IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 15.12.2008 CORAM:- The Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No. 1193 of 2006 and C.M.P.No. 1851 of 2008 The Manager, The New India Assurance Co. Ltd., No. 45 Moore Street, V Floor, Chennai.1. .. Appellant/ II respondent Vs. 1. V.R. Bharathy 2. Minor V.R. Neeraja rep. by mother and next friend I petitioner V.R. Bharathy 3. Murugan .. Respondents/petitioners/ first respondent Appeal filed under Section 173 of M.V. Act against the award and decree dated 30.11.2004, made in MCOP No.235 of 2003 on the file of the Motor Accidents Claims Tribunal ( Subordinate Judge), Tiruvellore. For Appellant : Mr. K. Padmanabhan For Respondents : Mr. A.S. Vijay Anand – R1 & R2 R3 – ex parte JUDGMENT Insurance Company has filed this appeal challenging the award dated 30.11.2004 made in MCOP No. 235 of 2003 on the file of the Motor Accident Claims Tribunal ( Subordinate Judge) Tiruvellore. https://hcservices.ecourts.gov.in/hcservices/ 2. It is a case of fatal accident. The accident in this case happened on 27.11.2002. The deceased V.R. Ragupathy, said to be working as a manager in Manickam Cinema Theatre, Tiruvettiyur, was riding a TVS moped at 11.30 p.m. When he was on Venkatesapuram main road, he was hit by a hero Honda motor cycle driven in a rash and negligent manner. The said offending vehicle was insured with the appellant insurance company. In that accident, the said Regupathy suffered grievous head injury and burn injuries and was immediately taken to K.M.C. Hospital, Chennai. When his condition became serious, he was taken to Sri Ramachandra Hospital, Porur, where he took treatment from 27.11.2002 to 1.2.2003. Inspite of treatment, he died. The wife aged 35 years and the minor daughter aged 9 years have filed the claim petition claiming a sum of Rs.10,00,000/- as compensation. 3. In support of the claim petition, the wife of the deceased was examined as P.W.1. One Selvakumar, the eye witness, was examined as P.W.2. The Manager of the Manickam Cinema Theatre, who succeeded V.R.Regupathy on his death, was examined as P.W.3. Documents Exs.A1 to A10 were marked. Ex.A1 is the F.I.R. Ex.A2 is the post mortem certificate. Ex.A3 is the dying declaration. Ex.A4 is the legal heirship certificate. Ex.A5 are the hospital bills. Ex.A7 is the confirmation letter in relation to Lakshmi theatre. Ex.A8 is the pass book. Ex.A9 is the housing loan records. Ex.A10 is the salary certificate. No oral and documentary evidence was let in on behalf of the appellant/ respondent before the Tribunal. 4. The finding of negligence on the part of the driver of the hero Honda motor cycle insured with the appellant insurance company and the liability fixed on the insurance company is not seriously disputed and as such, the same is confirmed. 5. Learned counsel for the appellant insurance company contended that the quantum of compensation in this case is excessive and has to be modified. 6. With regard to the issue relating to compensation, the same was decided by the Tribunal in paragraph 8 in answer to point No.2. The age of the deceased was taken as 42 years, which was supported by Ex.A2 post mortem certificate. The deceased was admitted in Kilpauk medical college hospital initially and in a private hospital from 27.11.2002 to 1.2.2003 for which, substantial amount was expended by the dependents. Therefore, they claimed compensation under several medical bills and that is not in dispute. In the claim petition, the income of the deceased was claimed as Rs.5,000/- p.m. The wife in her evidence in chief as P.W.1, has stated that the income of the deceased was Rs.6,750/-. In the housing loan application of the deceased, the income was stated to be Rs.5,500/-. In the salary certificate, which was produced by the present manager of the cinema https://hcservices.ecourts.gov.in/hcservices/ theater under Ex.A10, it is stated that the income of the deceased was Rs.5,500/- p.m. The Tribunal, on considering the statements of P.W.1, wife and P.W.3, manager of the cinema theater and the documents filed in support of the income of the deceased, fixed the monthly income of the deceased at Rs.4,000/- and the annual income was taken as Rs.48,000/-. The Tribunal, after deducting 1/3rd towards personal expenses of the deceased and adopting 15 multiplier based on the aged of the deceased at the time of the accident, determined the loss of pecuniary benefits in a sum of Rs.4,80,000/- (Rs.32,000/- x 15 = Rs.4,80,000/-). 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 Medical expenses Rs.2,80,000/- 2 Loss of pecuniary benefits Rs.4,80,000/- 3 Loss of consortium Rs. 50,000/- 4 Transport and funeral expenses Rs. 10,000/- 5 Loss of love and affection Rs. 25,000/- 6 Loss of happiness Rs. 25,000/- 7 For mental agony and shock Rs. 25,000/- Total Rs.8,95,000/- 7. The contention of the learned counsel for the appellant is that the multiplier adopted by the Tribunal is on the higher side as the age of the deceased was 42 years. He further contended that the sum of Rs.25,000/- granted for loss of happiness and Rs.25,000/- granted towards mental agony and shock are not justified and exorbitant. He further contended that the sum of Rs.50,000/- granted towards loss of consortium is on the higher side and also the interest at 9% p.a. He relied upon the decision of the Supreme Court in New India Assurance – vs.- Smt.Kalpana and others reported in 2007 AIR SCW 1316 = 2007(1) Supreme 514 and in The Managing Director, TNSTC – vs. - Sripriya and others reported in 2007(1) TN MAC 319 (SC). 8. Learned counsel for the claimants on the other hand stated that the deceased was in hospital for a long period and therefore, the compensation granted for mental agony and shock is justified. He has also stated that the sum of Rs.25,000/- granted for loss of happiness can be included towards loss of love and affection to the minor daughter itself. He justified the award as reasonable. 9. Admittedly, the deceased in this case was 42 years old. The wife and daughter are the claimants. In 2007(1) TN MAC 319 https://hcservices.ecourts.gov.in/hcservices/ (SC) the Supreme Court held thus in paragraph 13 to 15 as follows:- "13. In G.M.Kerala S.R.T.C. v. Susamma Thomas, AIR 1994 SC 1631, it was noted that the normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequently be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in U.P. State Road Transport Corpn. v. Trilok Chand, 1996(4) SCALE 22, appears to be appropriate. In fact in U.P. State Road Transport Corpn. v. Trilok Chand, 1996(4) SCALE 22, 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, which is the normal retirement age. (See:New India Assurance Co. ltd. v. Charlie and Another, 2005(10) SCC 720. (emphasis supplied) 14. The above position was highlighted in U.P. State Road Transport Corporation v. Krishna Bala and Ors., 2006(6) SCC 249; Managing Director, TNSTC Ltd., v. K.I. Bindu, 2005(8) SCC 473; T.N. State Transport Corporation Ltd. - v. S.Rajapriya, 2005(6) SCC 236; Municipal Corpn. Of Greater Bombay v. Lasman Iyer, 2003(8)SCC 731; State of Haryana v. Jasbir Kaur, 2003(7) SCC 484; The New India Assurance Company Ltd. v. Smt. Kalpana and Ors., 2007(2) SCALE 227; New India Assurance Co. Ltd. v. Satendar & Ors. JT 2006(10) SC 234. 15. Considering the age of the deceased appropriate multiplier would be 12. The income fixed by the Tribunal and the deduction for personal expenses do not warrant any interference. Worked out on that basis, the entitlement of the loss of income is Rs.5,76,000/-. The other expenses awarded remain unaltered. In other words, total entitlement of the claimants is fixed at Rs.6,00,000/-. It https://hcservices.ecourts.gov.in/hcservices/ would be appropriate to fix the rate of interest at 7.5% instead of 9% as done by the Tribunal and maintained by the High Court." In the light of the decision of the Apex Court, higher multiplier of "15 cannot be justified in the present case. 10. In this case, the Tribunal adopted 15 multiplier as per the second schedule. However, keeping in mind, the decision of the Kalapana's case, the multiplier has to be suitably modified or reduced, so that, it would justify the lump sum payment of compensation on the death of the deceased. Therefore, as against 15 multiplier, the proper multiplier in this case would be 13. Accordingly, by adopting 13 multiplier, the loss of dependency will be Rs. 4,16,000/- (Rs.32,000/- x 13 = Rs.4,16,000/-) The Tribunal granted higher amount towards loss of consortium to the wife and loss of love and affection to the daughter. It cannot be a bonanza. Hence, the wife is entitled to Rs.25,000/- towards loss of consortium and the daughter is entitled to a sum of Rs.25,000/- towards loss of love and affection on the death of the father. Consequently, the sum of Rs.25,000/- granted for loss of happiness is set aside. The claimants are entitled to a sum of Rs.5,000/- towards funeral expenses. Medical expenses granted by the Tribunal is confirmed. Considering the long period of hospitalisation after the accident till death, the claimants are entitled to a sum of Rs.20,000/- towards mental agony and shock. The claimants, who are residing in Thiruvallur, are entitled to a sum of Rs.10,000/- towards transport expenses. Accordingly, the award of the Tribunal stands modified as follows:- Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Medical expenses Rs.2,80,000/ - Rs.2,80,000/- 2 Loss of pecuniary benefits Rs.4,80,000/ - Rs.4,16,000/- 3 Loss of consortium Rs. 50,000/- Rs. 25,000/- 4 Transport and funeral expenses Rs. 10,000/- -- 5 Loss of love and affection Rs. 25,000/- Rs. 25,000/- 6 Loss of happiness Rs. 25,000/- --- https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 7 For mental agony and shock Rs. 25,000/- Rs. 20,000/- 8 Transport expenses -- Rs. 10,000/- 9 Funeral expenses -- Rs. 5,000/- Total Rs.8,95,000/ - Rs.7,81,000/- 11. The accident happened in the year 2002 and the award was passed in the year 2004. Therefore, the interest granted by the Tribunal stands reduced to 7.5% as against 9% in lieu of the decision of the Apex Court reported in 2005 (3) C.T.C. 373 (Tamil Nadu State Transport Corporation vs. S.Rajapriya). 12. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the Tribunal is reduced to Rs. 7,81,000/- from Rs.8,95,000/-. (ii) The first claimant/ wife of the deceased is entitled to a sum of Rs.4,81,000/- and the second claimant,minor daughter is entitled to a sum of Rs.3,00,000/-. (iii) Learned counsel for the appellant states that entire award amount has been deposited as per the order of this Court dated 10.4.2006 and the first claimant was been permitted to withdraw 50% of the amount by an order dated 21.7.2006. The first claimant is entitled to withdraw the balance amount of her share with proportionate interest and costs. (iv) The share of the minor 2nd respondent/2nd claimant shall be invested in any nationalised bank proximate to the place of the residence of the first respondent/first claimant for a period of three years and renewable thereafter till the minor attains majority. The mother of the minor is permitted to withdraw the accrued interest in respect of the share of the minor once in three months directly from the bank and for the said purpose the first respondent/first claimant shall open a savings bank account on the same branch and the interest amount shall be transferred to the account to be maintained by the mother. (v) The nationalised bank to which the amount will be deposited, shall intimate to the first respondent/first claimant of such deposit and confirm the same to the Tribunal that the first claimant has been duly informed. The Tribunal to instruct the bank https://hcservices.ecourts.gov.in/hcservices/ accordingly. (vi) Since the deposit is in the case of minor, the Tribunal is directed to send a report containing the details of the deposit to the High Court on such deposit. (vii) The appellant is entitled to withdraw excess amount in deposit after settling the claimants. (viii) There shall be no orders as to costs. (xi) Consequently, CMP No. 1851 of 2008 is closed. ra Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Motor Accident Claims Tribunal, ( Subordinate Judge) Tiruvellore. 2.The Sub Assistant Registrar, Judicial Section, High Court Chennai.(for watching the Report) 1 CC To Mr.K. Padmanabhan, Advocate, SR NO.69954 CMA No. 1193 of 2006 KLT(CO0 PMK/12.2.2009. https://hcservices.ecourts.gov.in/hcservices/