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2012 DIGILAW 3196 (MAD)

Oriental Insurance Company Limited v. Vasanthi

2012-07-20

N.KIRUBAKARAN

body2012
JUDGMENT : N. Kirubakaran, J. It is disheartening to note that two deaf and dumb children lost their father who would have safeguarded these special children during his life time. Father of the second and third respondent served as conductor and he died in the accident occurred on 26.1.1995. The deceased Mr.Senthamaraikannan, 36 years, was working as a conductor in the 5th respondent transport bus on 26.1.1995. When the bus tried to over take a lorry, it got dashed with the left back side of the lorry resulting in many passengers sustaining injuries and some of them died. The conductor was taken to Government Hospital Chengalpet, then referred to Porur Ramachandra Hospital, where inspite of treatment he died on 1.2.1995. Therefore, the claim petition was filed against the appellant and others including the Transport Corporation. The claim petition was resisted by the appellant as well as the Transport Corporation. 2. On enquiry the Tribunal found that the accident occurred because of negligent driving of both the Transport bus as well as the lorry and awarded a sum of Rs. 4,00,000/- towards compensation. Aggrieved by that, the Insurance company has filed the appeal. 3. Heard the parties and perused the records. It is the specific case of the appellant that the driver of the Transport Corporation alone was responsible for the accident as he tried to over take the lorry without noticing on coming vehicle and dashed against the lorry which was running in front of the bus. On the other hand, the Transport Corporation stated that the lorry driver drove the vehicle negligently. 4. Based on the evidence, the Tribunal decided that the accident occurred because of contributory negligence of both the drivers. PW2 is an eyewitness. A perusal of PW2's evidence would show that the drivers of the lorry as well as transport bus drove their respective vehicle racing with each other and attempted to over take each other. In that process, both the lorry and the bus dashed on their sides resulting in accident. Even in the cross-examination by the appellant Insurance Company as well as the Transport Corporation, PW2 categorically stated that both drivers were responsible. Therefore, the Tribunal rightly concluded that the accident occurred because of negligence of both the drivers of Transport Corporation bus as well as the lorry. Since the finding is based on the evidence the same cannot be interfered with. 5. Therefore, the Tribunal rightly concluded that the accident occurred because of negligence of both the drivers of Transport Corporation bus as well as the lorry. Since the finding is based on the evidence the same cannot be interfered with. 5. It is shocking to note that the Tribunal did not adopt any of the approved methods for arriving at compensation and without any calculation Rs. 4,00,000/- was determined and the same is not sustainable in law. As the appeal is a continuation of original proceedings, this court determines the compensation, re-appreciating the evidence available on record. It is proved by Ex.P5 salary certificate that the deceased was a conductor working in the 5th respondent corporation and earning Rs. 3272/-. Ex.A3 postmortem certificate would reveal that the deceased was aged about 36 years. As he was working as a conductor in the 5th respondent Transport Corporation, he was entitled to serve up to 58 years. In that event, he lost 22 years of service. 6. As per the judgement of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and another reported in 2009 ACJ 1298 , 50% is required to be added as future prospects. In this case 50% of income is Rs. 1636/-. Thus approximate monthly in come of the deceased comes to Rs. 3272/- + 1636/- = Rs. 4908/-. Normally 1 /3 of the income is required to be deducted in all the cases towards personal expenses. In this case, the very pathetic position is that respondents 2 and 3, son and daughter of the deceased conductor are deaf and dumb as proved by Exs. A6, A7 and A8. In the above position the deceased would have spent only 1/10 towards personal expenses as he would have been more careful enough to spend the rest of money to take care of his special children. Considering the pathetic circumstances, this court has to approach this issue humanely and deducts only 1/10 of monthly income towards personal expense following the judgement of the Hon'ble Supreme Court in Santosh Devi v. National Insurance Company Limited and others reported in 2012 (6) SCC 421 . The 1/10 of monthly income of the deceased is Rs. 490/- and the contribution to the family is Rs. 4908-490= Rs. 4418/-. Thus the loss of income is calculated as follows: Rs. 4418/- X 12 X 21 = 11,13,336/-. 7. The 1/10 of monthly income of the deceased is Rs. 490/- and the contribution to the family is Rs. 4908-490= Rs. 4418/-. Thus the loss of income is calculated as follows: Rs. 4418/- X 12 X 21 = 11,13,336/-. 7. The first respondent wife lost her husband when she was hardly 29 years old. To a lady, the death of husband is a great loss, that too at the age of 29 years. The loss of husband definitely would cause physical as well as trauma besides causing social stigma. Therefore, this court awards Rs. 50,000/- towards loss of consortium. Respondents 2 and 3, children of the deceased are special children as they are deaf and dumb. Therefore, this court awards Rs. 50,000/- each towards loss of love and affection of their father. Towards transportation and funeral expenses a sum of Rs. 10,000/- is awarded by this court. Thus the award of the Tribunal is enhanced from Rs. 4,00,000/- to Rs. 12,73,336/- rounded of to Rs. 12,75,000/- in the following manner: (1) loss of contribution to the family Rs. 11,13,336/- (2) Loss of consortium to respondent/No. 1, wife Rs. 50,000/- (3) Loss of love and affection to Respondent Nos. 2 and 3, children Rs. 1,00,000/- (4) Towards transportation and funeral expenses Rs. 10,000/- Total Rs. 12,73,336/- rounded off to Rs. 12,75,000/- 8. As rightly pointed out by the learned counsel for the appellant 12% interest awarded by the Tribunal is on the higher side and therefore, the rate of interest is reduced to 9%. However, the interest of further enhanced compensation is determined at 7.5 %. Liability at 50:50 as determined by the Tribunal on the appellant insurance company as well as the fifth respondent is confirmed. 9. Provisions of Motor Vehicles Act are beneficial in nature. The Hon'ble Supreme Court held in a number of cases that even in the absence of appeal or cross appeal by the claimants, this court is entitled to enhance the compensation after re-appreciation of the pleadings and evidence. In view of the above position, this court enhances the compensation from Rs. 4,00,000/- to Rs. 12,75,000/-. 10. The Hon'ble Supreme Court held in a number of cases that even in the absence of appeal or cross appeal by the claimants, this court is entitled to enhance the compensation after re-appreciation of the pleadings and evidence. In view of the above position, this court enhances the compensation from Rs. 4,00,000/- to Rs. 12,75,000/-. 10. Hence both the appellant insurance company as well as the 5th respondent are directed to deposit the entire award amount as per the order of this Court, after deducting the amounts already deposited by them within 8 weeks from the date of the receipt of a copy of this order and the Tribunal is directed to pay the entire amount to the respondents/claimants within two weeks thereafter. It is seen from the main claim petition that the second petitioner was aged 13 years and third respondent was aged about 8 years, when the claim petition was filed in 1996. Therefore, by this time, they would have attained majority. Even in the identity cards issued by the Election Commission of India as well as passport issued by the Government of Tamilnadu would show that they are disabled persons and that they already attained majority. Therefore, the respondents 2 to 3 are entitled to the equal share of the award amount. Call the matter for compliance after 12 weeks. 11. With the above, the appeal is disposed of by enhancing the compensation of Rs. 4,00,000/- to 12,75,000/- in the appeal filed by the insurance company. No costs. Consequently the connected CMP.No.9701 of 2005 is closed.