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2010 DIGILAW 1115 (MAD)

Branch Manager, Oriental Insurance Co. Ltd. , Udumalpet v. Padmavathi & Others

2010-03-18

M.VENUGOPAL, R.BANUMATHI

body2010
Judgment :- Judgment of the Court was delivered by M. VENUGOPAL, J. 1. The Appellant/Second Respondent Insurance Company has preferred this appeal as against the award dated 05.03.2004 passed in M.A.C.T.O.P. No.1078 of 2002 by the Motor Accidents Claims Tribunal(Principal Sub Judge), Tindivanam in awarding the compensation of Rs.15,72,500/- together with interest at 9% per annum from the date of filing of the petition till the date of deposit, etc., 2. The Tribunal on an appreciation of oral and documentary evidence had accepted the evidence of P.W.2 (who was pillion rider in the Hero Honda Motor Cycle driven by the deceased Suresh Babu) to the effect that the driver of the lorry PY-01-E-0469 drove the lorry in a fast speed and was responsible for the happening of occurrence. Therefore we are in complete agreement with the view taken by the Tribunal in holding that the driver of the lorry was responsible for the accident. 3. Respondents 1 to 5/claimants being the wife, daughter, son and parents of the deceased, had preferred a claim petition seeking total compensation of Rs.30,00,000/- for the death of Sureshbabu being the husband of the first respondent, father of respondents 2 and 3 and son of respondents 4 and 5. 4. Before the Tribunal, on the side of the respondents/claimants, P.Ws.1 to 5 were examined and Exs.P1 to P24 were marked. On the side of appellant-insurance company and the owner of the lorry, no one was examined and no documents were marked. 5. The main contention advanced on behalf of the appellant-insurance company before us is that the award of the Tribunal dated 05.03.2004 is on the higher side, contrary to law, weight of evidence and probabilities of the case and that the Tribunal had committed an error in awarding the total compensation of Rs.15,72,500/- to respondents 1 to 5/claimants as compensation without any basis. 6. Added further, it is the contention projected on the side of the appellant-insurance company that the deceased Sureshbabu at the time of accident was about 32 years of age as per Ex.P23 transfer certificate but this aspect of the matter was not taken into account by the tribunal and more over, the tribunal had committed a mistake in determining the income of the deceased Sureshbabu at Rs.10,000/- per month without any documentary evidence. 7. 7. Learned counsel for the appellant contends that the tribunal was not right in taking the view that the annual income of the deceased Sureshbabu was Rs.1,20,000/-because as per Exs.P14 and P15, the annual income of the deceased was only Rs.55,642/- and Rs.57,664/-respectively. The deceased Sureshbabu was a partner of the firm, after his death, his son viz., the third respondent/claimant had become the partner and therefore, there was no loss of income to the family of the deceased but this aspect of the matter was not appreciated by the tribunal in proper perspective. 8. Added further, various amounts like Rs.20,000/- awarded towards loss of consortium, Rs.20,000/-towards loss of love and affection were without any rhyme or reason and also that the Tribunal had granted a sum of Rs.2,500/- towards funeral expenses without any reason and in any event, the award of the Tribunal was an excessive one and therefore liable to be set aside. 9. It is the manifest duty of a Court of Law/Tribunal to award as perfect a sum as was within its power. Undoubtedly, the determination of damages for loss of human life is an Herculean task. 10. It is not in dispute that the deceased Sureshbabu was a partner during his life time in Vasavi Packaging Industries in which he had 20% share. He was also doing cement business in the name and style Uma Traders. Also, he was running a rice milll and flour mill. Apart from the above, he was also having family business of a provision store. According to P.W.5, auditor, Sureshbabus share in Vasavi Packaging Industries was about Rs.31,500/- and in the balance sheet for the year 2002-2003, though there was a profit of Rs.3,50,000/-, there was no proof for it. In fact, Sureshbabu had received a sum of Rs.20,634.70 towards his share in Vasavi Packaging Industries and also he had received a sum of Rs.11,000/-as interest towards his share. The auditor/P.W.5 in his deposition had also admitted that after the death of Sureshbabu, his son had become the partner of the said packaging firm. 11. In the income tax returns Exs.P14 and P15, the annual income of the deceased Sureshbabu was shown as Rs.55,642/- and Rs.57,664/- respectively. The auditor/P.W.5 in his deposition had also admitted that after the death of Sureshbabu, his son had become the partner of the said packaging firm. 11. In the income tax returns Exs.P14 and P15, the annual income of the deceased Sureshbabu was shown as Rs.55,642/- and Rs.57,664/- respectively. It cannot be disputed that the deceased Sureshbabu was doing multifarious businesses like cement business, rice mill business flour mill business and also was looking after the provision store and therefore he was a sound enterprising entrepreneur, having bright prospect of future development in his pursuit of attending to various business of his family. Ex.P10 is the licence obtained by the deceased for dealing in cement in the name and style Uma Traders. Ex.P16 is the series of invoices showing that the deceased was doing business in cement. 12. Even though a contention is projected on the side of the Appellant/Second Respondent-Insurance Company that after the death of the deceased, his son, who is one of the claimants had become the partner of Vasavi Packaging Industries, we cannot forget an important fact that the son who had been inducted as a partner could not take the role of a father, his experience, his expertise, acumen his knowledge and contribution to the family and therefore the contention that the family had not sustained any loss soon after the death of Sureshbabu and after the induction of his son as a partner in the said packaging firm was not tenable and a correct one. 13. The Tribunal in its award had determined the annual income of the deceased Sureshbabu at Rs.10,000/- per month and for a year, it had calculated his earning to an extent of Rs.1,20,000/-. It had deducted a sum of Rs.30,000/- as 1/4th amount towards his personal expenses and fixed the dependency at Rs.90,000/-per annum. The deceased at the time of the accident was 32 years of age. Therefore, the proper multiplier to be applied in the present case was 17 and accordingly, the Tribunal had calculated the same as (Rs.90,000/- x 17= Rs.15,30,000/-). It had deducted a sum of Rs.30,000/- as 1/4th amount towards his personal expenses and fixed the dependency at Rs.90,000/-per annum. The deceased at the time of the accident was 32 years of age. Therefore, the proper multiplier to be applied in the present case was 17 and accordingly, the Tribunal had calculated the same as (Rs.90,000/- x 17= Rs.15,30,000/-). At this stage, the learned counsel for the appellant though had strenuously contended that the Tribunal had committed an error in deducting 1/4th amount towards personal expenses of the deceased and calculated income of the deceased at Rs.1,20,000/-etc., including the adoption of multiplier 17 towards loss of pecuniary benefits, we are of the considered view that in a given case where the dependents of the deceased in a family are more in number then instead of adopting usual 1/3rd deduction towards personal expenses, the adoption of 1/4th would found to be proper and reasonable one, in our considered opinion. The Tribunal had considered the fact that the wife of the deceased was aged 27years at the time of accident and therefore it had rightly awarded a sum of Rs.20,000/- towards loss of marital happiness. Towards loss of love and affection, it had awarded a sum of Rs.10,000/- each to the second and third respondents. Towards funeral expenses, it had awarded a sum of Rs.2,500/-. Thus in all, the Tribunal has awarded a sum of Rs.15,72,500/-. To this sum, it had also awarded an interest at the rate of 9% per annum from the date of filing of the petition till the date of realisation. 14. Towards funeral expenses, it had awarded a sum of Rs.2,500/-. Thus in all, the Tribunal has awarded a sum of Rs.15,72,500/-. To this sum, it had also awarded an interest at the rate of 9% per annum from the date of filing of the petition till the date of realisation. 14. Inasmuch as the deceased Sureshbabu was engaged in various trades like cement business, provision store business and was the partner in Vasavi Packaging Industries etc., and since the annual income of Rs.55,642/- and Rs.57,664/-, as seen from Exs.P14 and P15, we are of the considered view that he was a sound entrepreneur having bright, golden prospects in the future to develop and to increase his business and therefore the tribunal upon appreciation of oral and documentary evidence in an integral fashion, had come to the right and just conclusion in determining the compensation amount at Rs.15,72,500/- in all to be paid by the Appellant to respondents 1 to 5/claimants and the same appears to be just, fair and a reasonable one in our considered opinion, which does not require any interference at the stage of the appeal. 15. Though an endeavour has been made on the side of the appellant-insurance company that the normal rate of interest to be awarded was only 7.5% per annum, in the present case, on considering the overall assessment and facts of the case, we are of the considered view that the quantum of interest at 9% per annum determined by the Tribunal was also a reasonable one, on the facts and circumstances of the case, we decline to interfere in this regard also. Suffice it to point out that the Appellant-insurance company had not made out a case to allow the appeal and per contra, the award passed by the Tribunal is a just fair and an equitable one. Viewed in that perspective, the Civil Miscellaneous Appeal fails. 16. It has been brought to the notice of this Court that the entire award amount has been deposited by the appellant-insurance company, out of which the respondent/claimants were also permitted to withdraw 50% of the amount along with accrued interest by order dated 22.08.2005 in C.M.P.No.13638 of 2005 in C.M.A.No.1482 of 2005. Claimants 1, 4 and 5 are permitted to withdraw the balance compensation amount payable to them along with accrued interest, by filing necessary payment out application as per Civil Rules of Practice. Claimants 1, 4 and 5 are permitted to withdraw the balance compensation amount payable to them along with accrued interest, by filing necessary payment out application as per Civil Rules of Practice. Insofar as the share of minor claimants 2 and 3, the order of the Tribunal is maintained. 13. In the result, the Civil Miscellaneous Appeal fails and the same is dismissed. Having regard to the facts and circumstances of the case, there shall be no order as to costs.