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Madras High Court · body

2012 DIGILAW 1838 (MAD)

G. Kuppan v. P. Arunachalam

2012-04-10

R.KARUPPIAH

body2012
Judgment :- 1. This Appeal is preferred under Section 173 (1) of Motor Vehicles Act, 1988, challenging the award, dated 18.09.2008, passed in M.C.O.P.No.212 of 2007, on the file of the Motor Vehicle Accidents Claims Tribunal, Tiruvallur. 2. The appellants/petitioners who are husband and children of Mrs. Sindhu have filed claim petition claiming compensation of Rs.5 lakhs for the death of above said Mrs. Sindhu, who died in the motor accident occurred on 7.1.2007. 3. The case of the appellants/claimants is that, on 07.01.2007 at about 16.15 hours, while the said Mrs.Sindhu was travelling with her husband/first appellant as pillion rider in a Two Wheeler, bearing Regn.No.TN O7 AJ 0955, towards Thiruvallur, first respondent Mahindra Van, bearing Regn. No.TN 20 U 7191, came in the same direction, driven by its driver in a rash and negligent manner with high speed in Kaalalur Bazaar and hit the rear side of the Two Wheeler, as result of which, the said Mrs.Sindhu, thrown out on road, due to the multiple injuries sustained by her all over the body, died on the spot itself and the accident was occurred only due to the rash and negligent driving of the first respondent and at the time of accident, the age of the deceased Sindhu was 35 years and she was working as Binder in the Vinayak Prints and earning a sum of Rs.8,500/-per month. The appellants/petitioners, who are husband and children of the deceased claimed a compensation of Rs.5 lakhsfrom the first respondent owner of the abovesaid van and second respondent-insurance company. 4. The first respondent who is the owner of the van remained ex parte and thesecond respondent-Insurance company had contested the case before the Tribunal by contending that the accident was not occurred due to rash and negligent driving of the first respondent vehicle as contended by the appellants/claimants, but only the driver of the two-wheeler had driven the vehicle in a rash and negligent manner without observing the traffic rules and regulations and therefore the second respondent is not liable to pay compensation and also contended that the owner and insurer of the two-wheeler are also necessary parties and the claimants have to prove the age, occupation, monthly income of the deceased, place and time of the accident and validity of driving licence of the first respondent vehicle driver and the amount of compensation claimed by the claimants is excessive. 5. 5. On the side of the appellants/claimants have examined two witnesses as PW.1 and PW.2 and marked Ex.P1-copy of FIR, Ex.P2-post-mortem certificate, Ex.P3-copy of death certificate, Ex.P4-copy of legal heir certificate, Exs.P5 & P6-certificates to prove that minor petitioners 2 and 3 are handicapped, Ex.P7-copy of salary certificate of the deceased, Ex.P8-salary vouchers, Ex.P9-authorisation given to PW.2. On the side of the respondents, no witness was examined and no document was marked. 6. On perusal of the above said oral evidence of Pws.1 and 2 and Exs.P1 to P9 and both sides argument, the Tribunal has held that the accident was occurred only due to rash and negligent driving of the first respondent vehicle and therefore the second respondent as insurer of the first respondent vehicle is liable to pay compensation to the appellants/claimants and also the Tribunal fixed the age of the deceased as 35 years and assessed the income of the deceased as Rs.3000 p.m after deducting 1/3 for personal living expenses of the deceased, awarded Rs.3,60,000/-for loss of income to the claimants due to the death of the deceased but the Tribunal has not passed any award on various other heads. 7. The appellants who are claimants alone have preferred this appeal challenging the quantum of compensation and for enhancement of compensation. The respondents have not chosen to file any appeal or cross-appeal as against the award passed by the Tribunal. 8. With regard to negligent aspect, as already stated, the first petitioner who is PW.1 has deposed and also marked Ex.P1-copy of FIR, Ex.P2-post-mortem certificate and a perusal of the abovesaid oral and documentary evidence reveals that the accident was occurred only due to rash and negligent driving of the driver of the first respondent van as rightly held by the Tribunal. Further, the respondents have not challenged the abovesaid finding regarding negligence and liability or quantum of compensation and only the appellants/claimants have filed this appeal for enhancement of compensation amount. 9. The Tribunal has considered the oral and documentary evidence and fixed the age of the deceased as 35 years on the basis of Ex.P2-post-mortem certificate and also PW.1 oral evidence and further the Tribunal has held that the claimants are legal heirs and dependants of the deceased on the basis of Ex.P4-legal heir certificate. 10. 9. The Tribunal has considered the oral and documentary evidence and fixed the age of the deceased as 35 years on the basis of Ex.P2-post-mortem certificate and also PW.1 oral evidence and further the Tribunal has held that the claimants are legal heirs and dependants of the deceased on the basis of Ex.P4-legal heir certificate. 10. With regard to the income of the deceased, the Tribunal has fixed Rs.3000 p.m and after deducting 1/3 for personal expenses of the deceased, 2/3 is taken as loss of income to the claimants and the Tribunal has taken the multiplier of 15, which comes to Rs.3,60,000/- and the abovesaid amount alone is awarded to the claimants with interest at 7.5% p.a, but the Tribunal has not passed any award on various other heads. 11. Heard the learned counsel for the appellants and the second respondent and perused the records. 12. The learned counsel for the appellants has mainly contended that the Tribunal has wrongly fixed the monthly income of the deceased as Rs.3000/- instead of Rs.3500/-mentioned in Ex.P7 salary certificate and also contended that the Tribunal has wrongly deducted 1/3rd for personal expenses of the deceased and further contended that the Tribunal has failed to award conventional amount under the heads of funeral expenses, transport expenses, loss of consortium, loss of love and affection etc. and therefore the award passed by the Tribunal is very low and not adequate and therefore filed this appeal for enhancement of compensation amount. 13. The learned counsel for the contesting second respondent-insurance company has contended that the Tribunal has correctly assessed the monthly income of the deceased as Rs.3000/-, since in the salary certificate, deduction particulars have not been given and also contended that the Tribunal has correctly deducted 1/3 for personal expenses of the deceased and therefore no need to interfere with the finding regarding loss of income awarded by the Tribunal. The learned counsel for the second respondent-insurance company has admitted that the Tribunal has not awarded any amount on various other heads. 14. The learned counsel for the second respondent-insurance company has admitted that the Tribunal has not awarded any amount on various other heads. 14. On the side of the claimants, to prove the age of the deceased, PW.1 has deposed and also marked Ex.P2-post-mortem certificate and on a perusal of the abovesaid oral and documentary evidence reveals that the age of the deceased was 35 years at the time of the accident and on the side of the respondents also have not disputed the abovesaid fact and therefore the Tribunal has correctly fixed the age of the deceased as 35 years at the time of the accident. 15. With regard to legal heirs of the deceased, PW.1 has deposed and also marked Ex.P4-legal heir certificate. A perusal of the abovesaid legal heir certificate reveals that the claimants are husband and children of the deceased and therefore the abovesaid oral evidence of PW.1 and Ex.P4-legal heir certificate reveal that the appellants/claimants alone are legal heirs of the deceased as rightly held by the Tribunal. 16. The learned counsel for the appellants has mainly contended that the monthly income fixed by the Tribunal as Rs.3000/-is very low and it should be fixed as Rs.3500/- p.m as stated in Ex.P7 salary certificate of the deceased and oral evidence of PW.2. A perusal of Ex.P7-salary certificate reveals that it was issued only long after the accident i.e on 5.2.2007. PW.2 Jayakumar who is the employee of alleged Vinayak Prints has deposed in the chief examination itself that Rs.3500/-was the salary and other batta of the deceased per month. But he has not specifically stated the amount of monthly salary and batta etc. Batta would be given only for overtime work. Admittedly, the appellants have not given the break-up particulars of the salary. Therefore as rightly contended by the learned counsel for the second respondent, the Tribunal has considered the abovesaid fact and then fixed Rs.3000/- as salary of the deceased. Therefore, this Court is of the view that the Tribunal has correctly fixed the monthly income of the deceased as Rs.3000/- per month and there is no need to interfere with the abovesaid finding of the Tribunal and the monthly income of the deceased is fixed as Rs.3000/- p.m. 17. The Tribunal has deducted 1/3 for personal expenses of the deceased and 2/3 i.e. Rs.2000/- was fixed for loss of income to the claimants. The Tribunal has deducted 1/3 for personal expenses of the deceased and 2/3 i.e. Rs.2000/- was fixed for loss of income to the claimants. With regard to deduction for personal and living expenses, the decision of the Honourable Supreme Court reported in SARLA VERMA v. DTC (2009 (6) SCC 121) in para 30 is extracted as follows:- “30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six." 18. In the instant case, admittedly the claimants are 4 in number and therefore from the abovesaid decision of the Honourable Supreme Court, ¼ is to be deducted for personal living expenses and remaining ¾ i.e. Rs.2250/- is to be taken as monthly loss of income to the claimants and the annual loss of income would come as Rs.2250 x 12 x 15 = Rs.4,05,000/-. 19. The Tribunal has not passed any award for loss of love and affection. Therefore for loss of love and affection to the claimants 1 and 2, it is fixed as Rs.6000/- each, totally Rs.12,000/- and for loss of love and affection to the claimants 3 and 4, who are mentally retarded children, it is fixed as Rs.15000/- each, totally Rs.30,000/-. The Tribunal has not awarded any amount towards transport expenses. Hence Rs.5000/- is awarded for transport expenses. For loss of consortium, Rs.13,000/- is awarded and for funeral expenses, Rs.5000/- is awarded. 20. From the abovesaid discussion, the award amount passed by the Tribunal is to be enhanced as under:- a) Loss of income Rs. 4,05,000.00 ( 2,250 x 12 x 15) b) Loss of love and affection to claimants 1 and 2 Rs. 12,000.00 c) Loss of love and affection to claimants 3 and 4 Rs. 30,000.00 d) Transport expenses Rs. 5,000.00 e) Loss of consortium Rs. 13,000.00 f) Funeral expenses Rs. 5,000.00 Rs. 4,70,000.00 21. 4,05,000.00 ( 2,250 x 12 x 15) b) Loss of love and affection to claimants 1 and 2 Rs. 12,000.00 c) Loss of love and affection to claimants 3 and 4 Rs. 30,000.00 d) Transport expenses Rs. 5,000.00 e) Loss of consortium Rs. 13,000.00 f) Funeral expenses Rs. 5,000.00 Rs. 4,70,000.00 21. In the result, the Civil Miscellaneous Appeal is partly allowed and the award passed by the Tribunal is enhanced from Rs.3,60,000/- to Rs.4,70,000/-with 7.5% interest per annum from the date of claim petition till the date of payment and the second respondent-insurance company is directed to deposit the enhanced award amount, within a period of four weeks from the date of receipt of a copy of this Judgment. 22. On such deposit, the appellants are entitled to the enhanced award amount in the ratio as apportioned by the Tribunal. Since the appellants 2 to 4 are minors, the Tribunal is directed to deposit their share amount in Fixed Deposit in any one of the Nationalised Banks till they attain majority and the first petitioner who is the father of the minor children is permitted to withdraw the quarterly interest on the share of the minors/appellants 2 to 4.