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2010 DIGILAW 2515 (MAD)

Rajeswari v. N. Palani

2010-06-24

B.RAJENDRAN, R.BANUMATHI

body2010
Judgment :- B. RAJENDRAN, J The parents of the deceased Rajeswaran have come forward with the present appeal questioning the quantum of compensation awarded by the Tribunal in its award dated 10.08.2004 made in MACTOP No. 1253 of 2003. 2. The facts which gave rise for filing the claim petition was that on 16.08.1993 at about 2.30 p.m. the deceased Rajeswaran was riding the motor cycle bearing Registration No. PY-01-S-1334 along with his friend Karunanidhi as pillion rider on their way from Cuddalore to Pondicherry after purchasing certain items for his fishing. When the motorcycle was nearing Arubadaiveedu Medical College at Pondicherry – Cuddalore Main Road, the bus bearing Registration PY-01-L-9499 was driven by its driver in a rash and negligent manner from the opposite direction i.e., North to South direction and dashed the two wheeler. In the impact, the deceased along with his friend was thrown away and they were in a pool of blood. Both of them were rushed to hospital for treatment where the deceased succumbed to the injuries. Therefore, for the death of their son, the parents have filed the Claim Petition before the Tribunal. 3. Before the Tribunal, the claimants/appellants have contended that the deceased Rajeswaran was working as a Welder in Sembawang Shipyard in Singapore and earning a sum of Rs.30,000/- per month to the Indian value, out of which, he used to send a sum of Rs.20,000/- to them. It was also contended that the claimants were depending upon the deceased for their livelihood and therefore, they claimed a sum of Rs.20,00,000/- as compensation. 4. The Insurance company resisted the claim of the claimants before the Tribunal and contended that age, monthly income and occupation of the deceased are not established by the claimants by producing any documentary evidence. What was produced by the claimants was only the Xerox copies of the passbook of the brother and the first page of the passbook and the same cannot be accepted in evidence. In the absence of any documentary evidence to prove the monthly income or occupation of the deceased, the claim of Rs.20,00,000/- as compensation need not be granted. 5. The Tribunal, upon analysis of the oral and documentary evidence disbelieved the Xerox copies of the documentary evidence filed by the claimants to prove the income or occupation of the deceased Rajeswaran as the Xerox copies alone were filed before the Tribunal. 5. The Tribunal, upon analysis of the oral and documentary evidence disbelieved the Xerox copies of the documentary evidence filed by the claimants to prove the income or occupation of the deceased Rajeswaran as the Xerox copies alone were filed before the Tribunal. However, the Tribunal has taken a notional income of the deceased at Rs.3,000/- per month, out of which 1/3rd amount was deducted towards personal expenses. By such calculation, the Tribunal arrived at a sum of Rs.24,000/- as yearly income of the deceased and by adopting multiplier 7 the compensation under the head of loss of earnings war arrived at Rs.1,68,000/-. Ultimately, the Tribunal awarded a total compensation amount of Rs.1,92,000/-, which is questioned before us by the appellants. 6. The learned counsel for the appellant contended that at the time of accident, the deceased was 27 years. The deceased had completed his Diploma in Welder Qualification and had successfully completed the course in Basic Fire-fighting and Rescue Operation conducted by Safety and Fire Department. By virtue of such qualification, he secured employment at Singapore. The first claimant was examined as PW1 before the Tribunal and she had categorically deposed that the deceased was working at Singapore, but the Tribunal, without considering the evidence of PW1 or without taking into consideration the earnings of the deceased, had granted a meager compensation of Rs.1,92,000/- and prayed for enhancement. 7. Per contra, the learned counsel for the second respondent/Insurance Company specifically pleaded that the documents, which were marked by the claimants/appellants before the Tribunal are photocopies and they are not original documents, therefore, under law, the Tribunal ought not to have permitted those documents to be marked. It is also argued that the claimants have contended that the deceased was employed as a Welder in Singapore, but to prove the same, the claimants/appellants have not produced the passport, work permit or any other documents to show his employment in Singapore. The claimants have also not produced some certificate issued by the employer or employment details to show that the deceased was earning Rs.30,000/-per month and sending a sum of Rs.20,000/-to them. The bank passbook produced by the claimants/appellants under Ex.A10 dated 30.06.2004 would only indicate that the deceased appears to have sent amount even after his death, therefore the Tribunal rightly disbelieved the documents filed on behalf of the claimants/ appellants. The bank passbook produced by the claimants/appellants under Ex.A10 dated 30.06.2004 would only indicate that the deceased appears to have sent amount even after his death, therefore the Tribunal rightly disbelieved the documents filed on behalf of the claimants/ appellants. It is further argued that mere obtaining of Diploma qualification by the deceased will not be taken into account to show his employment at Singapore. Ex.A12, dated 30.06.2004 is the copy of the certificate issued to the deceased to show that he had completed Welder qualification and also successfully completed the course in Basic Fire-fighting and Rescue Operation conducted by Safety and Fire Department. Ex.A12 was issued only by a private institution and not by any Governmental organisation, therefore much credence could not be given to Ex.A12 or other documents produced by the claimants as they have no evidentiary value. Therefore, the learned counsel for the second respondent/Insurance Company prayed this Court to confirm the award passed by the Tribunal as it was just and reasonable. 8. We have heard the counsel for both sides. The point for consideration for adjudication in the present appeal is (i) Whether the claimants/appellants are entitled to enhanced compensation than what was awarded by the Tribunal and (ii) Whether the claimants/appellants established that their son/deceased Rajeswaran was employed in Singapore to claim compensation. 9. Before dealing with the first point for consideration, we take up the second point for consideration framed in this appeal.At the outset, it is to be mentioned that the claimants/appellants have marked Xerox copies of the documents to prove the age, occupation and earning of the deceased. Be that as it may, it is for the claimants/appellants to prove the income and occupation of the deceased to get the compensation. Though the claimants have contended that the deceased was employed in Singapore, they have neither produced the passport, work permit or salary certificate issued by the employer in original and what was produced before the Tribunal was only the photocopy. Such documents produced by the claimants have no evidentiary value and therefore, the Tribunal rightly refused to consider the same. In other words, the claimants have not proved that the deceased was employed in Singapore and earning Rs.30,000/- per month equivalent to Indian Rupee. Under those circumstance, we answer the second point for consideration against the claimants/appellants. 10. The claimants have filed Ex. In other words, the claimants have not proved that the deceased was employed in Singapore and earning Rs.30,000/- per month equivalent to Indian Rupee. Under those circumstance, we answer the second point for consideration against the claimants/appellants. 10. The claimants have filed Ex. A12, the Diploma certificate issued to the deceased which indicates that the deceased had completed his Diploma in Welder from D Silva Engineering Works, Chennai. Ex.A13 is the Certificate issued by a private organisation in favour of the deceased which would indicate that the deceased had successfully completed a course in basic Fire-fighting and Rescue Operation conducted by Safety and Fire Department. The deceased, at the time of his death, was 27 years. Therefore, if we assume that the deceased was in employment at India, befitting to his qualification, he could have earned not less than Rs.10,000/-per month. In this context, we are fortified by the decision of the Honourable Supreme Court reported in (Reshma Kumari vs. Madan Mohan) 2009 AIR SCW 6999 wherein it was held that while determining the quantum of compensation, the future prospects of the deceased also has to be taken in relation to his qualification and income. Therefore, in the light of the above decision of the Honourable Supreme Court and having regard to the age and qualification possessed by the deceased, we notionally take a sum of Rs.10,000/-as income of the deceased as the sum of Rs.3,000/-per month fixed by the Tribunal is very less. If 1/3rd amount is deducted towards personal expenses of the deceased, it works out to Rs.6,666/- and we round it off to Rs.7,000/-. 11. In the decision reported in (Ramesh Singh vs. Satbir Singh) 2008 2 SCC 667 , the Honourable Supreme Court that choice of mutliplier depends upon the age of the deceased or claimants, whichever is higher. In this case, the claimants are parents of the deceased. At the time of filing the claim petition, they are aged 60 and 65 and now they may be aged 67 and 72 respectively. Therefore, adopting multiplier 7 for determining the loss of income will be reasonable. Therefore, the compensation under the head loss of earning payable to the claimants can safely be arrived at (Rs.7000 X 12 X 7) Rs.5,88,000/- by adopting multiplier 7. Accordingly, we enhance the compensation awarded by the Tribunal under the head loss of income from Rs.1,68,000/- to Rs.5,88,000/-. Therefore, adopting multiplier 7 for determining the loss of income will be reasonable. Therefore, the compensation under the head loss of earning payable to the claimants can safely be arrived at (Rs.7000 X 12 X 7) Rs.5,88,000/- by adopting multiplier 7. Accordingly, we enhance the compensation awarded by the Tribunal under the head loss of income from Rs.1,68,000/- to Rs.5,88,000/-. We answer the first point for consideration and the claimants are entitled to enhanced compensation, as mentioned above. 12. The Tribunal has awarded a sum of Rs.10,000/-towards loss of Love and Affection; Rs.4,000/- towards funeral expenses and we feel that the compensation awarded under these heads are justifiable. However, we find that the Tribunal has awarded a sum of Rs.10,000/- towards mental agony and pain and suffering without regard to the fact that the deceased succumbed to injuries and the parents of the deceased alone have filed the claim petition. Therefore, we set aside the award passed by the Tribunal in so far as it relates to compensation of Rs. 10,000/-towards mental agony and pain and suffering. Thus, the appellants/claimants are entitled to a total compensation of Rs. 6,02,000/-. 13. The Tribunal has directed the Insurance Company to pay interest at the rate of 9%. The Honourable Supreme Court had consistently taken the view that interest at the rate of 9% is excessive and therefore, we hold that the percentage of interest at 9% perannum granted by the Tribunal is excessive. Accordingly, we direct the second respondent/Insurance Company to deposit the compensation amount with interest at 7.5% per annum 14. In the result, the Civil Miscellaneous Appeal is allowed modifying the judgment and decree dated 10.08.2004 made in M.A.C.T.O.P. No. 1253 of 2003 on the file of the District Court, Pondicherry, resultantly, the claimants are entitled to a total compensation of Rs.6,02,000/- with interest at the rate of 7.5% per annum. No costs.