IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:01.12. 2008 CORAM:- The Hon'ble Mr. Justice R. SUDHAKAR C.M.A.Nos.1857 and 1858 of 2008 and M.P.Nos.1 and 1 of 2008 The United India Insurance Co.,Ltd., MotorThird party Cell Claim Office, No.38, Anna Salai, Chennai.2. .. Appellant in both C.M.As. Vs. 1. Mariammal 2. Chinnapan 3. John Paul 4. Anthony Raj 5. Pushpa Raj 6. R.jayalakshmi .. Respondents in CMA 1857/08 1. C.Anthony Raj 2. R.jayalakshmi .. Respondents in CMA 1858/08 . . . Appeals filed under Section 173 of the M.V.Act against the award and decree dated 12.01.2007 in MCOP Nos. 417 and 418 of 2006 on the Motor Accidents Claims Tribunal, ( Chief small Causes Court) Chennai. . . . For Appellants in both CMAs : Mr.S.Arunkumar For respondents in C.M.A.1857/08 : Mr.K.Govindan (R1 to R5) Not ready for R6 For respondents in C.M.A.1858/08 : Mr.K.Govindan (R1) No ready for R2. . . . https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The Insurance company has filed these appeals challenging the award dated 12.01.2007 in MCOP Nos. 417 and 418 of 2006 on the Motor Accidents Claims Tribunal, ( Chief small Causes Court) Chennai. 2. The accident in this case happened on 01.01.2004 on the East Coast Road. The deceased John Bosco said to be 27 years old, a Civil Contract Labour was driving the two wheeler and the injured Antony Raj, aged 22 years, said to be engaged in Wood Polishing, was travelling as a pillion rider. The accident in this case happened at about 11.15 p.m just before the dawn of the New Year. 3. According to the claimants, a lorry was going in front of the two wheeler. The driver of the lorry applied the break suddenly and the two wheeler in which the two persons named above were travelling hit the rear end of the lorry and in that accident, John Bosco suffered grievous injuries and died. The pillion rider, Antony Raj escaped with minor injuries. On the death of John Bosco, the mother aged about 53 years, father aged 56 years, and three brothers aged 35, 22 and 18 years filed a claim petition in M.C.O.P..No.417 of 2006 for compensation in a sum of Rs.26,00,000/- stating that the income of the deceased was Rs.20,000/- per month and supported it by Ex.P.7 and P.9. The injured claimant, Antony Raj filed a claim petition M.C.O.P.No. 418 of 2006 claiming compensation in a sum of Rs.8,00,000/- for the injuries suffered stating that his income was Rs.300/- per day. Both the cases were tried together and a common award was passed by the Tribunal. These two appeals were filed against the said common award. 4. The mother of the deceased John Bosco was examined as P.W.1 and the injured claimant Antony Raj was examined as P.W.2 and one Mr.Maris, the Accounts Manager of M/S. Vantage Tower Builders was examined as P.W.3 and one Kamalakannan, a Carpenter was examined as P.W.4. Dr.Amarnath Chouli was examined as P.W.5. Documents were marked as Exs.P1 to P.11. Exs.P1 is the copy of First Information Report. Ex.P.2 is the copy of Post Mortem Certificate. Ex.P.3 is the Death Certificate Ex.P.4 is the Legal Heirship Certificate. Ex.P.5 is the Driving Licence of the deceased. Ex.P.6 is the medical bills. Ex.P.7 is the Certificate given by M/S.Vantage Tower Builder. Ex.P.8 is the Authorisation Letter. Ex.P.9 is the Certificate given by M/S.Karpaga Vinayaga wood Works. Ex.P.10 is the Disability Certificate. Ex.P.11 is the X-ray. No oral or documentary https://hcservices.ecourts.gov.in/hcservices/ evidence was let in on the side of the appellant/respondent before the Tribunal. 5. The findings of the negligence on the part of the driver of the lorry and the liability of the appellant to compensate the claimants, is not disputed by the learned counsel for the appellant and the same is confirmed. 6. The only contention raised by the learned counsel for the appellants is that the quantum of compensation in both the cases is on the higher side and the same has to be modified and reduced. Learned counsel for the respondents/claimants, on the other hand, stated that the compensation awarded in both the cases by the Tribunal is just and reasonable and does not require any reduction and the award should be confirmed. C.M.A.No.1857 of 2008 in M.C.O.P.No.417 of 2006: 7. In the case of death of John Bosco, the Tribunal fixed the income of the deceased as Rs.7,500/- per month and after deducting 1/3rd towards personal expenses of the deceased, a sum of Rs.5,000/- was fixed as the contribution to the family of the deceased. By adopting the multiplier of 7, the Tribunal granted compensation in a sum of Rs.4,20,000/- (i.e Rs.5,000/- X 12 X 7 = Rs.4,20,000/-) In addition to above, compensation was granted on conventional heads. In all the followings amounts were granted as compensation with 7.5% interest. Sl.No. Head Amount granted by the Tribunal 1 Pecuniary loss Rs. 4,20,000/- 2 Loss of love and affection Rs. 15,000/- 3 Loss of expectation of life & loss to the estate Rs. 10,000/- 4 Funeral expenses Rs. 5,000/- Total Rs. 4,50,000/- 8. In appeal, in the case of fatal accident, the counsel for the appellant contended that without proper records, merely on the basis of the oral evidence of certain witness, the income of the deceased was taken as Rs.7,500/- per month and after deduction of 1/3 towards personal expenses of the deceased, the contribution to the family was taken as Rs.5,000/- per month, (i.e) Rs.60,000/- per year, which he stated is on the higher side. Learned counsel did not dispute the multiplier of 7. The other amounts are also not in dispute. https://hcservices.ecourts.gov.in/hcservices/ 9. Learned counsel for the respondents/claimants, on the other hand, stated that considering the age of the mother and father, who were 53 and 56 years, the relevant multiplier in this case would be 11 as per Schedule II to Section 163 (A) of the Motor Vehicles Act. Since the multiplier is reduced in this case to 7, the quantum of compensation need not be reduced or modified as it is just and reasonable. 10. In this case, the deceased is a bachelor and earning member. The evidence of P.W.3, is with regard to the nature of employment of the deceased. But the employer of the deceased was not examined. Even though an accountant was examined, he did not produce relevant documents like salary slip, vouchers, Registers etc. to prove the actual income of the deceased. The Tribunal is, therefore, not justified in fixing the income at Rs.7,500/-. At the best, the income of the deceased should be only Rs.5,000/- per month as the accident in this case happened in December 2004. The annual Contribution to the family, after deduction to personal expenses, will, therefore, be Rs.40,000/-(i.e Rs.5000 X 12 = Rs.60,000/- - 1/3 = Rs.40,000/-) 11. In this case, the deceased is a bachelor aged 27 years. The possibility of the deceased getting married shortly and the benefits to the dependents/parents getting reduced has to be considered. Further, a lumpsum is paid by way of compensation, the multiplier has to be suitably modified. The decision of the Apex Court in Bijoy Kumar Dugar - vs. - Bidya Dhar Dutta reported in 2006 AIR SCW 1116 = 2006 (3) SCC 242 will be relevant to the facts of the present case. The choice of multiplier will depend on the facts and circumstances of each case and it has to be appropriately chosen to arrive at a just compensation. Hence, the lesser multiplier of 7 taken by the Tribunal is not justified. The multiplier in this case will be 10. In view of the same, as against the multiplier 7, this Court is inclined to take the multiplier of 10 and the total pecuniary loss will be Rs.4,00,000/_. A sum of Rs.10,000/- towards loss of expectation of life cannot be justified in this case, since the claimants have been granted Rs.15,000/- for loss of love and affection. A sum of Rs.5,000/- granted for funeral expenses will include the transport expenses also. In all, the award of the Tribunal is modified and the claimants are entitled to Rs.4,20,000/- with interest at 7.5% as under: https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by this Court 1 Pecuniary loss Rs.40,000 X 10 Rs. 4,00,000/- 2 Loss of love and affection Rs. 15,000/- 4 Funeral expenses & transport expenses Rs. 5,000/- Total Rs. 4,20,000/- C.M.A.1858 of 2008 in M.C.O.P.No.418 of 2006: 12. It is a case of injury. Based on Ex.P.10 and the evidence of P.W.5, Doctor, who assessed the disability at 20%, and on the basis of the income of the injured claimant fixed as Rs.5,000/-p.m., the Tribunal granted the following amount as compensation with interest 7.5 %. Sl.No. Head Amount granted by the Tribunal 1 Permanent disability assessed at 20% Rs. 10,000/- 2 Loss of income during the period of treatment Rs. 10,000/- 3 Medical bills Rs. 7,058/- 4. Pain and Suffering Rs. 10,000/- 5. Extra Nourishment Rs. 5,000/- 4 Transport expenses Rs. 5,000/- Total Rs. 47,058/- 13. Learned counsel for the appellant relied upon paragraph 9 of the award and stated that there is a clear indication in the award that no document is filed to show the nature of injuries sustained by the injured claimant. The doctor has assessed the disability at 20% under Ex.P.10, when there is no medical records to support it. Hence, the Disability assessed at 20% cannot be accepted. Further, towards loss of income for two months at Rs.5,000/- p.m totaling to Rs.10,000/- is not justified. He stated that the other amounts granted towards disability, transport expenses, extra nourishment and pain and suffering has to be modified. According to the counsel, the order of the Tribunal cannot be a bonanza to the injured claimant when he has not shown in his evidence the nature of injuries, the disability and the medical expenses incurred. https://hcservices.ecourts.gov.in/hcservices/ 14. The claimant will be entitled to compensation of Rs.7,058/- as per Ex.P.6, towards medical expenses and it is not in dispute. There is an accident and therefore, for Pain and suffering, he is entitled to compensation. Claimant is also entitled to compensation for transport expenses and extra nourishment. In all, the claimant will be entitled to Rs.27,058/- with interest at 7.5 % as follows: Sl.No. Head Amount granted by this Court 1 Injury Rs. 5,000/- 2 Medical expenses Rs. 7,058/- 3 Pain and suffering Rs. 5,000/- 4 Extra nourishment Rs. 5,000/- 5 Loss of income during treatment Rs. 5,000/- Total Rs. 27,058/- 15. In the result, the appeals are partly allowed. i. The award of the Tribunal in M.C.O.P.No.417 of 2006 is reduced to Rs.4,20,000/- from Rs.4,50,000/-. ii) The award of the Tribunal in M.C.O.P.No.418 of 2006 is reduced to Rs. 27,058/- from Rs.47,058/- iii. The interest awarded at 7.5% is confirmed as the accident in this case happened in the year 2004 and the award was passed in the year January, 2007. iv. Learned counsel for the appellant stated that the amount has already been deposited. The claimants in both the cases are entitled to withdraw the amount as per the order of this Court. The excess amount can be withdrawn by the appellant after settling the claimants in both the cases. No costs. v. Consequently, connected miscellaneous petitions are closed. PAL Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accidents Claims Tribunal, Chief Small Causes Court, Chennai. + 2 ccs to Mr. K. Govindan, Advocate SR No. 67229, 67230 + 2 ccs to Mr. S. Arunkumar, Advocate SR No. 67203 CMA Nos.1857 & 1858 of 2008 LA(CO) SR/20.1.2009 https://hcservices.ecourts.gov.in/hcservices/