IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.01.2011 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 1444 of 2006 The New India Assurance Co Ltd Kumaran Shopping Complex Kumaan Road, Tirupur .. Appellant/3rd REspondent Versus Rathinasamy (Deceased) 1. Padmavathy 2. Dineshwaran 3. Minor. Gowthaman (Minor rep. by his Mother Guardian Padmavathy) 4. Karuppathal 5. Easwaran 6. Muthukumar .. Respondents/(Petitioners 2 to 5 & Respondents 1 and 2) Appeal under Section 173 of the Motor Vehicles Act, 1988 against the award and Decree dated 18.08.2005 made in MCOP No. 93 of 2000 on the file of the Motor Accident Claims Tribunal cum Additional District Court (Fast Track Court No.5), Coimbatore at Thiruppur. For Appellant : Mr. K. Ravindranath For Respondent : Mr. P. Thangavel for RR1 to 3 No appearance for RR5 to R6 R4-Died JUDGMENT The insurance company has come forward with this appeal questioning the quantum of compensation of Rs.6,65,000/- awarded by the court below for the injuries caused to the first claimant herein, who subsequently died after four years of the accident. 2. The facts that led to filing of the claim petition was that on 04.11.1999 at about 9.00 am, when the first claimant was driving his TVS Moped bearing Registration No. TN-39-L-0168 in the Pudur Road, near Amarjothi Nagar, the motorcycle bearing Registration No. TN-39-D-6611 came in the opposite direction in a rash and negligent manner and dashed the first claimant. In the accident, the first claimant sustained fracture injury in his leg and he was admitted to Ganga Hospital, Coimbatore, where a surgery was performed on the date of accident. The first claimant was the Managing Partner of a baniyan company and earning Rs.10,000/- per month. Therefore, for the https://hcservices.ecourts.gov.in/hcservices/ injuries sustained in the accident, the claim petition was filed by the first claimant claiming Rs.4,00,000/- as compensation. 3. According to the insurance company, the deceased first claimant had filed the claim petition for the only one fracture injury sustained by him in his right knee. The deceased first claimant sought compensation of Rs.4,00,000/-. According to the deceased first claimant, for the injuries sustained by him, he took treatment at Ganga Hospital, Coimbatore as an in-patient for a period of five days and thereafter he was discharged. The claimants have not examined any Doctor and the percentage of disability sustained by the claimant was not assessed. Merely because the first claimant died four years after the accident, the court below, on the erroneous assumption that the first claimant died due to the accident, had awarded huge compensation by applying multiplier method without any basis. As far as income is concerned, the deceased first claimant was a partner in a firm and the firm continues even after the deceased first claimant sustained injuries in the accident. Even as per the evidence available on record, the first claimant was earning Rs.5,000/- to Rs.10,000/- as compensation, but such a statement was made without producing any certificate or statement of the accounts of the firm or any other relevant material evidence. Under those circumstance, the court below erroneously taken the monthly income of the first claimant as Rs.5,000/- per month and arrived at Rs.60,000/- as yearly income. After deducting 1/3rd amount, taking the yearly contribution of the deceased at Rs.40,000/-, the Court below applied multiplier '15' and awarded a huge sum of Rs.6,00,000/- as loss of income and directed the said amount to be paid to the claimants 2 to 5, who are the legal heirs of the deceased first claimant, under the erroneous impression that the deceased died due to the accident. 4. The learned counsel for the claimants/respondents herein would contend that even though no Doctor was examined, Ex.P2, the discharge summary issued by Ganga Hospital and Ex.P10, wound certificate would indicate that the first claimant sustained serious injuries and he was hospitalised for five days. The deceased first claimant had also taken treatment for more than 1 ½ years and ultimately he died. The evidence of PW3 would indicate that the deceased had taken prolonged treatment for the injuries sustained by him and his death occurred due to the injuries sustained by him in the accident. Therefore, the learned counsel for the respondents would contend that the death of the claimant had resulted due to the injuries sustained by him in the accident and consequently, the award passed by the court below is fair and reasonable. As far as income is concerned, PW3 was examined by the claimants, who had deposed that the deceased was earning Rs.5,000/- to Rs.10,000/- per month. 5. Heard both sides. The short point for consideration in this appeal is whether the award of compensation granted by the court below is fair and reasonable. 6. According to the learned counsel for the appellant, the discharge summary issued by Ganga Hospital, which is a reputed hospital, under Ex.P2 would indicate that the claimant sustained injuries in the accident on 04.11.1999. The discharge summary also indicate that the claimant had sustained a fracture of the right knee joint. A x-ray was taken on the same day and a surgery was performed https://hcservices.ecourts.gov.in/hcservices/ and screws were fixed. On the date of discharge, the first claimant/deceased was only asked to come back after three weeks for a review. It is also evident from the records that he was regularly visiting the hospital between November 1999 and December 1999 and thereafter he attended the hospital only for periodical review on various dates from 06.01.2000 to 14.11.2000. On 27.03.2001, the first claimant died. Therefore, it cannot be stated that the first claimant died due to the injuries sustained by him in the accident that took place on 04.11.1999 in which he sustained a fracture in his left leg and it only restricted his movement. A surgery was performed on the first claimant on the date of accident namely 04.11.1999. As mentioned above, the first claimant was discharged within five days from the hospital. As mentioned above, for the injuries sustained in the road accident, the first claimant had taken some treatment, but it cannot be said that he died due to the injuries sustained in the accident. It is also to be mentioned that no Doctor was examined on the side of the claimants to prove that the first claimant died due to the injuries sustained in the accident. There is no iota of evidence to show that the death of the first claimant resulted by reason of the injuries sustained by him in the accident. Even though the injuries sustained by the first claimant is a grievous injury, it is a curable one, especially when a surgery was performed on the date of accident. Merely because the first claimant died four years after the accident, that cannot be in any way relatable to the injuries sustained in the accident and it will not enure to the claimants to get a huge sum as compensation. Therefore, it is clear that the death of the first claimant has not resulted due to the injuries sustained by him in the road accident. 7. If we analyse the difficulties faced by the first claimant, there is no evidence on record to show as to how the injuries sustained by the first claimant had deprived his earning capacity in the partnership business. In fact, the partnership firm commenced its business only on 03.11.1999 i.e., one month prior to the date of accident. The other partner was very much available who can run the business. As per the partnership deed, no monthly income was fixed and it only indicate that each of the partner can share the profit in the ratio of 50% each. The account books of the firm was not produced or the income tax return was produced to show the income of the firm. There is also no evidence on record to show that the injuries sustained by the first claimant had prevented him from attending to the partnership business. Even as per the evidence of PW1, the first claimant was earning Rs.5,000/- to Rs.10,000/- per month. Pws 3 and 4 also contend that they know that the first claimant was earning Rs.5,000/- to Rs.10,000/- per month. The only document produced was Ex.P7, receipt for payment of General Sales Tax for registration and the receipt was issued for Rs.200/- which only shows that the firm had registered itself with the sales tax department. Barring the evidence of Pws 2 and 3, who are neighbours, who have deposed that the deceased was earning Rs.5,000/- to Rs.10,000/-, there is no other evidence on record to show the income of the deceased. 8. Considering these facts, even if Rs.5,000/- is taken as monthly income of the deceased, the court below ought not to have adopted multiplier theory to grant the compensation amount and https://hcservices.ecourts.gov.in/hcservices/ resultantly, the amount of Rs.6,00,000/- granted by the court below towards loss of income is not only excessive, but exorbitant. The fact remains that the first claimant had sustained certain injuries in the accident, for which, he has to be compensated. However, for the purpose of determination of compensation amount, no wound certificate was produced. Since there is no evidence to measure the percentage of disability, taking into consideration the fracture injury sustained by the claimant for which he was also operated by the Doctors at Ganga Hospital, a consolidated amount of Rs.1,50,000/- can be fixed as compensation for 'permanent disability' to the first claimant, who died later. Consequently, the amount of Rs.6,00,000/- awarded by the Court below, by misconstruing that the first claimant died due the accident and by applying multiplier theory, is hereby set aisde. Resultantly, the amounts awarded towards loss of consortium to the wife of the first claimant at Rs.10,000/-; loss of love and affection at Rs.5,000/- to the fifth claimant; Funeral expenses at Rs.5,000/- are hereby set aside as not maintainable. 9. Considering this case as the one filed for compensation for the injuries sustained by the first claimant and considering that the first claimant sustained a fracture in his legs and got operated, he is entitled for compensation under the head pain and suffering and for transportation. A surgery was performed on the date of accident and the first claimant continued to take treatment at Ganga Hospital, Coimbatore for more than one year after the accident, for which the first claimant would have incurred expenses for transportation. Therefore, I am inclined to award a lump sum compensation of Rs.50,000/- towards pain and suffering and transportation. 10. For extra nourishment and attendant charges, the first claimant deserves some amount to be awarded. Considering the over all facts and circumstance of the case, I am inclined to award a sum of Rs.10,000/- each towards extra nourishment and transportation charges. 11. The Court below awarded a sum of Rs.25,000/- towards medical expenses, which is fair and reasonable and therefore it is hereby confirmed. 12. In the result, the appeal filed by the insurance company is partly allowed reducing the compensation of Rs.6,65,000/- awarded by the Court below to Rs.2,45,000/- with interest at the rate of 9% per annum as mentioned below:- Permanent disability : Rs.1,50,000.00 Pain and suffering & transportation: Rs. 50,000.00 Extra Nourishment : Rs. 10,000.00 Attendant Charges : Rs. 10,000.00 Medical expenses : Rs. 25,000.00 --------------------- Total Rs.2,45,000.00 --------------------- 13. In view of the reduction of the compensation amount, the insurance company is at liberty to withdraw the excess amount with accrued interest at the rate of 9% per annum and the claimants are https://hcservices.ecourts.gov.in/hcservices/ entitled to withdraw the compensation amount determined in this appeal, as apportioned by the court below. No costs. 14. Today, a memo was filed by the learned counsel for the respondents 1 to 3 stating that the fourth respondent in this appeal namely Karuppathal died on 11.02.2006 after passing the award by the court below. A death certificate was also enclosed with the memo. The said submission of the learned counsel for the respondents 1 to 3 is hereby recorded and the memo filed by counsel for the respondents 1 to 3 shall be treated as part and parcel of this appeal. The compensation amount payable to the deceased 4th respondent be paid to her legal heirs in equal proposition. (Herein attached Xerox copy of memo of compromise) Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar rsh To 1. The Motor Accident Claims Tribunal Additional District Court Fast Track Court-4, Bhavani 2. The Section Officer, VR Section, High Court, Madras 1 cc To Mr.Ma.P.Thangavel, Advocate, SR.1818 CMA No. 1444 of 2006 PUR (CO) RH (8.7.11) https://hcservices.ecourts.gov.in/hcservices/