United India Insurance Company Limited v. K. Anysuya
2012-01-10
R.BANUMATHI, S.VIMALA
body2012
DigiLaw.ai
Judgment :- (S.VIMALA, J.) 1. The award passed by the Motor Accident Claims Tribunal/ Additional District Judge, Fast Track Court No.V, Coimbatore in M.C.O.P.No.29 of 1996 dated 21.1.2003 awarding compensation of Rs.11,70,000/-for the death of deceased Krishnamoorthy in road traffic accident on 10.10.1995, is under challenge in this appeal. 2. Brief facts: On 10.10.1995 at 11.30 p.m., the deceased Krishnamoorthy was riding his TVS motor cycle bearing registration No.TN-39 A 1700 on Avanashi Road, Tiruppur. When he was nearing Gandhi Road bus stop, Canter van bearing registration No.TN-38 7612, belonging to the 2nd Respondent (in M.C.O.P.No.29 of 1996) driven by the 1st Respondent-driver, in a rash and negligent manner hit against the motorcyclist and the Canter van ran over the deceased. Due to the impact, Krishnamoorthy sustained grievous injuries. Immediately, he was taken to Tiruppur Government Hospital where he was given first aid and then referred to Coimbatore Government Hospital and on the way to Coimbatore Government Hospital, he succumbed to the injuries. Regarding the accident, a Criminal case was registered against the van driver [1st Respondent] in Crime No.949 of 1995 of Tiruppur North Police Station under Sections 279 and 304(A) IPC. At the time of accident, the deceased was working as Attender in Tiruppur Textile Limited and was getting salary of Rs.5,126/-per month. The deceased was also getting bonus of Rs.6,600/-per annum. Alleging that the owner and insurer are liable to compensate the claimants, wife and parents of deceased have filed the Claim Petition claiming compensation of Rs.20,00,000/-. 3. Resisting the Claim Petition, Appellant-Insurance Company has filed the counter contending that (a)the accident was due to the composite negligence of the deceased and the driver of the van; (b)the owner and insurer of the motorcycle bearing Registration No.TN-39 A 1700 are necessary parties to the Claim Petition and the Claim Petition is bad for non-joinder of necessary parties and (c)the quantum of compensation claimed by the Claimants is excessive. 4. Before the Tribunal, 1st Claimant-Anusuya examined herself as PW1. Eye-witnesses-Ravichandran and Venkatachalam were examined as Pws.2 and 3 respectively. R.Velusamy, who was working as Time Keeper in Tiruppur Textiles Private Limited was examined as PW4. Exs.P1 to P9 were marked on the side of Claimants. No oral or documentary evidence has been adduced by the Appellant-Insurance Company. 5.
4. Before the Tribunal, 1st Claimant-Anusuya examined herself as PW1. Eye-witnesses-Ravichandran and Venkatachalam were examined as Pws.2 and 3 respectively. R.Velusamy, who was working as Time Keeper in Tiruppur Textiles Private Limited was examined as PW4. Exs.P1 to P9 were marked on the side of Claimants. No oral or documentary evidence has been adduced by the Appellant-Insurance Company. 5. Upon consideration of oral and documentary evidence, the Tribunal held that the accident arose due to rash and negligent driving of the driver of Canter van bearing registration No.TN-38 7612. Based upon Ex.P8-salary certificate and evidence of PW4, the Tribunal has held that at the time of accident deceased was earning Rs.5,680.48 as salary. Finding that if the deceased had been alive, he would get the monthly income of Rs.7,610.17, the Tribunal has fixed the monthly income of the deceased at Rs.8000/-. Deducting one-third for personal expenses and adopting multiplier "16", the Tribunal has calculated the loss of dependency at Rs.10,24,000/-. Tribunal has also held that during the year 1994-95, deceased was getting bonus of Rs.6,603.42. If the deceased alive, he would get the bonus of Rs.12,460.98, the Tribunal has taken Rs.8,000/-as yearly bonus. Adopting multiplier "16", Tribunal calculated the amount at Rs.1,28,000/-and adding the conventional damages, awarded total compensation of Rs.11,70,000/-, the details of which are as under:- Loss of dependency : Rs.10,24,000.00 Loss of bonus : Rs. 1,28,000.00 Funeral expenses : Rs. 2,000.00 Loss of consortium : Rs. 10,000.00 Loss of love and affection : Rs. 6,000.00 Total : Rs.11,70,000.00 6. The Tribunal has apportioned 50% of the compensation amount to the first claimant/wife of the deceased and the remaining 50% was ordered to be apportioned amongst claimants 2 and 3. During the pendency of the claim petition, mother of the deceased viz., second claimant passed away. Son of the deceased, who is the posthumous child was implicated subsequently as fourth claimant. 7. The award of the Tribunal awarding a sum of Rs.11,70,000/-is challenged by the insurance company on the following grounds: 1. The amount awarded as compensation is disproportionate as well as the compensation awarded is based upon the evidence of incompetent witnesses. 2. Bonus ought not to have been taken into consideration in calculating the loss of income and adopting multiplier of 16 to the annual bonus is not proper.
The amount awarded as compensation is disproportionate as well as the compensation awarded is based upon the evidence of incompetent witnesses. 2. Bonus ought not to have been taken into consideration in calculating the loss of income and adopting multiplier of 16 to the annual bonus is not proper. Award of bonus depends upon various imponderables and therefore, the Tribunal should not have awarded any amount based upon bonus. 3. The Tribunal is wrong in adopting the multiplier of 16 and the appropriate multiplier ought to have been adopted is only 15. 8. Learned counsel for the appellant submitted that the quantum of compensation alone is disputed. 9. In a case of death, the quantum of compensation payable depends upon the age of the deceased, nature of employment, income of the deceased and the age of the claimants also. Sofar as this case is concerned, the age of the deceased is said to be 36 years. He has been working as Attender in Tiruppur Textiles Private Limited. P.W.4 is the Time Keeper of Tiruppur Textiles Private Limited. He has been examined to speak about the income of the deceased. In his evidence, he has stated that the deceased was earning Rs.5,680/-per month and had he been alive, his income would be Rs.7,610/-. The Tribunal has considered this aspect, which is discussed in para 12 of the impugned award and the Tribunal has taken his monthly income as Rs.8,000/-, taking into account the immediate increment in the salary structure. 10. Now, learned counsel for the appellant has contended that the salary ought not to have been taken as Rs.8,000/- per month and at any rate, the salary should have been taken only as Rs.5,680/-, which is the salary on the date of death of the deceased. It is pertinent to point out that the Tribunal has not separately added any future income along with the salary of the deceased. Taking into account the annual increase in the slab of the salary structure, the Tribunal has fixed the salary at Rs.8,000/- per month, which is quite reasonable and it is in accordance with settled principles. Therefore, we conclude that the amount of salary which is fixed at Rs.8,000/-per month is rational and does not require any interference. 11. Learned counsel for the appellant relied upon the decision in V.Subbulakshmiand Others Vs.
Therefore, we conclude that the amount of salary which is fixed at Rs.8,000/-per month is rational and does not require any interference. 11. Learned counsel for the appellant relied upon the decision in V.Subbulakshmiand Others Vs. S.Lakshmi and another ( 2008 ACJ 936 ), wherein it has been held that when there is no reliable document is produced to prove the income of the deceased, the Court is not correct in taking the income based upon the oral evidence. But in this particular case, reliable document has been produced on the side of the claimants. Ex.A8 is the salary certificate produced and the employee of the Tiruppur Textiles Private Limited has been examined to prove the income. Therefore, this decision will not apply to the facts of this case. 12. The next contention of the learned counsel for the appellant is that the Tribunal ought not to have taken 16 as multiplier. This contention also cannot be accepted because as per Second Schedule to the Motor Vehicles Act, when the deceased belong to the age group of 35-40, proper multiplier to be adopted is only 16. There is no basis for the contention that the multiplier ought not to have been 16. Therefore, that contention also do not merit acceptance. 13. The next contention is that the Tribunal is wrong in calculating bonus under the head loss of income. It is common knowledge that now a days, the employees in private companies are give hefty bonus depending upon the financial income of the company. The contention of the learned counsel for the appellant is that inasmuch as the place where the deceased had been working is a private company, the Tribunal ought not to have relied upon the concept of bonus. This contention is unacceptable, as the fact remains that now a days, private companies are offering more perquisites and benefits than the public sector undertakings. There is no evidence to show that the company was in insolvent condition. In such circumstances, there is no impediment for the Tribunal to rely upon the evidence adduced by P.W.4 and to come to the conclusion that the deceased would have been receiving bonus continuously till the company was existing. 14. Now the third contention is that the Tribunal ought not to have granted interest at the rate of 9% per annum.
In such circumstances, there is no impediment for the Tribunal to rely upon the evidence adduced by P.W.4 and to come to the conclusion that the deceased would have been receiving bonus continuously till the company was existing. 14. Now the third contention is that the Tribunal ought not to have granted interest at the rate of 9% per annum. No reason has been adduced why the rate of interest as awarded by the Tribunal at 9% should not be accepted by this Court. The interest awarded by the Tribunal at 9% is very nominal and therefore it also does not require any interference. Therefore, the award passed by the Tribunal is confirmed. 15. With regard to conventional damages, the amount awarded under each and every head is just and reasonable and therefore, we do not propose to interfere with the amount awarded under the other heads also. 16. In the result, the award passed in M.C.O.P.No.29 of 1996 on the file of Motor Accidents Claims Tribunal (Additional District Judge, Fast Track Court No.V), Coimbatore at Tiruppur dated 21.01.2003 is confirmed and the appeal is dismissed. No costs. 17. The Tribunal has apportioned 50% of the compensation to the first claimant/wife and remaining 50% was equally apportioned between the third claimant - father of the deceased and fourth claimant - minor son of the deceased. After the filing of the appeal, father of the deceased is said to have passed away. Therefore, 25% of the compensation amount payable to the father of the deceased shall be apportioned amongst the legal heirs of the deceased third claimant as per law. In case, if there are no legal heirs or if no claim is made by any other legal heir of the deceased third claimant, 25% of the compensation amount payable to the legal heirs of the deceased third claimant shall go to the fourth claimant viz., minor Ranjith. 18. It is stated that the entire amount of compensation awarded by the Tribunal along with accrued interest has already been deposited. The first claimant/wife of the deceased is permitted to withdraw the amount apportioned to her along with proportionate accrued interest. The entire compensation amount payable to the minor fourth claimant shall be invested in nationalised bank till he attains majority.
The first claimant/wife of the deceased is permitted to withdraw the amount apportioned to her along with proportionate accrued interest. The entire compensation amount payable to the minor fourth claimant shall be invested in nationalised bank till he attains majority. The first claimant/mother of the minor fourth claimant is permitted to withdraw the interest directly from the bank once in three months.