Bajaj Allaianz Insurance Co. Vs Maivasagam- died

Prayer in C.M.A.No.469 of 2014: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the judgment and decree 24^th November 2009 made in M.C.O.P.No.582 of 2005 on the file of Motor Accident Claims Tribunal, (Additional District Judge-cum-Fast Track Court No.5), Tiruppur, Coimbatore District.

¶39

Prayer in Cross Appeal SR.No.102988 of 2019: Cross Appeal filed under Order 41 Rules 22 of C.P.C., to enhance the compensation by allowing this Cross objection with interest and costs.

¶40

2/14

¶41

https://www.mhc.tn.gov.in/judis

¶42

CMA.No.469 of 2014

¶43

Prayer in C.M.P.No.25565 of 2019: Civil Miscellaneous Petition filed under Order 41 Rule 27 of C.P.C., to receive the additional documents mentioned in the list of documents and to be marked as Ex.P.8 & Ex.P.9 in the above appeal in C.M.A.No.469 of 2014 pending before this Court.

¶44

CM.A.No.469 of 2014:

¶45

For Appellants : Mr.K.Padmanabhan, For Respondents : Mr.Ma.Pa.Thangavel, for R1, R5 to R7

¶46

: Mr.K.Vinod, for Mrs.Elveera Ravindran, for R3 : No appearance, for R2 & R4

¶47

Cross Objection SR.No.469 of 2014:

¶48

For Petitioners : Mr.Ma.Pa.Thangavel,

¶49

For Respondent : Mr.K.Padmanabhan, for R1 : Mr.K.Vinod, for Mrs.Elveera Ravindran, for R3 : No appearance, for R2 & R4

¶50

¶51

COMMON JUDGMENT

¶52

(Order of the Court was made by G.Jayachandran, J.)

¶53

It is brought to the notice of this Court that 1^st

¶54

respondent/Manivasagam died, this Court suo motu impleads respondents R5 to R7 as parties to the appeal (C.M.A.No.469 of 2014) and also impleads petitioners 2 to 4 in Cross Objection SR.No.102988 of 2019 in their capacity as the legal heirs of the deceased 1^st petitioner.

¶55

3/14

¶56

https://www.mhc.tn.gov.in/judis

¶57

CMA.No.469 of 2014

¶58

2. Civil Miscellaneous Appeal is filed by the Insurance Company, being aggrieved by the award passed by the Motor Accident Claims Tribunal, Tiruppur, in M.C.O.P.No.582 of 2005.

¶59

3. Cross Objection SR.No.102988 is filed by the petitioner/Cross objector to enhancement of compensation.

¶60

4. The claimant/Cross objector had taken out an application for enhancement of compensation. It is not out of context to record the facts that, pending appeal, the 1^st respondent, who is the claimant has lost his breath on 20.02.2024, living behind his wife, his mother (widow) and son who has just attained majority.

¶61

5. Adverting to the facts of the case, on 01.06.2005 early morning at 4.45 a.m, an auto bearing Reg.No.TN-39-AB-2079, carrying four passengers besides the driver had dashed against a Lorry bearing Reg.No.TN-28-4509. The occupants of the auto had sustained injuries. The claimant/Manivasagam was one among them. The claim petition seeking compensation of Rs.15,00,000/- instituted by Manivasagam contending that the injuries sustained by him had made him cripple, causing 100% disability and unable to earn his livelihood or maintain his dependent. Claiming that, before the 4/14

¶62

https://www.mhc.tn.gov.in/judis

¶63

CMA.No.469 of 2014

¶64

accident, he was earning a sum of Rs.6000/- per month as welder in a carpentry and the accident occurred due to the rash and negligent act of the auto driver in which he was travelling. Consequently, the claimant has instituted the claim petition against (i) the owner of the auto and its insurer and (ii) the owner of the lorry and its insurer.

¶65

6. The claim petition was strongly and vehemently contested by

¶66

the Insurance Company. The Tribunal, after considering the evidence on the side of the petitioner as well as the evidence on the side of the respondents, including the documents relied on either side, held that the accident occurred wholly due to the rash and negligent driving of the auto driver in which the claimant was travelling and sustained injuries.

¶67

7. Regarding the loss of income and the quantum of compensation,

¶68

though the claimant has averred that he was earning Rs.6000/- per month and adduced oral evidence of the co-worker to support his claim. However, the Tribunal had fixed the notional income of Rs.3000/- per month and the applied multiplier since the medical evidence indicated that the claimant had sustained 100% functional disability.

¶69

5/14

¶70

https://www.mhc.tn.gov.in/judis

¶71

CMA.No.469 of 2014

¶72

8. The award of the Tribunal is challenged by the Insurance Company on the ground that when there is head on collusion between the Auto and the lorry, the negligence on the part of the lorry driver has been totally ignored by the Tribunal and had fixed entire liability on the insurer of the Auto.

¶73

9. Regarding the quantum of compensation, it was contended that a sum of Rs.3000/- per month as notional income fixed by the Tribunal is per se without any basis. Further, submitted that multiplier 18 should be applied for the injured person, whose age is 27 is also not inconsonance with the dictum

¶74

laid down in Sarala Verma vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 .

¶75

10. The Learned Counsel for the Appellant/Insurance Company contended that other injured persons also laid claim petition and their evidence in the respective claim petition would clearly indicate that it was head on collusion and both the drivers were at fault. Therefore, the entire liability ought not to have been fastened on the insurer of the Auto. Furthermore, submitted that there was no evidence to prove the claimant had sustained 100% functional disability, for applying the multiplier. The Tribunal gravely erred in applying the multiplier in this case.

¶76

6/14

¶77

https://www.mhc.tn.gov.in/judis

¶78

CMA.No.469 of 2014

¶79

11. Per contra, the Learned Counsel appearing for the claimant, who is now no more but been instructed by his legal representatives to represent the 1^st respondent (now deceased), submitted that the issue of negligence has already been decided in the connected claim petitions M.C.O.P.Nos.519, 520, 521 of 2022, dated 10.10.2007 and the same been confirmed in C.M.A.Nos.3708 to 3710 of 2008, dated 08.10.2018.

¶80

12. Being a question of fact, the issue of negligence, having been heard and decided by the Tribunal as well as by the Appellate Court, is no more available for reappreciation.

¶81

13. Pointing out the portion of the Tribunal award which has discussed about the negligence and relying upon the findings in the connected claim petition, which is marked as Ex.B.5 in the present case, the Learned Counsel for the respondent submitted that it is futile to look into the issue of negligence.

¶82

14. Regarding the quantum of compensation, it is contended by the Learned Counsel for the legal representatives of the claimant that, after the accident, the victim was living life as a vegetable and had incurred substantial 7/14

¶83

https://www.mhc.tn.gov.in/judis

¶84

CMA.No.469 of 2014

¶85

medical expenses. His loss of income is fixed as Rs.3000/- per month notionally is abysmally low and therefore, the Tribunal ought to have fixed the income as Rs.6000/- per month and also added 40% towards the future prospects to ensure that the compensation is fair and adequate. Since the award passed is low, the Cross-objection filed seeking enhancement of compensation to Rs.40 lakhs and also pleaded that during his lifetime, the deceased 1^st respondent had incurred medical expenses and he has taken out application to receive additional documents relating to the medical expenses and that has to be taken into consideration.

¶86

15. The Learned Counsel appearing for the appellant submitted that the plea raised on behalf of the deceased 1^st respondent need not be taken into consideration, since the subsequent events and judgments will not have a retrospective effect to the accident claim which has already been settled.

¶87

16. The only issues to be decided in this appeal, whether there is contributory negligence on the part of the lorry and whether the fixation of 100% disability and applying multiplier are in consonance with law.

¶88

8/14

¶89

https://www.mhc.tn.gov.in/judis

¶90

CMA.No.469 of 2014

¶91

17. The Motor Vehicles Act and the provisions dealing with the compensation for road accident being a social welfare legislation. The Court cannot have a pedantic approach for the claims. It has to test the claim petition following the principles of fair and equity.

¶92

18. This is a case where a 27 year old man, married and living with his wife and children, had sustained injury in a road accident, causing damage to the spinal cord, knee and perital region. The medical evidence, in the nature of discharge summaries marked as Ex.A2, Ex.A3 and Ex.A6, read cumulatively discloses the fact that the functional disability incurred had caused 100% loss of earning capacity.

¶93

19. The Tribunal had observed demeanour of the claimant when he had attended the Court for giving evidence and same also been recorded in the award. The evidence gives satisfactory explanation for applying the multiplier and fixing 100% loss of earning capacity.

¶94

20. Therefore, this Court, while considering the grounds of appeal raised by the Insurance Company, primarily find that the plea of contributory negligence is not substantiated by any reliable evidence and further been 9/14

¶95

https://www.mhc.tn.gov.in/judis

¶96

CMA.No.469 of 2014

¶97

negatived by the Tribunal in this case as well as the connected claim petitions.

¶98

21. The finding of the Single Judge in the connected appeal, which

¶99

carries persuasive value on this Court and also go in line with the view of this Court. Hence, the plea of the appellant that there was contributory negligence on the part of the lorry driver is negatived.

¶100

22. Insofar as the quantum of compensation is concerned, the only error what this Court could find in the award is the application of multiplier 18 for the victim age 27. As per the scales provided under the Workmen's Compensation Act as well as reconciled in the Sarala Verma case [cited supra] and the subsequent cases, the appropriate multiplier for a claimant aged between 26 to 30, should be 17. This Court also finds that the compensation for the loss of income fixed at Rs.3000/- as notional income, should have been added with future prospects, which the Tribunal has omitted to consider.

¶101

23. Therefore, we are of the view that the loss of income has to be fixed at Rs.3000/- + Rs.1200/- per month, with multiplier 17. That apart, the Trial Court had awarded Rs.3,16,671.82, towards the medical treatment based on the medical bill provided by the claimant. By way of additional documents, 10/14

¶102

https://www.mhc.tn.gov.in/judis

¶103

CMA.No.469 of 2014

¶104

the Learned Counsel for the 1^st respondent has produced certain medical bill to substantiate that the 1^st respondent had incurred medical expenses subsequent to the award.

¶105

24. This Court is of the view that, while applying the multiplier and after considering the physical condition of the claimant, the Tribunal had taken 100% disability towards the earning capacity. While so, the medical expenses incurred subsequently to be considered as inclusive components. Therefore, without probing further regarding the medical expenses incurred after the award, this Court is of the view that since the claimant died, the compensation of Rs.25,000/- towards the pain and suffering and Rs.50,000/- for loss of amenity due to absence of movement of both lower limbs can be enhanced to Rs.1,00,000/- and Rs.2,00,000/- respectively, which will meets the ends of the justice in the present case.

¶106

25. Accordingly, this Civil Miscellaneous Appeal is dismissed and

¶107

the Cross objection for enhancement of compensation is disposed of, fixing the loss of earning capacity as Rs.4200 x 17x12 x 100%.

¶108

11/14

¶109

https://www.mhc.tn.gov.in/judis

¶110

CMA.No.469 of 2014

¶111

Sl.Nos.
1.

¶112

_Sl.Nos. _	*Compensation under various heads*	*Award passed by this* *Court*
1.	Loss Income of the claimant [Rs.4,200 x 17 x 12 x100%]	Rs.8,56,800/-
2.	Pain and Sufferings	Rs.1,00,000/-
3	Loss of amenities	Rs.2,00,000/-
3.	Loss of Marital Loss	Rs.1,00,000/-
4.	Extra Nourishment	Rs.5,000/-
5.	Transportation Expenses	Rs.5,000/-
6.	Loss of Income during treatment	Rs.4,000/-
7.	Medical expenses	Rs.3,16,671/-
	*Total*	*Rs.15,86,471/-*

¶113

26. The claimant shall be entitled to interest at the rate of 7.5%

¶114

p.a., for the award amount, from the date of filing of the petition till the date of

¶115

payment. This Court, suo motu, impleads the wife and mother of the deceased as respondents 5 to 7. As far as the award amount is concerned, it shall be distributed pro-rata with 50% equally between the wife, who is the 5^th respondent and the mother, who is the 7^th respondent.

¶116

27. The Learned Counsel for the Insurance Company submitted

¶117

that the entire award has already been deposited while preferring the appeal. If that is so, the balance award amount along with interest to be deposited within a period of eight weeks from the date of receipt of copy of this order. On such

¶118

12/14

¶119

https://www.mhc.tn.gov.in/judis

¶120

CMA.No.469 of 2014

¶121

deposit, the Trial Court shall permit the respondents 5 & 6 to withdrawn the

¶122

said amount on filing proper application.

¶123

28. In fine: