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2012 DIGILAW 4569 (MAD)

United India Insurance Co. Ltd v. A. Manjula

2012-11-02

R.BANUMATHI, R.SUBBIAH

body2012
JUDGMENT R.BANUMATHI,J. Being aggrieved by the quantum of compensation of Rs.13,75,000/- awarded for the death of K.Ashokan in a road traffic accident on 24.04.2007, the Appellant-Insurance Company has preferred C.M.A.No.1766 of 2011. Being dissatisfied with the quantum of compensation, Claimants have preferred C.M.A.No.3546 of 2011. Since both the appeals arise out of the same Award, they were heard together and stand disposed of by this common judgment. For the sake of convenience, the parties are referred to as per their rank in C.M.A.No.1766 of 2011. 2. Brief facts are that on 24.4.2007 deceased Ashokan was travelling in the motorcycle bearing registration No.TN-09-AC 5496 as pillion rider from Panapakkam to Vellore on Madras-Bangalore Highways Road and when the motorcycle was nearing Ocheri Koot Road, a car bearing registration No.TN-23 AY 6069 driven by its driver in a rash and negligent manner and dashed against the motorcycle. Due to the impact, Ashokan sustained grievous injuries. Immediately, after the accident, Ashokan was taken to Government Hospital, Walajahpet and on way the hospital, Ashokan died. At the time of accident, deceased Ashokan was aged 37 years and was a Proprietor of Rajeswari Dyeing Factory, Panapakkam, Velore District and was earning Rs.40,000/- per month. Regarding the accident, a criminal case was registered against the car driver in Crime No.161 of 2007 of Kaveripakkam Police Station. Alleging that the accident was due to rash and negligent driving of the car driver, the Claimants, who are wife, daughter and parents of the deceased, have filed Claim Petition claiming compensation of Rs.50,00,000/-. 3. Resisting the Claim Petition, Appellant-Insurance Company has filed the counter contending that the accident occurred due to the negligence of the rider of motorcyclist. Appellant-Insurance Company has also denied the occupation and income, monthly contribution to the family and age of the deceased and contended that the quantum of compensation of Rs.50,00,000/- claimed by the Claimants is on the higher side. 4. Before the Tribunal, on behalf of the claimants, 1st Claimant-Manjula examined herself as P.W.1, clerk in Ashokan Dyeing Factory viz., Govindarajan as P.W.2 and one Pattabhi, who was working as Commercial Tax Officer in Arakonam was examined as P.W.3 and eye-witness (Dayalan) was examined as P.W.4 and Exs.P1 to P19 were marked. No oral and documentary evidence was adduced on the side of Appellant-Insurance Company. 5. No oral and documentary evidence was adduced on the side of Appellant-Insurance Company. 5. Upon consideration of evidence of P.W.1, Ex.P.1 F.I.R and filing of charge sheet against car driver, Tribunal held that the accident was due to rash and negligent driving of car driver. Tribunal held that the appellant/insurer of the car and the owner of the car are jointly and severally liable to pay the compensation. Pointing out that the deceased was doing business, the Tribunal had taken monthly income of the deceased at Rs.10,000/- per month. Deducting 1/4th of the income for personal expenses and adopting multiplier 15, Tribunal has awarded Rs.13,50,000/- (Rs.7,500 x 12 x 15) towards loss of earnings. Adding conventional damages of Rs.25,000/-, Tribunal has awarded total compensation of Rs.13,75,000/-. 6. P.W.4 Dayalan is the eye witness, who spoke about the accident. Ex.P.1 F.I.R in Crime No.161 of 2007 on the file of Kaveripakkam Police Station was registered against the car driver and chargesheet was also filed against him. The evidence as to rash and negligent manner driving of car driver is unassailable and the appellant Insurance Company has preferred the appeal mainly challenging the quantum. 7. Assailing Ex.P.9 series bill books and Ex.P.18 day book, Mr.Arunkumar, learned counsel for the Insurance Company submitted that those registers are not reliable documents and in the absence of any income-tax return, the Tribunal ought not to have assumed a sum of Rs.10,000/- per month as income of the deceased and Rs.13,50,000/- awarded towards loss of earning is on the higher side. It was further submitted that in the absence of age proof of the deceased Tribunal erred in adopting 15 as multiplier. 8. Onbehalf of the claimants, the learned Senior Counsel Mr.S.V.Jayaraman contended that Tribunal did not keep in view that deceased Ashokan was carrying business under the name and style of Rajeswari Dyeing Factory and failed to appreciate Exs.P.6 to P.12 and Exs.P.14 and P.19 in proper perspective. It was further contended that Ex.P.16 bank account details would clearly establish that deceased was earning more than Rs.40,000/- per month and while so Tribunal erred in taking the monthly income at Rs.10,000/- per month, which is very less and prayed for enhancement of compensation. 9. It was further contended that Ex.P.16 bank account details would clearly establish that deceased was earning more than Rs.40,000/- per month and while so Tribunal erred in taking the monthly income at Rs.10,000/- per month, which is very less and prayed for enhancement of compensation. 9. Deceased Ashokan was carrying on business in dyeing and bleaching of cotton yarn and cloth at D.No.50, Subramaniar Koil Street, Panapakkam, Vellore District under the name and style of Rajeswari Dyeing Factory. Ex.P.11 is the S.S.I. Certificate of Registration issued to Rajeswari Dyeing Factory by Department of Industries and Commerce, Government of Tamil Nadu. As seen from Ex.P.15, K.Ashokan Dying factory" subsequently re-named as "Rajeswari Dyeing Factory" was also registered with Department of Commercial Taxes. In her evidence, P.W.1 stated that her husband Ashokan was doing dyeing and manufacturing lungi business under the name of Rajeswari Dyeing Factory and that her husband was earning a sum of Rs.40,000/- per month. 10. P.W.2 A.Govindarajan was working as Accountant in Rajeswari Dyeing Factory from 1997. In his evidence, P.W.2 stated that Rajeswari Dyeing Factory was doing good business and that Ex.P.18 is Day Book and Ex.P.17 is the Bill book. Ex.P.9 series are the bill books/statement of accounts of Rajeswari Dyeing Factory. 11. To substantiate their plea that the deceased Ashokan was carrying on business under the name of Rajeswari Dyeing Factory, Commercial Tax Officer, Arakkonam was examined as P.W.3. In his evidence, P.W.3 has stated that name of 'Ashokan Dyeing Factory' was changed as 'Rajeswari Dyeing Factory' in 1997 and that the said concern was doing business in dyeing and bleaching of cotton yarn and cloth and that it was regularly submitting its accounts and that Ex.P.15 is its Registration Certificate. 12. Even though P.W.1 stated that the deceased Ashokan was earning Rs.40,000/- per month, no income-tax return was produced by the claimants. Ex.P.6 is the Return of turnover for the year ending 2003 as per which Rajeswari Dyeing Factory had the turn over of Rs.3,22,277/- for the year 2002-2003 and Ex.P.7 is the assessment order in respect of the assessment year 2000-2001 for the firm of deceased wherein the turnover of Rajeswari Dyeing Factory is shown as Rs.5,32,080/-. 13. Ex.P.6 is the Return of turnover for the year ending 2003 as per which Rajeswari Dyeing Factory had the turn over of Rs.3,22,277/- for the year 2002-2003 and Ex.P.7 is the assessment order in respect of the assessment year 2000-2001 for the firm of deceased wherein the turnover of Rajeswari Dyeing Factory is shown as Rs.5,32,080/-. 13. Even if we assume that from out of the total turnover deceased would have earned 25% profits, from out of his total turnover, his income would have been Rs.1,40,000/- in the year 2000-2001 and about Rs.80,000/- in the year 2002-2003. 14. By perusal of Ex.P.9 Bill books/ Statement of Accounts and also the evidence of P.W.2, it is seen that the deceased was not earning much income. Ex.P.9 series contain the profit from various transactions during various spells of time, which reads as under: Year Document DetailsProfit 1997-1998Ex.P.9 series (6 Nos.)Rs.36,025.50 Page Nos.172 & 173 1998-1999Ex.P.9 series (7 Nos.)Rs.37,408.45 Page Nos.90-91 2004-2005Ex.P.9 Series ( 5 Nos.)Rs.3,875.00 Page Nos.90-91 2005-2006Ex.P.18 SeriesRs.23,943.00 Page Nos.88-89 15. Ex.P.16 is the Bank details, which are very much relied upon by the claimants to contend that deceased Ashokan had money transactions dealing in higher amounts. By perusal of Ex.P.16, it is seen that the amounts deposited were withdrawn by the deceased on the same date, leaving very less amount as the Bank balance. Ex.P.16 bank statement would not in any way substantiate the case of the claimants that the deceased was having a higher income. Ex.P.12 is the PAN Card. Even though deceased Ashokan was having a PAN Card claimants have not produced any income-tax returns of deceased Ashokan. 16. Mr.Arunkumar, learned counsel for Insurance Company submitted that in the absence of any proof regarding the monthly income of the deceased at Rs.10,000/- per month, taking Rs.10,000/- per month as income of deceased by the Tribunal is on the higher side. Admittedly, deceased Ashokan was doing business in dyeing and bleaching of cotton yarn and cloth and was said to have been manufacturing lungies. Considering his turnover the deceased would have earned some good income. Over the years the deceased would have improved his business. Considering the oral and documentary evidence, we are not inclined to reduce the income of the deceased taken by the Tribunal at Rs.10,000/-. 17. Considering his turnover the deceased would have earned some good income. Over the years the deceased would have improved his business. Considering the oral and documentary evidence, we are not inclined to reduce the income of the deceased taken by the Tribunal at Rs.10,000/-. 17. The learned Senior Counsel for the claimants urged that applying the ratio of the decision of the Supreme Court in (2012) 6 SCC 421 = 2012 ACJ 1428 Santosh Devi Vs. National Insurance Co.Ltd. and others,, 15% addition be made for future prospects. The above contention does not merit acceptance. The ratio of the decision in Santosh Devi's case is applicable only to salaried class in private sector and not to the business class. In any event, even after the death of Ashokan, business of dyeing and bleaching continued with the family. Even though P.W.1 stated that they are not continuing the business no evidence was adduced to show that the business was stopped. In such circumstances, we are not inclined to enhance the income of the deceased at Rs.10,000/- fixed by the Tribunal. 18. By perusal of Ex.P.12 PAN Card, it is seen that the date of birth of deceased is 4.6.1970. The date of accident was 24.4.2007. At the time of accident, deceased was aged 37 years. As per the Second Schedule to Motor Vehicles Act, the Tribunal has adopted proper multiplier 15 and the same is maintained. 19. The family consists of wife, minor daughter and parents of the deceased. Considering the number of dependants, the Tribunal has deducted towards personal expenses and calculated loss of earnings at Rs.7,500/- per month and the same is maintained. The quantum of compensation of Rs.13,50,000/- (Rs.7,500 x 12 x 15) awarded for loss of earnings/dependency is confirmed. 20. In so far as conventional damages, the Tribunal has awarded Rs.10,000/- towards loss of consortium. At the time of accident, wife of deceased/1st claimant was aged 28 years and she has lost her husband at the young age of 28 years and she has to remain without consortium and love and affection of her husband for the rest of her life. Considering the age of 1st claimant, the compensation awarded towards loss of consortium is enhanced to Rs.25,000/-. The Tribunal has awarded only Rs.10,000/- towards loss of love and affection. Considering the age of 1st claimant, the compensation awarded towards loss of consortium is enhanced to Rs.25,000/-. The Tribunal has awarded only Rs.10,000/- towards loss of love and affection. The 2nd claimant minor daughter of deceased Pavithra was aged 9 years and 3rd and 4th claimants are aged parents of deceased. The second claimant has lost love and affection of her father at the young age of nine years. Likewise, parents of deceased have lost love and affection of their son at their old age. Considering the age of claimants 2 to 4, the compensation awarded towards loss of love and affection is enhanced to Rs.60,000/- i.e., Rs.20,000/- to each of the Claimants 2 to 4. The Tribunal has awarded Rs.5,000/- towards funeral expenses and transport expenses and the same is maintained. The total compensation of Rs.13,75,000/- awarded by the Tribunal to the claimants is thus enhanced to Rs.14,40,000/- as under: Loss of Dependency : Rs.13,50,000.00 Loss of Consortium: Rs. 25,000.00 Loss of love and affection: Rs. 60,000.00 Funeral Expenses and : Rs. 5,000.00 transport-------------- Total: Rs. 14,40,000.00 --------------- and the said enhanced compensation is payable with interest at the rate of 7.5% per annum 21. In the result, the compensation of Rs.13,75,000/- awarded in M.C.O.P.No.4090 of 2007 on the file of Motor Accident Claims Tribunal (Chief Judge, Court of Small causes), Chennai is enhanced to Rs.14,40,000/- and the appeal in C.M.A.No.3547 of 2011 preferred by the claimants is partly allowed and the appeal preferred by the Insurance Company in C.M.A.No.1766 of 2011 is dismissed. The enhanced compensation shall be paid to the claimants as per the enhancement of conventional damages as indicated in Para No.20. 22. It is submitted by the learned counsel appearing on either side that as per the interim order dated 27.6.2011, a sum of Rs.12,00,000/- together with proportionate interests and costs less the amount already deposited to the credit of M.C.O.P.No.4090 of 2007 was ordered and the same was deposited by the Insurance Company. The appellant _ Insurance Company is directed to deposit the balance enhanced compensation together with interest within a period of eight weeks from the date of receipt of copy of this judgment. On such deposit, the 1st claimant-wife and claimants 3 and 4 parents are permitted to withdraw the entire compensation amount as apportioned by the Tribunal. The appellant _ Insurance Company is directed to deposit the balance enhanced compensation together with interest within a period of eight weeks from the date of receipt of copy of this judgment. On such deposit, the 1st claimant-wife and claimants 3 and 4 parents are permitted to withdraw the entire compensation amount as apportioned by the Tribunal. The compensation amount awarded to the minor second claimant shall be deposited in a nationalised Bank and the 1st claimant mother is permitted to withdraw interest on the awarded compensation amount of minor quarterly till the minor attains majority once in three months directly from the Bank. Immediately on attaining majority, 2nd claimant minor Pavithra is permitted to withdraw the compensation amount apportioned to her on filing necessary application before the Tribunal getting herself declared as major. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed.