Full Judgment
01. 03/2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.592 of 2012 and M.P.(MD)No.2 of 2012 The Divisional Manager, Oriental Insurance Company Limited, 108, T.P.K.Road, Madurai. .. Appellant vs 1.Pushpam 2.Reegan Durai 3.Minor.Rajarajeswari (Minor 3rd respondent through her Guardian 1st respondent Pushpam) 4.V.Madasamy .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the judgment and decree dated 28.07.2008, made in M.C.O.P.No.121 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Ramanathapuram. !For Appellant ... Mr.K.Bhaskaran ^For Respondent ... Mr.S.Ramesh for R1 and R3 (R3-minor represented by R1) Mr.K.Suresh for R2 Mr.K.Kumaravel for R4 :JUDGMENT The appellant/2nd respondent has preferred the present appeal in C.M.A.(MD)No.592 of 2012, against the judgment and decree passed in M.C.O.P.No.121 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Ramanathapuram.
2. The petitioners, who are the wife and children of the deceased Manoharan have filed the claim in M.C.O.P.No.121 of 2007, claiming compensation of a sum of Rs.19,00,000/- from the respondents for the death of the said Manoharan in a Motor Vehicle Accident. It was submitted that on 06.12.2006, at about 03.00 p.m., when the (deceased) Manoharan was riding his TVS-50 Moped, from west to east direction on the extreme left of the Ramanathapuram-Rameshwaram Main Road and when he was near the Pattinamkathan Bus Stop, the 1st respondent's Tractor bearing registration not TN-65B-5629, coming in the same direction and driven by its driver at a high speed and in a rash and negligent manner dashed behind the (deceased) and caused the accident. As a result, the (deceased) was thrown away from the motorcycle and the right side tyre of the tractor ran over stomach and right leg of the (deceased) Manoharan causing grievous injuries. He was immediately taken to Government Hospital, Ramanathapuram, but inspite of treatment, he succumbed to his injuries. At the time of accident, the deceased was aged 48 years and was working as a Senior Mechanic in BSNL and earning Rs.11,068/- per month. Hence, the petitioners have filed the claim against the 1st and 2nd respondents, who are the owner and insurer of the tractor bearing registration not TN-65B-5629.
3. The 1st respondent, in his counter has submitted that on 16.12.2006, the driver of the tractor drove the tractor at a moderate speed and in a careful manner and that the accident had occurred only due to the negligence of the (deceased) Manoharan, who had consumed liquor and had tried to overtake the tractor and in the process had fallen down under the back wheel of the tractor. It was submitted that the (deceased) Manoharan did not have a valid licence to ride the vehicle at the time of accident. The averments in the claim regarding age and income of the deceased was also not admitted. It was submitted that as the 1st respondent's tractor had been insured with the 2nd respondent at the time of accident, only the 2nd respondent can be held liable to pay compensation, if so decided by the tribunal.
4. The 2nd respondent, in his counter has submitted that the petitioners should prove that the 1st respondent's tractor had been insured with them at the time of accident and that the driver of the tractor had a valid driving licence to driver the same through documentary evidence. The averments in the claim regarding age, income, occupation of deceased, manner of accident were not admitted. It was submitted that the petitioners should prove that they are the legal heirs of the deceased through documentary evidence. It was submitted that the petitioners have to prove that the (deceased) Manoharan was the owner of the TVS-50 vehicle and was holding a valid driving licence to drive the said vehicle through documentary evidence. It was submitted that the claim was excessive.
5. The Motor Accident Claims Tribunal had framed four issues for consideration in the case namely: (1) Was the accident caused due to the rash and negligent driving by the driver of the 1st respondent's tractor?; (2) Who is liable to pay compensation?; (3) Whether the claimants are entitled to get compensation? If so, what is the quantum of compensation they are entitled to get?; (4) To what relief are the petitioner's entitled to get?.
6. On the side of the petitioners, three witnesses were examined as Pws.1 to 3 and ten documents were marked as Exs.P1 to P11 namely: Ex.P1-F.I.R; Ex.P2-post mortem certificate; Ex.P3-copy of rough sketch; Ex.P4-copy of observation mahazar; Ex.P5-copy of Motor Vehicle Inspector's report; Ex.P6-copy of charge sheet; Ex.P7-xerox copy of salary certificate; Ex.P8-xerox copy of legal heir certificate; Ex.P9-True copy of pay slip; Ex.P10-original 10th standard mark sheet. On the respondent's side one witnesses was examined and three documents were marked as exhibits R1, R2 and R3 namely: Ex.R1-xerox copy of driving licence; Ex.R2-xerox copy of R.C.Book; Ex.R3-xerox copy of policy schedule.
7. PW.2, Chandran, the eyewitness of the accident had adduced evidence that on the date of accident, when he was coming on his cycle, from west to east on the Ramanathapuram-Rameshwaram Highways Road, he had seen the deceased Manoharan proceeding on his TVS-50 motor cycle, on the same direction and keeping to the left of the road and that the tractor bearing registration not TN-65B-5629, coming from behind the motor cycle and driven by its driver in a rash and negligent manner had dashed behind the TVS-50 motorcycle and caused the accident. He deposed that the (deceased) Manoharan had fallen down with his motorcycle and the rear wheel of the tractor ran over the body and left leg of the deceased (Manoharan).
8. On scrutiny of Ex.P1-F.I.R, it is seen that the compliant regarding the accident had been given by one Vanatheeswaran and that based on this complaint a criminal case had been registered against the 1st respondent's tractor driver in Cr.No.493/06 under section 304(A) IPC. The testimony given by PW.2, was in synchronization with the statements contained in the F.I.R regarding mode of accident. The tribunal on scrutiny of charge sheet (Ex.P6), rough sketch(Ex.P3) and observation mahazar (EX.P4) and on considering the evidence of PW.2, held that the accident had been caused by the rash and negligent driving by the driver of the 1st respondent's tractor.
9. RW.1, the owner of the tractor had adduced evidence that he is the owner of the tractor and that it was insured with the 2nd respondent at the time of accident and that the driver of the tractor had a valid driving licence to drive the tractor at the time of accident and in support of his evidence he had marked the copy of RC book as Ex.R2, the copy of driving licence of the driver of tractor as Ex.R1 and the copy of insurance policy as Ex.R3.
10. Hence, the tribunal on considering the oral and documentary evidence held both the 1st and 2nd respondents jointly and severally liable to pay the compensation to the petitioners. The tribunal on scrutiny of Ex.P8, legal heirs certificate observed that the 1st petitioner is the wife of the deceased, the 2nd and 3rd minor petitioners are the son and daughter of the deceased. On scrutiny of Ex.P10- 10th standard mark sheet of deceased, the tribunal observed that the age of the deceased was 47 years and nine months at the time of accident.
11. PW.3, Subramanian, who is working in the BSNL Office, Karaikudi, had adduced evidence that the deceased Manoharan was working as a Telephone Mechanic at Ramanathapuram and his gross income was Rs.11,068/- and that he had prospects of getting an enhanced salary of Rs.22,000/- per month, if he was promoted. It is seen that the net income of the deceased Manoharan was Rs.1,570/- after deduction of amount for loan for house building advance, festival loan, flood loan, distress loan , GPF recovery, welfare fund recovery, LIC recovery, Trichy building loan recovery. The tribunal observed that even though the deceased Manoharan had availed many loans, the balance amounts were deducted from his death benefits. The tribunal observed that the outstandings dues are more than the pensionary benefits and that the General Manager, BSNL , Karaikudi, gave the memorandum to the 1st petitioner with regard to the loan dues and the adjustment of pensionary benefits, wherein it had been stated that the deceased still owned a balance amount of Rs.14,498/-. The tribunal observed that the balance of dues was paid by the 1st petitioner as per the receipts filed along with the memorandum and marked as Ex.P11 series. Hence, it was contended on the side of the petitioner that as all the loan taken by the deceased Manoharan had been cleared, the assessment of loss of income to the petitioners should be calculated on the basis of the gross salary earned by him.
12. The tribunal, on considering that the age of the deceased was 47 years and nine months, at the time of accident and on observing that he is eligible for promotion in the year of 2014 and get a salary of Rs.15,000/- held that the loss of income should be calculated by considering his future promotion and income and hence fixed the income of the (deceased) Manoharan as Rs.15,000/- per month for assessment of compensation. The tribunal on adopting a multiplier of '13' and on deducting 1/3rd of the income of the deceased for his personal expenses, awarded a sum of Rs.15,60,000/-(Rs.15,000/-x1/3x2x12x13) as compensation under the head of loss of income; Rs.10,000/- was awarded to each of the 1st, 2nd and 3rd petitioners under the head of loss of love and affection and Rs.10,000/- was awarded to the 1st petitioner under the head of loss of consortium; Rs.10,000/- was awarded as compensation for loss of estate and Rs.5,000/- was awarded for transport and medical expenses. In total, the tribunal awarded a sum of Rs.16,15,000/- as compensation to the petitioners and the tribunal directed the 1st and 2nd respondents to pay the said compensation along with interest at the rate of 9% per annum from the date of filing the petition till date of payment of compensation, within a period of two months.
13. Aggrieved by the award passed by the tribunal, the 2nd respondent/Oriental Insurance Company Limited, Madurai, has preferred the present appeal. The learned counsel for the appellant has submitted that the lower Court failed to note that the purposes of compensation of the amount of compensation, what was material are the basic pay and not other allowances and the compensation of damages based on net income and not gross income. It was contended that the tribunal had fixed the income of the deceased as Rs.15,000/- imagining that he would have got a promotion in the year of 2014, when is actual fact he was only getting a gross income of Rs.11,068/- at the time of his death on 06.12.2006. It was contended that the tribunal ought to have directed the claimant to implead the driver, who was allegedly driving the vehicle at the time of accident, in order to have better adjudication regarding manner of accident. It was contended that the lower court had failed to note that only statutory deductions such as income tax and professional tax and any other contribution, which is not repayable by the employer, from the salary of the deceased, should be taken into account while determining the monthly income for computing the compensation under loss of income. It was contended that the award passed by the tribunal was excessive and hence it was prayed to set aside the award.
14. The learned counsel for the claimants submits that the deceased had a written a TTA examination and he had prospects of getting a promotion. After getting promotion, the (deceased) would have earned a sum of Rs.15,000/- as per the ensuing VI pay commission report. The learned tribunal, on considering this aspect that the deceased would get a sum of Rs.22,000/- after his promotion in the year of 2014, had fixed the income as Rs.15,000/- per month. The tribunal had not granted adequate compensation under the head of funeral expenses and loss of love and affection.
15. On considering the facts and circumstances of the case and on hearing the arguments advanced by the learned counsels on either side, and on perusing the impugned order of the tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding disability. However, the quantum of compensation granted by the tribunal, after taking into consideration future promotional aspect and the ensuing VI pay commissions report and fixing his salary as Rs.22,000/- and that too also for the year of 2014, is not appropriate in the instant case. Therefore, this Court restructures the compensation on taking the current gross salary of the deceased, age of deceased and number of dependents as follows: (Rs.11,068x1/3x2x12x13=11,51,071/-) is awarded under the head of loss of income; Rs.10,000/- is awarded towards consortium to the 1st claimant; Rs.10,000/- is awarded to each of the 2nd and 3rd claimants; Rs.10,000/- is awarded towards funeral expenses. In total, this Court awards Rs.11,91,071/- as compensation to the claimants, as it is found to be appropriate in the instant case. As per Court records, it is seen that the Court imposed a condition on the appellant to deposit a sum of Rs.10,00,000/- only. Now, this Court directs the appellant to pay the balance compensation as per this Court's findings, with interest, at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation, within a period of four weeks from the date of receipt of this order. The rate of interest fixed by the tribunal as 9% per annum is modified to 7.5% per annum.
16. After such a deposit being made, it is open to all the claimants to withdraw their apportioned share amount as per the ratio fixed by the tribunal, lying in the credit of M.C.O.P.No.121 of 2007, on the file of Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Ramanathapuram, after filing a memo along with a copy of this order.
17. In the result, the above appeal is partly allowed. Consequently, the award and decree passed in M.C.O.P.No.121 of 2007, on the file of Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Ramanathapuram, dated 28.07.2008, is modified. Consequently, connected miscellaneous petition is closed. No costs. ub To 1.The Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Ramanathapuram. 2.The Section Officer, VR Section, High Court, Madras.