Madras High Court
K.Vasuki vs The Managing Director on 4 January, 2024
C.M.A.(MD)Nos.155 and 156 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 04.01.2024
CORAM:
THE HON'BLE MR.JUSTICE P. DHANABAL
C.M.A.(MD)Nos.155 and 156 of 2013
C.M.A.(MD)No.155 of 2013
1.K.Vasuki
2.Kannadasan (died)
3.K.Saranya
4.K.Swathi (minor)
Minor 4th Appellant represented by
her mother, next friend / Guardian,
the 1st appellant ... Appellants / Claimants
Vs.
The Managing Director,
M/s.Tamil Nadu State Transport Corporation,
Kumbakonam. ... Respondents / Respondents
C.M.A.(MD)No.156 of 2013
Kannadasan (died)
2.K.Vasuki
3.K.Saranya
4.K.Swathi (minor)
Appellant 2 to 4 are brought
on record as legal heirs of the
deceased sole appellant
vide Court order dated 27.07.2021 ... Appellants / Claimants
1 / 18
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.155 and 156 of 2013
Vs.
The Managing Director,
M/s.Tamil Nadu State Transport Corporation,
Kumbakonam. ... Respondents / Respondents
Common Prayer : These Civil Miscellaneous Appeals filed under
Section 173 of the Motor Vehicles Act, to allow this appeal and modify the
award passed in M.C.O.P.Nos.1007 and 1008 of 2008 dated 20.09.2010 on
the file of the Motor Accident Claims Tribunal / 1st Additional District
Court, Trichirappalli.
For Appellants : Mr.M.Jerin Mathew
for M/s. Ajmal Associates
For Respondent : M/s.G.A.Srijala
for Mr.A.V.B.Krishnakumar
(in both cases)
COMMON JUDGMENT
C.M.A(MD)No.155 of 2013, has been filed by the petitioners as
against the order passed in M.C.O.P.No.1007 of 2008 on the file of the
Motor Accident Claims Tribunal / 1st Additional District Court,
Trichirappalli, dated 20.09.2010, wherein this appellants have filed
petition for compensation of the death of the son of the appellants 1 and 2
and brother of appellants 3 and 4. The Tribunal has awarded a sum of
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C.M.A.(MD)Nos.155 and 156 of 2013
Rs.2,25,000/- with interest at the rate of 7.5% from the date of petition till
the date of realization, towards compensation. As against the award
passed by the Tribunal, the present appeal in C.M.A(MD)No.155 of 2013
has been preferred by the legal heirs of the deceased, for enhancement of
compensation.
2. C.M.A(MD)No.156 of 2013, has been filed by the petitioners as
against the order passed in M.C.O.P.No.1008 of 2008 on the file of the
Motor Accident Claims Tribunal / 1st Additional District Court,
Trichirappalli, dated 20.09.2010, wherein this appellant who is injured in
the said accident, has filed this petition for compensation of
Rs.20,00,000/-. The Tribunal has awarded a sum of Rs.13,17,704/-
towards compensation. Aggrieved by the above said award passed by the
Tribunal, the claimant has filed the present appeal, seeking enhancement.
3. The brief facts before the trial Court in M.C.O.P(MD)No.1007 of
2008, are as follows:
On 02.03.2008 at about 8.45 a.m., when the appellants 2 and
3, along with the deceased, travelled in a two wheeler bearing registration
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C.M.A.(MD)Nos.155 and 156 of 2013
No.TN 49 AA 5006 from Trichy to Chennai by pass near Trichy Palpannai,
the driver of the first respondent vehicle bearing registration No.TN 49 N
1228, drove the vehicle in a rash and negligent manner and dashed against
the two wheeler. Due to which, the son of the petitioners 1 and 2 died. At
that time of accident, the deceased was aged about only 7 years and they
claim compensation for a sum of Rs.5 Lakhs.
4. The brief facts before the trial Court in M.C.O.P(MD)No.1008 of
2008, are as follows:
In the above said accident, the petitioner herein sustained
injuries all over his body and he was admitted in the Global Hospital,
Trichy and has taken treatment from 02.03.2008 till 20.03.2008. The
petitioner was working in the Railway Department, Trichy. Since the
petitioner was advised to take complete rest, he lost his employment
because of this accident. He was working as Technician Grade-II in the
Workshop at Ponmalai, Trichy. At that time of accident, the petitioner was
aged about 46 years and earned a sum of Rs.20,000/- per month towards
salary and also the petitioner spent a sum of Rs.2,75,000/- towards
medical expenses. Therefore, he claimed a sum of Rs. 20,00,000/-
towards compensation.
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C.M.A.(MD)Nos.155 and 156 of 2013
5. The respondent in both the claim petitions has filed a counter
stating that the petitions are not maintainable either in law or facts. The
accident has not occurred as alleged in the petition. The accident was not
occurred due to the negligence on the part of the driver of the bus. Per
contra, the petitioner in M.C.O.P.No.1008 of 2008 rode the vehicle in a
rash and negligent manner, without observing the horn raised by the bus
driver, dashed against the bus, thereby he himself invited the accident.
Therefore, the insurance company is no way liable to pay compensation to
the petitioners. The deceased was aged about only 7 years and because he
has no income. All the petitions are liable to be dismissed.
6. On the side of the petitioners, they have examined P.W.1 to P.W.7
and marked exhibits Ex.P1 to Ex.P26. On the side of the respondent
R.W.1 was marked and no document was marked.
7. After perusing the oral and documentary evidence adduced on
either side, the Tribunal has awarded a sum of Rs.2,25,000/- for the
claimants in M.C.O.P.No.1007 of 2009 and awarded a sum of
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C.M.A.(MD)Nos.155 and 156 of 2013
Rs.13,17,704/- towards compensation for the claimant in M.C.O.P.No.
1008 of 2008. Aggrieved by the above said award passed by the Tribunal,
the claimants have preferred these appeals respectively.
8. Learned counsel for the appellants contended that the accident
took place due to the rash and negligence on the part of the driver of the
bus and the petitioners in M.C.O.P.No.1007 of 2008 are legal heirs of the
deceased. Seven years old son died, due to the accident and the petitioners
are dependants and they are entitled for a compensation of Rs.5 Lakhs.
Without considering the same, the Tribunal has erroneously awarded a
sum of Rs.2,25,000/-. As far as M.C.O.P.No.1008 of 2008 is concerned,
the petitioner sustained fracture injuries and he lost his employment due to
the accident and he is unable to do his routine work and already he lost his
physical condition and also employment. Without considering the above
said aspects, the Tribunal has taken the salary of the deceased as Rs.
7,371/-. The petitioner has produced the salary slip of the petitioner and
as per the certificate, the gross salary is Rs.17,762/-. But the Tribunal,
without any reason only taken a sum of Rs.7,371/- as monthly income of
the petitioner. Therefore, the petitioner is entitled to enhancement of the
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C.M.A.(MD)Nos.155 and 156 of 2013
compensation, based on the gross salary of the petitioner. Therefore, the
present application is filed for enhancement of the award amount and the
appeals are liable to be allowed.
9. The learned counsel appearing for the respondent would contend
that the accident took place only due to the negligence on the part of the
rider of two wheeler, but the Tribunal fixed the liability on the side of bus
driver. The deceased was only 7 years old, school going boy and the
petitioners are not the dependants of the deceased. Thereby the Tribunal,
correctly applied multiplier as per the II schedule of the Motor Vehicles
Act. As far as injury case is concerned, the tribunal after taking into
consideration of nature of injuries, correctly awarded a just and fair
compensation. Hence the present appeal is liable to be dismissed.
10. This Court after hearing both sides and upon perusing the
documents including the order of the Tribunal the point for determination
in C.M.A.(MD)No.155 of 2013 is:
i) whether the appeal in C.M.A.(MD)No.155 of 2013, is liable to
be allowed or not?
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C.M.A.(MD)Nos.155 and 156 of 2013
11. The point for determination in C.M.A(MD)No.156 of 2013
is :
i) whether the appeal in C.M.A.(MD)No.156 of 2013, is liable to
be allowed or not?
12. In M.C.O.P.No.1007 of 2008, there is no dispute with regard
to the negligence on the part of the driver of the bus. The respondent also
not filed any appeal, and these appeals are only filed by the petitioners on
the ground of inadequacy of compensation. It is an admitted fact that the
deceased was seven years old child and the Tribunal has awarded a sum of
Rs.2,25,000/- by relying upon the judgment reported in 2005 ACJ 99 in
the case of Manju Devi V. Musafir Paswan, and applied the multiplier
method as per the second schedule of Motor Vehicles Act and taken the
income of the deceased as Rs.15,000/- and awarded a sum of
Rs.2,25,000/-. According to the appellants / petitioner, the said award is
not a fair and responsible.
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C.M.A.(MD)Nos.155 and 156 of 2013
13. Learned counsel appearing for the petitioner has relied upon
the judgment in Meena Devi Vs Nunu Chand Mahto @ Nemchand
Mahto and others in S.L.P.No.5345 of 2019 on the file of the Hon'ble
Supreme Court of India. Wherein the Hon'ble Supreme Court after
referring various judgments, awarded a sum of Rs.5 Lakhs, towards
compensation.
"13. Thus applying the ratio of the said judgments,
looking to the age of the child in the present case i.e.12 years,
the principles laid down in the case of Kishan Gopal(supra)
are aptly applicable to the facts of the present case. As per the
ocular statement of the mother of the deceased, it is clear that
deceased was a brilliant student and studying in a private
school. Therefore, accepting the notional earning Rs.30,000/-
including future prospect and applying the multiplier of 15 in
view of the decision of this Court in Sarla Verma (supra), the
loss of dependency comes to Rs.4,50,000/- and if we add Rs.
50,000/- in conventional heads, then the total sum of
compensation comes to Rs.5,00,000/-. As per the judgment of
MACT, lump sum compensation of Rs.1,50,000/- has been
awarded, while the High Court enhanced it to Rs.2,00,000/-
upto the value of the Claim Petition. In our view, the said
amount of compensation is not just and reasonable looking to
the computation made hereinabove. Hence, we determine the
total compensation as Rs.5,00,000/- and on reducing the
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C.M.A.(MD)Nos.155 and 156 of 2013
amount as awarded by the High Court ie., Rs.2,00,000/-, the
enhanced amount comes to Rs.3,00,000/-."
14. After carefully going through the judgment, it is clear that
the Hon'ble Supreme Court has taken the notional earning of the child as
Rs.30,000/- including future prospects and applying multiplier 15 and also
Rs.50,000/- towards conventional heads. Total award amount would come
to Rs.5 Lakhs. In the case on hand also, the deceased was aged about 7
years, and the said judgment is squarely applicable to the present facts of
the case.
15. In view of the above said judgment, this Court also
considered and taken a sum of Rs.30,000/- as notional earning of the
deceased including the future prospects and by applying multiplier-15, the
award amount would come to Rs.4,50,000/- and after awarding Rs.
50,000/- towards conventional heads, the award amount would come to
Rs.5 Lakhs (4,50,000 + 50,000). Therefore, the petitioners in
C.M.A(MD)No.155 of 2013, are entitled to a sum of Rs.5 Lakhs towards
compensation.
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C.M.A.(MD)Nos.155 and 156 of 2013
16. But the Tribunal failed to consider the above said aspects
and only awarded a meagre amount as compensation. Thereby the order
passed by the Motor Accident Claims Tribunal / 1st Additional District
Court, Trichirappalli, dated 20.09.2010,in M.C.O.P.No.1007 of 2008, is
liable to be enhanced.
C.M.A(MD)No.156 of 2013:
17. In M.C.O.P.No.1008 of 2008, there is no dispute with regard
to the negligence on the part of the driver of the respondent that already
the Tribunal had came to a conclusion that the accident took place due to
the rash and negligence on the part of the driver of the respondent and the
respondent has also not filed any appeal as against the decision of the
tribunal. Per contra, the petitioners have preferred this appeal on the
ground of inadequacy of compensation. The Tribunal has awarded
Rs.13,17,704/- towards compensation, after adopting the multiplier
method. The contention of the petitioner is that the petitioner was
working as an employee in the Railway and he earned a sum of
Rs.17,564/- per month and the salary certificate was also marked by the
petitioners. But the Tribunal without considering the above said salary
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C.M.A.(MD)Nos.155 and 156 of 2013
certificate, without any basis, reduced the salary from Rs.17,564/- to
Rs.7,371/-. This Court also perused the salary certificate of the petitioner
and the gross salary is Rs.17,564/-. The Tribunal has not given any reason
to reduce the salary of the petitioner.
18. It is well settled that after deducting the statutory deductions,
the salary has to be taken entirely for calculation of compensation amount.
Thereby, the trial Court has committed an error by omitting to take the
entire salary as found in certificate. There is no contravention with regard
to the disability of the petitioner and as per the disability certificate and as
per the medical evidence, the disability arrived at 96% and to that effect,
Ex.P.19 also marked. After took into consideration of injuries. The
Tribunal has also adopted the multiplier method. The respondent also not
denied the adoption of multiplier method for the disability sustained by the
petitioner. There is no dispute with regard to the age of the petitioner and
as per Ex.P.8, the age of the petitioner was mentioned as 46 years.
Therefore, the Tribunal also adopted multiplier of 13, but failed to take the
salary as found in the certificate and also failed to add future prospects.
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C.M.A.(MD)Nos.155 and 156 of 2013
19. Since the petitioner is a permanent employee of the
Railways, 30% of the future prospects has to be added in his monthly
salary for calculating income. The salary of the petitioner is Rs.17,564/-
by adding 30%, the monthly salary would come to a sum of Rs.22,833
[17564 + 5269 (30% of 17,564)]. By considering the age of the petitioner,
multiplier 13 has to be adopted. Therefore, the award amount towards loss
of income, would come to a sum of Rs. 35,61,948/- ( 22,833 x 12 x 13).
Further, the petitioner has filed medical bills for a sum of Rs.1,07,828/-.
The Tribunal awarded a sum of Rs.50,000/- towards pain and sufferings
and Rs.5,000/- towards extra nourishment and Rs.5,000/- towards
transport expenses. In respect of the above heads, the compensation of the
Tribunal is fair and this Court need not interfere with the order passed by
the Tribunal.
20. Further the learned counsel for the petitioner has argued that
the petitioner cannot go to his day to day work and there by he is entitled
to compensation towards attendant charges and he relied upon a judgment
of the Hon'ble Supreme Court in the case of Jithendran Vs The New
India Assurance and Co. Ltd., and others and Sidram Vs The Divisional
Manager, United India Insurance Co.Ltd and others and after careful
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C.M.A.(MD)Nos.155 and 156 of 2013
perusal of the said judgment, it is clear that the petitioner is entitled to
attendant charges. In the case of Sidram Vs the Divisional Manager, the
Hon'ble Supreme Court has awarded a sum of Rs.2,000/- per month for the
attendant and this Court also considering the nature of the case, taken a
sum of Rs.2000/- and thereby the attendant charges would come to a sum
of Rs.3,12,000/- (2000 x 12 x 13).
21. In total, the petitioner is entitled for compensation under the
following heads:
Loss of income - Rs. 35,61,948/-
Pain and sufferings - Rs. 50,000/-
Extra nourishment - Rs. 5,000/-
Transport expenses - Rs. 5,000/-
Medical expenses - Rs. 1,07,828/-
Attendant charges - Rs. 3,12,000/-
------------------
Total - Rs. 40,41,776/-
In total, the petitioner is entitled to a sum of Rs.40,41,776/- rounded off to
Rs.40,00,000/- (Rupees Forty Lakhs only).
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C.M.A.(MD)Nos.155 and 156 of 2013
22. Further, the learned counsel for the appellant also brought to
the knowledge of this Court that as per the judgment of the Hon'ble
Supreme Court in Sidram Vs The Divisional Manager, the petitioner is
entitled to compensation for future medical expenses, but there is no
evidence to prove the future medical expenses. Thereby the contention of
the learned counsel for the petitioner is not acceptable. In view of the
above discussions this petitioner is entitled to the award amount as said
above.
23. In the result, this C.M.A(MD)No.155 of 2013, is partly
allowed with costs and the order passed by the Tribunal is modified to the
effect that the petitioners are entitled to Rs.5,00,000/- (Rupees Five Lakhs
only) towards compensation, with interest at the rate of 7.5% per annum
from the date of filing of the application till the realization of the amount.
The second respondent is directed to deposit the award amount within a
period of two months from the date of order of this Court after deducting
the amount, if any already paid. No costs.
24. In the result, this C.M.A(MD)No.156 of 2013, is partly
allowed and the order passed by the Motor Accident Claims Tribunal / 1st
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C.M.A.(MD)Nos.155 and 156 of 2013
Additional District Court, Trichirappalli, dated 20.09.2010,in M.C.O.P.No.
1007 of 2008, is modified to the effect that the appellants in this appeal, is
entitled to a sum of Rs.40,00,000/- (Rupees Forty Lakhs only) towards
compensation with interest at the rate of 7.5% per annum from the date of
filing of the petition, till the realization. The respondent is directed to
deposit the amount within a period of two months from the date of the
order of this Court. No costs.
04.01.2024
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
pnn
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C.M.A.(MD)Nos.155 and 156 of 2013
To:
1. The Motor Accident Claims Tribunal / 1st Additional District Court,
Trichirappalli.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)Nos.155 and 156 of 2013
P. DHANABAL, J.
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C.M.A.(MD)Nos.155 and 156 of 2013
04.01.2024
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