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Judgment
40 paragraphs · 2,344 wordsN. Kirubakaran, J.—The appeal has been preferred by the claimant, who died pending disposal of the appeal, and his Legal Representatives have been brought on record to continue the prosecution of the appeal. The award amount was Rs. 1,89,000/- as against the claim of Rs. 4,00,000/-.
One Mr. K. Krishnan sustained injuries in the accident, which occurred on 24.02.1996, when he was riding his TVS Champ, which was hit by an Auto Rickshaw driven by the first respondent herein. The aforesaid Krishnan sustained grievous injuries namely fracture on right leg, fracture on the right skull and multiple injuries all over the body. Hence, he filed a claim petition claiming the compensation to the tune of Rs. 4,00,000/-. The said claim petition was resisted by the second respondent Insurance Company.
On appreciation of the pleadings and evidence, the tribunal came to the conclusion that the accident was due to rash and negligent driving of the driver of the Auto Rickshaw and awarded a sum of Rs. 1,89,000/-. Against the said award the present appeal has been preferred by the injured person. Pending disposal of the appeal the claimant Krishnan died and the appellants 2 to 4 were brought on record to continue the appeal.
The learned Counsel for the 2nd respondent-Insurance Company, at the out set questioned the maintainability of the appeal contending that the legal heirs of the deceased appellant cannot prosecute the appeal. In support of his contention he relied upon the following judgements:
M. Veerappa Vs. Evelyn Sequeira and Others, .
Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, .
2007 (3) CTC 255 - Ramu (Died) and Anr. v. H. Ramachandran and Anr.
2007 (1) TN MAC 221 - 1. Sakunthala, 2. M. Das, 3. M. Mekata v. 1. R. Gopal, 2. United India Insurance Co. Ltd., 48, General Muthiah Mudali Street, Chennai-79.
The Managing Director, Pandiyan Roadways Corporation, Madurai Vs. S. Rajalakshmi and four others, .
1974 ACJ page 362 - C.P. Kandaswamy and Ors. v. Mariappa Stores and Ors.
In all those cases, the claim was only with regard to the personal injuries like pain and sufferings caused to the appellant there and the Hon''ble Supreme Court, as well as this Court held that for injury caused to the person, that injured alone was entitled to claim and that it cannot be prosecuted by the Legal Representatives.
The other two judgements relied upon by the learned Counsel for the respondent are M. Veerappa Vs. Evelyn Sequeira and Others, . and Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, wherein defamation case had been filed and during pendency of the appeal the person who filed the appeal died. In those circumstances, the Hon''ble Supreme Court held that due to death of the person the appeal filed by the affected person had abated. Hence, the aforesaid judgements are not applicable to the facts of the present case.
On the other hand, the learned Counsel for the appellant submitting the following judgements:
1996 (1) LW page 491 - G. Ganesan, K. Subash v. (Division Bench), C. Polycarp Pancharathnam, Thiruppathi Mudaliar, United India Insurance Co., Ltd., Divisional Officer, Trichy.
Nurani Jamal and others Vs. Naram Srinivasa Rao and others,
1981 ACJ 185 - Thailammai and Ors. v. A.V. Mallayya Pillai and Ors.
1975 ACJ 448 - Kongara Narayanamma and Ors. v. Uppala China Simhachalam and Ors.
Chandrakant Soni Vs. Mukesh Sahu and Others,
Smt. Munni Devi, Babulal, Laluram, Munna and Hanuman Vs. New India Assurance Co. Ltd., Jaipal Kishori Lal and Shri Jaipal Singh,
Adapaka Eswaramma and Others Vs. N. Chandra Sekhar,
United India Insurance Company Ltd. Vs. E. Laxma Reddy (died) per LRs. and Another,
Shiwando Prabhakar Vs. Sukhwinder Singh alias Chhinda,
By relying on the judgement passed by the Division Bench of this Court in C.M.A. No. 3747 of 2005 dated 01.12.2005, 1975 ACJ 215 - Govind Singh and Ors. v. A.S. Kailasam and Anr. it has been contended that the appeal can be prosecuted by the legal heirs.
In G. Ganesan, K. Subash v. C. Polycarp Pancharathnam, Thiruppathi Mudaliar, United India Insurance Co., Ltd., Divisional Officer Trichy reported in 1996 1 LW page 491 (Division Bench) the Division Bench of this Court had held that the legal representatives of the deceased in a motor accident claim deceased/appellants confined their clam only to loss to the estate of the deceased, and accordingly, the said appeal was entertained and the amount was granted.
Similarly, a Single Judge of this Court in Thailammai and Ors. v. A.V. Mallayya Pillai and Ors. reported in 1987 ACJ page 185 held that the cause of action survives to the legal representative, when the claimant died during the pendency of the petition. Damage to the estate of the deceased was held to be surviving.
A Single Judge of the Andrapradesh High Court in Nurani Jamal and others Vs. Naram Srinivasa Rao and others, held the claim for damage survives even after the death of the injured and the legal representative can continue to the action, if there is loss to the estate of the deceased. In the said judgment the learned Single Judge followed the judgment given by the Hon''ble Supreme Court in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, .
Even though, there is no definition in the Motor Vehicle Act, this Court has to follow the legal representative "definition" from the CPC u/s 2(11). If the deceased, a victim of the motor accident died during pendency of the petition or appeal, the legal heirs of the victim can continue the proceedings, when there is a loss to the estate The analysis of the judgments referred to above would lead to an irresistible aforesaid conclusion only.
If there was any mistake committed by the tribunal, the same can be challenged by the victim and the appeal could be continued before this Court by the legal heirs. Right to continue the proceedings by the Legal heirs has been recognised by the Hon''ble Supreme Court in Indrani Bai (Smt) Vs. Union of India (UOI) and Others, , Smt. Sudha Shrivastava Vs. Comptroller and Auditor General of India, , Rameshwar Manjhi (Deceased) through his son Lakhiram Manjhi Vs. Managemenmt of Sangramgarh Colliery and others, . If any amount enhanced that would also become part of "Estate of the Deceased". As the appeal is the continuation of original proceedings, the amount awarded by the tribunal could be challenged for enhancement by the L.Rs and there is no prohibition for them. The Motor Vehicle Act is beneficial legislation. The benefits should reach the injured or dependants of the injured. On technical pleas, the benefits of the Act cannot prohibited from reaching the beneficiaries. If the technical pleas are sustained, it would go against the intention of the statute.
The Hon''ble Supreme Court in New India Assurance Co. Ltd. v. C. Padma reported in AIR 2003 SC 4394 held as follows:
The Motor Vehicle Act is a beneficial legislation aimed at providing reliefs to the victims or their family, if otherwise the claim is found genuine. It is a self contained Act which prescribed mode of filing the application, procedure to be followed and award to be made. The Parliament, in its wisdom, realised grave injustice and injury caused to the heirs and legal representatives of victims who suffer bodily injuries/ die in accidents, by rejecting their claim petitions at the threshold on the ground of limitation, and purposely deleted Sub-section 3 of Section 166, which provided the period of limitation for filing the claim petitions and this being the intendment of the legislature to give effective relief to victims and the families of the Motor Accidents untrammelled by the technicalities of the limitation invoking of Article 137 of the Limitation Act would defeat the intendment of the legislature....
Hence any technical approach should be avoided in the Motor Vehicle claims. It was observed by the Hon''ble Supreme Court in Mahendra Rathore Vs. Omkar Singh and Others, as follows:
In such matters a justice oriented approach and not too technical or pedantic approach is expected to be adopted by courts more so when the application sought to be restored for hearing was a claim case arising out of motor accident.
The Hon''ble Supreme Court in Mrs. Hafizun Begum Vs. Md. Ikram Heque and Others, and in Manjuri Bera v. The Oriental Insurance Co. Ltd. and Anr. reported in J.T. 2007(5) SC 781 held that even a person who may not be legal heir of the deceased can also sue for compensation also held that in those circumstances, the contention raised by the Counsel for the respondent with regard to prosecution of the appeal by legal representatives is rejected and the appeal can be continued by the legal heirs. There is no appeal by the Insurance Company questioning the award. The claimant only preferred the appeal, who died pending disposal of CMA and legal representatives were brought on record to pursue the appeal filed. Hence, it is deemed that the findings regarding negligence attained finality and this Court need not go in to the negligence aspect.
Mr. Shanmugaraj, learned Counsel for appellants submitted that the deceased was aged about 35 years, who was working in a private firm as a supervisor. The contention of the appellant was that the deceased was earning about Rs. 5000/- per month, which was proved before the Tribunal by Ex.P8. However, the Tribunal did not believe Ex.P8 and fixed the monthly income at Rs. 3,000/-. As far as the disability is concerned, three witnesses namely P.W.2 to P.W.4 were examined. Ex.P.1 to Ex.P.6 were the Medical certificates issued to the victim. Ex.P.14 and Ex.P.16 were the disability certificates. Ex.P15 was the certificate issue by the Doctor. P.W.2 who assessed the victim and gave certificate assessing his disability as 45% considering the fact that the skull was injured and there was a deformity measuring 5" x 2". P.W.2 elaborately spoke about blood clot in the brain and other the conditions of the victim. The injury in the skull and brain should be viewed seriously, as the skull and brain are affected. Brain is the centre of nervous system and controls the mechanism of the entire body. 45% disability caused to the skull and brain would definitely affect the life of the victim.
Admittedly, the victim died pending disposal of the appeal. This Court cannot rule out the possibility of death of the person due to the injury in the skull. Even celebrated authors like Modi and Dr. Narayana reddy of the firm opinion that injury in the skull would affect the person on later stage. P.W.3 Eye specialist spoke about the disability in the eye sustained by the victim; 30% loss of Eye sight was assessed and which was elaborately given in PW3''s evidence stating that fourth nerve of the brain was affected and the victim could not move the right eye. P.W.4 is the Orthopaedic surgeon, who gave details about the injuries and fractures sustained by the victim who gave the details about the disability caused to the victim and assessed the disability at 60%. The aforesaid evidence of medical witnesses namely PW2, PW3 and PW4, undoubtedly proved that the disability sustained by the victim is 100%. The multiplayer to be adopted in this case, considering the age of the victim 35, is 16. However, the tribunal adopted 17 as multiplier. Therefore, it is reduced to 16.
Apart from that, when the tribunal came to the conclusion that monthly income of the victim was Rs. 3000/- it rightly calculated the loss of income as Rs. 6,12,000/-. However, without any reason and without even any finding, the tribunal awarded only a sum of Rs. 50,000/- towards loss of income. The reduction of amount from Rs. 6,12,000 to Rs. 50,000/- is without any reason and the same is liable to be set aside and accordingly it is set aside. Even as per the Supreme Court Judgment in The New India Assurance Company Limited Vs. Smt. Kalpana and Others, , even in the absence of any definite material for monthly income Rs. 3000/- could be taken as monthly contribution. However in this case Rs. 3000/- was taken as monthly income and the same cannot be found fault. Taking into consideration the sum of Rs. 3000/- as a monthly income, 1/3rd of the said amount should be deducted towards personal expenses of the deceased. Hence, the monthly contribution of the deceased to the family is Rs. 2,000/- and the annual contribution would be Rs. 2000 x 12 = 24,000/- and the loss of income would be Rs. 24,000 x 16 = 3,84,000/-.
As this Court calculates loss of income according to the second schedule of the Motor vehicle Act, the amount granted towards disability namely Rs. 90,000/- is deleted and loss of income Rs. 50,000/- awarded by the tribunal is enhanced to Rs. 3,84,000 as aforesaid. The amount awarded by the tribunal would form part of the estate of deceased. As far as the other heads of compensation i.e., towards pain and sufferings a sum of Rs. 15,000/- Rs. 21,000/- towards loss of income during treatment period 10,000/- towards medial expenses, Rs. 2,000/- towards extra nourishment and 1,000/- towards transport expenses were given on the same are confirmed.
In fine the award of compensation made by the tribunal, namely Rs. 1,89,000/- is enhanced to Rs. 4,33,000/- in the following manner:
Loss of income - Rs. 3,84,000/- 2. Loss of income during the period of treatment - Rs. 21,000/- 3. Pain and sufferings - Rs. 15,000/- 4. Medical Fees - Rs. 10,000/- 5. Extra nourishment - Rs. 2,000/- 6. Transport expenses - Rs. 1,000/- --------------- Total Rs. 4,33,000/- ---------------
The rate of interest awarded by the tribunal at 9% is confirmed. The above amounts are awarded considering the fact that the amount would constitute the estate of the deceased, which he would have acquired during his lifetime. The appeal is allowed. However, there will be no order as to costs.