IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.07.2009 CORAM THE HON'BLE MR.JUSTICE S.PALANIVELU C.M.A.No.1718 of 2004 1. Goutham Bafna 2. M. Vasantha 3. M. Kanchan 4. U. Ashok Kumar 5. Mahender Bafna 6. Mahaveer Bafna ... Appellants/Petitioner (2 to 6 rep.by Power Agent Ist Petitioner) Vs 1. J. Pramod Kumar Bansal 2. United India Insurance Co. Ltd., Third Party Cell, South India Co-op Building, III Floor, No.38, Anna Salai, Chennai – 2. ... Respondents/Respondents Civil Miscellaneous Appeal against the judgment and decree in M.C.O.P.No.2382 of 2000 dated 01.04.2003 on the file of Motor Accidents Claims Tribunal, Addl. District Judge, Fast Track Court No.V, Chennai. For Appellants : Mr.N.M.C.Babu For 2nd Respondent : Mrs.Revathi Muralidharan J U D G M E N T In the claim petition, it is stated that on 24.11.99 at about 09.30 a.m., while the deceased was traveling as a pillion rider in a motor cycle with Registration No.TN-20A-2056 along T.H. Road, Chennai-21, the first respondent's van with Registration No.TN-04X- 1251 was driven by its driver in a rash and negligent manner dashed against the motor cycle and the deceased sustained grievous injuries. https://hcservices.ecourts.gov.in/hcservices/ Later, he died in the hospital on 30.11.99. The driver of the van was responsible for the accident. Hence, a sum of Rs.7,00,000 is prayed for as compensation. 2.In the counter filed by the second respondent, it is stated that the insurance of the van, age, occupation, employment and monthly income of the deceased are not admitted. The dependency and the status of the legal heirs of the deceased have to be proved by them. The amount claimed is excessive. Hence, the petition has to be dismissed. 3.After considering the oral documentary piece of evidence on record, the Learned Tribunal Judge has concluded that the driver was negligent and he has caused accident. 4.The learned appellant counsel for the appellants/claimants would assail the award by stating that the quantum of compensation as fixed by the tribunal is on the lower side. She argued that without any special reason, the multiplier has been reduced from 5 to 3 and that the claim for Rs.30,000/- towards surgery, as evident from Ex.P.3 has not been considered and that under both the heads, the compensation has to be enhanced. 5. It is stated that the deceased P.Udaychand Bafna was a financier and was earning above Rs.1,00,000/- per year, for which the details of income prepared by the Chartered Accountant Ex.P.6 has been produced, which shows that his annual income is Rs.1,06,610/-. The tribunal has considered average income Rs.1,00,000/- per annum, deducted 1/3rd and Rs.66,666/- is taken as his contribution to the family and since the deceased was aged 67 years, there was likelihood for his continuing to live for another three years alone. In view of the life expectancy upto 70 years, the tribunal has also followed a principle reported in A.I.R 2002 S.C.2607, United India Insurance Co.Ltd., Vs. Patricia Jean Mahajan and others, wherein it is held that for special reasons, some deviation from the schedule multiplier can be made. 6.Excepting the reason of the age of the deceased as 67 years, there is no reason for reducing the multiplier. In view of this court, there is no valid ground to reduce the multiplicant. As per Schedule 2 of the Motors Vehicles Act, for the death of persons aged between 65 and 70, a multiplier of 5 has to be adopted. This court deems fit to adopt multiplier 5 in this case. 7.There is no reason to take average annual income. Rs.1,05,610/- as mentioned in Ex.P.6 can be taken as annual income, in which after deducting 1/3rd, the end product will be Rs.70,407/-. If it is multiplied by 5, the dependency could be assessed at Rs.3,52,035/-. https://hcservices.ecourts.gov.in/hcservices/ 8.The reason recorded by the tribunal that non- examination of the doctor to prove Ex.P.3 would dis-entitle the claimants to claim Rs.30,000/- towards surgery fees can not be accepted for the reason that the postmortem certificate would show that metal plating on fracture have been made during the surgery performed on the deceased, when he was injured. There are sufficient materials to show that surgery was undertaken to the injured. Hence, there is nothing wrong in allowing the claim of Rs.30,000/- towards surgery fees, as furnished in Ex.P.3. The following are the compensation awarded by the tribunal under various heads - Loss of Income ==> Rs.2,00,000/- Funeral Expenses ==> Rs. 3,000/- Loss of love and affection ==> Rs. 12,000/- Pain and suffering ==> Rs. 25,000/- Mental Agony ==> Rs. 9,000/- Medical Expenses ==> Rs. 75,000/- ============= Rs.3,24,000/- ============= 9.The learned counsel for respondent Mr.Revathi Muralidharan would submit that the claimants are sons and daughters of the deceased who have got married and settled in their lives and they are not at all dependents on the deceased, and that merely because they are Legal Representatives to the deceased, they cannot be deemed to be dependents on the deceased. Repelling this argument, the learned counsel for the appellant Mr.N.M.C.Babu would submit that even if it is established that the claimants were not dependents on the deceased, still they are Legal Representatives. As per the settled preposition, they have to be made eligible to get the compensation. In support of his contention, he placed reliance upon a decision of the Supreme Court reported in 2007 (2) TCJ 622, Hafizun Begum v. Md.Ikram Heque and Others, wherein Their Lordships have discussed about the scope of Section 166 (1)(C) of the Motors Vehicles Act and explained the term "Legal heirs" by holding that all Legal Representatives to the deceased are entitled to claim compensation. 10. Section 2 (11) of C.P.C defines "legal representative" which means, a person who, in law, represents the estate of a deceased person and includes any person who, in law, represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, there person on whom the estate devolves on the death of the party so suing or sued. 11.Their Lordships were pleased to observe that even if there were no dependents, there is a loss to the estate and a person who is https://hcservices.ecourts.gov.in/hcservices/ legal representative, but not dependent can yet be a beneficiary of the estate. 12.Referring to earlier decisions of the court, the Apex Court held further thus;- "12. As observed by this court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique AIR 1989 SC 1589, the definition contained in Section 2 (11), C.P.C. is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir, competent to inherit the property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road Transport Corporation v. Raman bhai Prabhat bhai and Another AIR 1987 SC 1690 : 1987-3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child." 13.Following the principle laid down in the above decision, it is to be held that the claimants as Legal heirs are entitled for compensation. 14. The next limb of contention of the learned counsel for the respondents is that the grant of compensation under the head, pain and sufferings would not arise fatal cases. The reply is available in the Division Bench decision of this court in 1997 ACJ 211 = 1996 ACC, 531 (Division Bench),Cheran Transport Corporation Ltd. Vs Santhamani, wherein it is held that the deceased was alive for some time with multiple injuries and naturally, he should have been suffering from pain, then the claimants have to be made entitled to a reasonable amount towards pain and sufferings. The Apex court in 1985 A.C.J 75, N.Sivammal and others v. Managing Director, Pandian Roadways Corporation and another has held that when the deceased remained in hospital for 90 days under shadow of death, he must have suffered pain and sufferings and therefore Rs.5,000/- is awardable under the head, pain and suffering. 15. Following the above said decisions on this point, the findings of the tribunal in awarding compensation of Rs.25,000/- under the head pain and suffering is held sustainable. After including the compensation under the heads loss of income and medical expenses towards surgery, the following is the compensation awarded by this court under various heads. https://hcservices.ecourts.gov.in/hcservices/ Loss of Income ==> Rs.3,52,035/- Medical Expenses in view of surgery ==> Rs. 30,000/- Funeral Expenses ==> Rs. 3,000/- Loss of love and affection ==> Rs. 12,000/- Pain and suffering ==> Rs. 25,000/- Mental Agony ==> Rs. 9,000/- Medical Expenses ==> Rs. 75,000/- ============= Total ==> Rs.5,06,035/- ============= 16. In fine, the Civil Miscellaneous Appeal is allowed in part enhancing the compensation to Rs.5,06,035/- and the respondent shall deposit the enhanced compensation along with interest @ 7.5% per annum from the date of filing of the petition, within a period of 8 weeks from the date of receipt of a copy of this order. All the claimants are entitled equally in the enhanced compensation. The first claimant, as power agent for claimants 2 to 6 is permitted to withdraw the enhanced compensation on their behalf. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rkm To 1.The Addl. District Judge, Fast Track Court No.V, Motor Accidents Claims Tribunal, Chennai. 2.The Superintendent, V.R.Section, High Court, Madras 1 cc To Mr.Mrs.Revathi Muralidharan, Advocate, SR.34998 1 cc To Mr.N.M.C.Babu, Advocate, SR.34618 C.M.A.No.1718 of 2004 rL(CO)PMK.28.8.2009 https://hcservices.ecourts.gov.in/hcservices/