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2012 DIGILAW 3730 (MAD)

New India Assurance Co. Ltd. v. V. Vimala

2012-08-28

R.BANUMATHI, R.SUBBIAH

body2012
JUDGMENT : R. Subbiah, J. Challenging the award (23-7-2008) passed by the Motor Accident Claims Tribunal (Subordinate Judge), Kancheepuram, in M.C.O.P. No. 115 of 2003, the New India Assurance Company Limited has filed the present appeal. 2. Appellant-New India Assurance Company is the second respondent, respondents 1 to 3 are the claimants and 4th respondent is the 1st respondent, the owner of the vehicle, before the Tribunal. 3. Brief facts are as follows : Respondents 1 to 3 are wife, minor son and mother of one J.A. Albert respectively and they filed a claim petition before the Tribunal stating that on 4-12-2002 at about 8.15 p.m., while the said J. A. Albert was riding his LML Vespa Scooter towards Kancheepuram and when he was nearing Rajakulam, a TATA 407 Van bearing registration No. KA-03-A-4837 came from the opposite direction and dashed against the scooter and thus caused the accident, in which, the deceased succumbed to the injuries on the spot. Hence they made a claim for Rs. one crore as against the owner as well as the insurer of the said TATA 407 Van. 4. In order to prove the claim, the 1st respondent examined herself as P. W. 1 besides examining two other witnesses as P.Ws. 2 and 3 and marked Exs. P-1 to P-31. On the side of insurance company, one Arumugham, Regional Transport Officer was examined as R. W. 1, but no document was marked. The Tribunal, after finding that the accident had occurred due to negligente act of the driver of the 4th respondent, by order dated 23-7-2008, quantified the compensation and passed an award for Rs. 18,69,000/- and directed the insurance company to pay the said amount and permitted them to recover the same from the owner of the vehicle i.e. 4th respondent on a finding that the driver of the van did not have a valid driving licence to drive the transport vehicle. Feeling aggrieved, the present appeal is filed by the insurance company. 5. Heard the learned counsel on either side and perused the materials available on record. 6. Feeling aggrieved, the present appeal is filed by the insurance company. 5. Heard the learned counsel on either side and perused the materials available on record. 6. The submission of the learned counsel appearing on behalf of appellant is two folds; (i) having come to the conclusion that driver of the vehicle did not have a valid driving licence, the Tribunal ought to have exonerated the insurance company from paying compensation and ought to have directed the owner of the vehicle i.e. 4th respondent herein to pay compensation; and (ii) the Tribunal awarded an exorbitant sum of Rs. 18,00,000/- under the head ‘loss of income'. Therefore, the amount awarded by the Tribunal has to be reduced by way of re-assessment. 7. With regard to first fold of submission, we find that the driver of the van bearing registration No. KA-03-A-4837 had a licence to drive light motor vehicles. Since he had no valid endorsement to drive the transport vehicle, the Tribunal had directed the insurance company to pay the compensation and permitted to recover the same from the owner of the vehicle. So far as the absence of valid endorsement in the licence is concerned, it is only a violation of policy conditions and not a statutory violation. Under such circumstances, we do not find any infirmity in directing the appellant insurance company to pay compensation and recover the same from the owner of the vehicle. Therefore, we are not inclined to interfere with the finding rendered by the Tribunal with regard to the principle of ‘pay and recover compensation'. 8. With regard to the next fold of submission, it is the submission of the appellant that in order to prove income earned by the deceased, only assessment orders issued by the Sales Tax Authorities were marked as Exs. P-12 to P-14. The Tribunal, by placing reliance on the said documents, had taken minimum 20% of the turnover as profit from the business of the deceased and thus, fixed a sum of Rs. 15,000/- as monthly income of the deceased. In this regard, it is the contention of appellant that the method adopted by the Tribunal to arrive at the monthly income by taking 20% of the total turnover of the business is not correct, particularly in the absence of crucial document, such as income tax return, challan of the deceased. 9. 15,000/- as monthly income of the deceased. In this regard, it is the contention of appellant that the method adopted by the Tribunal to arrive at the monthly income by taking 20% of the total turnover of the business is not correct, particularly in the absence of crucial document, such as income tax return, challan of the deceased. 9. Countering the said arguments, learned counsel appearing for respondents 1 to 3 made his submission, supporting the award passed by the Tribunal. 10. Keeping in mind the arguments advanced by both sides, we have gone through the materials available on record and we find that respondents 1 to 3 had filed Ex. P-12- copy of assessment order of Commercial Tax Department for the year 1999-2000 showing total turnover of Rs. 7,74,898/-. As per Ex. P-13 for the year 2000-01, the total turn over was Rs. 1,73,003/- and as per Ex. P-14 for the year 2001-02, the total turnover was Rs. 4,70,134/-. In our opinion, Exs. P-12 to P-14 would reflect the annual turnover of the business done by the deceased. We do not find any infirmity in placing reliance on the said documents by the Tribunal for the purpose of arriving at compensation under the head of loss of income. But, at the same time, from Ex. P-12, we find total turnover pertaining to the year 1999-2000 as Rs. 7,74,898/- which could be rounded off at Rs. 7,75,000/-. 20% of which works out to Rs. 1,55,000/-. If Rs. 1,55,000/- is taken as annual profit, then the average monthly income works out to Rs. 12,000/- and odd, rounded off to Rs. 12,000/-; whereas the Tribunal has taken a sum of Rs. 15,000/- as the monthly income of the deceased. Therefore, we are of the opinion that the amount awarded by the Tribunal under the head ‘loss of income' needs proper modification. 11. If we fix Rs. 12,000/- as the monthly income, then after deducting 1/3rd amount, the balance amount would be Rs. 8,000/-. So, the annual loss of income comes to Rs. 96,000/-. If multiplier of ‘15' is applied as per the Second Schedule of Motor Vehicles Act, based on the age of the deceased i.e. 32 years, the total loss would be Rs. 14,40,000/- (Rs. 96,000/- x 15 years). Further we find that Tribunal has awarded only a sum of Rs. 25,000/- as compensation for the loss of love and affection. 96,000/-. If multiplier of ‘15' is applied as per the Second Schedule of Motor Vehicles Act, based on the age of the deceased i.e. 32 years, the total loss would be Rs. 14,40,000/- (Rs. 96,000/- x 15 years). Further we find that Tribunal has awarded only a sum of Rs. 25,000/- as compensation for the loss of love and affection. Considering the fact that 2nd respondent minor child, who was aged about 2 years at the time of death of his father, had lost his father at his tender age, the amount of Rs. 25,000/- awarded under the head of ‘loss of love affection' cannot be said to be an adequate compensation and it needs proper enhancement. Hence, the sum of Rs. 25,000/- is enhanced to Rs. 1,00,000/- by adding another sum of Rs. 75,000/-. Further, we find that Rs. 20,000/- awarded under the head ‘loss of consortium' also appears on the lesser side. Hence, the same is hereby enhanced to Rs. 50,000/- by adding another Rs. 30,000/-. Considering the fact that 3rd respondent had lost her son at her old age, she may be awarded under the head ‘loss of love and affection' and hence, Rs. 25,000/- is awarded to 3rd respondent. Further, the amounts of Rs. 8,000/-, Rs. 15,000/- and Rs. 1,000/- awarded under the heads transportation charges, funeral expenses and damages to clothes respectively are reasonable and as such, they are confirmed. Consequently, the total amount of Rs. 18,69,000/- awarded by the Tribunal is reduced to Rs. 16,39,000/- as under : Rs. Loss of income 14,40,000.00 Loss of consortium 50000 Loss of love and affection (R2) 1,00,000.00 (R3) 25000 Funeral expenses 8000 Transportation charges 15000 Damages to clothes 1000 16,39,000.00 rounded off to Rs. 16,40,000/- 12. In fine, the civil miscellaneous appeal is partly allowed; however, there is no order as to costs. The appellant insurance company is directed to deposit the modified award amount of Rs. 16,40,000/- with 7.5% per annum from the date of petition, before the Tribunal in a period of six weeks from the date of receipt of a copy of this Order, after deducting the amount already deposited, if any. If the entire award amount has already been deposited, the insurance company is permitted to withdraw the excess amount. Out of the modified compensation amount, 1st respondent-wife of the deceased is entitled to Rs. If the entire award amount has already been deposited, the insurance company is permitted to withdraw the excess amount. Out of the modified compensation amount, 1st respondent-wife of the deceased is entitled to Rs. 10,00,000/-, 2nd respondent-son of the deceased is entitled to Rs. 4,00,000/- and 3rd respondent-mother of the deceased is entitled to Rs. 2,40,000/-. On such deposit being made, Respondents 1 and 3 are permitted to withdraw their respective share amount along with proportionate accrued interest. So far as 2nd respondent is concerned, the Tribunal is directed to deposit the minor's share in any Nationalised bank till he attains majority and 1st respondent- mother is permitted to withdraw interest once in three months for the upkeep and maintenance of the 2nd respondent. (connected M.P.S. are closed).