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2013 DIGILAW 3498 (MAD)

Pavayee v. Pavayee

2013-09-26

C.S.KARNAN

body2013
Judgment 1. The appellants/claimants have preferred the present appeal against the judgment and decree dated 02.11.2005, made in M.C.O.P.No.139 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankari. 2. The short facts of the case are as follows:- The petitioners, who are the wife, sons and mother of the deceased Durai, had filed a claim petition in M.C.O.P.No.139 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankari, claiming a sum of Rs.15,00,000/-as compensation from the respondents, who are the owner and insurer of the offending vehicle, for the death of the said Durai in a motor vehicle accident. 3. It was submitted that on 28.05.2003, the deceased was proceeding on his cycle from India Cement Factory to his house, along with two pots of water, on Sankari-Bhavani National Highways Road and when he was near Goundanoor Bus Stop, the first respondent's bus bearing registration No.TN23 R6354, which was coming from Sankari towards Bhavani and driven in a rash and negligent manner, had dashed against the deceased and due to which, he had sustained grievous injuries and died on the spot. At the time of accident, he was aged 48 years and was working as a Tool Room Attender in Workshop Department, in India Cements Ltd., Sankari and earning Rs.7,956.62 per month. Hence, the petitioners had filed the claim petition. 4. The second respondent Insurance Company, in their counter statement, had stated that the driver of the first respondent's bus did not have a valid licence and that it was not covered under a valid R.C., F.C., permit and policy of insurance at the time of the accident. The averments made in the claim petition regarding age, income, occupation of the deceased, place, date and time of the accident and legal heirship of the petitioners were also not admitted. It was also submitted that the first respondent's bus driver had not been rash and negligent in his driving as alleged in the claim and as such the second respondent is not liable to pay compensation. It was submitted that the claim was excessive. 5. On considering the averments of both sides, the Tribunal had framed two issues namely: i. Was the accident caused by the rash and negligent driving by the driver of the first respondent's bus? and ii. It was submitted that the claim was excessive. 5. On considering the averments of both sides, the Tribunal had framed two issues namely: i. Was the accident caused by the rash and negligent driving by the driver of the first respondent's bus? and ii. If so, what is the quantum of compensation, which the petitioners are entitled to get? 6. On the petitioners' side two witnesses were examined as P.Ws.1 and 2 and 11 documents were marked as Exs.P1 to P11 namely FIR, M.V.I's report, postmortem report, charge sheet, cropy of criminal court Judgment, death certificate, legal heir certificate, salary certificate, policy, driving licence and R.C., of bus. On the respondents' side no witness was examined and no document was marked. 7. P.W.2 Balasubramanian, eye-witness of the accident, had adduced evidence that on 28.05.2003, at about 06.45 a.m., when he along with his friends namely Udayachandiran and Rajendran were standing near the Om Tea Stall near Goundanoor Bus Stop, he had seen the deceased Durai coming on his bicycle along with pots of water and that wen the deceased was near Goundanoor bus stop, the bus bearing registration No.TN27 R 6354, coming from Sankari to Bhavani and driven in a high speed and in a rash and negligent manner had dashed against the deceased. 8. On scrutiny of Exs.P1 and P4, it is seen that FIR and charge sheet had been filed against the driver of the first respondent's bus. On scrutiny of Ex.P5, it is seen that the driver of the bus had admitted his guilt and paid the fine amount before the criminal Court. On scrutiny of Ex.P2, it is seen that the accident had not occurred due to any mechanism failure of the bus. Hence, the Tribunal, on scrutiny of oral and documentary evidence, held that the accident had been caused by the rash and negligent driving of the driver of the first respondent's bus. 9. P.W.1 had adduced evidence that her husband was aged 48 years at the time of the accident and that he was working as a Khalasi at India Cements Workshop Department and earning Rs.7,956.62 per month and getting a bonus of Rs.8,000/- per month and that after his death, her family had been put into hardship and in support of her evidence, she had marked Exs.P3, P6 to 11. On scrutiny of Ex.P8, it is seen that the deceased was getting a nett pay of Rs.4,280/-per month. The Tribunal after deducting Rs.1,428/- for the personal expenses of the deceased and on adopting a multiplier of 10, as was relevant to the age of the deceased, which was 48 years as per Ex.P3 postmortem report, awarded a sum of Rs.3,42,240/-as compensation under the head of loss of income (2852 X 12 X 10), Rs.5,000/-was awarded to the first respondent under the head of loss of consortium, Rs.15,000/-was awarded to the petitioners under the head of loss of love and affection, Rs.1,500/-under the head of transport expenses, Rs.2,000/- was awarded for damage of cycle and cloths and Rs.2,000/- was awarded for funeral expenses. In total, the Tribunal had awarded a sum of Rs.3,67,740/-as compensation to the petitioners and directed the first and second respondents to jointly or severally pay the said compensation together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, with costs, within a period of one month from the date of it's order. 10. Not being satisfied by the Award passed by the Tribunal, the petitioners have preferred the present civil miscellaneous appeal. 11. The learned counsel appearing for the appellants has contended in the appeal that the Tribunal erred in fixing the income of the deceased at Rs.4280/-, since the deceased was getting an income of Rs.8,000/-per month, as per salary certificate marked as Ex.P8. It is contended that the multiplier of 10 adopted by the Tribunal was erroneous and instead a multiplier of 13 should have been adopted to assess compensation under the head of loss of income. It is contended that the award granted under the head of loss of consortium and loss of love and affection was meagre. It is contended that the calculation of contribution based on the nett income of the deceased is not correct, because the other statutory deductions made from the salary of the deceased has to be counted for the purpose of determining the income of the deceased. It is also contended that the Tribunal had failed to take into account the increment in the wages of the deceased, which he would have received while computing compensation under the loss of income. Hence, it is prayed for grant of additional compensation of Rs.5,00,000/-. 12. It is also contended that the Tribunal had failed to take into account the increment in the wages of the deceased, which he would have received while computing compensation under the loss of income. Hence, it is prayed for grant of additional compensation of Rs.5,00,000/-. 12. The very competent counsel for the Insurance Company has submitted that after deducting statutory liabilities, it was found that the deceased was getting Rs.4,280/-per month. On the basis of the income and age of the deceased, the Tribunal had adopted multiplier method and granted compensation of a sum of Rs.3,42,240/-as compensation under the head of loss of earning. Besides this, the Tribunal had awarded compensation under the relevant heads. 13. Per contra, the learned counsel for the claimants has submitted that all the claimants are depending upon the income of the deceased, who was the sole bread winner of the family and as the claimants are 4 in numbers, the deduction for personal expenses of the deceased should have been taken as 1/4th of the income instead of 1/3rd of income. The total salary earned by the deceased was Rs.7,956/-. The deductions made on the salary of the deceased is not a permanent one and as such the income of the deceased should have been fixed appropriately. 14. On verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence and liability. However, the quantum of compensation awarded is on the lower side, since the deceased's gross income was Rs.7,956/-as per Ex.P8 salary certificate. Further, there is no discussion regarding the amount deducted towards statutory deductions. Under these circumstances, this Court fixed the income of the deceased as Rs.7,500/-per month and grants compensation of a sum of Rs.6,00,000/-under the head of loss of earning (7,500 X 1/3 X 2 X 12 X 10), Rs.10,000/-towards loss of consortium to the first petitioner, Rs.15,000/- for funeral expenses, Rs.10,000/-for love and affection to each of the claimants and Rs.10,000/-for transport expenses. In total, this Court awards Rs.6,65,000/- as compensation to the claimants, as it is found to be appropriate to the instant case. In total, this Court awards Rs.6,65,000/- as compensation to the claimants, as it is found to be appropriate to the instant case. After deducting the compensation amount of Rs.3,67,740/- fixed by the Tribunal, this Court grants a sum of Rs.2,97,260/-as additional compensation and this amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. 15. This Court directs the second respondent Insurance Company to comply with this Court's Order, within a period of four weeks from the date of receipt of a copy of this order, by way of depositing the compensation amount, to the credit of M.C.O.P.No.139 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankari. 16. After such a deposit having been made, it is open to the claimants to withdraw their apportioned compensation share amount with accrued interest thereon, as per the earlier ratio fixed by the Tribunal, lying in the credit of M.C.O.P.No.139 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankari, after filing a memo along with a copy of this Order 17. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 02.11.2005, made in M.C.O.P.No.139 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankari, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs.