Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19.08.2014 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH C.M.A(MD)No.2170 OF2002The National Insurance Company Limited, Madurai, represented by its Divisional Manager ..Appellant .versus 1.M.Periyanachiammal(died) 2.Veeramani 3.Sivaji 4.Pachiyammal 5.Gurusamy 6.Vanaja 7.Palani Respondents 3 to 7 are brought on records as legal representatives of the deceased fiRs.respondent vide order of this Court in M.P(MD)Nos.1 to 3 of 2012 in C.M.A(MD)No.2170 of 2002, dated 26.03.2014) ..Respondents PRAYER Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the judgement and decree passed in M.C.O.P.No.561 of 1999, dated 26.3.2002 on the file of the Motor Accident Claims Tribunal(Second Additional District Judge).Madurai.
!For Appellant : M/s.S.Srinivasa Raghavan ^For Respondents : M/s.S.Murugan 3 to 7 :JUDGMENT
The appellant, who is the second respondent in M.C.O.P.No.561 of 1999 preferred this Civil Miscellaneous Appeal against the award passed by the Tribunal.
2.For the sake of convenience, the second respondent in the above said M.C.O.P.is referred as appellant and the claimant in the above said M.C.O.P is referred as the deceased fiRs.respondent.
The fiRs.respondent in the above said M.C.O.P is referred as second respondent.
The legal heirs of the deceased fiRs.respondent i.e., the respondents 3 to 7 are referred as legal heirs of the deceased claimant.
3.The deceased fiRs.respondent filed a claim petition for compensation of Rs.5,00,000/- for the death of one Napolean @ Arumugam in a motor accident occurred on 30.09.1998.Briefly, the case of the claimant is that:-- on 30.09.1998 at about 8.45 a.m., when the deceased riding his motor- cycle bearing Registration No.TN584379 from Madurai to Thirumangalam, from south to north direction, on left side of the road.
At that time the driver of the lorry bearing Registration No.TN313499 belonging to the second respondent herein driven by its driver in a rash and negligent manner and dashed against the motor cycle.
In the above said accident, the deceased sustained grievous injuries and died on 04.10.1998.
According to the claimant, the accident was occurred only due to the rash and negligent driving of the driver of the lorry.
It is further stated in the claim petition that the age of the deceased was '24', and the deceased was working in Eurekha Forbes Limited and earns Rs.5,266/-p.m.Therefore the deceased sole claimant claim compensation of Rs.5 lakhs from the owner and insurer of the vehicle.
4.The owner of the vehicle remained exparte before the Tribunal.
5.The appellant/Insurance Company had filed a counter, in which, it is denied the manner of the accident and other contentions as alleged in the claim petition.
According to the appellant/Insurance Company, the accident was occurred not due to the rash and negligent act of the lorry driver but only due to the rash and negligent driving of the deceased and therefore the appellant is not liable to pay compensation.
It is further stated that at the time of accident, the age of the mother of the deceased is not 53 and income stated in the claim petition is also excessive and hence the claimant should prove all the contentions stated in the claim petition.
6.Before the Tribunal, on the side of the claimant examined three witnesses as P.W.1 to P.W.3 and marked 21 documents as Ex.P1 to Ex.P21.
On the side of the appellant/Insurance Company, no witness was examined and no document was marked.
The tribunal after considering the oral and documentary evience adduced on the side of the claimant and finally held that the accident was occurred only due to the rash and negligent driving of the lorry driver and awarded compensation of Rs.3 lakhs with interest and costs.
7.Aggrieved over the award passed by the Tribunal, the appellant/Insurance Company preferred this appeal.
8.Heard the learned counsels appearing on either side and perused the materials available on record.
9.To prove the negligence, on the side of the claimant examined P.W.3, eye-witness to the occurrence and also marked Ex.P15-Copy of the FiRs.Information Report, Ex.P16-copy of the post-mortem certificate, Ex.P17-copy of the charge-sheet and Ex.P18-Copy of the criminal Court judgment.
On a careful perusal of the above said oral and documentary evidence reveal that the accident occurred only due to the rash and negligent driving of the lorry driver as contended by the learned counsel for the claimant.
No contra evidence was let in on the side of the owner or insurer of the vehicle.
Therefore the Trial Court has corrctly held that the accident was occurred only due to the rash and neligent driving of the lorry driver.
As the vehicle was insured with the appellant/Insurance Company, it is liable to pay compensation.
10.The main contention of the appellant in the appeal is that the quantum of compensation awarded by the Tribunal is highly excessive.
The learned counsel for the appellant submitted that the trial Court has wrongly taken the age of the claimant for fixed the compensation instead of age of mother of the claimant,since the deceased died as a bachelor.
11.
As rightly pointed out by the learned counsel and also as per settled principles of law laid down by the Honourable Supreme Court in various decisions, if the mother alone is the dependent, the age of the mother alone to be taken and not the age of the deceased.
In the instant case, the learned counsel appearing for the appellant submitted that as per oral evidence of P.W.2, the age of the mother of the deceased is 62.
Per contra the learned counsel for the claimant submitted that in the claim petition the age of the mother of the deceased correctly stated as '53'.
But at the time of evidence, the claimant wrongly deposed as the age of the claimant at the time of accident was '62'.
Considering the period of giving evidence and the date of accident, this Court is of the view that the age of the mother of the deceased is to be fixed as '62' yeaRs.12.With regard to income of the deceased, the Tribunal has fixed the monthly income as Rs.4000/-.
Considering the oral and documentary evidence, the above said amount fixed by the Tribunal is not excessive as contended by the learned counsel for the appellant.
As per the settled principles of law laid down by the Honourable Supreme Court in various decisions, if mother alone is the claimant, deduction should be one half for contribution to the deceased and remaining half to be taken for loss of income to the claimant.
Since the age of the mother of the deceased 62, correct multiplier is 7.
Therefore the loss of income is calculated as Rs.2,000 x 12 x 7= Rs.1,68,000/- 13.The learned counsel for the claimant pointed out that the tribunal has failed to fix any amount for all other heads except loss of income.
Therefore for loss of love and affection Rs.6,000/- is to be awarded.
Considering the age of the claimants, Rs.2,000/- is fixed for funeral expenses and Rs.2,000/- for transport expenses and totally a sum of Rs.1,78,000/- to be fixed as reasonable compensation to the claimants.
14.In the result, the Civil Miscellaneous appeal is allowed and the award passed by the Tribunal is modified and reduced from Rs.3 lakhs to Rs.1,78,000/- with same interest and costs.
The legal heirs of the claimant are permitted to withdraw the entire modified award amount equally with propertionate interest and costs and the appellant/Insurance Company is permitted to withdraw the excess award amount with proportionate accrued interest.
No costs.
19.08.2014 To The Motor Accident Claims Tribunal (Iind Additional District Judge).Madurai.