Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
24. 09.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.489 of 2007 New India Assurance Company Limited 46, Moore Street, Chennai ... Appellant Vs. 1.A.Pushpavathi 2.S.K.Annamalai 3.N.Gunaseelan ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 27.02.2006, made in M.C.O.P.No.4055 of 2002, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.VI, Chennai. For Appellant : Mr.K.S.Narasimhan For Respondents : Mr.V.M.Ravichandran for R1 & R2 R3-No appearance - - -
JUDGMENT
The appellant / second respondent has preferred the present appeal against the judgment and decree dated 27.02.2006, made in M.C.O.P.No.4055 of 2002, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.VI, Chennai.
2. The short facts of the case are as follows:- The petitioners, who are the parents of the deceased Manikandan, had filed a claim petition in M.C.O.P.No.4055 of 2002, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.VI, Chennai, claiming a compensation of a sum of Rs.20,00,000/- from the respondents for the death of their son Manikandan in a motor vehicle accident.
3. It was submitted that on 19.05.2002, at about 10.30 a.m., the deceased was travelling in a car bearing registration No.TN07 H3574, along with his friends and when the car was proceeding from east to west, on the Pelamanar-Bangalore Road and when the car was nearing Pathikanda Village, the driver of the car drove it in a rash and negligent manner and he lost control while overtaking a vehicle going ahead of him and dashed it against a roadside tree. As a result, the deceased had sustained fatal injuries and died. At the time of the accident, the deceased was aged about 26 years and working as an Assistant Manager and earning a sum of Rs.12,000/- per month. Hence, the petitioners had filed the claim petition against the respondents, who are the owner and insurer of the car bearing registration No.TN07 H3574.
4. The second respondent Insurance Company, in their counter affidavit, had submitted that the petitioners should prove that the driver of the first respondent car had a valid licence to drive the car and that the car was covered under a valid policy of insurance with the second respondent at the time of accident. The averments made in the claim petition regarding age, income and occupation of the deceased, place, date and time of the alleged accident were also not admitted. It was also submitted that the petitioner should prove that they were the legal heirs of the deceased and it was submitted that the claim was excessive.
5. On considering the averments of both sides, the Tribunal had framed four issues namely: i. Whether the accident had happened due to the rash and negligent driving of the driver of the car bearing registration No.TN07 H3574?. ii. Whether the respondents are liable to pay compensation?. iii. Whether the petitioners are entitled to get compensation?. and iv. To what relief?.
6. On the petitioners' side four witnesses were examined as P.Ws.1 to 4 and eleven documents were marked as Exs.P1 to P11 namely legal heir certificate, postmortem certificate, FIR, rough sketch, charge sheet, B.A., provisional certificate, diploma in computer certificate, Java programming certificate, salary certificate, authorisation letter and bank statement. On the respondents' side one witness was examined as R.W.1 and one document was marked as Ex.R1 namely copy of policy.
7. P.W.1 Pushpavalli the mother of the deceased had adduced evidence that is corroborative of the statements made in the claim petition regarding manner of accident and in support of her evidence, she had marked Exs.P2 to P5.
8. P.W.2 Sampathkumar, eye-witness of the accident, had adduced evidence that on 19.05.2002, he along with the deceased and other friends went to Bangalore in the first respondent's car and that one Sathyan was driving the car. He deposed that when the car was near Pallikondan Village, the said Sathyan was unable to control the car while negotiating a bend as it was proceeding at a speed of 75 to 80 Kms. per hour and consequently dashed it against a tree and that the occupants of the car had sustained injuries and that the deceased Manikandan had sustained serious injuries and died while being taken to the hospital. Hence, the Tribunal, on scrutiny of evidence of P.W.2 held that the accident had been caused by the rash and negligent driving by the driver of the car bearing registration No.TN07 H3574.
9. R.W.1 Assistant in the second respondent's firm had adduced evidence that the car bearing registration No.TN07 H3574 was insured with them from 15.02.2002 to 14.02.2003 under an act policy and that as per the policy only third parties were covered by the insurance. He deposed further that insurance coverage was not extended for passengers of the car and that as the deceased had travelled as a passenger, the second respondent was not liable to pay compensation and in support of his evidence, he had marked Ex.R1.
10. However, the Tribunal, on relying on the Judgment reported in 2000 ACJ932 held that even a gratuitous passenger in a private vehicle can be said to be a third party and covered under the term of 'any person' used in Section 147(i)(b)(i) of M.V.Act and hence held that the deceased was also covered under insurance as a passenger of the car. Hence, the Tribunal held that the first and second respondent's being the owner and insurer of the car, jointly and severally, liable to pay compensation to the petitioners.
11. P.W.1 had adduced evidence that her son was aged 26 years old at the time of accident and that he had studied B.A., Economics and also acquired a Diploma in Computer Applications and Java Programming and was working as Assistant Manager (Sales) in Sumathi Associates and earning a sum of Rs.12,000/- per month and in support of her evidence she had marked Exs.P1, P6 to P9.
12. P.W.3 had adduced evidence that he is working as a Sales Manager in Sumathi Associates and that the deceased was working as an Assistant Manager (Sales) in their firm from 1999 and earning a sum of Rs.12,000/- per month and that had he been alive he would have been promoted to the post of Manager and could have earned Rs.18,000/- per month and in support of his evidence he had marked Exs.P9 and P10.
13. P.W.4 father of the deceased had adduced evidence that his son was earning Rs.12,000/- per month and that his son used to give Rs.6,000/- to Rs.7,000/- to the family and transferred the balance amount to his savings bank account in Indian Bank, Abiramapuram and in support of his evidence he had filed the bank account statement under Ex.P11.
14. The Tribunal, on scrutiny of Exs.P6, P7, P8 and P11 and on scrutiny of P.W.3 held that the income of the deceased was Rs.12,000/- per month. The Tribunal, on observing that the age of the first petitioner was 55 years, adopted a multiplier of 8 and awarded a sum of Rs.7,68,000/- as compensation to the petitioners under the head of loss of income (12,000 X23 X12X8, Rs.10,000/- was awarded to the petitioners under the head of loss of love and affection, Rs.10,000/- was awarded for loss of estate and Rs.5,000/- was awarded for funeral expenses. In total, the Tribunal had awarded a sum of Rs.7,93,000/- as compensation to the petitioners and directed the second respondent to pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of deposit (excluding the period of default, if any) with proportionate costs, within two months from the date of it's order.
15. Aggrieved by the Award passed by the Tribunal, the second respondent Insurance Company has preferred the present civil miscellaneous appeal.
16. The learned counsel appearing for the appellant Insurance Company has contended in his appeal that the Tribunal had failed to note that the deceased was an occupant in a car, which was covered under Section 147 of the Motor Vehicles Act and failed to note that under the terms of the policy as well as under the Act, such a risk is not required to be covered nor convert and as such the appellant ought to have been exonerated.
17. Further, the learned counsel has contended that the Tribunal had failed to note that there was no clear evidence regarding the alleged earnings and presumed that the deceased would have earned Rs.12,000/- per month. It is also contended that the Tribunal had arrived in holding that the deceased would have contributed 2/3rd of salary for eight years without noticing that the deceased would have paid tax and would have married in a year or two and hence the uncertainties were not considered while choosing the multiplier and multiple. Therefore, he has prayed to scale down the award passed by the Tribunal.
18. The very competent counsel for the claimants has argued that the deceased was aged about 26 years and he was possessing a Bachelor Degree in Arts and Diploma in Computers and was earning Rs.12,000/- per month. In order to prove his income, salary certificate and bank statement have been marked. Further, the accident had been committed by the driver of the car and therefore FIR and other criminal proceedings had been levelled against the driver of the offending vehicle. The claimants are the aged parents and depending upon the income of the deceased, who was the earning member and breadwinner of the family. Considering all these aspects, the Tribunal had awarded the said compensation.
19. On considering the facts and circumstances of the case and arguments advanced by the learned counsels 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 and liability. However, the quantum of compensation concluded under the head of loss of earnings is on the higher side since the Tribunal had deducted only 1/3rd of income of the deceased for his personal expenses, instead of 1/2 of income. Therefore, this Court reassesses the compensation as follows: i. Rs.5,76,000/- is awarded under the head of loss of earning (12,000 X12X8X12), ii. Rs.20,000/- is awarded towards loss of love and affection to each of the claimants, iii. Rs.15,000/- is awarded towards funeral expenses, and iv. Rs.10,000/- is awarded towards transport expenses. In total, this Court awards Rs.6,41,000/- as compensation as it is found to be appropriate in the instant case. The rate of interest fixed by the Tribunal remains unaltered.
20. As per the records, it is seen that the entire compensation amount has already been deposited by the Insurance Company to the credit of M.C.O.P.No.4055 of 2002, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.VI, Chennai. Now, the claimants are permitted to withdraw their share amount, as per this Court's modified order, as per the ratio fixed by the Tribunal, with accrued interest thereon, lying in the credit of M.C.O.P.No.4055 of 2002, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.VI, Chennai, after filing a memo along with a copy of this Order. Likewise, the appellant Insurance Company is at liberty to withdraw the excess compensation amount with proportionate interest thereon, after filing a memo.
21. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 27.02.2006, made in M.C.O.P.No.4055 of 2002, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.VI, Chennai, is modified. Consequently, connected miscellaneous petitions are closed. There is no order as to costs. 24.09.2013 Index : Yes/No Internet : Yes/No krk To:
1. The VI Judge Motor Accident Claims Tribunal (Small Causes Court-VI), Chennai 2.The Section Officer V.R.Section, High Court Madras C.S.KARNAN, J.
krk C.M.A.No.489 of 2007 24.09.2013