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2012 DIGILAW 4299 (MAD)

Oriental Insurance Co. Ltd. v. Hajira Begum

2012-10-15

R.BANUMATHI, R.SUBBIAH

body2012
Judgment :- R. SUBBIAH, J. Challenging the Award (04.12.2009) passed by the Motor Accidents Claims Tribunal (Additional District Judge), Salem, in M.C.O.P.No.1729 of 2005, M/s.Oriental Insurance Company has filed the present Appeal. Respondents 1 and 2 herein are claimants, who are the wife and mother of the deceased Mohammed Esahok @ Esahok respectively. 3rd respondent is the owner of the bus and appellant is the insurer of the bus. 2. Brief facts are as follows: According to respondents, Mohammed Esahok @ Esahok had died in a motor accident that had occurred on 28.07.2005. It is the case of respondents 1 and 2 that on 28.07.2005, while Mohammed Esahok @ Esahok was travelling in TVS Champ as pillion rider which was driven by one Sultan on the Junction Main Road, near AE Railway Quarters, a bus bearing registration No.TN-30-Z-4599 belonging to the Appellant Insurance Company came from the opposite direction in a rash and negligent manner and dashed against the two wheeler and thus caused the accident, in which Mohammed Esahok @ Esahok, who was travelling as a pillion rider, had sustained injuries and died on the spot itself. The deceased, aged about 29 years at the time of accident, was working as a Lecturer at Wisdom Educational Institute, Dubai and earning Rs.27,000/- per month. He contributed his entire income to the family members. Since the accident had occurred due to the rash and negligent driving of the driver of 3rd respondent bus, insured with the Appellant Insurance Company, respondents 1 and 2 made a claim seeking compensation of Rs.25,00,000/-from the owner as well as the insurer of the bus. 3. Resisting the said case, Appellant Insurance Company filed counter statement stating that the accident had occurred only due to the rash and negligent driving of the rider of TVS Champ, who was not having valid and effective driving licence, and hit against the bus and not the driver of bus in question. Therefore, the Insurance Company is not liable to pay any compensation amount. 4. Before the Tribunal, 1st respondent examined herself as P.W.1 besides examining one Sultan, rider of TVS Champ as P.W.2 and marked Exs.A-1 to A-26. 3rd respondent remained ex parte. Therefore, the Insurance Company is not liable to pay any compensation amount. 4. Before the Tribunal, 1st respondent examined herself as P.W.1 besides examining one Sultan, rider of TVS Champ as P.W.2 and marked Exs.A-1 to A-26. 3rd respondent remained ex parte. On behalf of Appellant Insurance Company, Ramakrishnan, driver of the bus was examined as R.W.1 and one Sivabalan, Stenographer of Insurance Company was examined as R.W.2 and Exs.B-1 to B-3 were marked The Tribunal, upon consideration of evidence both oral and documentary, came to the conclusion that the accident was caused due to rash and negligent driving of the driver of insured vehicle. By coming to such a conclusion, Tribunal has assessed compensation under different heads and passed an award for a sum of Rs.34,86,000/-, directing the owner as well as insurer of the bus jointly and severally to pay the same, as follows: Loss of dependency .. Rs.34,56,000.00 Loss of estate 10,000.00 Loss of consortium 10,000.00 Funeral & Transport expenses 10,000.00 Total 34,86,000.00 Questioning the said Award, the present appeal has been filed by the Insurance Company. 5. It is the main submission of Appellant Insurance Company that in Ex.A-3, Motor Vehicle Inspector's report, damage was noted only on the TVS Champ, namely, "front cross bend" and absolutely there was no damage noted on the bus. Further, criminal case filed as against the driver of the insured vehicle, who was examined as R.W.1, was ended in acquittal. In these circumstances, Tribunal ought to have exonerated the Appellant Insurance Company from its liability in paying compensation, holding that the driver of the bus was no way responsible for the accident. 6. With regard to the quantum of compensation, it is the submission of Appellant Insurance Company that according to the claimants, deceased was working as Lecturer at Wisdom Educational Institute at Dubai and was earning monthly salary of UAE Dhs 2300 equivalent to Indian money Rs.27,000/-approximately. But, in order to prove the income earned by the deceased, salary certificate was marked as Ex.A-11 dated 28.07.2005. Date of accident was 28.07.2005. Hence, there is no possibility for getting salary certificate from the employer at Dubai on the very date of accident. Moreover, the employer of deceased was not examined. Therefore, no reliance could be placed on Ex.A-11. But, in order to prove the income earned by the deceased, salary certificate was marked as Ex.A-11 dated 28.07.2005. Date of accident was 28.07.2005. Hence, there is no possibility for getting salary certificate from the employer at Dubai on the very date of accident. Moreover, the employer of deceased was not examined. Therefore, no reliance could be placed on Ex.A-11. But the Tribunal by wrongly placing reliance on Ex.A-11, fixed Rs.27,000/-as monthly income and made calculation on that basis, which resulted in awarding exorbitant amount and hence, the Award is liable to be set aside. 7. On the contrary, learned counsel appearing for Respondents 1 and 2 - claimants made his submissions, supporting the Award passed by the Tribunal. 8. This Court has considered the submissions of learned counsel for both sides and perused the materials available on record 9. It is the main submission of Appellant with regard to rash and negligence aspect that had the accident been caused by the insured vehicle, there should have been damage on the said vehicle. It could be seen that Motor Vehicles Inspector had not stated any damage on the insured vehicle in his report Ex.A-3, whereas damage was noted only on TVS Champ in which the deceased was travelling. Further, Criminal case filed against the driver of the insured bus was also ended in acquittal. 10. But, by a perusal of evidence of P.W.2, it is seen that in his proof affidavit, he had categorically stated in his evidence that the bus driver was responsible for the accident, which reads as under: VERNACULAR (TAMIL) PORTION DELETED 11. Further, Ex.A-9, Charge Sheet, on completion of investigation, has been filed only as against the driver of the bus. In this situation, we are not inclined to accept the submission made by the Appellant by placing reliance on Ex.A-3, Motor Vehicles Inspector's report that the Tribunal ought to have come to the conclusion that there is no negligence on the part of the driver of the insured bus. It is a well settled legal principle that decision of the Criminal Court will not have a bearing on the proceedings pending before the Motor Accidents Claims Tribunal. It is a well settled legal principle that decision of the Criminal Court will not have a bearing on the proceedings pending before the Motor Accidents Claims Tribunal. Under such circumstances, no significance could be attached to the judgment rendered by the Criminal Court, marked as Ex.B-3, when other materials on record would show that the accident was caused due to rash and negligent driving of the driver of the bus. Therefore, we are not inclined to accept the submission made by the learned counsel for the Appellant. 12. So far as the quantum of compensation awarded is concerned, it is the submission of Appellant that Ex.A-11, Salary Certificate cannot be relied upon because the said Certificate bearing the date 28.07.2005, on which the date the accident had occurred and no tangible evidence was produced by the claimants to show that the deceased was working in Dubai. But, by a perusal of Passport relating to deceased produced on the side of Claimants marked as Ex.A-22, it is seen that deceased was staying in Dubai and earning income. Ex.A-10 is the Appointment Letter for the Post of Computer Teacher dated 10.03.2002 issued to the deceased by Wisdom Educational Institute. Exs.A-11 and A-12 are Salary Certificate as well as Payment Voucher issued by the employer to the deceased. Considering the documents Exs.A-10 to A-12, we are of the opinion that claimants have established the fact that the deceased was working at Dubai and drawing UAE Dhirams 2,300.00 (equivalent to Indian Rupees 27,000/-approximately). But, while making calculation, Tribunal had deducted only 1/3rd amount towards personal expenses of the deceased. Since deceased was working in Dubai, we have to make deduction according to cost of living of that country. While at Dubai, deceased should have made arrangements on his own for food and other expenses. Further we find that Tribunal has not deducted any amount towards income tax. 13. Considering the facts and circumstances of the case, we are of the opinion, it would be appropriate to deduct 40% of the amount from the monthly income towards personal expenses of the deceased to arrive at just and proper compensation. If we take a sum of Rs.27,000/- as monthly income, the annual loss of income to the family would be Rs.3,24,000/- (Rs.27,000/- x 12 months). If we take a sum of Rs.27,000/- as monthly income, the annual loss of income to the family would be Rs.3,24,000/- (Rs.27,000/- x 12 months). If 40% amount is deducted towards personal expenses of the deceased, loss of annual contribution works out to Rs.1,94,400/-(Rs.3,24,000/- minus Rs.1,29,600/- being 40%). 14. In the claim petition, it was stated that deceased was aged about 29 years at the time of accident. As could be seen from passport Ex.A-22, date of birth of the deceased is 27.03.1974. As per Second Schedule to Motor Vehicles Act, the correct multiplier is 16. If multiplier of 16 is applied, the amount would be Rs.31,10,400/- (Rs.1,94,400/-x 16). Hence, Rs.34,56,000/- awarded by the Tribunal towards loss of dependency is hereby reduced to Rs.31,10,400/-. Other amounts awarded under different heads, in our view, are proper and, as such, they are confirmed. Under such circumstances, total compensation of Rs.34,86,000/-awarded by the Tribunal is hereby reduced to Rs.31,40,400/- as under: Rs. Loss of dependency 31,10,400.00 Loss of consortium 10,000.00 Funeral and Transport expenses 10,000.00 Loss of estate 10,000.00 ------------------ Total 31,40,400.00 ------------------ In the result, Appeal is party allowed and Appellant Insurance Company is directed to deposit the modified amount of Rs.31,40,400/-with 6% interest from the date of claim petition before the Tribunal within eight weeks from the date of receipt of a copy of the judgment, after deducting the amount already deposited. Out of which, 1st respondent is entitled to Rs.21,38,960/- and 2nd respondent is entitled to Rs.10,00,000/-. On such deposit, respondents 1 and 2 are permitted to withdraw their entire share amount with accrued interest, after deducting the amount already withdrawn, if any. Consequently, connected M.P.is closed. However, There is no order as to costs.