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2007 DIGILAW 3832 (MAD)

National Insurance Co. Ltd. , v. Anthony & Others

2007-11-27

P.P.S.JANARTHANA RAJA

body2007
Judgment :- The Civil Miscellaneous Appeal is filed by the Insurance Company against the Judgment and Decree dated 01.08.2006 in MCOP No.72 of 2006 on the file of the Motor Accidents Claims Tribunal, Ist Additional Subordinate Court, Coimbatore. 2. Background facts in a nutshell are as follows:- On 06.05.2004 at 2.30 p.m. The deceased Stephen and his friend Hariharan were traveling in a TVS Victor motor cycle bearing registration No.TN 37 AD 8003. The motor cycle was driven by the Hariharan. Stephen was the pillion rider. They were proceeding from North to South direction in the left side of Gandhimaa Nagar road. After crossing Hudco Colony, a tempo bearing registration No.TN 37 V 8640 came in the same direction in a rash and negligent manner and dashed against the motorcycle. Due to the accident, Stephen and the driver Hariharan fell on the road and Stephen sustained head injury and multiple injuries all over the body and Hariharan sustained type-I fracture. Immediately they were taken to the PSG Hospital, Coimbatore for treatment. The rider Hariharan remained in the hospital as inpatient from 5. 2004 to 4. 2004. Stephen died on 07.05.2005. The claimant-first respondent herein is the father of the deceased. He claimed a sum of Rs.10,29,000/-, but restricted his claim to Rs.5,00,000/- before the Tribunal. The vehicle was insured with the appellant/Insurance company and it resisted the claim. On the pleadings, the Tribunal framed the following issues:- a) Whether the accident had occurred due to the rash and negligent driving of the driver of the tempo, the first respondent or not? b) Whether the claimant is entitled to receive any compensation or not? If so, what is the amount and from whom? After considering the oral and documentary evidence, the Tribunal was of the view that the accident had occurred only due to the rash and negligent driving of the driver of the tempo van, the first respondent therein and awarded a compensation of Rs.3,47,200/-with interest at 7.5% p.a. from the date of petition. Aggrieved by the award, the Insurance Company has filed the present appeal. 3. Learned counsel appearing for the appellant/Insurance Company submitted that the Tribunal is wrong in holding that the accident had occurred due to the rash and negligent driving of the driver of the tempo van. Aggrieved by the award, the Insurance Company has filed the present appeal. 3. Learned counsel appearing for the appellant/Insurance Company submitted that the Tribunal is wrong in holding that the accident had occurred due to the rash and negligent driving of the driver of the tempo van. He has also submitted that the Tribunal is wrong in adopting the multiplier and the amount awarded is excessive and exorbitant compensation, without basis and justification and that therefore, the order passed by the Tribunal is not in accordance with law and the same has to be set aside. 4. Learned counsel appearing for the first respondent/ claimant submitted that the Tribunal had considered all the relevant materials and evidence available on record and came to the correct conclusion and awarded a just, fair and reasonable compensation. Hence the award passed by the Tribunal is in accordance with law and the same has to be confirmed. 5. Heard the counsel. On behalf of the claimant, PWs.1 to 4 were examined and Exs.P1 to Ex.P14 were marked. PW1 Hariharan is the rider of the motor cycle. PW2 Anthony is the father of the deceased. PW3 Anthony Ponniyal is the relative of the PW2. PW4-Richard is the employer of the deceased. On behalf of the appellant-Insurance company, no one was examined and no document was marked. Ex.P1 is the certified copy of the First Information Report. Ex.P2 is the certified copy of the Accident Register. Exs.P3 and P4 are the certified copies of the Motor Vehicle Inspectors Reports. Ex.P5 is the Discharge summary. Ex.P6 and P9 are the Medical Bills. Ex.P7 is the X-ray. Ex.P8 is the post-mortem certificate. Ex.P10 is the Death Certificate. Ex.P11 is the authorisation letter given by the Aircel company. Exs.P12 and P13 are the Salary certificates. Ex.P14 is the Legal Heirship certificate. After considering the oral and documentary evidence, the Tribunal has given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the tempo van and the finding is based on valid materials and evidence and hence, the same is confirmed. The Tribunal has awarded a compensation of Rs.3,47,200/- with interest at 7.5% p.a. from the date of the petition and the details of the same are as under:- Loss of income Rs.3,40,000/- Medical expenses Rs. 2,700/- Funeral expenses Rs. 2,000/- Loss of estate Rs. 2,500/- Total... Rs.3,47,200/- 6. The Tribunal has awarded a compensation of Rs.3,47,200/- with interest at 7.5% p.a. from the date of the petition and the details of the same are as under:- Loss of income Rs.3,40,000/- Medical expenses Rs. 2,700/- Funeral expenses Rs. 2,000/- Loss of estate Rs. 2,500/- Total... Rs.3,47,200/- 6. The learned counsel for the appellant/Insurance Company fairly submitted that the amount awarded under the heads viz., medical expenses, funeral expenses and loss of estate are very reasonable. Therefore the amounts awarded under these heads by the Tribunal are confirmed. The only dispute raised by the learned counsel for the appellant/Insurance company is that the Tribunal has wrong in adopting the multiplier 17 instead of 10. While applying the multiplier, the Tribunal should have taken in to consideration the age of the claimant/father. At the time of the accident the age of the claimant/father is about 76 years. Hence, the correct multiplier should be adopted in the present case is 10. PW4, the employer of the deceased deposed that at the time of the accident the deceased was paid Rs.3,000 to Rs.3,500/-per month and he has produced the salary certificate Ex.P13. It is clear from Ex.P13 that the deceased was paid Rs.3,750/- per month. But, the Tribunal fixed the monthly salary of the deceased at Rs.2500/- and arrived the annual income at (Rs.2500 x 12) Rs.30,000/-. Out of the said amount, the Tribunal deducted 1/3rd towards personal expenses and took the balance Rs.20,000/- as the contribution to the family of the deceased. The Tribunal, considering the age of the deceased, has adopted the multiplier 17 and determined the loss of income at Rs.3,40,000/- (Rs.20,000/-x 17). The Tribunal has correctly fixed the monthly as well as annual income. In respect of the multiplier, the Tribunal ought to have adopted 10 multiplier instead of 17. The age of the claimant/father is 76 years old and hence, it is a relevant factor for the purpose of adopting multiplier. If the correct multiplier of 10 is adopted, the loss of income works out to Rs.2,00,000/- (Rs.20,000/-x 10). Accordingly, the loss of income is modified to Rs.2,00,000/-as against the sum of Rs.3,40,000/- awarded by the Tribunal. The rate of interest awarded by the Tribunal at 7.5% p.a. from the date of petition is very reasonable and hence, the same is confirmed. Accordingly, the loss of income is modified to Rs.2,00,000/-as against the sum of Rs.3,40,000/- awarded by the Tribunal. The rate of interest awarded by the Tribunal at 7.5% p.a. from the date of petition is very reasonable and hence, the same is confirmed. The details of the modified compensation as per the above discussion are as under:- Rupees Loss of income 2,00,000/- Medical expenses 2,700/- Funeral expenses 2,000/- Loss of estate 2,500/- Total... 2,07,200/- ========= Thus the claimant is entitled to the modified compensation of Rs.2,07,200/- as against the compensation of Rs.3,47,200/-awarded by the Tribunal. It is submitted by the learned counsel for the appellant/Insurance Company that they had already deposited the entire compensation awarded by the Tribunal. Therefore, the claimant is permitted to withdraw a sum of Rs.2,07,200/-with interest at 7.5% p.a. from the date of petition, after adjusting the amount if any already withdrawn, from the deposit. The appellant/ Insurance company is also permitted to withdraw the balance amount. 7. The Civil Miscellaneous Appeal is disposed of with the above modification. No costs. Consequently, M.P.No.1 of 2007 is closed.