Madras High Court
The New India Assurance Company ... vs K.Premi Sakay on 10 March, 2023
C.M.A. (MD)No.321 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD)No.321 of 2021
and
C.M.P.(MD)No.2716 of 2021
The New India Assurance Company Ltd.,
No.41, Nageswaran Sannithi Street,
Kumbakonam,
Thanjavur District. ...Appellant/ 2nd Respondent
Vs.
J.Irudayaraj (died)
1.K.Premi Sakay
2.K.Jenet Pavithra
3.B.Prakasam ...Respondents
PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to modify the decree and judgment dated 19.11.2019
made in M.C.O.P.No.1795 of 2013 on the file of the Special District Judge,
Tiruchirappalli.
For Appellant : Mr.A.Ilango
For R1 & R2 : Mr. T.Selvan
1/15
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
For R3 : No Appearance
JUDGMENT
Challenging the quantum fixed by the Claims Tribunal fixing the
compensation of Rs.10,83,696/-, the Insurance Company has preferred the present
appeal.
2.The brief facts, leading to the filing of this Civil Miscellaneous
Appeal, are as follows:-
(i) For the sake of convenience, the parties are referred to herein, as per
their rank before the Trial Court.
(ii)Originally, the claim petition was filed by the insurer/first petitioner
claiming compensation of Rs.5,00,000/- for the injuries sustained by him in a
motor accident. According to him, on 12.09.1999, while he was riding his TVS
moped bearing Registration No.TCY 544 at about 15.00 hours near Veereswaram
Junction Road in Amma Mandapam to Membalasali east west road, an ambassador
car bearing Registration No. TN-59-A-5859 coming in the opposite direction
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
driven by its driver in a rash and negligent manner dashed against him, as a result,
he was thrown out in the road and sustained multiple grievous injuries all over his
body including fracture in his both legs. He was taken to Veerasamy Hospital at
Thillainagr, wherein he was admitted as an inpatient and both of his legs were
operated.
(iii)He filed an application claiming compensation of Rs.5,00,000/- for
the injuries sustained by him in the said accident. The said petition was pending
for more than 11 years, some way or the other. It appears that the first
petitioner/original claimant died in the year 2012, during the pendency of the
claim petition. Thereafter, his legal heirs have been impleaded in the claim
petition and they have filed an amendment application claiming enhanced
compensation of Rs.25,00,000/-, contending that the first petitioner was died due
to the injuries sustained in the accident and due to that accident, he has voluntarily
retired from service in the year 2004, whereas his retirement falls only in the year
2010.
3.It is the case of the Insurance Company that the accident was occurred
due to the contributory negligence on the part of the first petitioner. In the counter
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
affidavit, it has been stated that after a lapse of eleven days, the first petitioner has
lodged the FIR in collusion with the owner and driver of the offending vehicle.
The case has been filed in the year 2000. But, the first petitioner was examined
only on 15.03.2005. Subsequently, due to the delay caused by the petitioners, the
petition was pending for a long time. It is the main contention of the Insurance
Company that though the second and third petitioners are entitled to for the estate
of the first petitioner, they are not entitled for the death benefits as the deceased
died only due to some natural causes.
4.To substantiate the case, before the tribunal, on the side of the
claimants P.W.1 to P.W.7 were examined and Ex.P1 to Ex.P23 were marked and
on the side of the respondents R.W.1 was examined and Ex.R1 to Ex.R2 were
marked. Ex.X1 and Ex.X2 were also marked.
5.The trial Court, after analyzing the oral and documentary evidence
adduced on both sides, held that the accident had taken place due to the rash and
negligent driving of the first petitioner. Further, the trial Court has also held that
there was no nexus between the accident and the death of the first petitioner, since
he died after 11 years of the accident. However, the trial Court considering the
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
voluntary retirement in the year 2004 adopted the relevant multiplier and fixed the
compensation as follows:
S.No. Head Amount
1. Compensation for partial permanent Rs. 98,000/-
disability
2. For pain and sufferings Rs. 75,000/-
3. Loss of earning capacity Rs. 7,87,791/-
4. Attender charge Rs. 10,000/-
5. Nutritious Food Rs. 5,000/-
6. Transport Expenses Rs. 5,000/-
7. Partial loss of income Rs. 13,802/-
8. Medicine and Medical Expense Rs. 89,103/-
Total Rs.10,83,696/-
Challenging the same, the present Civil Miscellaneous Appeal has been filed by
the Insurance Company.
6.It is the contention of the learned counsel for the appellant that
originally a sum of Rs.5,00,000/- was claimed by the deceased/original claimant
for the injuries sustained by him and the said claim petition was filed in the year
2000. But for somehow or the other, the said claim petition was dragged for a
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
period of 12 years. On 17.03.2012, after the death of the first petitioner, the legal
representatives have been impleaded and they have filed an amendment petition
claiming compensation of Rs.25,00,000/-. He submitted that there is no nexus
between the death and the accident. Further, when the person who claims
compensation dies, the cause of action also dies with that person. At the most the
legal heirs are entitled to the estate of the deceased such as medical charges,
attendance charges, nutritious charges and transport etc.,. But, the Tribunal has
adopted the multiplier and fixed the compensation for loss of earning capacity,
which is not in accordance with law. Hence, he seeks to set aside the award.
7.The learned counsel for the respondents would submit that the tribunal
has adopted the relevant multiplier after taking note of the fact that the first
petitioner, after the accident, was not able to attend his regular work and took
voluntary retirement and also by considering his monthly salary. Hence, the
compensation awarded by the Tribunal does not require any interference.
8. In the light of the above submission, now the points arise for
consideration in this appeal are:
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
(1)Whether the legal heirs are entitled to claim compensation beyond
the loss of estate of the deceased?
(2)Whether the multiplier method adopted by the tribunal is proper in
the eye of law?
9. The negligence is not disputed by the Insurance Company, only
quantum is challenged in this appeal. Admittedly, the accident had taken place on
12.09.1999, while the deceased was riding his TVS moped and he sustained
injuries in the said accident. Immediately, he was admitted in the hospital. For
certain fractures in his legs, he took treatment. He has originally filed an
application claiming compensation of Rs.5,00,000/-.
10.Though the original claim petition was filed in the year 2000, for
somehow or the other, the application got dragged till 2012, till the date of death
of the original claimant. Thereafter, the legal heirs have been impleaded in the
claim petition and thereafter, they sought for an amendment seeking enhanced
compensation of Rs.25,00,000/- contending that there is a loss of earning capacity
to the deceased and he died due to the injuries sustained by the accident in the year
1999.
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
11. P.W.1, the first petitioner/ original claimant was also examined in the
year 2005 and extensively cross examined before the tribunal. His evidence itself
clearly shows that he suffered only fractures in his legs and he had taken treatment
in the hospital for a period of four months from the date of accident. According to
him, he has spent about Rs.1,00,000/- for surgery in his both legs. Further, during
the period when he was taking treatment, he only got half of his salary. Further, he
proceeded to his job only in the car and he has spent a sum of Rs.38,000/- towards
the same.
12.It is relevant to note that in the cross examination he has clearly
admitted that after the treatment period of four months from the date of accident,
he was regularly working in his job as Teacher for more than five years and he was
also drawing salary. Thereafter, he had applied for voluntary retirement. From the
admission of P.W.1/original claimant in his cross examination, it is made clear that
he had undergone treatment only for a period of four months and not beyond that.
The above admission runs to the contrary of the stand of the respondents, who are
the legal heirs of the original claimant that the deceased died only due the injuries
sustained in the accident occurred in the year 1999. The evidence of the wife of
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
the original claimant, who was examined as P.W. 6, itself clearly shows that his
husband was died due to the heart pain and not due to the injuries sustained in the
accident. Further P.W.7, Doctor's evidence also clearly shows that the deceased
was having diabetic and Blood Pressure.
13. Having considered these documents, the trial Court has rightly found
that there was no nexus between the injuries and the death of the original claimant.
The exhibits, filed to show that the original claimant sustained serious injuries,
indicate that the original claimant has only sustained fractures in his legs.
Therefore, this Court is of the view that when the deceased himself has
categorically admitted that even after the treatment, he worked as a Teacher for a
period of five years and thereafter only, he took voluntary retirement, the question
of granting compensation under the head of loss of earning capacity does not arise
at all. The tribunal has in fact misdirected itself in awarding compensation on the
said head by applying multiplier.
14.It is seen from the award that the Tribunal has fixed the disability at
49% as partial permanent disability. The Tribunal has applied the multiplier 13
after taking note of the date of accident and the date of death of the original
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
claimant. The tribunal has awarded the compensation towards loss of earning
capacity to the tune of Rs.7,87,790.64/-.
15. The Tribunal also relied on Ex.P14 to show that the first respondent
has applied for voluntary retirement because of the injuries sustained in the
accident. On perusal of Ex.P14, this Court is at a loss to understand as to how the
tribunal has considered this document as an application for voluntary retirement.
Ex.P14 is a letter sent by the original claimant to the Headmaster of the School
seeking some particulars of his salary in the event of his continuance to the work
till the date of his superannuation. The very letter itself clearly indicates that he
has voluntarily retired on 01.06.2004 and he has sent the said letter seeking some
particulars for claiming compensation. Therefore, merely on the basis of the said
letter, it cannot be presumed that because of the injuries sustained in the accident,
he could not work in the school and hence, he took voluntary retirement. Such
finding of the tribunal is without any evidence and an improper appreciation of
evidence and the same has to be necessarily set aside.
16.From the admission of the original claimant, it is very clear that he
worked for about five years after the date of accident. It is well settled that when
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
the death was not due to the accident or the injuries sustained in the accident, the
legal heirs are only entitled to the loss of estate such as the medical charges
attendant charges, nutritious charges and transportation etc..
17.In the judgment of the Hon’ble Division Bench of this Court in the
case of Branch Manager, Oriental Insurance Company Ltd., vs. Manohar and
others reported in 2017 (2) TN MAC 81 (DB), it has been held that in the absence
of any nexus between the injuries and the death, compensation awarded by the
tribunal fixing the liability at 100% is set aside applying the legal maxim of actio
personalis moritur cum persona, for claiming compensation for the expenses
incurred. Therefore, this Court is of the view that the legal heirs of the original
claimant are entitled to loss of estate such as medical expenses, attender charges
etc.,
18.However, the claim with regard to the pain and sufferings and future
loss of income is personal to the injured alone and cannot be continued after his
death. As there is no proximity between the injury and death in the present case,
the award of the tribunal in awarding compensation for loss of earning capacity
and also for pain and suffering suffered by the original claimant is not sustainable
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
in the eye of law. The tribunal has fixed the disability at 49% as partial permanent
disability and awarded a sum of Rs.2,000/- per each percentage of disability. This
Court is of the view that the award of the tribunal under the head of permanent
disability has to be increased to Rs.3,000/- (Rupees Three Thousand only). As the
deceased, has also underwent surgery in different hospitals in his both legs, the
attendant charges granted by the Tribunal is enhanced to Rs.50,000/- (Rupees Fifty
Thousand Only) and award under the nutritious food is also enhanced to
Rs.50,000/- (Rupees Fifty Thousand only).
19.Accordingly, the award of the Tribunal is modified as hereunder:
S.No. Head Amount
1. Compensation for partial permanent Rs.1,47,000/-
disability
2. Medical Bills Rs. 89,103/-
3. Attendant charges Rs. 50,000/-
4. Nutritious Food Rs. 50,000/-
5. Loss of earning during the treatment Rs. 13,802/-
as per the evidence of P.W.1
6. Transportation Charges Rs. 20,000/-
Total Rs.3,69,905/-
(Rs.3,70,000 rounded
off)
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
20.The appellant is directed to deposit the entire compensation amount
as modified by this Court with interest at the rate of 6% per annum and costs to the
credit of M.C.O.P.No.1795 of 2023, on the file of the Motor Accident Claims
Tribunal / Special District Court, Tiruchirappalli within a period of one month
from the date of receipt of copy of this judgment, less the amount, if any already
deposited. On such deposit, the first respondent herein is permitted to withdraw a
sum of Rs.2,00,000/- (Rupees Two Lakhs Only) and the second and third
respondents are permitted to withdraw a sum of Rs.85,000/- (Rupees Eighty Five
Thousand Only) each, less the amount, if any already withdrawn, by making
necessary application before the Tribunal. No costs. Consequently, connected
miscellaneous petition is closed.
10.03.2023
NCC : Yes / No
Index : Yes/No
Internet : Yes/No
ta
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
To
1.The Motor Accident Claims Tribunal,
Special District Court, Trichirappalli.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.321 of 2021
N.SATHISH KUMAR, J.
ta
C.M.A.(MD)No.321 of 2021
10.03.2023
https://www.mhc.tn.gov.in/judis
