CMA/2781/2003 of THE UNITED INDIA INS.CO.LTD Vs KUSALAKUMARI @ KUSUMA, on 23 December 2008

1. Kusalakumari @ Kusuma2. Padmavathi3. Vijayashanthi3rd Respondent declared as Majorand discharge her mother 1st respondent Kusalakumari from the guardianship vide order dated 06.02.2004made in CMP.No.21410/2003.

4. Sri Sankara Vidyalaya, 162, Velacherry Road, Tambaram, Chennai ... Respondent(Petitioner & 1st Respondent)

Civil Miscellaneous Appeal is filed under Section 173 of MotorVehicles Act, 1988, against the Judgment and Award of the MotorAccidents Claims Tribunal, (Sub-Judge), Ranipet in M.C.O.P.No.25 of1999 dated 20.12.2002

This appeal is directed against the award passed by the lowerCourt in M.C.O.P.No.25 of 1999 dated 20.12.2002, preferred by thesecond respondent Insurance Company. For convenient sake the rankingof the parties before the lower Court are referred in this Judgmentalso.

https://hcservices.ecourts.gov.in/hcservices/

2. Brief facts relied upon by the parties before the LowerCourt are as follows:

(i) On 17.11.1998 at about 10.30 a.m at Arcot to Cheyyar Road,at Mulluvadi Junction Road, while the deceased was proceeding as aPedestrian by pulling his Motor Cycle, a bus bearing Regn.No.TN-21-Z-4349 belonging to the first respondent, coming in the oppositedirection, driven by its driver in a rash and negligent manner anddashed against the deceased and thus caused instantaneous multiplegrievous injuries which lead to the death of the deceased after 25days of the alleged accident, in the Government Hospital, Vellore.The first claimant is the wife, second and third claimants are thedaughters of the deceased. The deceased was aged 54 years at the timeof accident and was working as Village Administrative Officer,Mulluvadi Village, Arcot Taluk and was getting a salary Rs.6,500/-per month. Hence a total sum of Rs.5,00,000/- is claimed.

(ii) In the Counter filed by the second respondent it isstated that at the time of accident the deceased was also driven hisMotor Cycle (TVS 50) and due to the rash and negligent driving ofthe deceased the accident had taken place. The deceased was nothaving valid driving license and Badge at the time of accident andtherefore, the second respondent is not liable to pay anycompensation. The claimants are put to strict proof that the deceaseddied due to the injuries sustained by him and also the age of thedeceased.

3. The lower Court, after the appraisal of the evidenceadduced before it, had awarded a sum of Rs.5,00,000/- towardscompensation as prayed for by the claimants. Aggrieved by the saidorder the second respondent has preferred this appeal.

4. Heard Mr. K. Ramani, learned counsel appearing for theappellant and Mr. V. Parivallal, learned counsel appearing for therespondents.

5. Learned counsel for the appellant/Insurance Company wouldsubmit in his argument that the lower Court had awarded thecompensation as prayed for by the claimants without any basis. Hewould further submit that the lower Court had assumed the income ofthe deceased without any support from the records and had awardedcompensation which is on the higher side. He would further submitthat the contributory negligence on the part of the deceased was notconsidered by the lower Court. He would also submit that the allegedrash and negligence on the part of the first respondent's driver wasnot proved by the evidence of the petitioner. It was also notconsidered by the lower Court that the deceased would retire at his58[th] age but the compensation was calculated till the 65[th] age of the deceased which is erroneous. He would also submit that the method ofcalculating the compensation adopted by the lower Court was defectiveand therefore the award passed by the lower Court should have beeneither set aside or modified and the appeal may be allowed.

6. Learned counsel for the respondents 1 to 3/claimants wouldsubmit in his argument that the lower Court had correctly come to theconclusion that the claimants are entitled to more than the claim ofcompensation made in the petition and therefore it had rounded offthe claim made in the petition. The calculation of compensation wasduly done by the lower Court in accordance with law and there is nodefect in the award. He would further submit that the lower Courthad correctly fixed the multiplier and the income of the deceasedperson and had come to the conclusion of allowing the claim made bythe claimants in its entirety as they were found entitled to morethan the claim amount. The alleged contributory negligence was notestablished before the lower Court and therefore the lower Court hadcorrectly come to the conclusion of fixing the liability on theappellant/second respondent who is the insurer of the firstrespondent. Therefore, he would request the Court to confirm theaward passed by the lower Court and to dismiss the appeal.

7. I have given anxious thoughts to the arguments advanced oneither side.

8. The main argument advanced by the Appellant/Secondrespondent/Insurance Company is to the effect that the lower Courthad calculated the compensation using the multiplier at 11 despitethe deceased was a Government Servant and had only 4 years ofservice on the date of his death and the compensation calculated bythe lower Court giving another 7 years extra period is sheerlyamounts to higher side calculation. Apart from that theappellant/Insurance Company was also contending that the deceased hadcontributed negligence and therefore suitable apportionment must bedone in the payment of compensation. In so far as the contentionregarding the contributory negligence is concerned the lower Courthad come to the conclusion of fixing the responsibility on the driverof the first respondent before the lower Court and therefore thesecond respondent Insurance Company was made liable to pay the saidamount as the insurer of the vehicle. On a careful perusal of theevidence adduced before the lower Court, we could see that the eyewitness was examined as P.W.2. P.W.2 is non other than the son ofthe deceased person. He would speak in his evidence that theaccident had happened only due to the rash and negligence driving ofthe bus driver. In his cross examination, he would state that heand his father the deceased person were going to Kalavai fromMulluvadi and they did not see the bus and the bus had immediatelydashed against them when they were turning. The learned counsel forthe appellant/second respondent would submit that the admission of P.W.2 would go to show that they were riding on the two wheeler atthe time of accident and therefore it should have been consideredthat the deceased had also contributed negligence. However, when wego through the evidence of P.W.2 he had denied that hisfather/deceased was not riding the two wheeler at the time ofaccident. It is pertinent to note that the F.I.R. was given onlyagainst the driver of the bus. The driver of the bus had alsoadmitted his guilty before the Criminal Court. Therefore the findingof the lower Court that the accident had happened only due to therash and negligent driving of the first respondent's driver cannot bevaried.

9. As far as the quantum of compensation is concerned thedeceased was found to be a Village Administrative Officer and wasearning a sum of Rs.6,088/- per mensem. The said fact has beenproved by Ex.A.7. However, the lower Court had considered the age ofthe deceased at 54 years and had fixed the multiplier at 11 on thebasis of second schedule of Motor Vehicle Act. The deceased wasworking as a Government Servant and his retirement age is 58 years.Therefore, the lower Court ought to have adopted the calculation ofcompensation for about 4 years with the help of the monthly salaryproved by the claimants and the remaining period with the help ofpension amount which is 50% of the salary with the multiplier to becalculated at the age of 58 years. The Multiplier used at 11 wouldexceed the retirement age for nearly 7 years which could not meet theends of justice. When it is calculated for the loss of income offour (4) years as Government Servant, we have to deduct 1/3rd of thesalary amount towards the maintenance of the deceased person and theremaining 2/3rd amount of Rs.4,059/- would be the monthly dependencyof the claimants. For the annual dependency it would be Rs.48,708/-.When we multiplied it with four (4) years of his service it comes toRs.1,94,832/-. Now we have to fix the multiplier for the age of 59years, from which date we have to calculate the compensation on thebasis of the pension amount to be received by the deceased, if he isalive. The proper multiplier as per Second Schedule of the MotorVehicle Act is 8. The pension amount for the salary of Rs.6,088/-would be Rs.3,044/-. After deducting a sum of Rs.985/- towards themaintenance of the deceased from the said amount, a sum of Rs.2059/-would be the monthly dependency from the pension amount and theannual dependency would be Rs.24,708/-. When we multiply with 8 itwould be Rs.1,97,664/-. On computing the total compensation it comesto Rs.3,92,496/- (Rs.1,94,832/- + Rs.1,97,664/-).

10. The lower Court also awarded the compensation on thefollowing heads:

Towards Transport Charges: Rs. 1,000.00For Extra Nourishment: Rs. 1,000.00For Funeral Expenses: Rs. 5,000.00Towards Pain and Sufferings: Rs. 15,000.00Toward loss of Love and affection: Rs. 20,000.00

Total Compensation : Rs. 5,91,880.00 ===================

11. For pain and sufferings is concerned it is a personalremedy available only to the injured person. When the compensationawarded to the claimants for the death of the deceased person, thiscompensation is not permissible under law. The compensationregarding the loss of consortium is concerned the lower Court oughtto have awarded Rs.20,000/- as prayed for by the first claimant andthe compensation awarded by the lower Court at Rs.10,000/- isinadequate. The award of compensation at Rs.20,000/- to the secondclaimant towards marriage expenses cannot be awarded. At the sametime the claimants are entitled for loss of estate for the death ofthe deceased at Rs.10,000/- and the Medical Expenses for thetreatment period commencing from 17.11.98 to 12.12.98 a sum ofRs.10,000/- could also be awarded. The compensation awarded inrespect of the remaining heads were justly passed by the lower Court.Therefore the claimants are entitled for a total sum of compensationas per the following heads:

Loss of income: Rs.3,92,496.00Towards Transport Charges: Rs. 1,000.00For Extra Nourishment : Rs. 1,000.00For Funeral Expenses : Rs. 5,000.00Toward loss of Love and affection: Rs. 20,000.00For loss of consortium to the first claimant: Rs. 20,000.00

Medical Expenses : Rs. 10,000.00 for the period from 17.11.98 to 12.12.98

Loss of Estate: Rs. 10,000.00

------------------ Rs.4,59,496.00

==================

12. On a calculation of total compensation we could see a sumof Rs.4,59,496/- could be awarded to the claimants towards thecompensation for the loss of life of the deceased/husband of thefirst claimant. But the lower Court had computed Rs.5,91,880/- andhad passed an award for Rs.5,00,000/- as prayed for in the claimcannot be sustained. The claimants are entitled to a sum ofRs.4,59,496/- with interest at 9% per annum from the date of petitiontill the date of realisation.

13. Therefore, the appeal preferred by the secondrespondent/Insurance Company is partly allowed and the award of lowerCourt is modified to that of Rs.4,59,496/- with interest @ 9% withproportionate cost. There will however, be no order as to costs inthis appeal.

Sd/Asst.Registrar

ggs To

/true copy/Sub Asst.Registrar

The Motor Accidents Claims Tribunal, (Sub-Judge), Ranipet.

C.M.A.No.2781 of 2003MBS(CO)RVL 19.02.2009