliance upon the judgement of this court, in The Managing Director, Tamil Nadu State Transport Corporation Ltd., Vellore vs. Palaniammal and 3 others, [2010(1)TN MAC 150].
31.In this connection, the learned counsel for the respondents, Mr.M.Thirunavukkarasu, would contend that the date of the accident is 7.1.2008 and from that onwards, there has been a considerable change in the price rate on account of escalation of price. He has also submitted that the judgment in Smt.Kalpana's case was pronounced on 17.1.2007 and the judgement in Sarla Verma's case was pronounced by the Apex court on 15.04.2009. He has also added that though there is no proof with regard to the monthly income of the deceased, a man, at the age of 44, by doing commission business of Paddy, Cotton, Coconut, Green-Gram and Black-Gram etc., would earn not less than Rs.5,000/-. On that basis, the assessment of the tribunal at Rs.4500/- is absolutely right, which does not call for any interference.
32.Keeping in view of the related facts and circumstances, and considering the submission made by the learned counsel for the respondents, this court is of the considered view that the monthly income of the deceased can safely be determined at Rs.4,000/- per mensum. Accordingly, the annual income would be Rs.48,000/-. After deducting 1/3rd towards living and personal expenses of the deceased, the 2/3rd remainder would be Rs.32,000/-. Based on the Second Schedule to Section 163-A of the Motor Vehicles Act, the tribunal has adopted the multiplier of '15'. This court has also endorsed the view of the learned tribunal and hence, the same multiplier can also be adopted for calculating the quantum of compensation. On the basis of this calculation, the dependency of the family of the deceased can be determined at Rs.4,80,000/-. At the time of death of her husband, the first respondent was aged about 40 years, the tribunal has awarded a sum of Rs.20,000/- towards consortium. Considering the age of the first respondent, this court has considered that a sum of Rs.15,000/- can be allowed under the head of consortium. Under the head of loss of love and affection, the 2nd respondent is entitled to Rs.10,000/-. Under the head of funeral expenses, the tribunal has allowed a sum of Rs.7000/-. This court has also considered that the same amount can be allowed. Apart from this, another sum of Rs.2,500/- can be allowed towards transportation. In total, the respondents are entitled to Rs.5,14,500/-.
33.In the result, this civil miscellaneous appeal is partly allowed and the award of Rs.5,87,000/- passed by the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Virudhunagar District at Srivilliputhur, dated 20.06.2010 and made in M.C.O.P.No.25 of 2008, has been reduced to Rs.5,14,500/-. As the appellant Insurance company had deposited the entire amount awarded by the learned Tribunal, the appellant Insurance company is permitted to withdraw the excess amount along with the proportionate interest. The claimants are also permitted to withdraw the amount with proportionate interest, as determined by this court.
34.Consequently, connected Miscellaneous Petitions are closed. No costs.
er To, The Chief Judicial Magistrate, Virudhunagar at Srivilliputhur.