IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 30-03-2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE M. SATHYA NARAYANAN C.M.A.Nos.1574 to 1583 of 2000 1. Javidullahkhaan 2. M/s. United India Insurance Co. Ltd. MSR Bldg Bus Stand Road Chindamani Kolar Dist. ..Appellants/Respondents in all 1 & 2 in all CMAS. 1. S.M. Sukumar 2. Chinna Raja @ Sivakumar 3. Muneer (Given up in the appeal) ..Respondents/Claimants 1 & 2 and Respondent 3 C.M.A.No.1575/2000: 1.Vijaya ..Respondent in C.M.A.1575/00/ 2.Muneer Claimant and 3rd Respondent 1.Minor Aravind rep.by Nirmala-mother 2.Muneer ..Respondent in CMA.1576/00/ Claimant & Respondent 3 1.Rukmani 2.Vijaya 3.Minor Balaji 4.Minor Sangeetha 5.Minor Mohan minor are rep.by 2nd respondent herein 6.Muneer ..Respondents in CMA.1577/00/ Claimants 2 to 6 & 3rd Respondent https://hcservices.ecourts.gov.in/hcservices/ 1.Jayanthi Mala @ Jayanthi 2.Muneer ..Respondents in CMA.1578/00/ Claimant & 3rd Respondent CMA.1579/2000: 1.Ravikumar @ Ravi 2.Muneer ..Respondents in CMA.1579/00/ Claimants & 3rd Respondent 1.Chinna Raja @ SivaKumar 2.Muneer ..Respondents in CMA.1580/00/ Claimants & 3rd Respondent. 1.S.M.Sukumar 2.Chinna Raj @ SivaKumar 3.Indragandhi 4.Muneer ..Respondents in CMA.1581/00/ Claimants 1 to 3 & 3rd Respondent 1.Nirmala 2.Minor Aravind 3.Minor Anand minor rep.by 1st Respondent herein 4.Muneer ..Respondents in CMA.1582/00/ Claimants 1 to 3 & 3rd Respondent 1.Minor Ramya rep.by her father Ravi @ Ravikumar 2.Muneer ..Respondents in CMA.1583/00/ Claimants & 3rd Respondent Prayer 1574 to 1583/2000: This CMAs.filed under Section 173 of Motor Vehicle Act against the Judgment and decree dated 29.9.1999 made in MCOP.Nos.74/93,75/93, 76/93,79/93,83/93,82/93,81/93,80/93,78/93 and 77/93 respectively on the file of the Motor Accidents Claims Tribunal (Subordinate Judge) Kancheepuram. For Appellants : Mr. K.S. Narasimhan For Respondents : Mr. R. Subramanian for Mr. K.R. Krishnan for claimants R3 given up in CMA.1574/2000 R2 given up in CMA.1575, 1576, 1578, 1579, 1580 1583 R6 is given up in CMA.1577 R4 is given up in CMA.1581, 1582 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (PRABHA SRIDEVAN,J.) In a single accident 10 members of one family suffered. They were either been injured or killed. On 18-10-1992, the fatal day one Sarasakanthammal and her husband with their family members went on the Bangalore – Madras road for the purpose of fixing alliance for their son Chinnaraja alias Sivakumar. The accident took place near Thulangathandalam Village. The van in which the members of the family were travelling was hit by the insured lorry. The Motor Accidents Claims' Tribunal awarded the compensation in various O.Ps. tabulated as follows: S.No. O.P.No. Nature of Claim Amount awarded 1 74/93 Death of Sarasakanthammal Rs. 4,95,000 2. 75/93 Injury Vijaya Rs. 98,000 3. 76/93 Injury Aravind (minor) Rs. 4,98,000 4. 77/93 Injury Ramya (minor) Rs. 2,95,000 5 78/93 Death of Rajendrakumar Rs. 9,79,012 6. 79/93 Death of Parthiban Rs.14,85,472 7. 80/93 Death of Muruganandam Rs.14,49,280 8 81/93 Injury Chinna Raja Rs. 20,000 9. 82/93 Injury Ravikumar Rs. 2,62,000 10. 83/92 Injury Jayanthimala Rs. 27,300 Aggreived against the above award, the present appeals have been filed. 2. Sarasakanthammal, her husband, son Rajendrababu, daughter Vijaya, another daughter Jeyanthi, another son Chinnaraja alias Sivakumar, son-in-law Parthiban, Ravi and grandchildren who are the minors Ramya and Aravind were going to Kanchipuram from Arcot for the purpose of fixing an alliance for Chinnaraja. It is at that time that the accident took place. Parthiban and the van driver died on the spot. The father succumbed to the injuries. Ramkumar was admitted in the Vellore CMC Hospital and he died on the next day. The evidence is that the accident took place only because of the negligence of the lorry driver. There was no space in the van and therefore, Mr. Sukumar travelled behind very close to the van in a motor-cycle and therefore, https://hcservices.ecourts.gov.in/hcservices/ he saw the accident and he took the injured persons to a Government Hospital in a vehicle which came along the way. P.W.2 who is Doctor Sundaram is also a witness. The Tribunal came to the conclusion that the accident took place only on account of the negligence of the lorry driver. We have gone through the materials on record and we find that the conclusion is based both on the oral and the documentary evidence and we find no reason to interfere with the same. 3. The learned counsel made their submissions on the quantum. The learned counsel appearing for the appellant submitted that in some instances the compensation is inflated and exaggerated and he also submitted that the rate of interest was fixed at 12% and it has to be reduced to 9%. 4. We went through the materials on record and their status and earning capacity and financial position of the parties. The learned counsel fairly came forward with a reasonable calculation as to what should be the award that should be passed. The learned counsel appearing for the respondent-claimant submitted that the the earning capacity of the total family had been wiped out since in one stroke most of the male members had died and the young man for whose marriage the family had proceeded, so affected by the accident that he had decided not to marry at all. The learned counsel submitted that the Court should take note of the devastating effect of the accident on the survivors of the family. I. C.M.A.No.1574 of 2000: The family members were engaged in agricultural activities, brick kiln and also dairy business. The claimants are the legal representatives of Sarasakanthammal. She was 47 years at the time of the accident and very healthy. According to P.W.1, she would earn not less than a sum of Rs.30,000/- per month. She had her own capital and by borrowing from the Bank she was doing the dairy business. She produced documents to show that the deceased Sarasakanthammal was financially independent. The evidence of the Veterinarian P.W.3 would also show that she had more than 50cows and buffalos. According to P.W.1 because of the death of the male members of the family, the agricultural activities had become impossible and the brick kiln had to be closed. P.W.7 is the Auditor who had also given evidence in support of the financial capacity of Sarasakanthammal. On the basis of P.W.9 series which show the supply of milk to Hotels by Sarasakanthammal and also P.W.10, P.W.11 and P.W.12 series with regard to the dairy activities, the Tribunal came to the conclusion that the deceased would have earned not less than a sum of Rs.5000/- per month and adopting the multiplier of 12 had awarded a sum of Rs.4,95,000/- as compensation to be distributed amongst the claimants equally. Though the Tribunal has taken into account all these factors it is difficult to ascertain how https://hcservices.ecourts.gov.in/hcservices/ much exactly the deceased Sarasakanthammal would have earned independently. (a) The Tribunal had fixed a sum of Rs.60,000/- as her annual income. There is no proof of income. But, however, considering the documents that have been placed before the Tribunal we do not think we would be erring if we fix her contribution to her family at Rs.3000/- per month and Rs.36,000/- per year. If we adopt a multiplier of 12, we arrive at a pecuniary loss of Rs.4,35,000/-. One cannot ignore the fact that this family is twice, thrice or four times bereaved. But, however, since we will be awarding compensation for each fatal case we think that we would not be wrong if we reduce the award under the head of love and affection to Rs.10,000/-. The funeral expenses is fixed at a sum of Rs.5000/- and we arrive at a sum of Rs.4,47,000/- which is rounded off to Rs.4,50,000/-. (b) We, therefore, modify the award of the Tribunal for a sum of Rs.4,95,000/- to a sum of Rs.4,50,000/- together with interest at 9% instead of 12% per annum. The compensation will be taken equally by the claimants. II. C.M.A.No.1575 of 2000: The claimant here is Vijaya who sustained injuries. She had claimed a sum of Rs.1,00,000/- and she was awarded a sum of Rs.98,000/-. According to her, she was taking care of the lands as well as the rice mill and would have earned atleast a sum of Rs.2000/- per month. She had suffered injuries in her face and in the left hand and fractures in her jaw and also in the left wrist. There is some difficulty in eating and in performing the activities with the left hand. It is seen from the materials on record that even on the date of the accident she had been admitted in the Vellore CMC Hospital. She had lost her husband in the accident. Therefore, inspite of grievous injuries she was taken home for performance of the obsequies and thereafter, since she had also lost her parents she had to remain at home as there was no one to take care of the children. Therefore, a Doctor had gone to her residence to give treatment and the certificate is Ex-P99. The disability certificate is Ex-P100, according to which she had suffered a disability of 45%. According to her, she is continuing to take treatment which costs her Rs.45,000/-. According to her evidence she is not normal and even the slightest shock affects her very much. The Tribunal has taken into account the evidence of P.W.12, the Doctor who had issued the disability certificate and also P.W.13, the other Doctor. They have spoken of the disabilities suffered by her. P.W.13 was the Doctor who had given her minimum treatment in Vellore. His evidence is that she suffered a trauma and she is unable to carry on her daily activities as before and she is also not able to assist her family in the rice mill business. The Tribunal notionally fixed her monthly earning at a sum of Rs.2000/- and for the six months https://hcservices.ecourts.gov.in/hcservices/ treatment awarded a sum of Rs.12000/- for loss of income, towards transport the Tribunal awarded a sum of Rs.5000/- and extra nourishment a sum of Rs.3000/-. On the basis of Ex-P99, the Tribunal awarded a sum of Rs.10,000/- towards medical expenses which appears to be very reasonable. On the basis of the certificate given by the Doctors regarding her disability, the Tribunal awarded a sum of Rs.50,000/- towards disability and a sum of Rs.18,000/- for the pain and suffering. In all, the Tribunal awarded a sum of Rs.98,000/-. Considering what this claimant has suffered and does not appear to us to be excessive or unreasonable. We are therefore, not inclined to interfere with the award except to the extent of reducing the rate of interest. Therefore, the award of the Tribunal insofar as the quantum is confirmed. The award will bear interest at 9% from the date of petition till the date of payment. III. C.M.A.No.1576 of 2000: The claimant was a young boy of three years when he suffered the accident. He had fractured his left hand and had suffered head injuries. He was an inpatient for 15 days first and thereafter again for two months. The learned counsel for the claimants submitted that after the accident that took place in 1992 when he was three years old his mental capacity had been arrested as on the date of the accident and though 16 years have passed he still has the mental capacity of three years' old. P.W.9, Nirmala has given evidence on behalf of the clailmant Aravind. The Tribunal has considered in detail the physical condition of this injured young boy. We can see that what he has suffered cannot be calculated in terms of money. His limbs have been shortened and his nervous system has been affected. Nothing that we can award to him as compensation will really compensate to this young boy what he has lost or what his parents have lost. The wound certificate has been marked as Ex-P172 . The discharge summary is Ex-P173. He had suffered partial loss of vision. On the basis of the materials on record which includes Ex-P172 to 179, 182 to 189 and the evidence of the Doctors, the Tribunal found that not only had this young boy lost his father in the accident but he had suffered incalculable injury. His social interaction with his peer age group has been affected. He is not like the other children of his age and he has been admitted in a special school. The Tribunal found on the basis of the evidence of P.W.12 that he would require continued treatment throughout his life. P.W.14 has spoken about his vision and given Ex-P198 wound certificate, the injury to the brain has been certified by other Doctors. The Tribunal relying on 1995 ACJ 232 (SC) (United India Insurance Co. Ltd. Vs. Narendra Panduranga Kadam), 1991 ACJ 729 (P & H)(Gursharan Singh Sandhu Vs. State of Haryana), 1992 ACJ 443 (P&H) (Dr.M.L. Sharma Vs. State of Haryana) and 1993 (2) PLR 266 (Iqbal Singh Vs. Avatar Singh) calculated the compensation. A sum of Rs.37,318.33p was spent for medical expenses vide Exs-P174 to 181 and the same was rounded off to Rs.40,000/-. For transport a sum of Rs.10,000/- was awarded and for https://hcservices.ecourts.gov.in/hcservices/ extra nourishment a sum of Rs.8000/- was awarded. Under the head of disability a sum of Rs.2,20,000/- was awarded for loss of amenities. Taking into account his requirement of future expenses, his pain and suffering, the loss of amenities, the Tribunal awarded a sum of Rs.4,40,000/- and therefore, arrived at a total compensation of Rs.4,98,000/-. Considering what this young boy has suffered, we do not think it warrants any interference. Therefore, the quantum is confirmed and we only reduce the interest to 9%. IV. C.M.A.No.1583 of 2000: The claimant is Ramya. She had suffered fracture of her rib bones and a claim of a sum of Rs.3,00,000/- was made. Her father Ravi Kumar was examined as P.W.6. He has given evidence regarding the injuries suffered by his daughter. According to her, there was a fracture of a skull rib bones and injury to the left hand, left leg, left jaw, back etc. She had taken treatment in CMC Hospital and the wound certificate is Ex-P23 and the Discharge summary is Ex-P125. The medical expenses are evidenced by Ex-P126 series, receipts Ex-P127, Ex-P128 series, Ex-P129 series, Ex-P130 series, receipts Ex-P131 and bills Ex-P132. It is also the evidence that she requires plastic surgery. Doctor Balasubramaniam whom they had consulted had given a certificate Ex-P133 regarding the possible expense for the surgery and the documents to evidence the surgery expenses are Exs-P133, 134, 135 series and 136 series. Discharge summary is ExP137. Ex-P138 series is the receipt for the medical expenses and Ex-P139 is the certificate regarding her fracture and the treatment taken by her. Ex-P140 is the disability certificate given by Doctor Thiagarajan on consultation and he assessed the possible expenses of future treatment. Murugan, P.W.13 has also been examined to assess her disability. On the basis of the evidence before it, the Tribunal came to the conclusion that there is certain disfigurement. The child is unable to play like other children. The possibility of her getting convulsions cannot be ruled out and her education prospects and marriage prospects had been considerably affected. The Tribunal, therefore, on the basis of the vouchers calculated the medical expenses at Rs.40,000/- and for loss of amenities etc. a sum of Rs.85,000/- and for disability a sum of Rs.1,50,000/- aggregating to a sum of Rs.2,95,000/-as against the claim of Rs. 3,00,000/-. We do not think this warrants interference. The quantum is confirmed except for the interest rate which is reduced to 9%. V. C.M.A.No.1582 of 2000: On Rajendra Kumar died in the accident. He is the father of the injured Aravind in C.M.A.No.1576 of 2000. He has left behind his wife Nirmala and two sons, Aravind and Anand. He died at his age of 27 years. He was a landlord and income tax assessee. According to the petitioner, he is earning a sum of Rs.27,000/- per month. He was given treatment in the CMC Hospital, but it was of no avail and he died https://hcservices.ecourts.gov.in/hcservices/ succumbing to the fatal injuries. A claim of Rs.10,00,000/- was made. His wife Nirmala was examined as P.W.91. She had given evidence regarding his contract business, his agricultural income etc. and documents were marked to prove this. According to her, he was also a Government contractor. Some of the documents that had been marked are Exs-P155 to P167. The Auditor as already mentioned above has also given evidence regarding his income. P.Ws.9 and 10 have also given evidence regarding the earning capacity of Rajendra Kumar and that he was capable of earning a huge income. The Tribunal on the basis of Ex- P186 which is his income tax account fixed his annual income at a sum of Rs.2,80,000/- and following the Unit method, the Tribunal had arrived at a loss to the tune of Rs.1,06,668/-. The Tribunal then adopted the multiplier of 9 and after awarding the conventional loss under various heads fixed the compensation at a sum of Rs.9,79,012/-. (a) The learned counsel for the appellant submitted that considering the nature of business of the deceased, the entire income earned by him from agriculture or contract business would still be available to the family and the loss of value of his service alone should be fixed. (b) In view of the nature of business carried on by the deceased we are unable to reject the submission made by the learned for the appellant. We therefore, fix his annual contribution to the family at 60,000/- instead of 1,06,668/-. But instead of nine as a multiplier, we adopt 15 as a multiplier which would be just and reasonable in considering the age of the deceased. A sum of Rs.5000/- is fixed towards funeral expenses, an aggregate amount of Rs.20,000/- is awarded. Thus the award amount is modified to a sum of Rs.9,25,000/- as against the award of Rs.9,79,012/-. The interest is fixed at 9% per annum. VI. C.M.A.No.1577 of 2000: This relates to the death of one Parthiban who is the husband of Vijaya, the claimant in C.M.A.No.1575 of 2000. He was the son-in-law of the family. The claimants are his father, his wife, his mother and his three children. The father died pending the original petition and therefore, the others are recognized as legal representatives. A claim of Rs.15,00,000/- was made. The deceased was 30 years when he died. He was carrying on the business as a wholesaler in jaggery and rice and he was also having a money lending business. He was earning about a sum of Rs.20,000/- per month in support of the claim. His wife has given evidence as P.W.4. To support their case regarding his income they have filed Exs-P59, 70, 71, 72, 74, 76, 77 series, 78, 85 etc. The deceased was assessed to income tax. This is seen from his pan card Ex-P86 and they have filed the income tax counterfoils, the income tax assessment and they are Ex-P87 series, P87 to P91. Ex-P91 which relates to the assessment year 1990-91 shows that he has declared an income of https://hcservices.ecourts.gov.in/hcservices/ Rs.2,65,000/-. Ex-P92 relates to the assessment year 1992-93 and it shows an income of Rs.2,80,000/-. To prove their case that he had rice mill, P.W.4 has been examined and also P.W.5. The Tribunal fixed his annual income at Rs.2,50,000/- and adopting a unit system fixed the contribution to the family at Rs.1,78,184/-. They adopted a multiplier of 8 and after awarding amounts under the conventional heads of compensation fixed the compensation at Rs.14,85,475/-. In this case also considering the fact that it was a family business it was contended on behalf of the appellant that only loss of value and service should be taken. Therefore, annual contribution is fixed at Rs.90,000/- and by adopting the multiplier of 15 we arrive at a pecuniary loss of Rs.13,50,000/-. The funeral expenses is fixed as a sum of Rs.5000/- and under the loss of love and affection and consortium a sum of Rs.60,000/- is awarded. This aggregates to a sum of Rs.14,15,000/-. Therefore, the award is modified to Rs.14,15,000/- with an interest of 9% per annum. VII. C.M.A.No.1581 of 2000: The claimants are the legal heirs of Murugananthan, the head of the family, which came to this tragic end. He is the husband of Sarasakantha Ammal. The claimants are his son Sukumar who travelled in the motor-cycle behind the car. Chinna Raja alias Siva Kumar who suffered an injury will be dealt with later. His mother Jayalakshmi and his daughter-in-law Indira Gandhi. The deceased was about 53 years’ old when he met with the accident; he was a contractor, landlord, owner of a brick yiln and owner of a dairy business. He was earning not less than a sum of Rs.30,000/- per month. He was an assessee of Income Tax. All this is spoken byP.W.1 his son Sukumar. The documents relating to his earning capacity are Exs-P25 to P40 which interalia refers to his loans from Bank for agricultural purposes, his discharge of the loan, the supply of milk to Tamil nadu Milk Development Society and his contract with a Society at Wallajah for the supply of milk etc. He has also filed documents Exs-P41 to 43 which showed that he had insured the cattle and also the certificate of the veterinary doctor. He has been a Class II contractor registered with Public Works Department. His registration certificate is Ex-P49. The evidence shows that he was upgraded as a Class I contractor. He was also a contractor for Pattukottai Alagiri Transport Corporation, Ex- P61. The income tax assessment intimation notice were also filed (Ex- P62). P.W.3 who is the doctor and has given evidence regarding his dairy business and the quality of the cattle that he had. P.W.7 is the Auditor who has given evidence regarding Muruganantham’s flourishing business. The claimant’s case is that Muruganantham’s monthly income should be fixed at a sum of Rs.30,000/- and a multiplier of 12 should be adopted. On the basis of the income tax return with regard to the assessment year 1992-93, Ex-P64, the Tribunal assessed its contribution to the family on the basis of units and arrived at an annual contribution of Rs.1,75,910/- and adopted a multiplier of 8. https://hcservices.ecourts.gov.in/hcservices/ Then it awarded amounts under conventional heads arriving at a total compensation of 14,49,280/- (a) The learned counsel for the respondent submitted that it was a flourishing business and it was carried on only by Muruganantham and therefore, the compensation is on the lower side and not on the higher. On the other hand, the counsel for the appellant submitted that since neither the brick kiln nor the dairy business nor agricultural activities would have come to an end with his death and so there will be no loss of income from those businesses. (b) So, the compensation should be fixed on the loss of value of service, which in any event would have generated income for the family. Hence we take into account the expertise and the knowledge of the deceased and fix the economic loss to the family at a sum of Rs.1,50,000/- per annum. The Tribunal adopted 8 years whereas we think 9 years would be the appropriate multiplier in this case. Therefore, we arrive at a pecuniary loss of Rs.13,50,000/- . For funeral expenses a sum of Rs.5000/- is granted. In the result, there will be an award of Rs.13,55,000/- together with interest at 9% per annum and the award of Rs.14,49,280/- with 12% interest will be set aside. To that extent the appeal is allowed. VIII. C.M.A.No.1580 of 2000: This relates to the claim made by the injured claimant Chinna Raja. It is to fix the marriage alliance of Chinna Raja alias Siva Kumar that the entire family travelled on the road and met with the accident. A claim of Rs.25,000/- was made. He was only 22 years’ old and the wound certificate shows that he had laceration without any fracture. The documents have been marked to show the nature of injury and nature of treatment. Taking into account all the factors, the Tribunal awarded a sum of Rs.20,000/- as against the claim of Rs.25,000/-. We do not think this warrants any interference.