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2012 DIGILAW 2276 (MAD)

United India Insurance Co. Ltd. v. R. Raja

2012-06-06

R.KARUPPIAH

body2012
JUDGMENT:- 1. The appellant / Insurance Company has filed the above Civil Miscellaneous Appeal challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.V, Coimbatore at Tiruppur, in MCOP No.886 of 2001, on 21.01.2004. 2. Respondents 1 and 2 herein / claimants have filed the said claim petition for a compensation of Rs.5,00,000/- for the death of one P. Raja Manickam in a motor accident. 3. On the side of the claimants, it is contended that on 24.04.2001 at about 19.30 hrs the deceased P. Raja Manickam was going by walk along his cart from west to east in NH-47 road at Attayampalayam. At that time, a lorry bearing Registration No.TN28 Z 7477 driven by its driver was coming from west to east on the same road, so rashly and negligently, without adhering to traffic regulations and dashed against the deceased-P. Rajamanickam and due to the accident, the deceased sustained grievous injuries all over the body and he was succumbed to death. The age of the deceased at the time of accident was 55 years and he was a vegetable vendor and was earning Rs.4,000/- per month. 4. The claimants / respondents 1 and 2 herein are the sons of the deceased and have filed this appeal for compensation of Rs.5,00,000/- from the owner of the lorry / third respondent herein and insurer / appellant herein. 5. The owner of the vehicle / third respondent herein remained exparte before the Tribunal and the insurer / appellant herein, who is the second respondent before the Tribunal, has contended that the accident has not occurred as alleged by the claimants and the claimants should prove all the averments made in the petition and also contended that the amount of compensation claimed is highly excessive. 6. Before the Tribunal, on the side of the claimants, the claimants have examined three witnesses as P.Ws.1 to 3 and marked four documents Exs.P-1 to P-4 and on the side of the insurer (appellant herein), the respondent has neither examined any witnesses nor marked any exhibits. 7. 6. Before the Tribunal, on the side of the claimants, the claimants have examined three witnesses as P.Ws.1 to 3 and marked four documents Exs.P-1 to P-4 and on the side of the insurer (appellant herein), the respondent has neither examined any witnesses nor marked any exhibits. 7. Considering the oral and documentary evidence adduced, the Tribunal has held that the accident has occurred only due to the rash and negligent driving of the lorry bearing Registration No.TN28 Z 7477, driven by its driver and therefore the owner and insurer of the lorry are liable to pay the compensation and with regard to the compensation, the Tribunal has fixed the age of the deceased as 55, his monthly income as Rs.4,000/-and has taken the multiplier as 11' and has calculated and passed the award as under:- 8. As against the above said award, the claimants, who are respondents 1 and 2 herein, have not filed any appeal or cross objection and only the Insurance Company, who is the second respondent in the above said Original Petition alone, has filed this appeal questioning the award amount. 9. As already stated, with regard to the negligence aspect, as rightly held by the Tribunal, on the side of the claimants, the claimants have examined P.W.2, one Rajendran, who is an eye witness to the occurrence and also marked Ex.P-1-First Information Report and a perusal of Ex.P-1 reveals that the accident has occurred only due to the rash and negligent driving of the lorry, by its driver. Further, the appellant has not challenged the above said findings regarding the negligence and liability aspects. 10. With regard to the quantum of compensation awarded, the learned counsel for the appellant contended that the claimants are not the dependants of the deceased and further, the Tribunal has wrongly assessed Rs.4,000/-per month as the monthly income of the deceased without any documentary evidence and also the Tribunal has erred in applying 11' as multiplier, since the age of the deceased has not been proved by the claimants and the age of the deceased should be more than 55 years and the Tribunal ought not to have awarded 9% interest and therefore, prayed for reduction of the compensation amount. 11. 11. On the contrary, the learned counsel for the claimants submitted that the Tribunal has fixed the age of the deceased as 55 on the basis of Ex.P-2-post-mortem certificate and the oral evidence of P.W.1. He further submitted that on the basis of Ex.P-2, the oral evidence of P.W.1 and also relying upon the decision reported in 2001 ACJ 1536, the Tribunal has fixed the age of the deceased as 55 and rightly applied multiplier as 11' and 9% interest also reasonable and hence no need to interfere with the above said award fixed by the Tribunal. 12. I have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. 13. As already stated, the appellant has not examined any witness or not marked any document to prove their contention regarding compensation. On the side of the claimants, the claimants have examined P.W.1 and also marked the post-mortem certificate to prove the age of the deceased in which it is admittedly mentioned as 55 years and therefore the oral and documentary evidence adduced on the side of the claimants reveal that the age of the claimant is 55 years and therefore, this Court finds absolutely no reason to interfere with the same. 14. With regard to the income of the deceased, the Tribunal has fixed the same at Rs.4,000/- per month. Admittedly, on the side of the claimants, the claimants have not produced any document to prove the income of the deceased. The accident has occurred in the year 2001 and considering the period of accident, the age of the deceased and the dependancy, this Court is of the considered view that the income of the deceased fixed by the Tribunal is excessive and therefore, it is fixed at Rs.3,000/-per month, instead of Rs.4,000/- per month. 15. With regard to the dependancy of the deceased, the learned counsel for the appellant contended that both the claimants are major sons and therefore they are not the dependants and hence they are not entitled to any compensation. 16. 15. With regard to the dependancy of the deceased, the learned counsel for the appellant contended that both the claimants are major sons and therefore they are not the dependants and hence they are not entitled to any compensation. 16. However, this Court is of the view that on the side of the appellant, the appellant has not examined any witnesses or marked any documents to prove that the claimants are not the dependants of the deceased, but, on the side of the claimants, the claimants have clearly stated in the petition that the claimants are the dependants and at the time of recording evidence also, the claimants have deposed that they are entitled to claim compensation as dependants of the deceased and the appellant has not chosen to rebut the same by cross-examining them. 17. This Court is of the considered view that considering the age, income and dependancy, the deduction for personal and living expenses of the deceased should be 1/3rd and 2/3rd is to be taken for calculation of compensation (Rs.3,000/- – Rs.1,000/-(1/3rd) = Rs.2,000/- (2/3rd) ) and therefore the loss of earning applying multiplier as 11' comes to Rs.2,64,000/- (Rs.2,000/- x 12 x 11). With regard to the award passed by the Tribunal on other heads are concerned, the appellant has not seriously disputed the same and therefore the compensation amounts awarded by the Tribunal on the other heads, namely, for love and affection Rs.5,000/-to each of the appellants, totalling Rs.10,000/- and for funeral expenses Rs.2,000/-are to be confirmed and the same is confirmed. Therefore, the award is modified and reduced as under:- Thus the total compensation payable will come to Rs.2,76,000/-. 18. With regard to the rate of interest awarded by the Tribunal, the learned counsel for the appellant / Insurance Company has contended that during the relevant period of accident, i.e., in the year 2001, the rate of interest awarded by the Courts is only 7.5% and therefore, the interest awarded at 9% by the Tribunal is excessive. Considering the period of accident and the rate of interest at the relevant period, the rate of interest is fixed at 7.5% per annum from the date of petition. 19. For the aforesaid reasons, the above Civil Miscellaneous Appeal is partly allowed and the award amount is modified and reduced from Rs.3,64,000/- to Rs.2,76,000/-and the rate of interest is fixed as 7.5%. 20. 19. For the aforesaid reasons, the above Civil Miscellaneous Appeal is partly allowed and the award amount is modified and reduced from Rs.3,64,000/- to Rs.2,76,000/-and the rate of interest is fixed as 7.5%. 20. At this juncture, learned counsel on either side admitted that the entire award amount as awarded by the Tribunal has been already deposited by the appellant to the credit of MCOP No.886 of 2001. Therefore, the claimants / respondents 1 and 2 are permitted to withdraw the modified award amount as has been awarded by this Court in this judgment with interest at the rate of 7.5% per annum from the date of petition and after satisfying the modified award amount with interest at 7.5% per annum, the appellant is permitted to withdraw the excess amount lying in Court deposit in MCOP No.886 of 2001. No costs.