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2012 DIGILAW 3314 (MAD)

Thilagavathi v. C. Ramesh

2012-07-26

R.KARUPPIAH

body2012
Judgment :- 1. The appellants/petitioners have filed this civil miscellaneous appeal praying for enhancement of compensation as against the award dated 23.9.2005 passed in MCOP.No.1214 of 2002 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Namakkal. 2. The appellants/petitioners have filed claim petition before the Tribunal for compensation of Rs.10 lakhs for the death of one K.Ravi in motor accident occurred on 29.6.1999. Briefly, the case of the appellants/petitioners is that on 29.6.1999, at about 21.30 hours, while the deceased was riding his motor cycle (Yamaha) bearing registration No. TN 28 X 5511 on the side of Pallipalayam to Tiruchengode road, near Alamelu bus stop, the driver of the lorry bearing registration No.MDE 9561 drove the lorry in a rash and negligent manner from Pallipalayam i.e., same direction and hit behind the deceased, due to which, the deceased sustained injuries and was taken to Rasi Hospital, Erode and then shifted to K.G.Hospital, Coimbatore on 30.6.1999 and he died on 29.7.1999 in the hospital and the accident was only occurred due to rash and negligent driving of the lorry and hence a criminal case has been registered against the driver of the lorry in Cr.No.722/99 under Sections 279 and 337 IPC and subsequently altered into under Section 304(A) IPC. It is further stated in the petition that the age of the deceased at the time of accident was 32 years and was doing textile business and earning Rs.10,000/- p.m and the claimants are wife, children and parents of the deceased and therefore claimed compensation of Rs.10 lakhs from the owner and insurer of the lorry. 3. Before the Tribunal, the first respondent who is the owner of the lorry remained exparte and the second respondent-insurance company filed counter, in which, it is stated that the accident was not occurred as alleged in the petition and contended that the accident took place only due to negligence of the deceased as he all of a sudden he darted across the road and deceased Ravi was not at all having valid driving licence to drive the motor cycle at the time of accident and also denied the age, avocation, income of the deceased, treatment and relationship of petitioners with the deceased and further stated that the claim of compensation is highly excessive. 4. Before the Tribunal, on the side of the appellants/petitioners, have examined 3 witnesses as P.Ws. 4. Before the Tribunal, on the side of the appellants/petitioners, have examined 3 witnesses as P.Ws. 1 to 3 and marked 8 documents as Exs.P1 to P8 and on the side of the respondents, not examined any witness and not marked any document. 5. Considering the above said oral and documentary evidence adduced by the appellants, the Tribunal has held that the accident was occurred only due to rash and negligent driving of the driver of the lorry and therefore the respondents are liable to pay compensation. 6. With regard to compensation, the Tribunal has fixed the age of the deceased as 32 years and monthly income of the deceased as Rs.15000/-per annum as per the Motor Vehicles Act and after deducting 1/3 for personal living expenses and applied 17 as multiplier and awarded Rs.1,70,000/- for loss of income and further awarded Rs.2000/-for funeral expenses, Rs.10,000/-to the first petitioner for loss of consortium, Rs.10,000/- for loss of love and affection to the children, Rs.8000/- for loss of love and affection to the parents of the deceased, Rs.2,00,000/-for medical expenses and totally awarded Rs.4,00,000/- as compensation. Aggrieved with the above said quantum of compensation awarded by the Tribunal, the appellants/petitioners have filed this appeal for enhancement of compensation. 7. Heard the learned counsel on either side and perused the records. 8. On the side of the appellants/petitioners, PW.2 Subramani was examined as eye witness and also marked Exs.P3 and P4-M.V.Report of both vehicles, Ex.P5-copy of observation mahazar, Ex.P6-copy of charge sheet and Ex.P7-copy of criminal court judgment. No contra evidence on the side of the respondents. On perusal of the above said oral and documentary evidence of appellants/petitioners' side, the Tribunal has correctly held that the accident was occurred only due to rash and negligent driving of the driver of the lorry and therefore the respondents, who are owner and insurer of the lorry are liable to pay compensation. 9. As already stated, the appellants/petitioners have challenged the quantum of compensation. The Tribunal has correctly fixed the age of the deceased as 32 years old as stated in the petition and Ex.P2-post-mortem certificate but fixed the monthly income of the deceased as Rs.15000/- per annum as per the provisions of the Motor Vehicles Act. 10. 9. As already stated, the appellants/petitioners have challenged the quantum of compensation. The Tribunal has correctly fixed the age of the deceased as 32 years old as stated in the petition and Ex.P2-post-mortem certificate but fixed the monthly income of the deceased as Rs.15000/- per annum as per the provisions of the Motor Vehicles Act. 10. The learned counsel for the appellants has mainly contended that the deceased was 32 years old and owning 20 power looms and doing textile business and was earning Rs.10,000/- p.m but the Tribunal has not considered the said income and fixed low income as per Motor Vehicles Act. The learned counsel for the second respondent has contended that the Tribunal has correctly fixed the income of the deceased and no need to interfere with the above said finding. 11. Admittedly, the age of the deceased was 32 years and even though the petitioners have not produced the reliable documentary evidence to prove the avocation and income of the deceased, the Tribunal has fixed the annual income of the deceased as Rs.15000/-, which is very low. Considering the age of the deceased, period of accident i.e. 1999, family members and other factors, this Court is of the view that the monthly income of the deceased can be fixed as Rs.3000/- which is reasonable amount. 12. With regard to the multiplier, the Honourable Supreme Court in the decision in SARLA VERMA v. DTC (2009) 6 SCC 121) has held in para 42 as under: "42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 year, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." 13. Applying the principles laid down in the above said decision of the Honourable Supreme Court, since the age of the deceased was 32 years, the correct multiplier is 16 but the Tribunal has wrongly taken the multiplier as 17 instead of 16. 14. Admittedly the claimants are 5 in number. As per the above decision, ¼ of the income is to be deducted for personal and living expenses and ¾ is to be taken as calculation for loss of income and it comes to Rs.2,250 x 12 x 16 = Rs.4,32,000/-. The Tribunal has awarded Rs.10,000/- as consortium to the first petitioner, which is reasonable amount and no need to interfere with the above amount. For loss of love and affection to the minor petitioners 2 and 3, the Tribunal has awarded Rs.10,000/-. This Court is of the view that the award for loss of love and affection of Rs.10,000/- to both petitioners 2 and 3 is to be increased as Rs.10,000/- each and it comes to Rs.20,000/- and for loss of love and affection to the petitioners 4 and 5 is to be increased from Rs.8000/- to Rs.10,000/- i.e. Rs.5000/- each. The Tribunal has awarded Rs.2000/- for funeral expenses, which is very low and it is to be increased as Rs.4000/-. 15. The Tribunal has awarded Rs.2,00,000/- for medical expenses. The learned counsel for the appellants/petitioners would contend that on the side of the petitioners, PW.1 has clearly deposed and also marked Ex.P8 series i.e. medical bills from 29.6.1999 to 22.9.1999 totalling a sum of Rs.2,33,333/- but the Tribunal has awarded only Rs.2,00,000/-. A perusal of the award passed by the Tribunal reveals that no reason has been stated for reducing the award amount for medical expenses. Therefore, from the evidence of PW.1 and the abovesaid medical bills, this Court is of the view that the award for medical expenses is to be increased from Rs.2,00,000/- to Rs.2,33,333/-and rounded off to Rs.2,34,000/-. 16. From the above said discussion, the award passed by the Tribunal is modified and enhanced as under: "For loss of income - Rs.4,32,000.00 For medical expenses - Rs.2,34,000.00 For loss of consortium to the 1st petitioner - Rs. 10,000.00 For loss of love and affection to petitioners 2 and 3 (Rs.10,000/- each) - Rs. 20,000.00 For loss of love and affection to petitioners 4 and 5 - Rs. 10,000.00 For funeral expenses - Rs. 10,000.00 For loss of love and affection to petitioners 2 and 3 (Rs.10,000/- each) - Rs. 20,000.00 For loss of love and affection to petitioners 4 and 5 - Rs. 10,000.00 For funeral expenses - Rs. 4,000.00 Rs.7,10,000.00 17. In the result, the Civil Miscellaneous Appeal is partly allowed and the award passed by the Tribunal is modified and enhanced from Rs.4,00,000/- to Rs.7,10,000/- (Rupees seven lakhs and ten thousand only) with interest at 7.5% p.a and proportionate costs. 18. It is reported that the entire award amount of the Tribunal has already been deposited by the second respondent. The second respondent is directed to deposit the remaining amount of Rs.3,10,000/-(Rupees three lakhs and ten thousand only) with proportionate interest and costs within a period of four weeks from the date of receipt of copy of this Judgment. The appellants/petitioners are permitted to withdraw their share amount as apportioned by the Tribunal. It is further reported that the appellants have paid the Court fee only for Rs.2,00,000/-before this Court. Therefore the appellants are directed to pay the deficit Court fee before withdrawal of amount if they have not paid so far. No costs.