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2012 DIGILAW 2461 (MAD)

National Insurance Co. Ltd v. S. Samema Begum

2012-06-15

R.KARUPPIAH

body2012
JUDGMENT :- 1. The appellant/2nd respondent-Insurance Company has filed this civil miscellaneous appeal praying for reduction of compensation as against the award 13.1.2005 made in MCOP.No.309 of 2003 on the file of Motor Accidents Claims Tribunal (Principal Subordinate Judge), Cuddalore. 2. The respondents 1 to 4, who are claimants in the abovesaid O.P have filed claim petition before the Tribunal for compensation of Rs.25 lakhs for the death of deceased M. Shahabudeen in the motor accident. The petitioners have contended in the claim petition that on 29.8.2002 at about 3 pm, while the deceased was riding his motor-cycle bearing Regn.No.TN 45 R 7812 from west to east direction at the extreme left side of Panruti to Cuddalore main road, near Thiruvatmigai Murugan oil mill, the car bearing Regn. No. TN 31 D 4977, belonging to 5th Respondent/1st Respondent, came in the opposite direction i.e. east to west at very high speed, in a rash and negligent manner without following the traffic rules, hit against the abovesaid motor-cycle and in the accident, Shahabudeen sustained grievous injuries and died on the spot. 3. The petitioners have further contended that the age of the deceased at the time of accident was 28 years and he was Catering Master at Dubai and was earning Rs.20,000/- pm and the claimants are wife, son, father and mother of the deceased and they claimed compensation of Rs.25 lakhs from the owner and insurer of the abovesaid car, who are Respondents 1 and 2 in the O.P. 4. The owner of the car remained exparte before the Tribunal and the appellant-insurance company filed counter denying the fact that the abovesaid car was insured with the appellant and also denied the contention that the driver of the car had a valid driving licence at the time of accident and other valid documents of the abovesaid car and also denied the age, occupation and income of the deceased, and legal heir certificate and the abovesaid car was involved in the abovesaid accident and further denied the fact that the accident was occurred only due to rash and negligent driving of the driver and also stated that the deceased drove the vehicle without driving licence and dashed against the car and further contended that the amount of compensation claimed is excessive. 5. 5. Before the Tribunal, on the side of the claimants, have examined two witnesses as P.Ws.1 and 2 and marked 5 documents as Exs.P1 to P5 and no oral and documentary evidence adduced on the side of the appellant/2nd respondent. 6. Considering the abovesaid oral and documentary evidence, the Tribunal has held that the accident was occurred only due to rash and negligent driving of the driver of the car and therefore the owner and insurer of the abovesaid car are liable to pay compensation to the claimants. 7. With regard to the compensation, the Tribunal has fixed the age of the deceased as 28 and monthly income as Rs.5000/-and 1/3 of the income was deducted for personal and living expenses of the deceased and applied the multiplier of 12 and awarded Rs.4,80,000/- for loss of income, Rs.1,00,000/-to the 1st petitioner for loss of consortium, Rs.10,000/- to the 2nd petitioner for loss of love and affection, Rs.10,000/-each to the petitioners 3 and 4 for loss of love and affection and totally awarded Rs.6,10,000/- as compensation. Aggrieved with the abovesaid award amount, the appellant-insurance company/2nd respondent in O.P has filed this appeal challenging the quantum of compensation alone. The claimants have not filed any appeal or cross-appeal. 8. With regard to negligence aspect, before the Tribunal, on the side of the claimants have examined PW.2-Raju, eye-witness to the occurrence and also marked Ex.P1-copy of FIR, Ex.P2-M.V.Report, Ex. P3-Post-mortem certificate. On perusal of the abovesaid documents and also considering the fact that there was no contra evidence on the side of the respondents, 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 the car and therefore the 5th respondent and the appellant, who are owner and insurer of the car are liable to pay compensation. 9. As already stated, the appellant has mainly contended that the quantum of compensation is excessive and prayed for reducing the same. The learned counsel for the appellant has contended that the Tribunal has awarded Rs.1 lakh to the 1st petitioner for loss of consortium which is highly excessive and further the learned counsel for the appellant has admitted that the Tribunal has wrongly taken the multiplier of 12 instead of 17 and therefore prayed for reducing the award amount. 10. The learned counsel for the appellant has contended that the Tribunal has awarded Rs.1 lakh to the 1st petitioner for loss of consortium which is highly excessive and further the learned counsel for the appellant has admitted that the Tribunal has wrongly taken the multiplier of 12 instead of 17 and therefore prayed for reducing the award amount. 10. Per contra, the learned counsel for the petitioners has contended that the Tribunal has correctly awarded the compensation but wrongly taken the multiplier as 12 instead of 17 and therefore prayed to apply correct multiplier. 11. With regard to the age of the deceased, the Tribunal has fixed 28 years on the basis of Ex.P3-post-mortem certificate, but at the time of calculation, the Tribunal has wrongly taken the average age of claimants and taken the multiplier as 12. 12. The learned counsel on both sides have admitted that the abovesaid calculation of the Tribunal is not correct as per the decision of the Honourable Supreme Court in SARLA VERMA Vs. DTC (2009 (6) SCC 121). Considering the abovesaid age of the deceased, dependants and other factors, as per the above decision of the Honourable Supreme Court, the correct multiplier is to be taken as 17. 13. With regard to the income of the deceased, the learned counsel for the appellant has contended that the Tribunal, after discussing all oral and documentary evidence adduced on the side of the claimants, finally held that the claimants have not proved the monthly income of the deceased as Rs.20,000/- and also held that accident was occurred on 29.8.2002, but the alleged salary certificate of the deceased Ex.P4 was issued only on 22.8.2004 and also not proved from which date the deceased was working and therefore the Tribunal has disbelieved the abovesaid document, but considering the other factors, the Tribunal fixed the income of the deceased as Rs.5000/- pm. 14. The learned counsel for the appellant has contended that the accident was occurred in the year 2002 and therefore the monthly income of the deceased fixed by the Tribunal as Rs.5000/- is highly excessive. Considering the age, avocation of the deceased , period of accident and other factors, this Court is of the view that the monthly income of the deceased is to be taken as Rs.3800/-. The Tribunal has deducted 1/3 for personal and living expenses of the deceased. Considering the age, avocation of the deceased , period of accident and other factors, this Court is of the view that the monthly income of the deceased is to be taken as Rs.3800/-. The Tribunal has deducted 1/3 for personal and living expenses of the deceased. With regard to deduction for personal and living expenses, the law laid down by the Honourable Apex Court in the decision in SARLA VERMA v. DTC (2009 (6) SCC 121) is extracted as under:- “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." In the instant case, since the claimants are 4 in number, as per the Sarla Verma case (supra), ¼ of the income is to be deducted for personal and living expenses of the deceased and therefore the loss of income to the claimants is Rs.2850/- pm and if the correct multiplier of 17 is applied, the loss of income would come as Rs.2850 x 12 x 17 = Rs.5,81,400/-. 15. The learned counsel for the appellant, without any sufficient reasoning and materials, the Tribunal has awarded Rs. 1 lakh to 1st petitioner for loss of consortium and awarded Rs.10,000/- each to other claimants towards loss of love and affection and prayed for reducing the abovesaid amount. Considering the period of accident and other factors, Rs.5000/- is to be awarded for loss of consortium to the 1st petitioner and Rs.5000/- each to petitioners 2 to 4 for loss of love and affection. Further the Tribunal has not awarded any amount for transportation and funeral expenses and therefore for the abovesaid amounts, Rs.3600/-is awarded. As discussed earlier, the compensation for the abovesaid heads are modified and fixed and it comes to Rs.6,10,000/-as total compensation. Further the Tribunal has not awarded any amount for transportation and funeral expenses and therefore for the abovesaid amounts, Rs.3600/-is awarded. As discussed earlier, the compensation for the abovesaid heads are modified and fixed and it comes to Rs.6,10,000/-as total compensation. The Tribunal also awarded the same amount and therefore, the award passed by the Tribunal is to be confirmed and the appeal is to be dismissed. 16. In the result, the appeal is dismissed and the award passed by the Tribunal is confirmed. No costs.