Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
15. 05/2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.491 of 2012 The Branch Manager, New India Assurance Company Limited, Billars Gate Opposite Anna Stadium, Palmore Road, Nagercoil - 629 001. .. Appellant vs 1.Rajendran 2.Thankam 3.Rani .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the judgment and Decree dated 27.12.2010, passed in M.C.O.P.No.14 of 2010, on the file of the Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli. !For Appellant .. Mr.D.Sivaraman ^For Respondent .. Mr.V.Sasikumar for R1 and R2 No Appearance for R3 :JUDGMENT
The appellant/2nd respondent has preferred the present appeal in C.M.A.No.491 of 2012, against the judgment and decree passed in M.C.O.P.No.14 of 2010, on the file of the Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli.
2. The Short facts of the case are as follows: The petitioner, who are the brother and sister of the (deceased) Nagarajan have filed the claim in M.C.O.P.No.14 of 2010, claiming compensation a sum of Rs.10,00,000/- from the respondents for the death of the said Nagarajan, in a Motor Vehicle Accident. It was submitted that on 19.10.2009, at about 01.00 p.m., when the (deceased) Nagarajan was proceeding from east to west, on the Nagercoil to Krishnakoil Main Road and when he was in front of Tasmac Wine Shop, the 1st respondent's auto bearing registration No.TN-74H-6967, coming on the same road and driven by its driver at a high speed and in a rash and negligent manner dashed against the (deceased) Nagarajan and caused the accident. As a result, the (deceased) Nagarajan sustained grievous injuries and was admitted at Government Hospital, Nagercoil. But, he succumbed to his injuries. At the time of accident, the (deceased) was aged 40 years and was working as a Tea-Master and earning Rs.6,000/- per month. Hence, the petitioners have filed the claim against the 1st and 2nd respondents, who are the owner and insurer of the auto bearing registration No.TN-74H-6967.
3. The 2nd respondent, in his counter has denied the averments in the claim regarding age and income of the deceased as well as the manner of accident. It was submitted that the driver of the auto drove the auto in a careful and cautious manner and that the accident was caused only due to the negligence of the deceased, who went on to the wrong side of the road, without hearing the horn sound and invited the accident. It was submitted that the 1st and 2nd petitioners are married persons and that each of them is living separately with their family and as such they are not dependents on the income of the deceased. It was submitted that the claim was excessive.
4. The Motor Accident Claims Tribunal framed three issues for consideration in the case name: (1)Due to whose negligence was the accident caused?.; (2)Are the petitioners entitled to get compensation?. If so, what is the quantum?.; (3)To what relief are the petitioners entitled to get?.. On the side of the petitioners, the 1st petitioner was examined as PW.1 and five documents were marked as Exs.P1 to P5 namely: Ex.P1-F.I.R; Ex.P2-Motor Vehicle Inspector's Report; Ex.P3-charge sheet; Ex.P4-post mortem certificate; Ex.P5-legal heir certificate. On the respondent's side, no witness, no documents.
5. PW.1, the brother of the deceased and eyewitness of the accident, had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident. On scrutiny of Ex.P1, it is seen that the complaint regarding the accident had been given by PW.1. The averments in the F.I.R are on similar lines to the evidence of PW.1 regarding manner of accident. The Tribunal on observing that the Police had registered a case against the 1st respondent's driver and also laid the charge sheet against him through Ex.P3 and on observing that no witness had been examined on the part of the 2nd respondent to rebut the claim regarding manner of accident, held that the accident had been caused by the rash and negligent driving by the driver of the 1st respondent's auto.
6. The Tribunal on scrutiny of evidence of PW.1 and on scrutiny of Ex.P5- legal heir certificate, was of the opinion that the petitioners have lost a reasonable probability of pecuniary advantage due to the death of the late Nagarajan and hence held that they are dependents on the income of the deceased and entitled to get compensation.
7. PW.1, had adduced evidence that the deceased Nagarajan was aged 40 years at the time of accident and earning Rs.6,000/- per month by working as a Tea-Master. In Ex.P1-F.I.R, it has been stated that Nagarajan was working as a Coolie in a Tea-shop. Hence, the Tribunal on holding that the notional income of the deceased was Rs.3,000/- per month and deducting half of it for his personal expenses, as he was a bachelor and on adopting a multiplier of ".15"., as was relevant to the age of the deceased i.e., 40 years as per Ex.P4- post mortem certificate, awarded a sum of Rs.2,70,000/- (Rs.3,000/-x1/2x12x15) as compensation to the petitioners under the head of loss of income; Rs.5,000/- was awarded for funeral expenses and Rs.2,500/- for loss of estate. In total, the Tribunal awarded a sum of Rs.2,77,500/- as compensation to the petitioners and directed the 2nd respondent to deposit the said sum along with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation, with costs, within two months from the date of its order.
8. Aggrieved by the award passed by the Tribunal, the 2nd respondent/New India Assurance Company Limited, Nagercoil, has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to see that the auto driver had driven his vehicle slowly and carefully and that the deceased alone had negligently gone to the wrong side of the road, without hearing the horn sound and invited the accident. It was contended that the Tribunal failed to note that the petitioners have not produced any evidence to show their dependency over the income of the deceased. It was contended that the Tribunal failed to note that the petitioners are majors and residing separately and having their own income and hence they cannot be considered as the dependents of the deceased. It was also contended that the award of Rs.2,70,000/- granted under the head of loss of income is excessive and hence it was prayed to set aside the award passed by the Tribunal.
9. The very competent counsel for the claimant contended that the deceased was earning Rs.6,000/- per month as Tea-master but the Tribunal had not considered the same and fixed the income of the deceased as Rs.3,000/- per month and deducted 50% of his income for his personal expenses and adopted multiplier of 15 and granted compensation, which is on the lower side. The Tribunal had not granted compensation under the head of loss of love and affection and transport. Rs.2,500/- awarded for funeral expenses is also on the lower side. The claimants as blood brother and sister of the deceased, and as such they are entitled to receive compensation.
10. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. Further, the Tribunal had decided the issue of negligence and liability on the basis of F.I.R and charge sheet which were levelled against the offending vehicle driver. Further, to prove the contentions of the counter statement filed by the Insurance Company, no witness was examined and no documents were marked. Hence, the impugned award is confirmed. The learned counsel for the Insurance Company submits that the Insurance Company had already deposited the entire compensation amount with interest.
11. Now, it is open to the claimant to withdraw their apportioned share amount with accrued interest thereon, as per the findings of the Tribunal lying in the credit of M.C.O.P.No.14 of 2010, on the file of the Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli, after filing a memo along with a copy of this order.
12. In the result, the above appeal is dismissed. Consequently, the award and decree passed in M.C.O.P.No.14 of 2010, on the file of the Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli, dated 27.12.2010, is confirmed. No costs. ub To 1.The Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli. 2.The Section Officer, VR Section, High Court, Madras.