Full Judgment
12. 04/2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.1800 of 2010 and M.P.(MD).No.1 of 2011 The Branch Manager, Bajaj Allianz General Insurance Company Limited, No.24, Balamore Road, Opposite to Rajesh Theatre, Vadaseri, Nagercoil. .. Appellant vs 1.Revathi 2.Minor.Mathan 3.Minor.Priyanga 4.Perumal 5.Mandakattal (Minor respondents 2 and 3 represented through their mother and guardian 1st respondent) 6.Arockia Manual Rajan .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the judgment and Decree dated 06.07.2010, passed in M.C.O.P.No.968 of 2009, on the file of the Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli. !For Appellant ... Mr.R.Mahalingam ^For Respondent ... M/s.R.Meena Kumari for R1 to R5 No Appearance for R6 :JUDGMENT The appellant/2nd respondent has preferred the present appeal in C.M.A.(MD).No.1800 of 2010, against the judgment and decree passed in M.C.O.P.No.968 of 2009, on the file of the Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli.
2. The petitioners, who are the wife, children and parents of the (deceased) Arumaithurai, have filed the claim in M.C.O.P.No.968 of 2009, claiming compensation of a sum of Rs.20,00,000/- from the respondents for the death of the said Arumaithurai, in a motor vehicle accident. It was submitted that on 18.04.2009 at about 02.15 p.m., when the (deceased) Arumaithurai was travelling as a pillion rider in a motor cycle bearing registration not TN-72- AZ-2916, from north to south, on the left hand side of Tirunelveli to Nagercoil main road and when their motorcycle was proceeding in front of Valliyoor traffic Police Station, the 1st respondent's lorry bearing registration not TN-22-BB-4731, coming in the opposite direction and driven by its driver at a high speed and in a rash and negligent manner, was suddenly taken to the right side of the road. The rider of the motorcycle, applied sudden brake in order to avoid collision with the lorry and due to this the rider as well as Arumaithambi, the pillion rider fell down from the motorcycle and sustained injuries. Immediately thereafter, the said Arumaithambi was admitted at Arul Mission Hospital, Valliyoor, and later admitted at TVMC Hospital at Palayamkottai, wherein he received treatment as an inpatient till 19.04.2009. But, inspite of treatment, he succumbed to his injuries on 19.04.2009. At the time of accident, the deceased was aged 28 years and was working as a driver in Surya travels, Mumbai, and earning Rs.15,000/- per month. Hence, the petitioners have filed the claim against the 1st and 2nd respondent, who are the owner and insurer of the lorry bearing registration not TN-22-BB- 4731.
3. The 2nd respondent, in his counter has submitted that the 1st respondent's lorry had not been insured with them at the time of accident and that the driver of the 1st respondent's lorry did not have a valid licence to drive the lorry at the time of accident. The averments in the claim regarding age, income of the deceased was also not admitted. It was submitted that the petitioners should prove that they are the legal heirs of the deceased and dependent on the income of the deceased through documentary evidence. The averments in the claim that the accident had occurred only due to the rash and negligent driving by the driver of the 1st respondent was also not admitted. It was submitted that the claim was excessive.
4. The Motor Accident Claims Tribunal framed two issues for consideration in the case name: (1)Was the accident caused by the rash and negligent driving by the driver of the 1st respondent's lorry?; (2)Are the petitioners entitled to get compensation? If so, who is liable to pay compensation and what is the quantum of compensation which they are entitled to get? On the petitioner's side, two witnesses were examined and seven documents were marked as Exs.P1 to P7 namely: Ex.P1-F.I.R; Ex.P2-post mortem report; Ex.P3-Motor Vehicle Inspector's Report; Ex.P4-observation mahazar; Ex.P5-charge sheet; Ex.P6-driving licence; Ex.P7-visiting card. On the respondent's side, no witness, no documents.
5. PW.2, Tr.Oosikattan, the eyewitness and the rider of the motorcycle, which the deceased Arumaithambi had travelled had deposed that on 18.04.2009, at about 02.15 p.m., when he was riding the motorcycle bearing registration not TN- AZ-2196, along with his nephew Arumaithambi as the pillion rider, on the Nagercoil to Valliyoor Main road and when the motorcycle was in front of Valliyoor traffic Police Station, the driver of the 1st respondent's tipper lorry bearing registration not TN-22-BB-4731 coming in the opposite direction, drove the lorry in a rash and negligent manner, had suddenly turned the lorry to the right side of the road, without any signal or sounding of horn. PW.2, deposed that on seeing this, he had applied sudden brake in order to avoid collision with the lorry and due to this, he and his nephew Arumaithambi were thrown out of the motorcycle and sustained injuries and that Arumaithambi had succumbed to his injuries on 19.04.2009.
6. On scrutiny of Ex.P1-F.I.R, it is seen that the complaint regarding accident had been given by PW.2 and that the statements found in the F.I.R are on similar lines to the evidence of PW.2, regarding manner of accident. The Tribunal, on scrutiny of Ex.P5, observed that the Police after investigation have found that a prima-facie case has been made out against the 1st respondents vehicle driver and filed the charge sheet against him before the learned Judicial Magistrate, Valliyoor. The Tribunal on considering that no rebuttal evidence had been let in on the respondent's side to disprove the claim of PW.2 regarding manner of accident, held that the accident had been caused b the rash and negligent driving of the 1st respondent's vehicle driver. The Tribunal, on observing that the 2nd respondent had not denied the insurance coverage of the 1st respondent's vehicle held that the 2nd respondent liable to pay compensation to the petitioners.
7. PW.1, Tmt.Revathi, wife of the deceased Arumaithambi, had adduced evidence that at the time of accident her husband wag aged 25 years old and was working as a Driver at Surya Travels, Mumbai and earning Rs.15,000/- per month. However, the Tribunal on observing that no authenticated certificates were marked to prove that the deceased was permanently employed in Surya Travels, held that the notional income of the deceased could only be taken as Rs.6,000/- per month. The Tribunal observed that the deceased was aged 25 years as per Ex.P2-post mortem report and that he had a valid driving licence to drive transport vehicles on 11.06.2009. Hence, the the Tribunal, on adopting a multiplier of "17" awarded a compensation of Rs.8,16,000/-(Rs.6,000/- x2/3x12x17) to the petitioners under the head of loss of income; Rs.5,000/- was awarded for funeral expenses; Rs.5,000/- was awarded to 1st petitioner under the head of loss of consortium; Rs.15,000/- was awarded to each of the 2nd and 3rd minor petitioners under the head of loss of love and affection; Rs.2,500/- was awarded under the head of loss of estate. In total, the Tribunal awarded sum of Rs.8,58,500/- as compensation to the petitioners and directed the 2nd respondent to pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of deposit, with costs, within two months from the date of its order.
8. Aggrieved by the award passed by the Tribunal, the 2nd respondent/Balaji Allianz General Insurance Company Limited, Nagercoil, has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in taking the monthly income of the deceased at Rs.6,000/- in the absence of any proof for the earning of the deceased and had erred in coming to a conclusion that the deceased would have worked as a driver. Since, the deceased possessed driving licence to drive transport vehicle. It was contended that an excess award of Rs.4,08,000/- had been granted by the Tribunal under the head of loss of contribution to the family as it had been awarded without any basis. Hence, it was prayed to set aside or modify the award passed by the Tribunal.
9. The learned counsel for the claimants submits that the age of the deceased was 25 years and he was a driver by profession. The claimants are the wife, children and parents of the deceased. On the basis of avocation and age of the deceased, the compensation had been assessed. The 1st claimant is the young widow of the deceased and the 2nd claimant is aged about four years and the 3rd claimant is aged about two years. The learned counsel further submits that the claimants are five in numbers and as such only , of it has to be deducted.
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 and liability. However, the Tribunal had fixed the income of Rs.6,000/- per month, which is on the higher side, since the claimants had not produced any documentary evidence regarding income of the deceased. Therefore, this Court assesses the compensation as follows: Rs.6,12,000/- (Rs.4,500/-x1/3x2x12x17) is awarded for loss of income; Rs.10,000/- is awarded for loss of consortium to the 1st claimant; Rs.10,000/- is awarded to each of the claimants 2 to 5 under the head of loss of love and affection; Rs.10,000/- is awarded for funeral expenses and Rs.5,000/- is awarded for transport expenses. In total, this Court awards Rs.6,77,000/- as it is found to be appropriate. The rate of interest of 7.5% per annum fixed by the Tribunal remains unaltered. Therefore, this Court scales down the compensation from Rs.8,58,500/- to Rs.6,77,000/-. As per this Court's records, it is seen that this Court directed the appellant herein to deposit 50% of the award amount.
11. Now, this Court directs the appellant, to deposit the balance compensation amount with accrued interest thereon, within a period of four weeks from the date of receipt of this order. After such a deposit being made, it is open to the claimants 1,4 and 5 to withdraw their apportioned share amount with accrued interest thereon, after filing a memo, along with a copy of this order. This Court further directs the learned Tribunal to deposit the minor's share amount, with accrued interest thereon, in a nationalized bank, as fixed deposit under the cumulative deposit scheme, till such time the minor claimants attain the age of a major and hand over the fixed deposit certificates to the mother of the minor. The modified compensation amount, as per this Courts order, shall be apportioned as per the ratio fixed by the Tribunal in his order.
12. In the result, the above appeal is partly allowed. Consequently, the award and decree passed in M.C.O.P.No.968 of 2009, on the file of the Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli, dated 06.07.2010 is modified. Consequently, connected miscellaneous petition is closed. No costs. ub To 1.The Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli. 2.The Section Officer, VR Section, High Court, Madras.