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Judgment
Mrs. S. Vimala, J.—All the appeals and cross objection have been filed challenging the common judgment passed by the II Court of Small Causes, Chennai, dated 14.03.2005.
In respect of the claim made by the claimants in M.C.O.P.No. 1730 of 20009( C.M.A.No.1349 of 2006) a sum of Rs.5,00,000/- has been claimed in respect of death of 9 year old student, who died in an accident that took place on 25.01.2000. The Tribunal quantified the compensation under the following heads:
Heads
Amount (Rs.)
Funeral expenses
Rs.5,000/-
Loss of pecuniary benefits and loss of expectation of life
Rs.2,55,000/-
Loss to estate
Rs. 20,000/-
Mental agony
Rs. 20,000/-
Total
Rs.3,00,000/-
The main contention of the appellants / claimants is that the Tribunal is not consistent in awarding compensation and when the Tribunal has awarded a sum of Rs.3,86,000/- in respect of death of a 6 year old student, it committed an error in awarding a sum of Rs.3,00,000/- in respect of a student, who died at the age of 9 years.
3.1. Yet another contention is that the Tribunal omitted to consider Ex.P-14, family planning certificate of the mother, and the Tribunal ought to have awarded extra compensation, considering the fact that the mother cannot beget any child in future and also that the deceased was the only male issue in the family.
3.2. The third contention is that the anticipated future monthly income should have been taken at Rs.5,000/- and not at Rs.1,250/-.
The contention of the insurance company is that there was no pecuniary loss at all and therefore, compensation can be granted only towards loss of expectation of life and that no amount can be awarded towards mental agony.
In order to appreciate the contention raised with regard to inconsistency, it is better to consider the award passed in respect of death of the child aged 6 years.
In MCOP.3185 of 2000,(C.M.A.No.1351 of 2006) claim was made by parents in respect of the death of their son aged 6 years, who was a student, who died on 25.01.2000. The claim has been made for a sum of Rs.4,00,000/-. The Tribunal has awarded a sum of Rs.3,86,000/- and the break up details are as follows:
Heads
Amount (Rs.)
Future loss of income (Rs.15,000/- x 18)
2,70,000/-
Damage to articles
500/-
Loss of love and affection
1,00,000/-
Pain and sufferings (during the period of treatment)
4,500/-
Loss to estate
6,000/-
Funeral expenses
5,000/-
Total
Rs.3,86,000/-
Challenging the award as exorbitant, the insurance company has preferred this appeal. The award of Rs.1,00,000/- towards loss of love and affection and the award of Rs.6,000/- towards loss to estate and multiplier adopted at 18, are under challenge.
In the evidence of the father, Sankar, he has stated that his injured son had been taking treatment as inpatient for a period of one month, as he suffered from peeling off entire flesh in the right thigh. But the death certificate filed (Ex.P-22) shows the date of death as 25.01.2000, which is the date of accident itself. Therefore, the award of damages in respect of both cases should be the same, as they come under the category of children below 15 years.
The learned counsel for the claimants, contending that multiplier of 15 should be adopted, in case, the age of the deceased is upto 15 years, has relied upon the decision reported in 2013 (5) Scale 160 (Reshma Kumari and Ors. v. Madanmohan and Anr.), wherein it has been held that in cases where the age of the deceased is upto 15 years, irrespective of Section 166 or Section 163-A, under which claim for compensation has been made, multiplier of 15 should be taken. The assessment as indicated in the second schedule subject to correction as pointed out in column No.6 of the Table in Sarla Verma''s case, was directed to be adopted.
Yet another case is the decision reported in 2013 (2) TN MAC 358 (SC) (Kishan Gopal & Anr. v. Lala and Ors.), where the deceased was aged 10 years, multiplier of 15 was adopted.
In the reported case in Kishan Gopal & Anr. v. Lala and Ors., the accident had taken place on 19.07.1992. The fact that rupee value drastically coming down from the year 1994 when the II schedule was introduced in the M.V. Act was taken into account. Accordingly, the notional income was taken at Rs.30,000/-. In this case also, the parents are young in age. The accident had taken place six years after 1994, during which year, the notional income was fixed at Rs.15,000/- p.a. When the notional income has been fixed at Rs.30,000/- in respect of the accident that took place in 1992, it is proper to fix the same in respect of the accident that took place in the year 1994 also. Therefore, the notional income is taken at Rs.30,000/- per year and adopting multiplier of 15, loss of dependency is awarded at Rs.4,50,000/-. Awarding a sum of Rs.5,000/- toward funeral expenses and Rs.45,000/- towards loss of love and affection, compensation is quantified in each of the case at Rs.5,00,000/-.
Therefore, C.M.A. Nos. 1349 and 1351 of 2006 filed by the insurance company are dismissed and C.M.A.No.59 of 2006 filed by the claimants (M.C.O.P.No.1730 of 2000) is allowed. The compensation awarded by the Tribunal in each case is enhanced from Rs.3,00,000/- and Rs.3,86,000/- respectively to Rs.5,00,000/-. The claimants in 1351 of 2006 shall pay the court fees before receiving the award amount.
C.M.A. No. 1350 of 2006 and Cross Obj. 34 of 2011
Minor Vinodh Kumar, aged 13 years, a student, met with an accident on 25.01.2000 and he sustained multiple injuries all over the body. In respect of the injuries sustained, mother claimed compensation of Rs.20 lakhs. During the pendency of the petition, Minor. Vinodh Kumar died and the mother Lakshmi got impleaded herself (in different capacity) as legal representative of the deceased. The Tribunal awarded a sum of Rs.10 lakhs under the following break-up details:
Heads
Amount (Rs.)
Loss of income (Rs.15,000/- x 17)
2,55,000/-
Transportation
25,000/-
Extra nutrition
25,000/-
Loss of expectation of life
10,000/-
Funeral expenses
5,000/-
Medical expenses
5,00,000/-
Loss of love and affection
20,000/-
Mental agony
60,000/-
Pain and sufferings
1,00,000/-
Total
10,00,000/-
Subsequently, one Munisekar filed a petition seeking to implead himself in the capacity as father and that petition has been allowed in M.P.No.2136 of 2004 and he has been impleaded as 4th respondent in the main petition.
While awarding compensation, the Tribunal has ordered apportionment of compensation granting a sum of Rs.5 lakhs to the mother, Rs.1 lakh to the father and a sum of Rs.4 lakhs to the minor Sreevidhya, (sister of the deceased). The amount awarded to the minor Sreevidhya, was ordered to be kept in bank for a period of three years.
Taking the age of the mother as 35 years and adopting multiplier of 17, taking the income of the deceased at Rs.15,000/-, loss of dependency has been assessed at Rs.2,55,000/-. Medical expenses has been awarded as per the medical bills (Ex.P-54) at Rs.5,27,569/-.
It is the contention of the insurance company that multiplier of 17 ought not to have been adopted and the amount awarded under the other heads are highly excessive.
Cross Objection has been filed by the mother on the following grounds:
The award of compensation to the father, who left the matrimonial home long back, who attempted to get wrongful compensation is unwarranted.
The award of compensation to the sister of the deceased who was not party to the proceedings at all is not correct.
Medical expenses should have been awarded at Rs.8,00,000/- as per claim; and
The amount awarded under other heads are inadequate.
In order to appreciate the claim made towards medical expenses and mental agony. it is necessary to highlight the date of admission, the date of discharge, with details of treatment of the injured.
Date of admission
Date of discharge
Hospital
Nature of treatment
Discharge advice
25.01.2000
12.04.2000
GGH, Chennai
On 25.01.2000 and 27.01.2000, Craniotomy and Tracheostomy done On 17.02.2000, weaned off from ventilator.
Review after 15 days at neurosurgical O.P.
12.04.2000
29.08.2000
Sarala Neurology Hospital & Research Centre, Chennai.
Bed sores healed well by proper dressing. Tracheotomy strider was persistent. H/o difficulty in extubation in GH. Tracheotomy tube changed under GA after performing endoscopy on 17.02.2000 again the same done in railway hospital on 6.7.2000. Tracheostomy reconstruction done 14.07.2000 at AVM Madras ENT Research Foundation. On 17.04.2000 and on 17.05.2000, patient has been referred to Madras Neurological Research Institute, for the purpose of CT Scan
No.2
14.07.2000
15.07.2000
AVM Madras ENT Research and Foundation (P) Ltd., Chennai
The Trachostome was found to be at a lower level and to the (R) side of the Trachea. Trachostome was reconstructed at a higher level and tracheostomy tube inserted. The old stoma was closed.
Patient transferred to Sarla Neurological Reasearch Institute.
9.10.2000
13.10.2000
AVM Madras ENT Research and Foundation (P) Ltd., Chennai
Fibreoptic Bronchoscopy, Tracheostomy Tube change.
To come for review on 16.10.2000
10.01.2001
19.01.2001
AVM Madras ENT Research and Foundation (P) Ltd., Chennai
Diagnosis : Tracheal Stenopsis. Findings: Fiberoptic Bronchoscopy with ''T'' Tube insertion under GA.
To come for review after six weeks
09.02.2001
12.02.2001
Guru Raghavendra Hospitals (P) Ltd., Chennai.
Treatment: Patient treated with (1)Intermittent tracheal toileting, (2)Antibiotics, (3)Bronchodilators, (4)Oxygen-Nasal (5)Antacids
Patient had persistent chest infection in spite of all measures, dyspnea was fluctuating. On 12.2.2001, patients respiration become shallow anticipating respiratory arrest advice to shift to higher level hospital for ventilation, hence done at 12.30 p.m. on 12.2.2001.
Before quantifying the compensation payable, it is necessary to point out that the death was on account of the injuries sustained and the claimant is entitled to compensation on account of the death.
The details of admission and discharge would go to show that the injured had been under incessant treatment. The observation dated 12.02.2001 on the date of discharge would be relevant and important.
"Patient had persistent chest infection in spite of all measures, dyspnea was fluctuating. On 12.02.2001, patient''s respiration became shallow. Anticipating respiratory arrest advice to shift to higher level hospital for ventilation, hence done at 12.30 p.m. On 12.02.2001".
This remark coupled with details of admission and discharge, as extracted above, would go to show that the death was on account of injuries sustained.
The next contention is that neither the father, who contributed nothing, except the gene, nor the sister of the deceased, who is not a dependant upon him, is entitled to any compensation. In order to appreciate this contention, it is necessary to look into the evidence and documents.
22.1. In the evidence of Lakshmi, it is stated that his son died on account of head injuries after prolonged treatment and that she obtained V.R.S., after getting Rs.2 lakhs from her employer, out of which she met the medical expenses. Her specific evidence is that her husband did not spend any money for the injured and he did not even visit the injured in the hospital. According to her, her husband married a girl, by name Geetha, and in respect of which, a case is pending. He did not even attend the last rites of the deceased. The evidence of Sreevidhya, the sister of the deceased, corroborates the evidence of the mother, Lakshmi.
22.2. In the evidence of the husband, it is stated that he came to know about the claim petition filed, i.e., M.C.O.P.No.5130 of 2000, only in the year 2004 and thereafter, he filed an application to implead himself. He has admitted that his wife was a nurse and she was attending Adayar Voluntary Health Centre. The second marriage with one Geetha, aged 26 years, is also admitted in the cross-examination. He has stated that he does not know in which school his daughter is studying.
22.3. The claim petition has been ordered on 14.03.2005. Even on 26.04.2002, application for maintenance has been filed by Lakshmi, against Munisekar, her husband. According to her, they got separated from the year 1999. Vinodh Kumar expired on 14.02.2001.
22.4. In paragraph 9 of the petition, it is specifically stated that Vinodh Kumar met with an accident and the father did not meet the medical expenses and did not even take care about the ailing son. It is relevant to point out that neither the father separately filed any claim petition during 2001 nor filed impleading petition at least immediately after the application for maintenance being filed by his wife. This conduct only goes to show that he could not have contributed anything towards medical expenses of the deceased son. The learned Magistrate has also observed that Lakshmi has obtained an order of divorce in H.M.O.P.No.73 of 2001 before Sub Court, Tiruvallur. The learned Magistrate has ordered maintenance at the rate of Rs.500/- per month. This order has been passed on 02.04.2004.
The father claims compensation by relying upon a pro note dated 15.02.2000 for a sum of Rs.60,000/-, a pro note dated 12.08.2000 for a sum of Rs.42,750/-, a pro note dated 18.02.2001 for a sum of Rs.75,000/- (for cremation expenses) and a pro note dated 01.07.2003 for a sum of Rs.25,000/-.
With reference to these claims made, the Tribunal has given a finding that those documents are fabricated documents only for making false claim on account of the death of the deceased son. The observation made by the Claims Tribunal can be accepted because, if really those promissory notes had been in existence, the details of those promissory notes, which were prior to 2004, at least should have been mentioned in the maintenance proceedings and the Court would have noted it. Especially, in a case for maintenance, if really he had taken care of his son, his first contention would have been that he had been generous enough to the extent of borrowing money towards treatment of his son and this is not the case, which is revealed from the order for maintenance. Therefore, the contention that it is the father who alone spent money for the son, cannot be accepted.
The only question is for the mere status as father whether any compensation has to be allowed. Under normal circumstances, even if the father had not done anything, the Court can award compensation for loss of love and affection, as the father would have suffered the same. But, in this case, the father wanted to celebrate honeymoon with his second wife, while the son was in the death-bed. Apart from that, when the mother was ailing leaving the job and waiting to see the breath of his son each and every minute, the father has taken the endeavour to delay the grant of compensation. Moreover, he has also fabricated documents for the purpose of making claim for compensation. Under such circumstances, this Court holds that father is not entitled to compensation, when he has proved that there is no love-lost.
Perusal of the records reveals that when the appeal by the insurance company was admitted on 24.04.2006, notice returnable by eight weeks has been ordered. Notice to respondents 2 to 4 has been given up in the miscellaneous petition. For R-5, steps are pending from 2006. Therefore, the appeal has been dismissed as against Respondent No.5.
While hearing the appeal, it was pointed out by this Court that no notice has been served upon the father, so far, in this case and therefore, steps have to be taken to serve notice. The learned counsel representing the mother submitted that the father did not file any appeal claiming enhancement in compensation and that it is only the mother who is seeking for enhancement and therefore so far as the claim for enhancement is concerned, notice to father is not necessary. It is further pointed out that only if the compensation already awarded is to be cancelled or recalled, notice to father would be necessary and in order to purchase peace and time, the mother is willing to forego the compensation amount of Rs.1,00,000/- already awarded to father.
Under normal circumstances, this Court would not have dispensed with notice to the father, 4th respondent in cross objection, but this is an extraordinary case, where the mother has suffered loss on account of loss of job, mental peace, financial loss, etc. The aim of the father had been to add fuel to the burning injury. Therefore, when there are clinching documents to show that father has not contributed anything and when he has not appealed against and when the mother is asking for enhancement of the claim, non-issuance of notice to the father is not fatal so far as the claim for enhancement of compensation is concerned. With regard to the amount already ordered as compensation, as the mother has expressed willingness to forego the amount, notice to father is dispensed with. Notice would be indispensable only in case, cancellation of award as against the father is pressed into service.
Principles of natural justice also require (apart from the relinquishment) that amount of one lakh already awarded cannot be withdrawn from the account of the father, without notice to him. But, as it was represented that speedy justice is required to the claimant / mother who is ailing for 13 years and that for want of notice, matter need not be kept pending, considering the pitiable condition in which the claimant / mother had been placed, this matter has been disposed of assuring that no injustice has been done to father by not ordering withdrawal of compensation already awarded. Therefore, as conceded by the learned counsel for the claimant / mother also, no recovery has been ordered from the 4th respondent / father. However, liberty is given to her to take separate proceedings for recovery of the amount from the 4th respondent / father, if so advised.
Then the next question is the total amount of compensation to be awarded to the mother. The compensation towards medical expenses has been claimed at Rs.5,27,569/-, rounded to Rs.5,28,000/-. This compensation would be payable under the head of loss to estate. Pain and sufferings at Rs.2 lakhs would also go to the benefit of the estate. Funeral expenses is awarded at Rs.5,000/-. The injured was a student aged 13 years. The mother is aged 48 years. In respect of the children aged below 15 years, the appropriate multiplier taken is 15. In the connected matters, the notional income has been taken at Rs.30,000/-. Therefore, the compensation on account of loss of dependency would be Rs.4,50,000/-. Towards loss of love and affection, Rs.45,000/- is awarded.
The mother being a nurse has suffered loss of income on account of losing the job. Apart from that, she has seen the battling life of his son each and every minute. Having had medical knowledge, the mental agony would have been more. After having expended money, she has lost her son, though having lost the job to attend on his son. Therefore, the compensation on account of mental agony is estimated at Rs.75,000/-.
The expenditure on account of transport expenses, extra nourishment and cost of attendant would go to the benefit of the estate and it should be awarded under the head of loss to estate, which is estimated at Rs.12,000/- towards loss of expectation of life, Rs.35,000/- towards extra nourishment (as the feeding was only through tracheal tube) and Rs.50,000/- towards transport expenses.
So far as cost of attendant is concerned, as the minor was breathing through tracheal tube, apart from the mother, who was the attendant, the helpers ought to have been employed to handle the minor child. Cost of attendant of the mother should be compensated at the rate of loss of wages applicable to a nurse, as she lost her job as a nurse and she was attending on the minor son. Therefore, the cost of attendant in respect of services of the mother would be Rs.72,000/- (Rs.6,000/- x 12). Cost of attendant in respect of services of third party would be Rs.28,000/-.
Therefore, the award is enhanced from Rs.10,00,000/- to Rs.15,00,000/-. In the enhanced amount ordered now, the mother is entitled for a sum of Rs.14,00,000/- and the sister of the deceased is not entitled to any compensation.
In the result,-
C.M.A.Nos. 1349 and 1351 of 2006 filed by the insurance company are dismissed and C.M.A.No.59 of 2006 filed by the claimants (M.C.O.P.No.1730 of 2000) is allowed, enhancing the compensation awarded by the Tribunal in each case from Rs.3,00,000/- and Rs.3,86,000/- respectively, to Rs.5,00,000/-. The claimants in C.M.A.No. 1351 of 2006 shall pay the court fees for the enhanced amount before receiving the award amount from the Tribunal.
C.M.A.No. 1350 of 2006 filed by the insurance company is dismissed and the Cross Objection No.34 of 2011 is allowed. The award is enhanced from Rs.10,00,000/- to Rs.15,00,000/-. The claimants shall pay the court fees for the enhanced amount before receiving the award amount from the Tribunal.
The insurance company in the respective cases shall deposit the respective enhanced amount in each case along with interest at 7.5% p.a. from the date of petitions till the date of deposit, within a period of eight (8) weeks from the date of receipt of copy of this order.
On such deposit being made, the respective claimants are entitled to receive the award amount of compensation.
No costs. Consequently, connected C.M.Ps. and M.Ps. are closed.