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2012 DIGILAW 4156 (MAD)

R. Lakshmi v. K. Palanisamy

2012-10-05

ARUNA JAGADEESAN

body2012
Judgment This Civil Miscellaneous Appeal is filed against the Judgment and Decree dated 10.01.2005 made in MCOP.No.1173/2003 by the learned Principal District Judge (MACT) Erode. 2. By the impugned award, the Tribunal has arrived at a total compensation of Rs.2,13,200/- and after fastening contributory negligence on the deceased to an extent of 50 per cent, awarded a sum of Rs.1,06,600/-as total compensation to the claimant/appellant herein with interest at 9 per cent p.a. from the date of the claim petition till the date of realization. 3. On 15.9.2003, when the deceased Govindasamy and his owner Mohanasundharam were travelling from Dharmapuri in Bajaj Tempo Van bearing Reg.No.TN-07-F-9796, at about 10.45 p.m. near Kandhampalayam Pirivu at Perundurai, the lorry bearing Reg.No.TN-37-A-9050 coming in the opposite direction, hit against the Bajaj Tempo Van driven by the deceased, due to which, the deceased sustained fatal juries and died on the way to hospital. 4. According to the claimant, who is the mother of the deceased, the accident had occurred only due to the rash and negligent driving of the driver of the lorry. The Tribunal, after analysing the evidence, held that the accident had occurred due to negligence of the drivers of both the vehicles and as such, liability to an extent of 50 per cent was fastened on the deceased. 5. The monthly income of the deceased as a driver was taken as Rs.2400/- and after deducting 1/3rd towards his personal expenses, his monthly contribution was fixed at Rs.1600/-. Considering the age of the mother, who was aged 55 years old at the time of the accident, multiplier of 11 was applied and a sum of Rs.2,11,2000/- was arrived at towards total loss of dependency. To this, the Tribunal added Rs.2000/- towards funeral expenses and the total compensation was arrived at Rs.2,13,2000/-. After apportioning negligence of 50 per cent on the deceased and deducting 50 per cent of contributory negligence, a sum of Rs.1,06,600/-was determined as total compensation payable to the claimant, who is the mother of the deceased, which is challenged in this appeal. 6. As regards the negligence aspect, the evidence placed on record established that the deceased was driving the Bajaj Tempo Van and he was hit by the lorry coming from the opposite direction. The claimant has pleaded in the claim petition that the lorry in question was driven rashly and negligently. 6. As regards the negligence aspect, the evidence placed on record established that the deceased was driving the Bajaj Tempo Van and he was hit by the lorry coming from the opposite direction. The claimant has pleaded in the claim petition that the lorry in question was driven rashly and negligently. The First Information Report has been lodged by the owner of the Tempo Van who was accompanying the deceased and who was seated on the left side of the driver. It is averred in the First Information Report that the deceased was driving the Tempo Van from North to South and the lorry came from the opposite direction, hit against the Tempo Van causing fatal injuries to the driver of the van. It is further averred that the right side of the Tempo Van got damaged. Mohanasundaram was examined as PW.2 and he has deposed in consonance with the statement made by him in the First Information Report. The driver of the lorry has been charge sheeted for his rash and negligent driving, which is evident from Ex.A7. 7. Mr. N. Manokaran, the learned counsel for the Appellant has submitted that the Tribunal grossly erred in fastening contributory negligence on the part of the deceased/Tempo Van driver, when there is no rebuttal evidence led by the Respondent Insurance Company to prove that the Tempo Van driver had contributed to the accident. 8. On the other hand, Mr. Arun Kumar, the learned counsel for the Respondent Insurance Company invited my attention to the site plan Ex.A3 and submitted that the Tempo Van had crossed the middle portion of the road and hit against the lorry, indicating that the driver of the lorry was not negligent, but the accident took place on account of the rashness and negligent of the deceased Tempo Van driver, but however, discarding the said evidence, the Tribunal taking note of the fact that it was a head on collision and the right side of the respective vehicles got damaged, fastened negligence equally on the drivers of both the vehicles. The learned counsel would submit that there is no error in the finding of the Tribunal fastening negligence on both the drivers, as it is a case of head on collision. 9. The learned counsel would submit that there is no error in the finding of the Tribunal fastening negligence on both the drivers, as it is a case of head on collision. 9. Having considered the evidence of PW.2 and perusal of Ex.A3 site plan, it is seen that it is a case of head on collision and both the vehicles were coming in the opposite direction to each other at the time of the accident. The drivers of both the vehicles had sufficient opportunity to avoid the accident. It appears that the drivers of both the vehicles were rash and negligent, only on account of which, the accident had taken place. The site plan indicates the place of the accident little away from the middle of the road that is on the Western side of the road. Indisputably, the Tempo Van was coming from North to South and the lorry was coming in the opposite direction from South to North. PW.2 has deposed that he had seen the lorry at a distance of 60 ft. He did not say that the lorry came to the wrong side and hit the Tempo Van. Neither his evidence indicated that the Tempo Van driver had taken efforts to avoid the accident by driving the vehicle to left extreme side. PW.2 merely speaks about rashness and negligence driving of the lorry driver. It is not his case that he alerted his driver on seeing the lorry driven by its driver rashly. The driver of the Tempo Van could have applied the brake and should have taken precaution to avoid the accident, but he has not taken any such precaution. There is nothing on record to show that the driver of the Tempo Van has taken any precaution to avoid the accident. It is, thus, quite clear that the drivers of both the vehicles have contributed to the accident. The rashness and negligence on the part of the Tempo Van driver cannot be overlooked merely because he died in the accident and that the charge sheet was laid as against the lorry driver. The Tribunal, after careful examination of the evidence, has come to the conclusion that the drivers of both the vehicles are equally negligent and in my view, the Tribunal has rightly come to such a conclusion based on the materials placed on record. The Tribunal, after careful examination of the evidence, has come to the conclusion that the drivers of both the vehicles are equally negligent and in my view, the Tribunal has rightly come to such a conclusion based on the materials placed on record. I will make no deviation from the reasoning adopted by the Tribunal and would accept the same. Therefore, the findings of the Tribunal fastening negligence equally on drivers of both the vehicles is liable to be confirmed and accordingly, it is confirmed. 10. In so far as the quantum of compensation is concerned, the deceased was a driver and was earning Rs.4000/- p.m. PW.2 has deposed that he was paying Rs.4000/-as salary inclusive of batta to the deceased. There is no contra evidence to this. That apart, as a driver, certainly he would have earned not less than Rs.4000/- per month. As the mother of the deceased was depending on the income of the deceased, who was a bachelor and there is no other source of income to the claimant, deduction of 1/3rd towards his personal expenses is justifiable. After deducting 1/3rd towards his personal expenses, the monthly loss of dependency would come to Rs.2667, rounded off to Rs.2700/-. Having regard to the age of the mother of the deceased, who was 55 years old at the time of the accident, 11 is the proper multiplier as per the decision of the Honourable Supreme Court reported in 2009-ACJ-1298-SC (Sarla Verma Vs. DTC ). Thus, in computing the total loss of dependency by applying the multiplier of 11, it would come to Rs.3,56,400/-. To this, a sum of Rs.20,000/-for the loss of love and affection and Rs.5000/- towards funeral expenses are added. In all, a sum of Rs.3,81,400/-is arrived at as total compensation. Since, it is already held that the deceased had also contributed to the accident to an extent of 50 per cent, the total compensation that would be payable to claimant would come to Rs.1,90,700/-with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization for the enhanced amount. 11. In the result, this Civil Miscellaneous Appeal is allowed. The impugned award is enhanced from Rs.1,06,600/- to Rs.1,90,700/-as mentioned above. 11. In the result, this Civil Miscellaneous Appeal is allowed. The impugned award is enhanced from Rs.1,06,600/- to Rs.1,90,700/-as mentioned above. In all, the claimant is entitled to a total compensation of Rs.1,90,700/-(Rupees one lakh ninety thousand seven hundred only ) with interest 7.5% p.a. from the date of the claim petition till the date of realization for the enhanced amount. The 2nd Respondent/Insurance Company is directed to deposit the entire award amount with interest at 7.5% p.a. from the date of the claim petition till the date of deposit for the enhanced amount, within a period of six weeks from the date of receipt of a copy of this order and on such deposit being made, the claimant is entitled to with draw the entire amount with interest. No costs.