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2007 DIGILAW 4141 (MAD)

The Oriental Insurance Co. Ltd v. Janaki & Others

2007-12-11

P.P.S.JANARTHANA RAJA

body2007
Judgment :- The Civil Miscellaneous Appeal is filed by the Insurance Company against the decree and judgment dated 07.03.2007 made in MCOP No.939 of 2005 on the file of the Motor Accidents Claims Tribunal cum Additional District Court (Fast Track Court No.5), Coimbatore at Tiruppur. 2. Background facts in a nutshell are as follows:- On 19.08.2005 at about 16.30 hours, the deceased Kandasamy was riding the two-wheeler bearing Registration No.TN-39-A-2041. At that time, a van bearing Registration No.TN-37-A-6555 came from behind in a rash and negligent manner and dashed against the deceased. The deceased was thrown away and he sustained fatal injuries and died on the spot. The claimants are the wife, minor daughters, minor son and parents of the deceased. They claimed a compensation of Rs.30,80,000/- but restricted their claim to Rs.15,00,000/- before the Tribunal. The said van was insured with the appellant / Insurance Company, who resisted the claim. On pleadings, the Tribunal framed the following issues: a) Whether the accident had occurred due to the rash and negligent driving of the van driver or not? b) Whether the claimants are entitled to get any compensation or not? If so, what is the amount payable and from whom? After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the van driver and awarded a compensation of Rs.9,43,000/-with interest at 7.5% p.a. from the date of petition. Aggrieved by the order, the Insurance Company has filed the present appeal. 3. Learned counsel appearing for the appellant / Insurance Company questioned only the quantum of compensation awarded by the Tribunal and stated that it is excessive and exorbitant, 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 respondents / claimants submitted that the Tribunal had considered all the relevant materials and evidence available on record and awarded a just, fair and reasonable compensation. It is therefore submitted that the order passed of the Tribunal is in accordance with law and the same should be confirmed. 5. Heard the counsel. On behalf of the claimants, witnesses P.W.1 and P.W.2 were examined and documents Ex.P1 to Ex.P7 were marked. On behalf of the Insurance Company, no witnesses were examined and no documents were marked. It is therefore submitted that the order passed of the Tribunal is in accordance with law and the same should be confirmed. 5. Heard the counsel. On behalf of the claimants, witnesses P.W.1 and P.W.2 were examined and documents Ex.P1 to Ex.P7 were marked. On behalf of the Insurance Company, no witnesses were examined and no documents were marked. P.W.1 is the wife of the deceased. P.W.2 is one Viswanathan, eye-witness to the accident. Given below is the list of exhibits:- Ex.P1-First Information Report Ex.P2-Motor Vehicle Inspectors Report Ex.P3-Post Mortem Report Ex.P4-Death Certificate Ex.P5-Legal Heir Certificate Ex.P6-Registration Certificate of the vehicle Ex.P7-Series of Electricity Bills After considering these oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the van driver. The finding of the Tribunal is based on valid materials and evidence. 6. The Tribunal has awarded a compensation of Rs.9,43,000/-with interest at 7.5% p.a. from the date of petition. The details of the compensation are as under:- Rupees Loss of income 7,68,000/-Loss of consortium 30,000/-Loss of love and affection to the children 1,20,000/- Loss of love and affection to the parents 20,000/-Funeral expenses 5,000/- Total... 9,43,000/-======== The age of the deceased was 36 years at the time of accident. The deceased was the owner of power loom and was also doing business with a van. The deceased was also an agriculturist. The claimants claimed that the deceased was earning Rs.10,000/-per month, but no documentary evidence adduced to support their contention. Hence the Tribunal estimated the monthly salary of the deceased at Rs.6,000/- and calculated the annual income at Rs.72,000/- (Rs.6,000/-x 12). From the said amount, the Tribunal deducted 1/3rd towards the personal expenses of the deceased, and arrived at an amount of Rs.48,000/- that would have been contributed by the deceased to the family. On the basis of Ex.P4-Death Certificate and Ex.P5-Legal Heir Certificate, the Tribunal has taken the age of the deceased as 36 years and adopted the multiplier of 16 and computed the loss of income at Rs.7,68,000/- (Rs.48,000/-x 16). Counsel for the appellant vehemently contended that the Tribunal is wrong in estimating the monthly income and the same is not based on valid materials and evidence. Counsel for the appellant vehemently contended that the Tribunal is wrong in estimating the monthly income and the same is not based on valid materials and evidence. After considering the facts and circumstances of the case, I feel that it would be appropriate and reasonable to fix Rs.4,500/- as the monthly income of the deceased. After deducting 1/3rd of the amount towards personal expenses, the contribution of the deceased to the family works out to Rs.3,000/- per month and the annual contribution works out to Rs.36,000/- (Rs.3,000/- x 12). The multiplier of 16 adopted by the Tribunal is in accordance with law. If 16 multiplier is adopted, the loss of income works out to Rs.5,76,000/- (Rs.36,000/- x 16). Accordingly, the amount awarded towards loss of income at Rs.7,68,000/- is modified to Rs.5,76,000/-. The Tribunal has awarded a sum of Rs.30,000/- towards loss of consortium. After taking into consideration the age of the wife of the deceased, i.e. 32 years, I feel that the amount awarded by the Tribunal towards this head is very reasonable and hence it is confirmed. The Tribunal has awarded a sum of Rs.1,20,000/- towards loss of love and affection to the minor children. The amount awarded towards this head is very excessive and it would be appropriate and reasonable to award a sum of Rs.40,000/- as against Rs.1,20,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs.20,000/-towards loss of love and affection to the parents of the deceased, which is very reasonable and hence it is confirmed. The Tribunal has awarded a sum of Rs.5,000/-towards funeral expenses, which is also very reasonable and hence it is confirmed. The details of the modified compensation are as under:- Rupees Loss of income 5,76,000/-Loss of consortium 30,000/-Loss of love and affection to the children 40,000/-Loss of love and affection to the parents 20,000/-Funeral expenses 5,000/- Total... 6,71,000/-======== Therefore, the claimants are entitled to the modified compensation of Rs.6,71,000/-as against the compensation of Rs.9,43,000/-awarded by the Tribunal. The interest rate awarded by the Tribunal at 7.5% p.a. from the date of petition is very reasonable and hence it is confirmed. 7. It is stated that the Insurance Company had already deposited the entire compensation awarded by the Tribunal. Therefore, the respondents 1, 5 and 6 are permitted to withdraw their share fully from the deposit. The interest rate awarded by the Tribunal at 7.5% p.a. from the date of petition is very reasonable and hence it is confirmed. 7. It is stated that the Insurance Company had already deposited the entire compensation awarded by the Tribunal. Therefore, the respondents 1, 5 and 6 are permitted to withdraw their share fully from the deposit. The share of the minors shall be invested in any Nationalised Bank proximate to the place of the resident of the minors guardian, the first respondent, for a period of three years and renewable thereafter till the minors attain majority. The guardian of the minors is permitted to withdraw the accrued interest once in three months. The Insurance Company is also permitted to withdraw the balance amount available in the deposit on making proper application. 8. The Civil Miscellaneous Appeal is disposed of with the above modification. Consequently, M.P.No.1 of 2007 is closed. No costs.