IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3241 of 2004 United India Insurance Co., Ltd., Coimbatore-2 .. Appellant/3rd Respondent Vs 1.C.Pushkalambal .. Ist Respondent/Petitioner 2.V.K.Mani 3.R.Perumalsamy .. Respondents 2 & 3/ (R2 & R3 ex-parte in Lower Court) Ist & 2nd Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 05.04.2004, made in M.C.O.P.No.839 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur. For appellant : Mr.N.Vijayaraghavan For respondents : Mr.K.Sakthivel for R1 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/third respondent against the Award and Decree, dated 05.04.2004, made in M.C.O.P.No.839 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, awarding a compensation of Rs.5,31,260/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/third respondent has filed the above appeal praying to set aside the said award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 10.05.1999, at about 10.30 a.m. when the petitioner, Simmaraj, aged about 20 years, was travelling on his TVS motorcycle at Kangeyam road, Tiruppur, from east to west, keeping to the left side of the road, and when he was nearing State Bank of Trivancore, a https://hcservices.ecourts.gov.in/hcservices/ lorry bearing registration No.TN37 B7335, coming from behind and driven at a high speed and in a rash and negligent manner by its driver, dashed against the TVS motorcycle. As a result of this, the petitioner was thrown out and he sustained fracture in his right leg, injury in his left eye and injuries all over his body. Immediately, the petitioner was admitted in DSR Hospital, Tiruppur and was treated, as an inpatient, from 10.05.1999 to 13.05.1999. He was subsequently referred to Ganga Hospital as an inpatient from 13.05.1999 till date. 4.The petitioner was employed as a Supervisor in Nataraja Garments, Tiruppur and was earning a sum of Rs.3,500/- per month besides bonus and other benefits. As a result of fractures sustained by him he has pain and giddiness and his eye sight has also been impaired. Hence, he could not continue his employment and was thrown out of employment. He has sustained permanent disability due to head injuries sustained in the accident. 5.Hence, the first respondent, the driver of the said lorry, the second respondent its owner and third respondent, the insurer of the lorry are liable to pay compensation to him. The petitioner has claimed a compensation to him. The petitioner has claimed a compensation of Rs.5,00,000/- together with interest at the rate of 12% per annum from the date of filing the petition till the date of payment of compensation, with costs, from all the three respondents, under Section 166 of the Motor Vehicles Act, 1988. 6.The third respondent, in his counter, has resisted the claim stating that he had not received any claim petition from the second respondent regarding the said accident. The third respondent has also denied the averments in the claim regarding the manner of accident. It has been stated that the accident had been caused only by the negligence of the petitioner and not due to any negligence on the part of the first respondent. The third respondent has also denied the averments in the claim regarding the age, income, occupation, nature of injuries, disability and loss of earning capacity sustained by the petitioner. It has also been submitted that the claim is excessive and hence it has to be dismissed. 7.The first and second respondents remained absent and did not file any counter to the claim. 8.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident? Should compensation be paid to the petitioner? If so, who is to be held liable to pay the compensation? (ii) What is the quantum of compensation to be paid to the petitioner? https://hcservices.ecourts.gov.in/hcservices/ 9.The Tribunal, on considering the petition in I.A.No.200 of 2003 filed by the third respondent seeking permission to contest the case on behalf of the owner of the lorry bearing registration No.TN37 B7335 under Section 170 of the Motor Vehicles Act, allowed the petition on 01.04.2003. As such, the Tribunal rejected the contention of the third respondent that the said lorry had not been insured with them at the time of the accident, as it was found legally unsustainable. 10.On the petitioner's side, two witnesses were examined as PW1 and PW2 and nine documents were marked as Exs.P1 to P9. On the respondents' side no witness was examined and no documents were marked. 11.The petitioner, Simmaraja, had died on 03.04.2002 during the period when the petition was pending before the Tribunal. To establish his death Ex.P2, Death Certificate was marked. As such, the second petitioner, the mother of the (deceased) petitioner had filed an Interlocutory Application before the Court in I.A.No.203 of 2003 and the Tribunal admitted the application and added the second petitioner as a necessary party in the instant case. The second petitioner has marked Ex.P3, the Legal Heir Certificate to establish that she is the legal heir of the (deceased) Simmaraja. Even during cross-examination as genuinely regarding documentary exhibit marked as P3 has not been faulted with, the Tribunal held that the second petitioner is the legal heir and as a necessary party in the instant case. 12.The Tribunal, on considering the counter filed by the third respondent, wherein it was submitted that the accident happened only due to the negligence of the (deceased) Simmaraja were of the opinion that the third respondent has admitted the said accident as well as the involvement of the second respondent's vehicle in the accident. 13.The second petitioner was examined as PW1. The PW1 has adduced evidence that on 10.05.1999, at 10.30 a.m. her son, Simmaraja had deposited a Cheque favouring his employer for collection in the State Bank of Trivancore situated at Kangeyam road and that while he was returning to his company on his TVS50 motorcycle bearing registration No.TN41 Z2293, from east to west on the Kangeyam road, the second respondent's lorry bearing registration No.TN37 B7335, coming behind the said TVS50 motorcycle and driven by its driver at a high speed and in a rash and negligent manner had dashed behind the TVS50 motorcycle; that her son sustained grievious injuries; that the accident had been caused only by the fault of the first respondent ie.driver of the said lorry. In support of her evidence, she has marked the copy of the FIR as Ex.P1 and the Wound Certificate as Ex.P5. On scrutiny of the Ex.P5, it is seen that the (deceased) Simmaraja had sustained fractures of his femur and Tibia bones in his right leg in the accident. The PW1 has admitted during the cross- examination that she had not witnesses the accident. https://hcservices.ecourts.gov.in/hcservices/ 14.The eye witness of the accident, one Natarajan was examined as PW2. The PW2 has adduced that he was travelling in a two wheeler and was coming behind the TVS50 ridden by the (deceased) Simmaraja and that the second respondent's lorry bearing registration No.TN37 B7335, coming from behind the said TVS50 motorcycle and driven by its driver at a high speed and in a rash and negligent manner had tried to overtake the said TVS50 motorcycle and while doing so had dashed the lorry against the said TVS50 motorcycle and caused the accident. Even during cross-examination of PW2, no contra evidence was established to prove that PW2 had not witnessed the accident. The PW2 had further stated that he was a partner at Tiruppur Nataraja Garments and that the (deceased) Simmaraja was working as a Supervisor in the said Nataraja Garments. The PW2 had deposed in his evidence that at the time of accident, he had seen the (deceased) Simmaraja travelling at a distance of 50 Feet ahead of him and that the lorry had overtook him and then dashed against the (deceased) Simmaraja. The Tribunal found no reason to reject the evidence of the PW2 as it had the natural ring of truth and was found legally sound. 15.On an examination of Ex.P1, it is seen that the driver of the second respondent' lorry bearing registration No.TN37 B7335 was responsible for the accident. The first respondent had not given any evidence before the Tribunal to discredit this claim on the petitioner's side. Further, the respondents had not examined any witness to establish that the first respondent is not responsible for the accident. As such, the Tribunal held that the accident had been caused only due to the fault of the first respondent. The Tribunal held that as the first respondent had not given evidence, he is to be held guilty as per Section 114(G) of the Indian Evidence Act. The Tribunal, on coming to this conclusion, had relied on case laws cited in 2002 ACJ Page 157, Para 5; 1900 ACJ, Page 45 and 1972 ACJ, Page 380. Accordingly, the Tribunal held that the accident had been caused wholly by the fault of the first respondent. 16.The Tribunal, relying on the Judgments of case laws cited in 2003 ACJ Page 691 and 2003 ACJ Page 687 were of the opinion that it was the responsibility of the third respondent to prove whether or not the driver of the lorry had a valid driving licence to drive the lorry at the time of accident. As this had not been done they rejected the contention of the third respondent that the first respondent did not have a valid driving licence at the time of accident. 17.The second petitioner, PW1 is the mother of the (deceased) first petitioner, Simmaraja. She has not stated that the (deceased) Simmaraja had died due to injuries caused in the said accident, in the Interlocutory Application filed by her in I.A.No.1210 of 2003. Further, even in her sworn affidavit filed as I.A.203 of 2003, it has not been stated that the deceased Simmaraja had died due to the injuries caused in the said accident. Even, in her revision petition https://hcservices.ecourts.gov.in/hcservices/ filed as I.A.No.331 of 2003, it has not been stated so. The third respondent, in his additional counter had stated that as the accident had occurred on 10.05.1999, whereas the the said Simmaraja had died only on 03.04.2002, the death of the Simmaraja and the accident were two independent happenings and that they were not related to one another. No contra evidence has been let in by the respondents to prove the death of Simmaraja had not been due to the injuries caused in the said accident. The PW1, in her evidence had clearly stated that her son Simmaraja had died due to the injuries sustained in the said accident. On scrutiny of the Ex.P6, the Disability Certificate issued by the Medical Board of the Office of Assistant Director of Health Services, the Pudukotai, it is seen that the disability sustained by the deceased Simmaraja had been shown as 85%. The PW2, the eye witness of the accident during his cross-examination deposed as follows: "The left tyre of the lorry had dashed against the Simmaraja and had crushed the right leg bones" The PW1, in his evidence has stated that as she did not have enough money to provide medical treatment for his son and that puss was formed at the injured area of his fractured bone and he had experienced great difficulty in walking and sitting and that he had died at his house on 03.04.2002. 18.As such, the Tribunal on considering evidence of the PW1 and PW2 as well as the Disability Certificate marked as P6, wherein the medical board had certified that the deceased had sustained 85% permanent disability in the accident, were of the opinion that the deceased would have died due to the injuries and permanent disability sustained by the deceased in the said accident. 19.It has been argued on the part of the respondents side that as no mention has been made in the claim stating that the deceased had died only due to injuries sustained by him in the accident, the oral evidence of the PW1 should not be taken as the basis for concluding that the deceased had died only due to the injuries sustained in the accident. The Tribunal scrutinised the Judgment made in case laws 2004 ACJ Page 471; 1999 ACJ Page 708 Para 5 & 6; 1993 ACJ Page 165 and 1982 ACJ Supplement Page 585 wherein it had been held that even if details had been given in the claim petition regarding the accident, the oral evidence given by the petitioner must be considered. 20.Accordingly, the Tribunal, on considering that the above citations were relevant to the instant case, were of the view that even if no claim has been made in writing to state that the deceased had died only due to the injuries caused in the said accident, oral evidence of the mother of the accident, wherein she had stated that her son had died of puss formation in his injured leg and considering that she had taken care of the deceased after the injury sustained by him, held that the evidence of the PW1 is genuine and accordingly held that the deceased had died only due to the injuries caused in the accident. The partner of Natraj Garments, wherein the deceased https://hcservices.ecourts.gov.in/hcservices/ Simmaraj was employed prior to his death, was examined as PW2. The PW2, Natarajan, in his evidence deposed that the deceased Simmaraj was paid a salary of Rs.3,500/- per month. Even during cross- examination of the PW2, the respondents did not raise any questions as to whether or not the first petitioner was employed under PW2 and hence the Tribunal held that the deceased Simmaraja had been employed under the PW2 and was earning a monthly salary of Rs.3,500/- per month. The Tribunal placed reliance on the legal ruling cited in case law cited in 1992 TNLJ Page 1195 to arrive at the above conclusion. 21.The Tribunal on considering the evidence of the PW1, wherein she had stated that her son Simmaraja was aged about 20 years at the time of accident and also considering the Wound Certificate, wherein it has been shown that the age of the deceased at the time of accident was 20 years. On scrutiny of the Ex.P3, the Legal Heir Certificate, it is seen that the second petitioner is the legal heir of the deceased Simmaraja. As this evidence was not refuted by the respondents side, the Tribunal held that the second petitioner is the legal heir of the deceased Simmaraja. The Tribunal on scrutiny of the Ex.P8, the Salary Certificate, it is seen that PW2 had been paying a monthly salary of Rs.3,500/- to the deceased Simmaraja. The Tribunal, relying on case laws cited in 1992 TNLJ Page 117 and AIR 1989, SC, Page 1074 held that the evidence given by the PW2 need not bee rejected. Further, the Tribunal considered the legal ruling made in the Madras High Court, dated 07.06.2001, in C.M.A.No.844 of 1966, K.Subramanian and Another Vs. Bhuvaneswari and Others, to arrive at a decision on the income earned by the (deceased) Simmaraja. In the said case, it has been ruled that "......Though account books relating to payment of salary have not been produced, the oral evidence of PW1 and salary certificate Ex.P8 shows that the deceased was getting Rs.3,000/- per month......" Hence, the Tribunal, on consideration of the legal ruling cited above,held that the first petitioner was employed under pW2 and was earning salary of Rs.3,500/- per month. 22.The Tribunal, on considering that the age of the second petitioner was 42 years at the time of accident, adopted a multiplier of 15 and assessed the loss of income of the second petitioner as Rs.3,500/- X 12 X 15 X 2/3 = Rs.4,20,000/- and accordingly awarded this amount as compensation under the head of loss of income. The Tribunal awarded a sum of Rs.10,000/- as compensation under the head of loss of love and affection and also awarded a sum of Rs.2,000/- for funeral expenses. The Tribunal, on scrutiny of the Ex.P7, the medical bills awarded a sum of Rs.99,260/- as compensation the second petitioner under the head of medical expenses. 23.In total, the Tribunal awarded a compensation of Rs.5,31,260/- as compensation to the second petitioner and directed the respondents to jointly and severally deposit the above said award https://hcservices.ecourts.gov.in/hcservices/ together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.839 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, within a period of one month from the date of its order. Further, after such deposit was made into Court, the award amount should be invested in a nationalised bank, as fixed deposit, for a period of three years and the second petitioner was permitted to withdraw the interest on such deposit, once in six months, directly from the bank. The second petitioner was directed to pay the Court fee due on the award amount within a period of one month from the date of its Order. The Advocate fees was fixed at Rs.12,313/- and the respondents were directed to pay the cost of Rs.17,007/- to the second petitioner. 24.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal had erred in holding that the deceased died due to injuries sustained in the accident. It has been contended that the Tribunal failed to appreciate that the death occurred nearly three years after the accident and that there was no proof even to show that the deceased was under constant treatment thereafter. It has also been contended that the Tribunal erred in considering monthly income of the deceased as Rs.3,000/- per month, when the employer has not produced any records to show such payment. It has also been pointed out that the multiplier adopted by the Tribunal is excessive since the age of the mother alone is relevant to decide on the multiplier. As such, it has been contended that the award passed by the Tribunal is excessive and erroneous. In support of his contentions, the learned counsel appearing for the appellant has cited a Judgment made in 2004 ACJ 53, SC, Municipal Corporation of Greater Bombay V. Laxman Iyer & another, the relevant head notes of which are as follows: "Negligence – Contributory negligence – Corporation bus dashed against a cyclist resulting in his death – Defence that deceased had suddenly come from left side of the bus at high speed, took right turn in contravention of traffic regulations, driver of bus saw the cyclist coming on the wrong side, applied brakes and halted the bus, cyclist dashed against right corner of the bus and fell down – Driver admitted that he had seen the deceased at a distance of 30 ft. but failed to avoid the accident and the boy was thrown to a distance of 4.5 ft. - Tribunal and high Court held that bus driver was rash and negligent – Apex Court set aside the finding and held that accident was the result of negligence of both the driver and the deceased who came from the wrong side and apportioned the blameworthiness in the ratio of 75:25 respectively. Quantum – Fatal accident – Deceased aged 18, https://hcservices.ecourts.gov.in/hcservices/ student belonging to a respectable and educated family – Claimants: father aged 47 and mother aged 43 – Tribunal assessed income at Rs.3,000 p.m., adopted multiplier of 15 and assessed compensation of Rs.5,60,000 including loss of expectation of life, made deduction of 25 per cent for lump sum payment and awarded Rs.4,01,250 – Award upheld by high Court – Apex Court adopted multiplier of 10, assessed compensation of Rs.3,60,000, made deduction of 25 per cent for contributory negligence of the deceased and allowed Rs.3,00,000 inclusive of loss of expectation of life – Award of Rs.4,01,250 reduced to Rs.3,00,000." 25.The learned counsel appearing for the first respondent argued that at the time of accident, the age of the deceased was 20 years and he was earning a sum of Rs.3,500/- per month. The first respondent, the mother of the (deceased) Simmaraja, was depending upon the income of the deceased. The learned counsel further argued that the medical expenses spent for the treatment of deceased was Rs.1,00,000/-. As such, it has been argued that the quantum of compensation awarded is on the lower side. The Tribunal's award of Rs.2,000/- under the head of funeral expenses is also on the lower side. The Tribunal had also failed to consider the transport expenses. In any event, the award amount should not be disturbed. 26.Considering the facts and circumstances of the case, this Court is of the view that the deceased's income was Rs.3,500/- per month and his yearly income was Rs.42,000/-. Deducting 1/3rd share from this, the contribution to his family comes to Rs.28,000/-. The Tribunal had adopted a multiplier of 15 to assess compensation. But, this Court on considering the age of the second petitioner as 42 years decides to adopt a multiplier of 13 to assess compensation. Accordingly, this Court awards a compensation of Rs.28,000/- X 13 = Rs.3,64,000/- to the second petitioner under the head of loss of income; For funeral expenses, this Court awards a sum of Rs.5,000/-; this Court confirms the award of Rs.99,000/- passed by the Tribunal under the head of medical expenses and For love and affection, this Court awards a sum of Rs.20,000/-. In total, this Court awards a compensation of Rs.4,88,000/- to the second petitioner together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, as it is found to be fair and equitable. 27.This Court imposed a condition on the appellant on 20.11.2004 to deposit the entire compensation amount including interest and costs, into the credit of the M.C.O.P.No.839 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur. Further, this Court permitted the first respondent/claimant on 16.03.2005 to withdraw 50% of the award amount together with entire accrued interest and costs. https://hcservices.ecourts.gov.in/hcservices/ 28.Now, this Court permits the first respondent/claimant to withdraw the balance compensation amount, as per this Court order, with proportionate interest, lying in the credit of the M.C.O.P.No.839 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals if any, made as per this Court order dated 16.03.2005. 29.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 05.04.2004, in M.C.O.P.No.839 of 1999, passed by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, is modified. There shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. krk To 1. Motor Vehicles Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur. Copy to The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.M.B.Gopalan, Advocate Sr 19566 + 1 cc to Mr.K.Sakthivel, Advocate Sr 19217 Order in C.M.A.No.3241 of 2004 KU (CO) RH (5.4.10) https://hcservices.ecourts.gov.in/hcservices/