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2008 DIGILAW 767 (MAD)

B. Malarkodi & Another v. S. Renuka & Another

2008-03-03

R.BANUMATHI

body2008
Judgment :- Being dissatisfied with the quantum of compensation of Rs.2,52,500/- awarded by the Tribunal for the death of the deceased Boopathy in a road traffic accident on 04.03.2000, wife and daughter of the deceased have filed this Appeal seeking enhancement of compensation. 2. Relevant facts which are necessary for disposal of this Appeal are as follows:- On 04.03.2000 – 6.45 A.M. the deceased Bhoopathy was standing on the mud portion of Olakkur cross road. At that time, a Trailer lorry bearing registration No. TNF-4048 came in rash and negligent manner and dashed against the tanker lorry which was standing in the mud portion. Due to the impact, Bhoopathy was crushed in the wheels of the tanker, while he stood supervising the repairs done by the workers and died on the spot. Regarding the accident, Criminal case was registered against the driver of the trailer lorry in Cr.No.98/2000 U/s.279, 337 and 304(A) IPC. At the time of accident, the deceased was aged 26 years and he was working as Manager in a private transport which was carrying milk in a tanker lorry and he was getting salary of Rs.5000/- per month. Alleging that the accident was due to rash and negligent driving of the driver of trailer, Claimants have filed petition U/s.166 of M.V. Act claiming compensation of Rs.5,00,000/-. 3. Opposing the claim and denying its liability, the Second Respondent-Insurance Company has filed counter stating that the driver of the tanker lorry (carrying milk) has allowed the vehicle to be parked in a public place in such a position like to cause danger, obstruction to other users of public place. Since the driver of the tanker lorry carrying milk has negligently left the vehicle in a National highway, he has contributed to the accident and therefore, the owner and Insurer of the Tanker lorry carrying milk are also necessary parties to the proceeding. It was further alleged that the driver of trailer lorry drove the vehicle in a slow speed and he was not responsible for the accident and therefore, the Insurance Company is not liable to pay the compensation to the Claimants for the death of the deceased Bhoopathy. 4. Before the Tribunal the first Claimant-wife of the deceased was examined herself as P.W.1. Eye witness was examined as P.W.2 and the employer was examined as P.W.3. Exs.P.1 to P.4 were marked. 4. Before the Tribunal the first Claimant-wife of the deceased was examined herself as P.W.1. Eye witness was examined as P.W.2 and the employer was examined as P.W.3. Exs.P.1 to P.4 were marked. No oral or documentary evidence were adduced on the side of the Insurance Company. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of the trailer lorry. The Tribunal has rejected the defence plea of contributory negligence alleged against the tanker lorry carrying milk. Finding that the driver of the trailer lorry was responsible for the accident, Tribunal has held that the owner and Insurer of the trailer lorry are jointly and severally liable to pay the compensation. Taking the monthly income of the deceased at Rs.1,500/- p.m. and adopting multiplier 18 and after deducting 1/4th for his personal expenses, the Tribunal has calculated loss of dependency at Rs.2,43,000/-. Adding conventional damages, Tribunal has awarded total compensation of Rs.2,52,500/-. 5. Assailing the quantum of compensation, the learned counsel Mr. R.Subramanian, appearing for the Appellants has submitted that as per Ex.P.4-salary certificate, the deceased was getting more than Rs.5,000/-p.m. and while so, the Tribunal has erred in taking the monthly income at Rs.1,500/- per month and Rs.18,000/- p.a. The learned counsel for the Appellants has submitted that the monthly income taken by the Tribunal is abysmally low and the same is to be enhanced. The learned counsel for the Appellants has further submitted that the first Claimant has lost her husband at the young age of 20 years and the second Claimant has lost her father at the age of four months and while so, the Tribunal has not awarded any amount for Loss of love and affection and the quantum of compensation of Rs.5,000/-awarded for Loss of consortium is also very much on the lower side. 6. Heard Mr. P.Sukumar, the learned counsel appearing for the Second Respondent-Insurance Company. The learned counsel for the Second Respondent-Insurance Company has submitted that in the absence of any acceptable evidence, the Tribunal has rightly taken the monthly income of the deceased at Rs.1,500/-p.m. and the quantum of compensation awarded by the Tribunal is just and reasonable and the same need not be enhanced. 7. The learned counsel for the Second Respondent-Insurance Company has submitted that in the absence of any acceptable evidence, the Tribunal has rightly taken the monthly income of the deceased at Rs.1,500/-p.m. and the quantum of compensation awarded by the Tribunal is just and reasonable and the same need not be enhanced. 7. On 04.03.2000, while the deceased Bhoopathy was supervising the repairing work of Tanker lorry (carrying milk), the Trailer lorry hit against the tanker lorry and Bhoopathy died on the spot. 8. It is not necessary to narrate the entire facts in detail as to how the accident had occurred, who is responsible for the accident and who is liable to pay the compensation, it is for the reason the Tribunal has recorded the findings in favour of the Claimant. Further, these findings are not under challenge. Only the quantum of compensation is in dispute. 9. In her evidence, P.W.1 has stated that her husband Bhoopathy was employed as Manager in a private concern, by name, Anna Transport and he was getting salary of Rs.5,000/- per month. Anbazhagan, who is the Proprietor of the said Transport and vending milk was examined as P.W.3. In his evidence P.W.3 has stated that the deceased Bhoopathy was employed under him as Manager and that he was paid batta of Rs.100/- per day apart from the monthly salary of Rs.400/-. P.W.3 has further stated that at the time of accident the deceased was getting salary of Rs.5,000/- p.m. Ex.P.4 is the salary certificate issued by P.W.3, who is a transport contractor and milk contractor. The Claimants have adduced satisfactory evidence to show that the deceased was working as milk contractor-in Anna Transport and was earning salary of Rs.5000/-p.m. While so, observing that no weight could be attached to Ex.P.4, the Tribunal has taken the deceased as a coolie and has adopted the monthly income at Rs.1,500/-. Mandate of law envisages that Courts and Tribunals have a duty to grant just and reasonable compensation keeping in view the facts and circumstances of each case. The determination of compensation has to be calculated based on only dependency in terms of loss sustained by the legal representatives due to the loss of deceased. Courts and Tribunals should ensure that compensation awarded are real and substantial and not empty formality. The determination of compensation has to be calculated based on only dependency in terms of loss sustained by the legal representatives due to the loss of deceased. Courts and Tribunals should ensure that compensation awarded are real and substantial and not empty formality. In my considered view that the Tribunal has erred in ignoring the evidence of P.W.1 and P.W.3 and Ex.P.4 salary certificate marked on the side of the Claimants. 10. P.W.3 has stated that some time prior to the accident the deceased was paid Rs.100/- per day as batta and apart from that he was paid consolidated salary of Rs.400/- p.m. Taking that as a basis, it would be appropriate to take the monthly income of the deceased as Rs.3,000/- p.m. Deducting 1/3rd for his personal expenses, the deceased would have contributed Rs.2,000/- p.m. and Rs.24,000/- p.a. to the family. 11. Coming to the multiplier, at the time of accident the deceased was aged 26 years. As per Second schedule to M.V. Act the multiplier 18 is applicable for the age group of 25-30 years. Taking multiplier 18, the total loss of dependency is calculated at Rs.4,32,000/- (Rs.2000/- x 12 x 18). 12. The first Claimant-wife of Bhoopathy has become widow at the very young age of 20 years. For the rest of her life, she has lost comfort and consortium of her husband. The compensation of Rs.5,000/- awarded by the Tribunal for Loss of consortium is enhanced to Rs.25,000/-. The second Claimant-minor Mownika has lost her father at her very young age of four months. Before ever, she could recognise her father, she has lost her father and lost his love and affection for her entire life. A substantial amount of Rs.25,000/- is awarded to the second Claimant for loss of love and affection. For funeral expenses, the compensation amount of Rs.2,000/-awarded by the Tribunal is enhanced to Rs.5,000/-. The total compensation amount of Rs.2,52,500/- is enhanced to Rs.4,89,500/- as under:- The compensation amount of Rs.4,89,500/-is to be apportioned amongst the Claimants as under. First Claimant ....... Rs.2,89,500/-Second Claimant ....... Rs.2,00,000/- 13. In the result, The quantum of compensation of Rs.2,52,500/-awarded by the Tribunal in M.C.O.P.No.934 of 2000 dated 30.04.2002 on the file of the Additional District Judge, Fast Track Court No.I, Motor Accident Claims Tribunal, Salem is enhanced to Rs.4,89,500/- and this C.M.A. is allowed in part. First Claimant ....... Rs.2,89,500/-Second Claimant ....... Rs.2,00,000/- 13. In the result, The quantum of compensation of Rs.2,52,500/-awarded by the Tribunal in M.C.O.P.No.934 of 2000 dated 30.04.2002 on the file of the Additional District Judge, Fast Track Court No.I, Motor Accident Claims Tribunal, Salem is enhanced to Rs.4,89,500/- and this C.M.A. is allowed in part. The compensation amount of Rs.2,52,500/-awarded by the Tribunal is payable with interest at the rate of 9% p.a. The enhanced compensation of Rs.2,37,000/-is payable with interest at the rate of 7.5% p.a. from the date of Petition till the date of deposit. The compensation amount is to be apportioned amongst the Claimants as stated in Paragraph (12). The Second Respondent-Insurance Company shall deposit the enhanced compensation of Rs.2,37,000/-along with accrued interest within a period of three months from the date of receipt of copy of this Judgment. On such deposit, the first Claimant is entitled to withdraw the entire compensation payable to her along with accrued interest on filing necessary application before the Tribunal. The compensation amount payable to the second Claimant along with accrued interest shall be deposited in a nationalised bank till the second Claimant attains majority. From and out of the said deposit of the minor Claimant, the first Claimant shall be entitled to withdraw the accrued interest periodically once in three months. There is no order as to costs in this Appeal.