IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 06.01.2009 Coram: The Honourable Mr.Justice V.PERIYA KARUPPIAH C.M.A.(NPD)Nos.3186 and 3187 of 2003 THE NEW INDIA ASSURANCE COMPANY LIMITED, Kamarajar Street, Chennai-600 001. .. Appellant in both C.M.As./ Second Respondent vs. 1. Iyyappan 2. Samundeswarai 3. Rajeswari 4. Ponnamani 5. Dhanraj 6. M/s.Nagambiga Bell Carriers represented by its Proprietor A.Nagpal residing at No.J-26, RH-2, Sector No.6, Vashi, New Bombay. 7. The Managing Director, J.J.T.C., Kamarajar Sali, Chennai-5. .. Respondents in C.M.A.No.3186/2003 Petitioners 1 to 5, 1st and 3rd Respondents 1. Iyyappan 2. Samundeswari 3. Rajeswari 4. Ellammal @ Nagammal 5. M/s.Nagambika Bell Carriers represented by its Proprietor A.Nagpal 6. The Managing Director, J.J.T. Corporation, Kamarajar Salai, Chennai-5. .. Respondents in CMA.No.3187/2003 Petitioners 1 to 4 and Respondents 1 & 3 Civil Miscellaneous Appeals filed against the common Judgment and decree, dated 16.07.2003 made in M.C.O.P.No.236 of 1999 and 237 of 1999 on the file of the Motor Accidents Claims Tribunal, Subordinate Judge at Kancheepuram. https://hcservices.ecourts.gov.in/hcservices/ For appellant : Mr.C.Ramesh Babu For Respondents : No appearance C O M M O N J U D G M E N T These appeals are directed against the common award passed by the lower court in M.C.O.P.NoS.236 of 1999 and 237 of 1999, dated 16.07.2003 by the Second Respondent, the Insurance Company. 2. The brief facts submitted by both parties before the lower court in M.C.O.P.Nos.236 and 237 of 1999 are as follows:- (i) According to the claimant/appellant, on 12.03.1995 at 11.30 a.m. at GW Road between Greenland and New Star Hotels, while the deceased was proceeding as a bonafide passenger from Madras to Vellore in JJTC Bus Registration No.TN-07-N-9130 and at that time, the lorry bearing Registration No.MH-04-P-2555 belonging to the 1st respondent, being driven by its driver in a rash and negligent manner in an uncontrollable speed, which was coming from Bangalore to Madras, hit and dashed against the JJTC Bus bearing Registration No.TN-07-N-9130 and thus caused death of several persons including the drivers of both the vehicles due to the impact of fire and due to the burnt of the Tanker Lorry. (ii)According to the 2nd respondent Insurance Company, the tractor tailor was insured with them and it was authorised to be used for agricultural purpose and not as a public service vehicle or public carrier. At the time of the accident, the vehicle was engaged as a public service vehicle to carry people for celebrating the betrothal of one Miss Komala and since the victims were not travelling in the tractor for any purpose contemplated under Section 147 of the Motor Vehicle Act and the vehicle was used contrary to permit and policy conditions, this respondent is not liable to pay any compensation under law. Further, it is stated that the rash and negligent driving on the part of the driver of the bus alone was responsible for the occurrence and the driver of the tractor trailor was also guilty of the negligence for not having observed the rules of the road. Therefore, the Managing Director of P.T.Dr.J.J.T.C. Bus and the owner of the tractor trailor alone are liable to pay the compensation. 3. The lower court after going through the common evidence adduced in both the claim petitions, had passed awards in favour of the claimants, fixing the liability on the second respondent appellant and the third respondent transport corporation equally. Aggrieved upon the apportionment of liability and the quantum of compensation, the 2nd respondent before the lower court had preferred these appeals. https://hcservices.ecourts.gov.in/hcservices/ 4. Heard the learned counsel for the appellant. There is no appearance for the respondents. 5. Learned counsel for the appellant would submit in his argument that the lower court, without appraising the evidence properly, had fixed the liability of negligence against the driver of the 1st respondent equally, whereas the driver of the third respondent was the basic cause for the commission of the accident. He would further submit that the quantum of compensation fixed for the deceased person in M.C.O.P.No.236/1999, who was the woman and mother of the claimants 1 to 3 was repeated by awarding another sum of Rs.15,000/- per each claimant 1 to 3 and the award of compensation in favour of the claimants 4 and 5, who are the parents of the deceased woman is not correct in the eye of law and the income of the deceased fixed and the multiplier arrived at for assessing the compensation are on higher side and therefore, the award passed in M.C.O.P.No.236 of 1999 should have been modified. 6. He would also submit that the quantum of compensation for the deceased person, who is the father of the claimants 1 to 3 and son of claimant No.4 was also assessed on higher side. He would further submit that the claimants 1 to 3 were given Rs.50,000/- apart from awarding a compensation for the loss of life of the deceased father, which is not sustainable in law. He would further submit that the multiplier fixed and the compensation calculated for the loss of love of the deceased person were on the higher side and suitable compensation may be fixed and the award passed by the lower court may be modified accordingly. 7. There is no appearance for the respondents. 8. I have given anxious consideration to the arguments made by the learned counsel for the appellant/Insurance Company. I have also gone through the evidence placed before the lower court and the contentions raised by the respondents before the lower court. 9. The deceased persons were husband and wife and they were travelling in the third respondent's bus at the time of the accident. The claimants 1 to 3 are their children. The claimant No.4 in M.C.O.P.No.237/1999 was the mother of the deceased woman in the accident. The claimants 4 and 5 in M.C.O.P.No.236/1999 were the parents of the deceased man. The accident had happened, while they were travelling in the bus had collided with the lorry belonging to the first respondent, insured with the appellant/2nd respondent herein. The lower court had come to a conclusion that in the same accident, there were so many injured and deceased persons and the claim petitions filed on those instances were decided by the Tribunal against the driver of the bus i.e. the 3rd respondent and the driver of the lorry equally. The said decision of the Tribunal was https://hcservices.ecourts.gov.in/hcservices/ considered by this Court and it was upheld and the findings of the Tribunal was affirmed in its order Ex.R.1. Therefore, this Court had upheld the decision reached by the Tribunal in the claim petitions in which the insured and the legal representatives of the deceased had applied for compensation arising out of the same accident. The decision of the lower court in this case was affirmed on the said judgment of this Court in Ex.R.1 and therefore, the apportionment of liability on the 2nd and 3rd respondents equally is perfectly all right. 10. As regards the compensation awarded to the deceased woman, the mother of the claimants 1 to 3 is concerned, she died in the accident at her age of 45. Based on her date of birth, the lower court had fixed her income at Rs.15,000/- per year. On that basis, it had calculated the compensation for the loss of her life at Rs.1,50,000/-. Thereafter, it had awarded Rs.20,000/- to claimants 1 to 3 each towards loss of love and affection. Apart from that, a sum of Rs.50,000/- was awarded to each of the claimants 1 to 3 towards the loss of dependants. The lower court had calculated the loss with the use of the multiplier which is considered to be the best method as per the dictum of our Apex Court. 11. While calculating the loss of income through such multiplier method, it is not legal to award further compensation towards the loss of dependance in favour of the claimants 1 to 3. Therefore, such award of compensation to an extent of Rs.1,50,000/- is not sustainable. However, it is to be borne in mind that if the claimants are entitled to the quantum of total compensation arrived at by the lower court, otherwise than this method, the same could be awarded to the claimants. Therefore, it has to be considered whether the income fixed by the lower court, notionally at Rs.15,000/- per year, is sustainable. 12. According to the judgment of our Apex Court reported in (2001) 8 SCC 197 Lata Wadhwa and others Vs. State of Bihar and others, it has been categorically found that a house wife who met with an accident and had lost her life in between the age of 34 to 59, her annual income should not be fixed mechanically at Rs.15,000/- per annum and her annual income towards domestic service and other service to the children could be assessed at Rs.36,000/- per annum. The relevant passage would read as follows: "10. So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs 12,000 per annum in cases of some and Rs 10,000 https://hcservices.ecourts.gov.in/hcservices/ for others, appears to us to be grossly low. It is true that the claimants, who ought to have given data for determination of compensation, did not assist in any manner by providing the data for estimating the value of services rendered by such housewives. But even in the absence of such data and taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs 3000 per month and Rs 36,000 per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore, should be recalculated, taking the value of services rendered per annum to be Rs 36,000 and thereafter, applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs 50,000 instead of Rs 25,000 given under the Report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs 10,000 per annum and the multiplier applied is eight. Though, the multiplier applied is correct, but the values of services rendered at Rs 10,000 per annum, cannot be held to be just and, we, therefore, enhance the same to Rs 20,000 per annum. In their case, therefore, the total amount of compensation should be redetermined, taking the value of services rendered at Rs 20,000 per annum and then after applying the multiplier, as already applied and thereafter, adding Rs 50,000 towards the conventional figure." 13. The aforesaid dictum would make me clear that the income of the deceased woman, in between the age of 34 and 59 should be fixed with the annual income of Rs.36,000/- towards her loss of life. The lower court ought to have followed this decision of law and should have calculated the compensation. When it is calculated with relevant multiplier 15, it comes to Rs.5,40,000/-. The loss of love and affection as fixed by the lower court should have been awarded to Rs.20,000/- per claimants 1 to 3 each. Apart from that, a sum of Rs.2,000/- has to be awarded for funeral expenditure. All those would go to show that the total compensation should have been at Rs.6,02,000/-. But the lower court had awarded a sum of Rs.3,60,000/- only in favour of the claimants 1 to 3. Therefore, the said compensation passed by the lower court to be paid by the respondents 2 and 3 is not liable to be revised. Accordingly, the said appeal in CMA (NPD) No.3186/2003 filed by the second respondent against the award passed in MCOP.No.236/1999 is liable to be dismissed. 14. So far as the quantum arrived at in M.C.O.P.No.237/1999 is https://hcservices.ecourts.gov.in/hcservices/ concerned, the deceased person was the father of the claimants 1 to 3 and son of the claimant no.4, whose age was fixed at 50 as per Ex.P.5. He was a retired Army Man and was receiving a sum of Rs.2151/- as salary in the present post in the Standard Motor Company and was also receiving pensionary benefits from the military. Totally, he was earning a sum of Rs.4,500/- per month. The lower court had deducted 1/3rd from the said income and arrived at Rs.36,000/- per year towards the annual dependancy of the claimants. It had also fixed the multiplier at 13 as per Schedule II of the Motor Vehicles Act and had arrived at Rs.4,68,000/- for the loss of love of the deceased father towards each of the claimant 1 to 3. Similarly, the claimants 1 to 3 were awarded a sum of Rs.20,000/- each towards loss of love and affection for their father. Apart from that, the lower court had calculated a sum of Rs.50,000/- to each of the claimants 1 to 3 for the loss of dependency. In the earlier paragraph, it has been discussed that awarding of compensation at Rs.50,000/- to claimants 1 to 3 regarding loss of dependancy even though they were given compensation for the loss of life of their father, could not be maintained. Similarly, this award of Rs.50,000/- per each of the claimant towards loss of dependency is not sustainable. However, the lower court had awarded Rs.2,000/- towards funeral expenditure. The lower court did not award any compensation towards loss of love and affection for the claimant No.4, who was the mother of the deceased person. Therefore it is justifiable to award a sum of Rs.10,000/- to the old mother, who lost her son. The lower court also should have awarded compensation for loss of estate to all the claimants and on that basis, each of the claimant is entitled to Rs.2,500/- towards the said category. The fixation of multiplier and the income by the lower court for calculating the compensation for the loss of love of the deceased father are justifiable except the award of compensation for dependancy. Therefore, the total compensation to be awarded to the claimants 1 to 4 shall be calculated as follows: Sl.No. Head on which the amount is awarded Amount 1. Loss of income Rs. 4,68,000/- 2. Loss of Love and affection Rs. 70,000/- 3. Loss of Estate Rs. 10,000/- 4. Funeral Expenses Rs. 2,000/- Total Rs. 5,50,000/- 15. Out of the said amount, the claimants 1 to 4 are equally entitled to a sum of Rs.4,80,000/-. Apart from that, the claimants 1 to 3 each are entitled to Rs.20,000/- each and claimant No.4 is entitled to Rs.10,000/- towards loss of love and affection. For the https://hcservices.ecourts.gov.in/hcservices/ foregoing reason, the lower court ought to have awarded a sum of Rs.5,50,000/-, whereas it had awarded a sum of Rs.6,80,000/- which is found excessive. Therefore, the appeal is partly allowed and the award passed by the lower court is reduced from Rs.6,80,000/- to Rs.5,50,000/- to be paid by the respondents 2 and 3 equally with proportionate costs and subsequent interest. 16. With the aforesaid modifications, the appeal in CMA (NPD) No.3187 of 2003 is allowed in part. There is no order as to cost in the appeal. 17. In fine, the appeal in CMA (NPD) No.3186/2003 is dismissed confirming the award passed by the lower court in MCOP.No.236/1999. No costs in this appeal. 18. In fine, the appeal CMA (NPD) 3187 of 2008 is allowed in part and the award passed by the lower court in MCOP.No.237/1999 is reduced from Rs.6,80,000/- to Rs.5,50,000/- with subsequent interest as ordered by lower court and proportionate costs. No costs in this appeal. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsi To The Subordinate Judge, Motor Accidents Claims Tribunal, Kanchipuram. 2 ccs To Mr.C.Ramesh Babu, Advocate, SR.242 & 243 C.M.A.(NPD)Nos.3186 & 3187/ 2003 SSR(CO) SRA(18/02/2009) https://hcservices.ecourts.gov.in/hcservices/