IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.4.2009 CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKAR C.M.A.Nos. 109 to 113 of 2009 ........ The United India Insurance Co. Ltd., 3rd party claims Office, No.38, Anna Salai, Chennai.2. .. Appellant/2nd respondent (in CMA Nos. 109 to 113/2009) Vs. 1. Pushpakumar 2. Gomathy 3. Malathy 4. Viswanathaom Shetty .. Respondents/Petitioners and 1st Respondent ( in CMA.No. 109/2009) 1. Neelamegam 2. Viswanathaom Shetty .. Respondents/Petitioner/ 1st Respondent ( in CMA.No. 110/2009) 1. Pushpakumar 2. Gomathy 3. Malathy 4. Viswanathaom Shetty .. Respondents/Petitioners/ 1st Respondent ( in CMA.No. 111/2009) 1. Arivoli (Minor) rep. by his father and next friend Ravichandran 2. Viswanathaom Shetty .. Respondents/Petitioner/ 1st Respondent ( in CMA.No. 112/2009) 1. Malliga 2. Viswanathaom Shetty .. Respondents/Petitioner/ 1st Respondent ( in CMA.No. 113/2009) Appeals filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 15.4.2008 passed in MCOP Nos. 3318 to 3322 of 2002, on the file of the Motor Accidents Claims Tribunal (III https://hcservices.ecourts.gov.in/hcservices/ Judge, Court of Small Causes), Chennai. For Appellant : Mr. M.Krishnamoorthy For Respondents: Mr. N. Bhaskaran 1 to 3 in AAO 109, 111 No.1 in AAO in AAO 110, 112 and 113/09 COMMON JUDGMENT Five appeals have been filed by the insurance company challenging the award dated 15.4.2008 passed in MCOP Nos. 3318 to 3322 of 2002, on the file of the Motor Accidents Claims Tribunal (III Judge, Court of Small Causes), Chennai. 2. On 16.5.2002 one Santhanam was driving a car bearing Registration No. TMV 6366 from Thambaram to Paraniputhur along with four other passengers. A lorry insured with the appellant driven by its driver in a rash and negligent manner, hit the car and caused serious damages. In that accident, the driver Santhanam and another occupant lady by name Thilagavathy died. Other passengers viz., Neelamegam, Mani, Arivoli and Malliga suffered injuries. The injured persons were treated at Ramachandra Medical College Hospital. Individual claims were filed by the dependents of the deceased and by the injured claimants. All the claims were taken up and disposed of in a common award by the Tribunal. 3. In support of the individual claims, the following witnesses were examined. Pushpakumar, son of the deceased Santhanam and Thilagavathy, the husband and wife, was examined as P.W.1. Malliga, injured claimant was examined as P.W.2. Ravichandran, father of injured claimant minor Arivoli was examined as P.W.3. Neelamegam another injured claimant was examined as P.W.4. Dr. Saichandran and Dr. Kalkura were examined as P.Ws. 5 and 6. Documents Exs. P1 to P18 were marked. No oral or documentary evidence was let in on behalf of the appellant insurance company/ second respondent before the Tribunal. 4. In the memorandum of grounds of appeal, no plea is taken with regard to liability to compensate the claimants. 5. CMA No.109 of 2009 – O.P.No. 3318 of 2002:- This case relates to a claim for compensation on the death of Santhanam. He said to be a contractor cum agriculturist and earning a sum of Rs.6,000/- p.m. but no proof of document has been filed. Therefore, the Tribunal fixed the income of the deceased at Rs.4,000/- p.m. As per Ex.P3, post mortem certificate, the age of the deceased was fixed as 55 years. The Tribunal, adopting 11 multiplier https://hcservices.ecourts.gov.in/hcservices/ and after deducting 1/3rd towards the personal expenses of the deceased, determined the loss of pecuniary benefits in a sum of Rs.3,52,000/- (Rs.4,000/- x 12 x 11=Rs.5,28,000/- -1/3= Rs.3,52,000/-). In addition, the Tribunal granted compensation on conventional heads. In all, the Tribunal granted the following amount as compensation with interest at the rate of 12% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits Rs.3,52,000/- 2 Funeral expenses Rs. 2,000/- 3 Loss of estate Rs. 2,500/- 4 Loss of love and affection Rs. 50,000/- Total Rs.4,06,500/- 6. No. 111 of 2009 - OP No. 3320 of 2002 The deceased in this case is Thilagavathy, wife of Santhanam, the person who drove the car. She was aged about 51 years survived by a son aged 31 years and two daughters as in the previous case. It is the plea of the claimants that the deceased was a pawn broker and milk vendor. The Tribunal fixed the income of the deceased at Rs.2,500/- as against Rs.4,000/- claimed. As per Ex.P4, post mortem certificate, the age of the deceased was fixed as 51 years and by adopting 11 multiplier, the total loss of pecuniary benefits was fixed at Rs.3,30,000/- and after deducting 1/3rd towards personal expenses of the deceased, the loss of pecuniary benefits was determined in a sum of Rs.2,20,000/- (Rs.2,500/- x 12 x 11= Rs.3,30,000/- - Rs. 1,10,000/- = Rs.2,20,000/-) In addition, the Tribunal granted compensation on conventional heads. In all, the Tribunal granted the following amount as compensation with interest at the rate of 12% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits Rs.2,20,000/- 2 Funeral expenses Rs. 2,000/- 3 Loss of estate Rs. 2,500/- 4 Loss of love and affection Rs. 50,000/- Total Rs.2,74,500/- 7. In both the cases, it is contended by the learned counsel for the appellant that the multiplier of 11 adopted by the Tribunal is on the higher side, since the son and two daughters are https://hcservices.ecourts.gov.in/hcservices/ majors and there is no material to show that they are totally dependents on the deceased and further there is no material proof as to whether the two daughters are married or unmarried. It is contended that the amount of Rs.50,000/- granted towards loss of love and affection is also on the higher side. 8. Considering the age of the two daughters viz., 20 and 25 years old and based on Ex.P5 the legal heir certificate, the Tribunal was justified in granting compensation holding them as dependents. On the death of Santhanam, in so far as compensation is concerned, the Tribunal has taken the multiplier of 11 even though at the time of his death, he was 55 years old. In terms of second schedule to Section 163-A of M.V. Act, for the age between 55 to 60 years, the proper multiplier would be 8 and not 11. Therefore, the compensation granted by the Tribunal based on 11 multiplier cannot be justified and has to be reduced accordingly. The proper multiplier in this case is 8 as against 11. Accordingly, the total loss of pecuniary benefits after deducting 1/3rd towards personal expenses of the deceased will be Rs.2,56,000/- (Rs.4,000/- x 12 x 8 = Rs.3,84,000/- - Rs.1,28,000/- = Rs.2,56,000/-). Further considering the fact that the two daughters and the son have lost their father and mother, the compensation towards loss of love and affection has to be reasonable and not excessive and therefore, stands modified as follows. Two daughters are entitled to Rs.15,000/- each for the death of the father and the son will be entitled to Rs.10,000/- towards loss of love and affection. CMA No. 109 of 2009:- Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of pecuniary benefits Rs.3,52,000/- Rs.2,56,000/- 2 Funeral expenses Rs. 2,000/- Rs. 2,000/- 3 Loss of estate Rs. 2,500/- Rs. 2,500/- 4 Loss of love and affection Rs. 50,000/- Rs. 40,000/- Total Rs.4,06,500/- Rs.3,00,500/- 9. As far as the death of the mother is concerned, the multiplier of 11 is on the higher side for the reasons stated earlier and considering the age of the mother, who will be dependent on the husband or the children shortly. However, in this case, her contribution to the family as a house wife has to be taken into consideration, in any even, the untimely death has to be compensated. The income fixed by the Tribunal at Rs.2,500/- p.m. is marginally lower. Therefore, as against 11 multiplier, this Court is inclined to take the multiplier of 10. Accordingly, the total loss of https://hcservices.ecourts.gov.in/hcservices/ pecuniary benefits after deducting 1/3rd towards personal expenses of the deceased will be Rs.2,00,000/- (Rs.2,500/- x 12 x 10 = Rs.3,00,000/- - Rs.1,00,000/- = Rs.2,00,000/-). Insofar as the compensation towards loss of love and affection is concerned, as in the earlier case, the two daughters will be entitled to Rs.15,000/- each and the son will be entitled to Rs.10,000/- . In CMA No. 111 of 2009, the award stands modified as follows: Sl.No. Head Amount granted by the Tribunal Amount granted by the Tribunal 1 Loss of pecuniary benefits Rs.2,20,000/- Rs.2,00,000/- 2 Funeral expenses Rs. 2,000/- Rs. 2,000/- 3 Loss of estate Rs. 2,500/- Rs. 2,500/- 4 Loss of love and affection Rs. 50,000/- Rs. 40,000/- Total Rs.2,74,500/- Rs.2,44,500/- 10. CMA.110 of 2009 - MCOP No. 3319 of 2002:- In this case, the injured claimant Neelamegam is aged about 42 years an agriculturist. He suffered fracture of the right hand, ribs and loss of teeth. The disability has been assessed at 45% under Ex.A15, disability certificate and 35% under Ex.A17, disability certificate. As against 75% disability, the Tribunal reduced the disability to 60%. The injured claimant was in Ramachandra medical college hospital from 16.5.2002 to 25.5.2002. He claimed a sum of Rs.5,000/-p.m. as income. The Tribunal however fixed the income of the injured claimant at Rs.3,000/- p.m. The Tribunal granted the total compensation in a sum of Rs.2,39,097/-, however, restricted the same to Rs.1,50,000/- as per the claim with interest at 12% p.a. 11. In appeal, though a plea has been taken that the quantum under various heads is not proper, since the claim itself is restricted to Rs.1,50,000/- and the award has been passed for the said amount, which quantum is not in dispute, the only point canvassed in the present appeal is with regard to the rate of interest granted at 12% and that will be dealt with at a later point of time. Hence, the total compensation in the case of Neelamegam stands confirmed except the interest. 12. CMA No. 112 of 2009 - MCOP 3321 of 2002. The injured claimant Arivoli is a minor 30 months old. He suffered injures as per Ex.P9. He was also treated at Ramachandra medical college hospital. The Tribunal in this case granted the https://hcservices.ecourts.gov.in/hcservices/ following amount as compensation with interest at the rate of 12% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of income for four months Rs. 5,000/- 2 Extra nourishment Rs. 1,000/- 3 Damage to cloths Rs. 1,000/- 4 Other expenses Rs. 1,000/- 5 Pain and suffering Rs. 6,000/- 6 Loss of amenities Rs. 1,000/- 7 Loss of expectation Rs. 1,000/- 8 Medical expenses Rs. 1,000/- 9 Transport expenses Rs. 1,000/- Total Rs. 17,000/- 13. The various heads under which the compensation has been granted by the Tribunal is not appropriate. There cannot be any loss of income in the case of a 30 months old child. However, considering the nature of injuries, which was minor in nature, the Tribunal is not justified in granting compensation for loss of amenities and loss of expectation of life. There is no serious threat to the life of the child and there is no material to substantiate the same. On the contrary, these amounts can be adjusted on other heads and the total compensation can be adjusted as follows: Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of income for four months Rs. 5,000/- --- 2 Extra nourishment Rs. 1,000/- Rs. 3,000/- 3 Damage to clothes Rs. 1,000/- --- 4 Other expenses Rs. 1,000/- --- 5 Pain and suffering Rs. 6,000/- Rs. 7,000/- 6 Loss of amenities Rs. 1,000/- --- 7 Loss of expectation Rs. 1,000/- --- https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 8 Medical expenses Rs. 1,000/- Rs. 1,000/- 9 Transport expenses Rs. 1,000/- Rs. 3,000/- 10 Attender charges -- - Rs. 3,000/- Total Rs. 17,000/- Rs.17,000/- Hence, the total compensation stands confirmed except the interest granted at 12%p.a. 14. CMA 113 of 2009 - MCOP 3322 of 2002:- The claimant Malliga is a tailor by profession and she suffered fracture of left wrist. The disability has been assessed at 35% under Ex.P13 disability certificate and she was treated at Ramachandra medical college hospital from 16.5.2002 to 25.5.2002. She claimed the income at Rs.3,000/- p.m. and the Tribunal fixed the income of the injured claimant at Rs.2,000/- p.m. The Tribunal considering the nature of injuries, age and occupation of the injured claimant granted the following amount as compensation with interest at the rate of 12% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of income for four months Rs. 8,000/- 2 Extra nourishment Rs. 2,000/- 3 Damage to cloths Rs. 1,000/- 4 Other expenses Rs. 1,000/- 5 Pain and suffering Rs. 22,000/- 6 Loss of amenities Rs. 10,000/- 7 Loss of expectation Rs. 10,000/- 8 Medical expenses Rs. 9,722/- 9 Transport expenses Rs. 2,000/- 10 Disability Rs. 35,000/- Total Rs.1,00,722/- 15. The contention of the learned counsel for the appellant https://hcservices.ecourts.gov.in/hcservices/ in this appeal is that the claimant suffered fracture of ribs which has healed. For the disability assessed at 35%, and for pain and suffering, suitable compensation has been granted and hence, there is no justification of granting further compensation towards loss of expectation of the life and loss of amenities and there is no evidence or material placed to show that the compensation on these heads are justified. 16. The learned counsel for the claimant on the other hand pleaded that meager amount has been granted for extra nourishment and transport expenses and no amount has been granted for attender charges. 17. Considering the occupation of the injured claimant a tailor and also considering the fracture of ribs which has healed after treatment, the Tribunal was not justified in granting compensation for loss of amenities and loss of expectation of the life for which there is no material to support such a plea. However, as rightly pleaded -by the learned counsel for the claimant, suitable compensation can be granted for attender charges which was omitted and for extra nourishment and transport expenses for which meager amount has been granted. 18. Considering all these aspects, the award of the Tribunal stands modified as follows: Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of income for four months Rs.8,000/- Rs.8,000/- 2 Extra nourishment Rs.2,000/- Rs.4,000/- 3 Damage to cloths Rs.1,000/- Rs.1,000/- 4 Other expenses Rs.1,000/- --- 5 Pain and suffering Rs.22,000/- Rs.22,000/ - 6 Loss of amenities Rs.10,000/- --- 7 Loss of expectation Rs.10,000/- --- 8 Medical expenses Rs.9,722/- Rs.9,722/- 9 Transport expenses Rs.2,000/- Rs. 4000/- 10 Disability Rs.35,000/- Rs.35,000/ - https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 11 Attender charges --- Rs.2,500/- Total Rs.1,00,722/ - Rs.86,222/ - 19. In all these cases, the accident happened in the year 2002 and the award was passed in the year 2008. Therefore, the interest awarded by the Tribunal at 12% stands modified to 7.5% in view of the decision of the Apex Court reported in 2005 (3) C.T.C. 373 (Tamil Nadu State Transport Corporation vs. S.Rajapriya). 20. In the result, (i) The Civil Miscellaneous Appeals in CMA Nos. 110 of 2009 and 112 of 2009 are disposed of with the modification with regard to interest alone. (ii) the Civil Miscellaneous Appeals in CMA Nos. 109, 111 and 113 of 2009 are allowed as follows:- (a) The Award of the Tribunal in MCOP No. 3318/2002( CMA No. 109 of 2009) is reduced to Rs.3,00,500/- from Rs.4,06,500/-. (b) The Award of the Tribunal in MCOP No. 3320/2002( CMA No. 111 of 2009) is reduced to Rs.2,44,500/- from Rs.2,74,500/-. (c) The Award of the Tribunal in MCOP No. 3322/2002 (CMA No. 113 of 2009) is reduced to Rs.86,222/- from Rs.1,00,722/-. (iii) In all the cases, the interest granted by the Tribunal at 12% stands reduced to 7.5% p.a. (iv) Learned counsel for the appellant seeks eight weeks time to deposit the balance award amount and the same is allowed. On such deposits, the claimants in MCOP Nos. 3319 and 3321 of 2002 are permitted to withdraw the compensation amount as per the order of the Tribunal and on the interest as per the order of this Court. Claimants in MCOP Nos. 3318 and 3320 of 2002 are entitled to share the amount equally and they are permitted to withdraw the amount as per the order of this Court. Claimant in MCOP No. 3322 of 2002 is permitted to withdraw the amount as per the order of this Court. (v) There shall be no orders as to costs. https://hcservices.ecourts.gov.in/hcservices/ (vi) Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To 1. The Motor Accidents Claims Tribunal, (III Judge, Court of Small Causes), Chennai. 2. The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.M.Krishnamoorthy, Advocate, SR.11650 CMA Nos. 109 to 113/2009 BV(CO) SRA(19/5/2009) https://hcservices.ecourts.gov.in/hcservices/