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2012 DIGILAW 3934 (MAD)

Oriental Insurance Company Ltd. v. Chinnammal

2012-09-18

R.BANUMATHI, R.SUBBIAH

body2012
Judgment :- R.SUBBIAH, J. Challenging the quantum of compensation awarded by Motor Accidents Claims Tribunal (Additional District Judge, Fast Track Court No.5), Coimbatore at Tiruppur in M.C.O.P.No.890 of 1994 (dated 01.03.2005), Oriental Insurance Company Limited has filed the present Appeal. 2. Before the Tribunal, Appellant-Insurance Company is third respondent; respondents 1 to 5 are claimants; 6th and 7th respondents are the driver and owner of lorry bearing registration No.TCM 5247, involved in the accident. 3. At the outset, Appellant Insurance Company fairly submitted that they are confining arguments only with regard to quantum of compensation awarded by the Tribunal and, as such, there is no need to deal with other aspects except quantum of compensation awarded by the Tribunal. 4. Respondents 1 to 5 are mother, wife and three children of one Ponnusamy respectively, who died in a motor accident that had occurred on 11.09.1994, involving the lorry owned by the 6th respondent and they filed the claim petition seeking Rs.20,00,000/- as compensation stating that deceased Ponnusamy during his lifetime was earning Rs.25,000/- per month from power loom business as well as agricultural operations. 5. In order to prove their claim, the wife of the deceased examined herself as P.W.1 and marked Exs.P-1 to P-18. That apart, the son of the deceased was examined as P.W.4 to speak about the income earned by the deceased from the powerloom factory. The Tribunal by placing reliance on the evidence of P.Ws.1 and 4, has come to the conclusion that the deceased ought to have earned a sum of Rs.7,200/- from the powerloom business and another Rs.3,000/-by doing agricultural operations. That apart, the Tribunal by adding another sum of Rs.5,100/-towards future prospects, arrived at Rs.15,300/- as the monthly income of the deceased. Thereafter, Tribunal, by placing reliance on Ex.P-3 Charge sheet filed against the driver of the offending vehicle, who had caused the accident, fixed the age of the deceased as 49 years and thereafter, by applying the multiplier of 13, arrived at Rs.15,91,200/-as total loss of dependency after deducting 1/3rd amount towards personal expenses. Questioning the said sum, the present appeal is filed by the Insurance Company, the Insurer of the offending vehicle. 6. The only contention made by the Appellant Insurance Company is that in the claim petition, age of the deceased was shown as 42 years. Questioning the said sum, the present appeal is filed by the Insurance Company, the Insurer of the offending vehicle. 6. The only contention made by the Appellant Insurance Company is that in the claim petition, age of the deceased was shown as 42 years. But in Ex.P-3 charge sheet filed against the driver of the vehicle in question, the age of the deceased was shown as 49 years. That apart, in the postmortem certificate marked as Ex.P-2, the age of the deceased was shown as 55. Except the post mortem certificate and the charge sheet marked as Exs.P-2 and P-3, no other tangible evidence was available before the Tribunal with regard to the age of the deceased. In the absence of any documentary proof, the Tribunal ought to have placed reliance only on the post mortem certificate and fixed the age of the deceased as 55 years at the time of his death. But instead of doing so, the Tribunal wrongly placed reliance on the charge sheet Ex.P-3, wherein the age of the deceased was given as 49, and made the calculation, which resulted in fixing higher multiplier of 13 and awarding an exorbitant sum in this case. Hence, by fixing the age of the deceased as 55 and by applying the multiplier of 8, the amount awarded by the Tribunal has to be reduced. 7. It is the further submission of Appellant Insurance company that the legal heirs of the deceased are running the business even after the death of Ponnusamy. When that being the position, Rs.15,200/- fixed by the Tribunal as loss of monthly income on account of the death of the deceased is extremely on the higher side. Hence, by fixing a lesser monthly income and also by applying the multiplier of 8, amount awarded under loss of dependency has to be modified. 8. On the contrary, learned counsel for respondents 2 to 5 made his submission by supporting the award passed by the Tribunal. 9. Keeping in mind the submissions made on either side, we have gone through the materials available on record and we find that in order to prove the income earned by the deceased, on the side of claimants, Registration Certificate issued by the Department of Handloom and Textiles in the name of deceased was marked as Ex.P- 11. 9. Keeping in mind the submissions made on either side, we have gone through the materials available on record and we find that in order to prove the income earned by the deceased, on the side of claimants, Registration Certificate issued by the Department of Handloom and Textiles in the name of deceased was marked as Ex.P- 11. P.W.1 had adduced evidence that her husband was the owner of power loom factory and was having 24 looms. Therefore, it is incorrect to state that no evidence was available before the Tribunal with regard to the business run by the deceased. 10. With regard to the submission made by the Appellant Insurance Company that except Registration Certificate marked as Ex.P-11, absolutely no evidence was produced by them to prove the exact income earned by the deceased, we find that the Tribunal has fixed only Rs.7,200/-as monthly income. Considering the fact that the deceased was running a power loom factory consisting 24 looms, the sum of Rs.7,200/-fixed by the Tribunal as the income derived from the said business, cannot be said to be excessive by any stretch of imagination. Similarly, we find, before the Tribunal, Exs.P-14 to P-16 were marked to establish that the deceased was owning agricultural lands and the Tribunal has awarded Rs.3,000/-as monthly income from the said lands, which, in our view, is not excessive. Therefore, we do not find any infirmity in arriving at the monthly income of Rs.15,300/- (Rs.7,200/- + Rs.3,000/- + Rs.5,100/-) fixed by the Tribunal. 11. It is the further submission of the Appellant that the legal heirs of the deceased can run the business even after his death and as such, there is no loss of income to the family. But on a perusal of materials, it is seen that one of the employees from the powerloom business, by name, Palanisamy, was examined as P.W.3, who had stated in his evidence that after the death of the deceased, his family members were not in a position to run the business and as such, he had joined in another powerloom godown as worker. The relevant portion reads as follows: Tamil It is clear from the evidence of P.W.3 that after the death of the deceased, his legal heirs are not carrying on the business. The relevant portion reads as follows: Tamil It is clear from the evidence of P.W.3 that after the death of the deceased, his legal heirs are not carrying on the business. Unless it is established by the Insurance Company that the legal heirs of the deceased are running the business of the deceased, this Court, on presumption, cannot come to a conclusion that there is no loss to the legal heirs of the deceased from the income derived from the business. Therefore, we are not inclined to reduce the monthly income fixed by the Tribunal. 12. With regard to the age of the deceased, we find, as contended by the Appellant that no tangible evidence was produced to prove the age of the deceased. The age of the deceased was shown as 49 in the charge sheet Ex.P-3 and 55 in the post mortem certificate Ex.P-3. Considering the facts and circumstances of the case, we are of the opinion that it would be appropriate to fix the age of the deceased between 50 and 55 and as such, the age of the deceased is fixed as 52. If so, the multiplier that has to be applied for 52 years is 11 and not 13. So, the total loss of income would be Rs.20,19,600/- (Rs.15,300/- x 12 months x 11 years). After deducting 1/3rd amount towards personal expenses, the balance amount would be Rs.13,46,400/-. (Rs.20,19,600/- minus Rs.6,73,200/-being 1/3rd amount). The amounts awarded under other heads , in our view, is proper and as such, they are confirmed. Consequently, the award passed by the Tribunal is hereby reduced to Rs.14,14,356/- and the details are as follows: Rs. Loss of dependency 13,46,400.00 Loss of love and affection to R2 5,000.00 Loss of love and affection to R2 } to R4 at Rs.10,000/- each } 40,000.00 Loss of consortium 10,000.00 Funeral expenses 5,000.00 Medical expenses 7,956.00 ---------------- 14,14,356.00 ------------------ In fine, the civil miscellaneous appeal is partly allowed. however, there is no order as to costs. Out of the modified compensation amount, namely, Rs.14,14,356/-, Respondents 1 to 5 are permitted to withdraw their respective share amount with accrued interest, as apportioned by the Tribunal. Appellant Insurance Company is permitted to withdraw the amount more than that of modified award amount with accrued interest. however, there is no order as to costs. Out of the modified compensation amount, namely, Rs.14,14,356/-, Respondents 1 to 5 are permitted to withdraw their respective share amount with accrued interest, as apportioned by the Tribunal. Appellant Insurance Company is permitted to withdraw the amount more than that of modified award amount with accrued interest. At the time of pronouncing judgment, learned counsel for respondents 1 to 5 submits that 1st respondent (Chinnammal) -mother of the deceased Ponnusamy had died during the pendency of the appeal. Under such circumstances, respondents 2 to 5 are entitled for the share of 1st respondent in equal distribution and, accordingly, they are permitted to withdraw the same.