Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 2035 (MAD)

New India Assurance Co Ltd v. Baby Ezhilarasi

2012-04-23

R.KARUPPIAH

body2012
JUDGMENT ( 1. ) THE appellant/second respondent has filed this civil miscellaneous appeal challenging the award and decree dated 11.9.2003 made in MCOP.No.1826 of 2000 on the file of Motor Accidents Claims Tribunal (Chief Judge, Small Causes Court), Chennai for the death of Prabhu in the Motor accident occurred on 24.11.1999. ( 2. ) THE Respondents 1 to 5/petitioners have claimed compensation of Rs.6 lakhs for the loss of the life of one Prabhu, who is the husband of the first petitioner, father of petitioners 2 and 3 and son of petitioners 4 and 5 by contending that on 24/25.11.1999 at about 24 hours, the deceased viz. Prabhu was travelling in a van bearing Regn.No.TN 31 A 1458 proceeding in By-pass Road, Mamallapuram and at that time, a lorry bearing Regn.No.TN-09-B-2165 belonging to 6th Respondent herein, driven in a rash and negligent manner endangering public safety came from behind and hit the van, resulting which, the deceased sustained multiple injuries and died and at the time of accident, the deceased was 21 years and working as Travel Agent and earned Rs.10,000/- p.m and claimants are wife, daughter and son and parents of the deceased and claimed compensation as against the owner and insurer of the abovesaid lorry, who are sixth respondent and appellant herein and respondents 1 and 2 in the O.P. ( 3. ) THE owner of the vehicle remained exparte and only this appellant-Insurance Company has contended that on 24/25.11.1999 at midnight hours, a lorry bearing Regn.No.TN-09 B-2165 collided at Maxi Cab bearing Regn.No.31 A-1458 from rear and Mr.Prabhu, passenger of the abovesaid Maxi cab was just alighting from the Maxi Cab, sustained crash injuries and died and the accident was occurred due to the negligence of the driver of the maxi cab, which was not properly parked on the road and the FIR was filed against the driver of the lorry bearing Regn.No.TN-09 B-2165 but the accident was occurred due to contributory negligence of the driver of the maxi cab and also contended that the claimant should prove the age, income, occupation, insurance coverage and the compensation claimed by claimants is totally illegal and unsustainable. ( 4. ( 4. ) BEFORE the Tribunal, on the side of the claimants, first petitioner has deposed as PW.1 and examined one Dhanasekaran as PW.2 and marked Ex.P1-copy of post-mortem certificate, Ex.P2-Death certificate, Ex.P3-Legal heir certificate, Ex.P4-copy of FIR, Ex.P5-Transfer Certificate, Ex.P6-Driving licence of the deceased, Ex.P7-Letter from P.E.S. Engineers Private Limited and Ex.P8-Car delivery receipt. On the side of the appellant/2nd respondent, no witness was examined and no document was marked. ( 5. ) CONSIDERING the abovesaid oral and documentary evidence adduced on the side of the claimants, the Tribunal has discussed in detail and held that the claimants have proved that the accident was occurred only due to rash and negligent driving of the first respondent lorry Regn.No.TN-09 B-2165 and therefore the appellant/2nd respondent who is the insurer of the abovesaid lorry is liable to pay compensation on behalf of the first respondent-owner of the abovesaid lorry. Further, on considering the oral and documentary evidence adduced on the side of the claimants, the Tribunal has fixed the income of the deceased as Rs.4000/- p.m and after deducting Rs.1,300/- for personal expenses, the Tribunal has passed award on various heads as under:- Loss of pecuniary benefit (Rs.2700 x 12 x 17) - Rs. 5,50,800.00 Loss of estate - Rs. 10,000.00 Loss of consortium to the first petitioner - Rs. 15,000.00 Loss of expectation of life - Rs. 10,000.00 Loss of love and affection - Rs. 5,000.00 Funeral expenses - Rs. 5,000.00 ------------ 5,95,800.00 ------------- ( 6. ) AS against the abovesaid award, the claimants/Respondents 1 to 5 have not filed any appeal or cross-appeal. 10,000.00 Loss of consortium to the first petitioner - Rs. 15,000.00 Loss of expectation of life - Rs. 10,000.00 Loss of love and affection - Rs. 5,000.00 Funeral expenses - Rs. 5,000.00 ------------ 5,95,800.00 ------------- ( 6. ) AS against the abovesaid award, the claimants/Respondents 1 to 5 have not filed any appeal or cross-appeal. Only the second respondent-insurance company has filed this appeal by contending that the Tribunal has erred in holding that the accident was occurred only due to the rash and negligent driving of the driver of the lorry and ought to have held that the driver of the van bearing Regn.No.TN 31 A 1458 from which the deceased was getting down at the time of accident was responsible for the accident and therefore the claim should have been made against the owner and insurer of the van in which the deceased was travelling and also contended that the claim petition ought to have been dismissed for non-joinder of the owner and insurer of the abovesaid van and further contended that the monthly income of the deceased fixed by the Tribunal at Rs.4000/- is highly excessive and the award of Rs.45,000/- towards conventional damages are exorbitant and therefore the Tribunal has erred in awarding excess award of Rs.5,95,800/- as compensation and also contended that the interest at 9% is excessive. ( 7. ) THE learned counsel for the respondents 1 to 5, who are claimants in the abovesaid OP, has contended that the accident was occurred due to rash and negligent driving of the 6th respondent herein, who is the first respondent in the main OP and the abovesaid fact was proved by examining PW.2-eye-witness and also criminal case has been registered only as against 6th respondent's lorry driver and therefore the claimants have clearly proved the rash and negligent driving of the driver of the sixth respondent's lorry and hence the appellant who is the insurer of the lorry is liable to pay compensation. ( 8. ) ADMITTEDLY, before the Tribunal, the 6th respondent herein, who is the owner of the lorry bearing Regn. ( 8. ) ADMITTEDLY, before the Tribunal, the 6th respondent herein, who is the owner of the lorry bearing Regn. No.TN-09 B-2165 remained exparte and only the appellant-insurance company has contended that the accident was occurred only due to the driver of the maxi cab bearing Regn.No. TN 31 A 1458, who has not properly parked the vehicle on the road and therefore the owner and insurer of the maxi cab are also necessary party. But on the side of the appellant-insurance company, has not examined any witness and has not marked any document to prove the fact that the accident was occurred due to negligence or contributory negligence of the driver of the abovesaid maxi cab. ( 9. ) ON the other hand, as already discussed, on the side of the claimants, has examined PW.2 eye-witness and also proved that criminal case has been registered against the driver of the lorry. PW.1 claimant deposed that the accident was occurred only due to negligence of driver of the lorry as contended by claimants. Therefore the Tribunal has discussed in detail and correctly held that the accident was occurred only due to rash and negligent driving of the driver of 6th respondent's lorry, who is the first respondent in main OP and hence the second respondent as insurer of the abovesaid lorry is liable to pay compensation. ( 10. ) WITH regard to quantum of compensation, the learned counsel for the appellant has contended that the Tribunal has wrongly fixed Rs.4000/- as monthly income of the deceased without any reliable oral and documentary evidence and also awarded an amount of Rs.45000/- towards conventional damages are excessive and exorbitant. ( 11. ) PER contra, the learned counsel for the respondents 1 to 5/claimants have contended that considering the oral and documentary evidence adduced on the side of the claimants, the Tribunal has correctly passed award on various heads and no need to interfere with the abovesaid finding. ( 12. ( 11. ) PER contra, the learned counsel for the respondents 1 to 5/claimants have contended that considering the oral and documentary evidence adduced on the side of the claimants, the Tribunal has correctly passed award on various heads and no need to interfere with the abovesaid finding. ( 12. ) ON the side of the claimants, have marked Ex.P5-and also PW.1 has deposed to prove the age of the deceased and on a perusal of Ex.P5-Transfer certificate reveals that the date of birth of the deceased is mentioned as 30.4.1979 and therefore the age of the deceased at the time of accident was 21 years as fixed by the Tribunal and the abovesaid fact was not disputed by the learned counsel for the appellant-insurance company. ( 13. ) ON the side of the claimants, have marked Ex.P2-death certificate, Ex.P3-legal heir certificate and also PW.1 has deposed regarding legal heirs and dependency of the deceased. The above oral and documentary evidence reveals that the claimants, who are wife, children and parents of the deceased alone legal heirs and dependents of the deceased. The appellant has not suggested that the claimants are not legal heirs or dependents of the deceased and therefore the Tribunal has correctly held that all the claimants are entitled to compensation. ( 14. ) WITH regard to income of the deceased, PW.1 has deposed and also marked Ex.P6-driving licence of the deceased, Ex.P7-letter from P.E.S Engineers Private Limited and Ex.P8-car delivery receipt. Considering the abovesaid oral and documentary evidence, the Tribunal has fixed the annual income of the deceased as Rs.4000/- p.m. The learned counsel for the appellant has contended that without any reliable oral and documentary evidence, the Tribunal has wrongly fixed the income of the deceased as Rs.4000 p.m. The deceased was a driver at the time of accident and the abovesaid fact was proved by PW.1 oral evidence and also Exs.P6 to P8 and therefore considering the age, period of accident and other factors, I am of the view that the income of the deceased fixed by the Tribunal is excessive as rightly contended by the learned counsel for the appellant and therefore it is to be reduced as Rs.2800/- p.m instead of Rs.4000/- p.m. ( 15. ) 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." ( 16. ) CONSIDERING the abovesaid principles laid down by the Honourable Supreme Court and the claimants are 5 in number in this case, deduction should be 1/4 for personal living expenses and 3/4 is to be taken as loss of income to the claimants (2800 x=700). The age of the deceased was 21 years at the time of the accident and as per SARLA VERMA case, the multiplier is to be taken as 18. But the Tribunal has wrongly fixed the multiplier as 17 and therefore the correct multiplier is to be taken is 18. Rs.2100/- is fixed as loss of monthly income to the claimants. Therefore, the annual loss of income would be Rs.2100 x 12 = Rs.25,200.00 and if the multiplier of 18 is applied, the loss of income to the claimants would be Rs.25200 x 18 = Rs.4,53,600/- and it is rounded off as Rs.4,53,000/-. ( 17. ) WITH regard to other heads, the Tribunal has awarded Rs.10,000/- for loss of estate, Rs.15,000/- for loss of consortium to the first claimant, who is wife of the deceased, Rs.10,000/- for loss of expectation of life, Rs.5000/- for loss of love and affection and Rs.5000/- for funeral expenses. ( 18. ) WITH regard to loss of love and affection to the claimants 2 to 5/Respondents 2 to 5, the Tribunal has fixed totally Rs.5000/- which is considered as very low and therefore the abovesaid amount is modified and fixed as Rs.5000/- each to claimants 2 to 5 and it comes to Rs.20,000/- for loss of love and affection. ( 19. ) WITH regard to loss of love and affection to the claimants 2 to 5/Respondents 2 to 5, the Tribunal has fixed totally Rs.5000/- which is considered as very low and therefore the abovesaid amount is modified and fixed as Rs.5000/- each to claimants 2 to 5 and it comes to Rs.20,000/- for loss of love and affection. ( 19. ) FROM the abovesaid discussion, the appeal is to be partly allowed and the award amount passed by the Tribunal is to be reduced and modified as follows:- Loss of income - Rs. 4,53,000.00 (Rs.2100 x 12 x 18 = 4,53,600/- rounded off to Rs.4,53,000/-) Loss of estate - Rs. 10,000.00 Loss of consortium to the first petitioner Rs. 15,000.00 Loss of expectation of life- Rs. 10,000.00 Loss of love and affection- Rs. 20,000.00 Funeral expenses - Rs. 5,000.00 --------------------- 5,13,000.00 --------------------- ( 20. ) IN the result, the appeal is partly allowed and the compensation awarded by the Tribunal is reduced from Rs.5,95,800/ to Rs.5,13,000/- with interest at 7.5% per annum from the date of claim petition till date of payment and the appellant is directed to deposit the abovesaid amount within two months from the date of receipt of copy of this Judgment if not deposited so far. ( 21. ) FROM the abovesaid amount, the first respondent is entitled to 45%, respondents 2 and 3 are entitled to 15% each, 4th respondent is entitled to 15% and 5th respondent is entitled to 10%. The respondents 1, 4 and 5 are permitted to withdraw their share amount and with regard to share amount of minor claimants (i.e) Respondents 2 and 3, the Tribunal is directed to deposit the amount in Fixed Deposit in any one of the nationalised banks till they attain majority and the first respondent is entitled to receive the quarterly interest from the bank for maintenance of the minor claimants/respondents 2 and 3. No costs.