IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.12.2008 CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKAR C.M.A.Nos. 4029 & 4030 of 2008 CMA No. 4029 of 2008:- Branch Manager, The Oriental Insurance Company Ltd., B.O. 12, Katpadi Road, Gudiyatham 632 602. .. Appellant/2nd respondent Vs. 1. Tmt. Nanjamma 2. Tmt. Suma 3. Gowthami (minor) 4. Guruprasad (minor) (minors 3 & 4 rep. by their mother and next friend Tmt. Suma) 5. N.V.Lakshmipathy Rao .. Respondents/petitioners/ (R5 set exparte in the lower Court first respondent Hence notice is dispensed with) CMA No. 4030 of 2008:- Branch Manager, The Oriental Insurance Company Ltd., B.O. 12, Katpadi Road, Gudiyatham 632 602. .. Appellant/2nd respondent Vs. 1. Venkatasamy 2. N.V. Lakshmipathy Rao .. Respondents/petitioners/ (R2 set exparte in the Lower Court first respondent Hence notice is dispensed with) https://hcservices.ecourts.gov.in/hcservices/ Appeals filed under Section 173 of M.V. Act against the award and decree dated 11.3.2008 made in MCOP No. 65 of 2007 and 75 of 2007 on the file of the Motor Accident Claims Tribunal ( Sub Court ) Hosur. For Appellant : Mr. R. Sivakumar For Respondents : Mr.Kumaravelan.V. COMMON JUDGMENT Insurance company has filed these two appeal challenging the common award dated 11.3.2008 made in MCOP No. 65 of 2007 and 75 of 2007 on the file of the Motor Accident Claims Tribunal ( Sub Court ) Hosur. 2. Brief facts of the cases are as follows:- CMA No. 4029 of 2008 is filed against the award in MCOP No.65 of 2007. CMA No. 4030 of 2008 is filed against the award in MCOP No. 75 of 2007. On 19.10.2006 at about 7.30 p.m., the deceased Balakrishna Reddy and Venkataswamy were travelling on the Suzuki motor cycle from Uliyalam to Bagalur. The deceased Balakrishna Reddy was riding the motor cycle and the Venkataswamy was travelling as a pillion rider. When they were near Kaleeswaram bus stop, the lorry bearing registration No. KA-05-C-8599 coming from the opposite direction driven by its driver in a rash and negligent manner turned to the right side of the road to enter the petrol bunk consequent to which, hit the motor cycle in which, these two persons travelled. Due to the accident, the said Balakrishna Reddy sustained grievous injuries and the pillion rider Venkataswamy also suffered injuries all over the body. They were first taken to Agape Mission Hospital,Jeemangalam and first aid was given and thereafter, they were taken to S.B.S. Hospital, Hosur. Thereafter, Balakrishna Readdy was admitted to Sparsh Hospital, Bangalore. Inspite of treatment, Balakrishna Reddy died on 21.10.2006. The injured claimant Venkataswamy was treated at the Government Hospital, Hosur from 19.10.2006 to 20.10.2006 and thereafter, he took treatment for two months with Dr.G.V.Gandhi, Hosur. The injured claimant suffered fracture of both sides rib cage , fracture of outer cantus right eye maxillary region and injury to the face and other parts of the body. 3. On the death of Balakrishna Reddy, mother aged 60 years, wife aged 30 years, minor daughter aged 14 years and minor son aged 10 years have filed the claim petition, claiming a sum of Rs.10,00,000/- as compensation stating that the income of the deceased Balakrishna Reddy was Rs.20,000/- by way of agricultural https://hcservices.ecourts.gov.in/hcservices/ operations and real estate business. As far as injured claimant Venkataswamy is concerned, for the injuries suffered and the disability assessed at 25%, he claimed compensation for a sum of Rs.5,00,000/- stating that the income was Rs.5,000/- p.m. as an agriculturist cum coolie. Both the claim petitions were taken up and disposed of by the common award . 4. In support of the claim petitions, the wife of the deceased Balakrishna Reddy was examined as P.W.1. The injured claimant Venkataswamy was examined as P.W.2. Dr. T.V. Gandhi, was examined as P.W.3. Documents Exs. A1 to A14 were marked. Ex.A1 is the copy of the F.I.R. Ex.A2 is the copy of the M.V.I. Report. Ex.A3 is the copy of the post mortem certificate. Ex.A4 is the copy of the insurance policy with regard to the lorry. Ex.A5 is the R.C.Book. Ex.A6 is the driving licence. Ex.A7 series are the medical bills. Ex.A8 is the copy of the ration card. Ex.A9 is the legal heirship certificate. Ex.A10 is the wound certificate given by the Hosur Government Hospital to the injured claimant. Ex.A11 is the wound certificate. Exs. A12 and 13 are the x-rays. Ex.A14 is the receipt. No oral and documentary evidence was let in on behalf of the appellant/ respondent before the Tribunal. 5. The finding of negligence on the part of the driver of the lorry, who caused the fatal accident to one and the injury to the other claimant and the liability fixed on the insurance company to compensate the claimant is not disputed by the learned counsel for the appellant. Such finding of the Tribunal is confirmed. 6. The only contention raised by the learned counsel for the appellant is on the quantum of compensation. 7. CMA NO.4029 of 2008:- In this case, the Tribunal fixed the income of the deceased at Rs.4,500/- p.m. rejecting the plea of income of Rs.20,000/- and adopted 16 multiplier. After deducting some amount towards personal expenses of the deceased, fixed the pecuniary loss in a sum of Rs.5,76,000/-. (Rs.36,000/- x 16 = Rs.5,76,000/-) In all, the Tribunal granted the following amount as compensation with interest at 9% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits Rs. 5,76,000/- 2 Loss of consortium to the wife Rs. 25,000/- 3 Loss of love and affection to the mother and two children Rs. 30,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal 4 Medical expenses Rs. 69,000/- 5 Funeral expenses Rs. 5,000/- Total Rs.7,05,000/- 8. CMA 4030 of 2008:- For the fracture to the ribs and injuries to the jaw area and other injuries suffered by the claimant Venkataswamy, who is an agriculturist cum coolie, aged 45 years, the Tribunal fixed the income at Rs.3,000/-p.m. rejecting the income claimed at Rs.6,000/- p.m. The Tribunal adopted 13 multiplier and for 25% disability fixed the total loss of earning capacity in a sum of Rs.1,17,000/-. (Rs.36,000/- x 25/100=Rs.9,000/- x 13= Rs.1,17,000/-) In all , the Tribunal granted the following amount as compensation with interest at the rate of 9% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of earning capacity due to disability at 25% Rs. 1,17,000/- 2 Pain and suffering Rs. 20,000/- 3 Transport expenses Rs. 5,000/- Total Rs.1,42,000/- 9. As far as the fatal accident is concerned, the contention of the learned counsel for the appellant is that the Tribunal erred in adopting 16 multiplier in a case of death of 38 years old agriculturist and real estate agent. He also stated that the income fixed by the Tribunal is on the higher side. As far as injury case is concerned, the contention of the learned counsel for the appellant is that the multiplier of 13 adopted in the case of injury and the compensation granted based on 25% disability is on the higher side and the same has to be reduced. In both the cases, he pleaded for reduction of the compensation. 10. In both the cases, this Court is not inclined to interfere with the quantum of compensation for the following reasons. In the case of fatal accident case, the deceased was 38 years old and the accident happened in October 2006. The deceased was an agriculturist. A plea was made that he is also engaged in real estate business . However, no specific document was filed. The Tribunal taking into consideration both the factors, fixed the https://hcservices.ecourts.gov.in/hcservices/ income at Rs.4,500/- p.m. rejecting the plea that the income of the deceased was Rs.20,000/-p.m. The deceased was admittedly engaged in agricultural business and it is not disputed. Therefore, the income fixed by the Tribunal is justified. In any event, if the income of the agriculturist is taken as Rs.180/-per day, considering the living wage and minimum wages during the relevant time viz., 2006, the income will be atleast Rs.5,400/- p.m. The Tribunal has reasonably fixed the income as Rs.4,500/- p.m. and that cannot be found fault with. 11. As far as the multiplier is concerned, the Tribunal adopted 16 multiplier in terms of second schedule of the M.V. Act. Even though it is contended by the learned counsel for the appellant that the multiplier of 16 is on the higher side, the fact that the deceased had other sources of income by way of real estate business and the possibility of higher income in the future has to be taken into consideration. The 16 multiplier adopted by the Tribunal in this case in terms of the second schedule need not be interfered with as the deceased was supporting a compact family. The compensation towards loss of consortium and loss of love and affection to the minor children and the mother is also reasonable. This Court is of the view that the wife, and the children, who have suffered on the death of the deceased, need not undergo further agony due to delay in getting the compensation particularly for the reason that a marginally higher multiplier has been adopted. The cost of living and the rise in price will eat away the benefits that will accrue to them. Therefore, this Court does not find any good reason to interfere with the quantum of compensation by way of reduction. 12. In the case of injury is concerned, the Tribunal has extensively dealt with the injuries suffered by the claimant which are supported by the evidence of the doctor. The injuries will seriously limit the earning capacity of the injured claimant, who was an agriculturist cum coolie. Therefore, the Tribunal was justified in adopting the multiplier keeping in view the principles enunciated in the Division Bench decision of this Court in United India Insurance Co. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483. 13. A Division Bench of this court in United India Insurance Co. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483, set out the principles as to when multiplier method should be adopted in a case of injury in para 11 which reads as follows:- "11. The following principles emerge from the above discussion: https://hcservices.ecourts.gov.in/hcservices/ (a) In all cases of injury or permanent disablement 'multiplier method' cannot be mechanically applied to ascertain the future loss of income or earning power. (b) It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power, etc. and if so, to what extent? (c) (1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle for the rest of his life, in that event loss of income or earnings may be ascertained by applying the 'multiplier method' as provided under the Second Schedule to Motor Vehicles Act, 1988. (2) Even so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income. (d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident." 14. As far as the choice of multiplier is concerned, the Tribunal adopted multiplier 13 in terms of the second schedule. The fact that the income of the agriculturist cum coolie was taken at Rs.3,000/-p.m. as against Rs.6,000/-p.m. Claimed, shows that the Tribunal has reduced the income of the injured claimant without application of mind. 15. The living wages and the minimum wages during the relevant period which will be much more than what has been fixed by the Tribunal. If Rs.180/- is taken as income per day then the income per month will be around Rs.5,000/- to Rs.5,400/- . Therefore, the income fixed by the Tribunal at Rs.3,000/-p.m. is very low. The marginally higher multiplier of 13 will compensate the short fall in compensation. If the income is taken as Rs.4,500/- and the multiplier is reduced to 10, the loss of income due to disability https://hcservices.ecourts.gov.in/hcservices/ will be much more. Hence, this Court is unable to accept the plea of reduction in the quantum of compensation. Further, reasonable compensation has been granted for pain and suffering, extra nourishment and transport expenses. In this case, no compensation was granted towards loss of income during the period of treatment and attender charges. Considering all these aspects, the quantum of compensation granted by the Tribunal does not require any modification or reduction. Hence, the total compensation granted in both the cases is justified. 16. As far as the interest is concerned, the prevailing bank rate of interest is at 9% at the time of passing of the award. Therefore, the Tribunal is justified in awarding 9% interest and the same is confirmed. 17. Finding no merits, both the appeals are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed. Counsel for the appellant seeks eight weeks time to deposit the award amount and the same is allowed. On such deposit, the claimants are entitled to withdraw the same as per the Order of the Tribunal. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ra To The Motor Accident Claims Tribunal, ( Sub Court ) Hosur. 1 cc to M/s. R. Sivakumar, Sr. 70565 CMA Nos. 4029 & 4030/2008 KSK (CO) kk 20/1 https://hcservices.ecourts.gov.in/hcservices/