IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.12.2008 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.Nos.1590 and 1591 of 2007 and M.P.NO.1 + 1 of 2007 The Manager, United India Insurance Company ltd., Motor Third Party Cell, No.38,Anna Salai, Chennai 2.. ... Appellant in both CMAs/2nd respondent in both MCOPs vs. 1.Mariamma 2.Minor Manikandan 3.Minor Manjunatha 4.Rajagopal 5.Devandira ..1 to 5 Respondent in CMA 1590/2007/ Petitioenr in MCOP 284/2004 (respondents 2 and 3 minors are represented by their mother & Guardian the first respondent) 6.E.Baskar ..6th Respondent in CMA No.1590/2007/ .. 1st Respondents -do- 1.Sekar ..1st Respondent in CMA 1591/07/ Petitioner in MCOP No.285/2007 2. E.Baskar ..Respondents in CMA.NO1591/07/ 1st Respondent in MCOP.No.285/07 Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 12.4.2005 made in O.P.NO.284 & 285 2004 on the file of the Motor Accident Claims Tribunal (Sub Court) Tiruvallur. For appellant in both appeals : Mr.D.Baskaran For Respondents in both appeals : Mr.R.Neelakandan ----- https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The Insurance Company has challenged the two awards passed in M.C.O.P.NO.284 & 285 2004 on the file of the Motor Accident Claims Tribunal (Sub Court) Tiruvallur. 2. Since both the appeals arise out of a common award in one and the same accident, the appeals are disposed of together. 3. On 5.11.2003 one Muthu, the deceased and one sekar, an injured in this case were travelling in a cycle from Karini to Thamaraipakkam, a Car bearing Registration No.TN-20 3079 driven by its driver in a rash and negligent manner hit the cycle and in that accident, Muthu suffered grievous injuries and died and Sekar suffered injuries and was treated at Government Hospital, Tiruvallur. Claim for compensation was filed by the respective parties and decided by the Tribunal and aggrieved thereby the appeals by the Insurance Company. 4. CMA.No.1590 of 2007 in MCOP.No.284 of 2004: In this case, on the death of Muthu , the wife aged about 26 years, two minor daughters aged 8 and 5 years, father and mother aged 55 and 53 years respectively filed a claim for a sum of Rs.6 lakhs as compensation stating that the deceased was a mason and his income was Rs.4,500/- per month. 5. In support of the claim, the wife of the deceased was examined as P.W.1 and the injured claimant in the other case Sekar was examined as PW2. Doctor was examined as PW3. EXs.A1 to A7 were marked. Ex.A1 is the First Information Report, Ex.A2 is the copy of the Charge sheet , Ex.A3 is the Post-mortem certificate of the said Muthu. Ex.A.4 is the medical discharge summary of Sekar. EX.A5 is the O.P. chit obtained from Puthur Orthopaedic Hospital for Sekar Ex.A.6 is the disability certificate of Sekar and Ex.A.7 is the legal heir certificate of Muthu. No oral or documentary evidence was let in on behalf of the appellant/2nd respondent before the Tribunal. 6. The Tribunal fixed the income of the deceased Muthu, a mason at Rs.3,000/- p.m. and after deducting 1/3 towards personal expenses, the annual Contribution was taken as Rs.24,000/-. By adopting 18 Multiplier the total pecuniary loss was fixed at Rs.4,32,000/-. In all, the Tribunal granted the following amount: https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Head Amount granted by the Tribunal 1 Loss of Income (3000 x 12 x18-1/3rd) Rs.4,32,000/- 2 Loss of Consortium Rs. 25,000/- 3 Loss of Estate Rs. 20,000/- 4 Mental Agony Rs. 20,000/- 5 Funeral Expenses Rs. 5,000/- 6 Loss of Love and Affection Rs. 20,000/- Total Rs.5,22,000/- The Tribunal awarded compensation at Rs.5,22,000/- with 9% interest. 7. CMA.No.1591 of 2007 in MCOP.No. 285/04: This is a case of injury suffered by Sekar. Based on the oral and documentary evidence as above and further placing reliance on the evidence of doctor and the disability assessed at 35% as per Ex.P.6 the Tribunal granted the following amount as compensation. Sl. No. Head Amount granted by the Tribunal 1 Disability Rs., 35,000/- 2 Loss of earning capacity Rs. 25,000/- 3 Pain and suffering Rs. 10,000/- 4 Transport expenses Rs. 1,500/- 5 Extra Nourishment Rs. 2,500/- 6 Damages to Cycle Rs. 1,000/- Total Rs. 75,000/- The Tribunal granted compensation in a sum of Rs.75,000/- with 9% interest . 8. In appeal in CMA.No.1590 of 2007, the contention of the appellant counsel is that the Multiplier 18 taken in the case of death of 30 years old Mason is on the higher side. The Tribunal granted excessive amount towards loss of estate. The Tribunal is not justified in granting compensation for mental agony when suitable compensation had been granted for loss of consortium to wife and loss of love and affection to the other claimants. He also stated that interest at 9% is high. 9. Learned counsel for the respondents on the other hand pleaded that the income of the deceased, a mason fixed at Rs.3,000/- is very https://hcservices.ecourts.gov.in/hcservices/ low. Considering the period of accident which is in the year 2003, the income should be little higher. If the income is increased and Multiplier is reduced, the total pecuniary loss will be much more than the amount awarded by the Tribunal. However, he fairly stated that the compensation granted for mental agony is not justified and conceded that the said amount can be set aside. He further prayed that no amount has been granted for loss of love and affection to the parents. 10. In the case of fatal accident, the deceased is a mason aged 30 years. He was supporting the family consisting of wife, two minor children and parents. As far as income of the deceased mason who died in the road accident on 5.11.2003, based on the Division Bench Judgment in B.Anandhi Vs.R.Latha & another reported in 2002 ACJ 233 , the income of the deceased in the present case should be taken atleast at Rs.3,500/- per month and if that be the case, the contribution to the family of the deceased would be Rs.3,500/- x 12 = Rs.42,000 -14,000 = Rs.28,000/-per annum.Even if the Multiplier 16 is taken, the compensation of pecuniary loss would be Rs.4,48,000/- more than what is awarded by the Tribunal. Therefore, this Court is not inclined to interfere with that amount. The amount of compensation granted towards loss of mental agony is set aside as suitable compensation is granted on the other heads. The amount towards loss of estate which is in excess of a sum of Rs.2,500/- is set aside . The sum of Rs.25,000/- granted towards loss of consortium and Rs.20,000/- towards loss of love and affection to children are confirmed. The mother will be entitled to some compensation for loss of love and affection for the death of her son. In view of the above, the award stands modified as follows: https://hcservices.ecourts.gov.in/hcservices/ Sl.N o. Head Amount awarded by the Tribunal Amount granted by this Court 1 Loss of pecuniary benefits Rs.4,32,000/- Rs.4,32,000/- 2 Loss of consortium Rs. 25,000/- Rs. 25,000/- 3 Loss of estate Rs. 20,000/- Rs. 2,500/- 4 Loss of love and affection to the two children (Rs.10,000/- each) Rs. 20,000/- Rs. 20,000/- 5 Loss of love and affection to mother ---- Rs. 15,000/- 6 Loss of mental agony Rs.20,000/- --- 6 Lossof happiness Rs.20,000/- 7 Funeral Expenses Rs. 5,000/- Rs. 5,000/- Total Rs.5,42,000/- Rs. 4,99,500/- rounded off to Rs.5,00,000/- 11. In the result, the award in CMA.No.1590 of 2007 stands reduced to 5,00,000/- as against Rs.5,42,000/-. 12. In CMA.No.1591 of 2007, is a case of injury. It is pleaded that a sum of Rs.25,000/- granted towards loss of earning power is not justified as for disability assessed suitable compensation has been granted. Appellant counsel relied upon the Full Bench decision of this Court in Cholan Roadways Corporation Ltd. -v.- Ahmed Thambi and others) reported in 2006(4) CTC 433 for his plea. He contended that there is no material to grant compensation for loss of earning power. He also stated that interest should be reduced to 7.5% p.a.. 13. Counsel for the claimant on the other hand pleaded that meagre amount has been granted for Extra Nourishment and no amount has been granted for loss of income during the period of treatment and for attender charges.He justified the award. 14. In this case, no material is placed to justify compensation for loss of earning power.Further, in view of the Full Bench Judgment cited above, the compensation for loss of earning power cannot be justified and accordingly Rs.25,000/- is set aside, In this case, for disability https://hcservices.ecourts.gov.in/hcservices/ assessed at 33% under Ex.B.6, the Tribunal has granted a sum of Rs.35,000/-. The sum of Rs.10,000/- granted for pain and suffering is confirmed. The amount of compensation granted for Conveyance expenses in a sum of Rs.1,500/-, Extra Nourishment in a sum of Rs.2,500/- and Damages to cycle in a sum of Rs.1,000/- are confirmed . The claimant, however will to entitled to compensation for loss of income for a period of two months as Rs.3,000 x 2 = Rs.6,000/- and for attender charges in a sum of Rs.5,000/- The award therefore stands modified as follows: Sl. No. Head Amount granrted by the Tribunal Amount granted by this Court 1 Disability Rs. 35,000/- Rs., 35,000/- 2 Loss of earning power Rs. 25,000/- ---- 3 Pain and sufferings Rs. 10,000/- Rs. 10,000/- 3 Conveyance expenses Rs. 1,500/- Rs. 1,500/- 4 Extra Nourishment Rs. 2,500/- Rs. 2,500/- 5 Damages to Cycle Rs. 1,000/- Rs. 1,000/- 6 Loss of income for a period of two months(Rs.3,000 x2) --- Rs. 6,000/- 7 Attender charges ----- Rs. 5,000/- Total Rs. 75,000/- Rs 61,000/- Therefore, the award stands reduced to Rs.61,000/-from Rs.75,000/-. 15. Since the accident in this case happened in the year 2003 and the award was passed in the year 2005, the interest granted at 9% stands reduced to 7.5% in view of the decision rendered by the Apex Court in Tamil Nadu State Transport Corporation - vs. - S.Rajapriya reported in 2005 (3) C.T.C. 373. 16. In the result, the Civil Miscellaneous Appeals are ordered accordingly as follows:- (i) The compensation awarded by the Tribunal in CMA.NO.1590 of 2007 stands reduced to 5,00,000/- as against 5,42,000/- (ii) The compensation awarded by the Tribunal CMA.NO.1591 of 2007 stands reduced to Rs.61,000/- as against Rs.75,000/- (iii) The interest granted at 9% stands reduced to 7.5% in both the https://hcservices.ecourts.gov.in/hcservices/ appeals. (iv)The appellant seeks for six weeks' time to deposit the amount as per the orders of this Court in both the appeals, if not already deposited and is allowed. (iii) The claimants in CMA.No.1590 of 2007 will be entitled to withdraw the amount in the same proportion as ordered by the Tribunal. If the appellant has already deposited the amount in excess, the same shall be refunded to the appellant after settling the claimants. (iv)The injured claimant in CMA.No.1591 of 2007 will be entitled to withdraw the entire amount as per the orders of this Court and with interest and costs. (v)There will be no order as to cost in Appeal. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar VJY To The Subordinate Judge, Motor Accident Claims Tribunal Tiruvallur. copy to The Record Keeper, VR Section, High Court, Madras. +2ccs to Mr.D.Baskaran, Advocate Sr 68877 & 68879 +2ccs Mr.R.Neelakandan, Advocate Sr 68833 & 68834 KU(CO) km/9.2. CMA.NOS.1590 and 1591 of 2007 https://hcservices.ecourts.gov.in/hcservices/