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2013 DIGILAW 3600 (MAD)

Bhuvaneshwari v. Chandrasekara Rao

2013-10-04

C.S.KARNAN

body2013
Judgment : 1. The appellants / claimants have preferred the present appeal against the judgment and decree dated 07.03.2006, made in M.C.O.P.No.97 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Ranipet, Vellore. 2. The short facts of the case are as follows:- The claimants, who are the mother and sister of the deceased Vijayakumar, had filed a claim petition in M.C.O.P.No.97 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Ranipet, Vellore, claiming a sum of Rs.15,00,000/-as compensation from the respondents for the death of the said Vijayakumar in a motor vehicle accident. 3. It was submitted that on 27.02.2001, at 10.45 p.m., when the deceased Vijayakumar was proceeding as a passenger in a Minidor lorry bearing registration No.TN04 C8145, along with one Mathiazhagan and when the lorry was proceeding on Tirutani-Sholingar Main Road and near Buchinaidu Gandigai Junction Road, the first respondent's lorry bearing registration No.AP9 V2662, which was proceeding ahead of the mini lorry, was suddenly stopped, without any signal and as a result, the mini lorry had dashed against the lorry. Due to the impact, the deceased sustained multiple grievous injuries. Hence, the claimants had filed the claim petition against the respondents, who are the owner and insurer of the lorry bearing registration No.AP9 V2662. 4. The second respondent Insurance Company, in their counter affidavit, had submitted that the driver of the mini lorry bearing registration No.TN04 C8145 did not have a valid licence and that the mini lorry was not covered under a valid permit and also not covered under a valid policy of insurance. It is also submitted that the deceased had travelled as an unauthorized passenger in the mini lorry, which was a goods vehicle. The averments made in the claim petition regarding age, income and occupation of the deceased were also not admitted. It was submitted that the claim was bad for nonjoinder of the owner and insurer of the mini lorry bearing registration No.TN04 C8145. It was submitted that the claim was excessive. 5. On considering the averments of both sides, the Tribunal had framed three issues namely: i. Due to whose negligence was the accident caused? ii. What is the quantum of compensation, which the claimants are entitled to get? Who is liable to pay compensation? and iii. To what other reliefs are the claimants entitled to get? 6. 5. On considering the averments of both sides, the Tribunal had framed three issues namely: i. Due to whose negligence was the accident caused? ii. What is the quantum of compensation, which the claimants are entitled to get? Who is liable to pay compensation? and iii. To what other reliefs are the claimants entitled to get? 6. On the claimants' side two witnesses were examined as P.Ws.1 and 2 and eleven documents were marked as Exs.P1 to P11 namely copy of FIR, postmortem report, M.V.I's reports of the vehicles, copy of charge sheet, copy of Criminal Court Judgment, S.S.L.C. Mark sheet, copy of Diploma in Civil Engineering Certificate, copy of pay slip, legal heir certificate and salary certificate. On the respondents' side one witness was examined as R.W.1 and two documents were marked as Exs.R1 and R2 namely investigation report and copy of policy. 7. P.W.1, mother of the deceased, had adduced evidence, which is corroborative of the statements made in the claim regarding manner of accident. She deposed that her son had died at the hospital, within three hours from the time of occurrence of accident and in support of her evidence, she had marked Exs.P1 to P11. 8. P.W.2 Anandan, driver of the mini lorry, had also adduced evidence that on 27.02.2001, at about 12.15 a.m., when he was driving the mini lorry bearing registration No.TN04 C8145, on Tirutani-Sholingar Road, the lorry bearing registration No.AP9 V2662, proceeding ahead of him, was suddenly stopped by it's driver, by applying sudden brake, without putting on any indicator lights due to which he had dashed the mini lorry against the back of the lorry. He deposed that out of three persons, who had travelled in the lorry, one person had died in the accident. He deposed that he had a valid driving licence and that the vehicle was covered under a valid permit to ply on the road. He had deposed that the vehicle was not covered under a policy of insurance. 9. R.W.1 N.P.Kesavan, Development Officer of the second respondent firm, had adduced evidence that FIR had been lodged only against the driver of the mini lorry and that from the rough sketch marked, it is evident that only the mini lorry had dashed against the back of the trailer lorry. 9. R.W.1 N.P.Kesavan, Development Officer of the second respondent firm, had adduced evidence that FIR had been lodged only against the driver of the mini lorry and that from the rough sketch marked, it is evident that only the mini lorry had dashed against the back of the trailer lorry. He had also adduced evidence that the mini lorry was not covered under a policy of insurance at the time of accident and that the claimant had manipulated to file the charge sheet against the driver of the tipper lorry and the name of the accused was changed in the charge sheet. 10. He deposed further that only three persons were allowed to travel on the front seat of the mini lorry, whereas four persons namely the claimant along with another person had travelled along with the driver and cleaner at the time of accident, which is against policy conditions and as such the second respondent is not liable to pay compensation to the claimant. 11. The Tribunal, on scrutiny of oral and documentary evidence, opined that both the drivers of the vehicles had contributed negligence in the occurrence of the accident and apportioned the negligence equally among the drivers of the vehicles. The Tribunal, on considering that the accident had occurred only as the indicator lights on the back of the first respondent's lorry, was non-operational at the time of accident, observed that the second respondent is not liable to pay compensation to the claimants and held that the first respondent liable to pay compensation to the claimants. 12. P.W.1 had further adduced evidence that she had lost her only son Vijayakumar in the said accident. She deposed that he was aged 27 years and was working as an Assistant Engineer in Kancheepuram Electricity Board and earning Rs.7,652/-per month. The Tribunal, on scrutiny of Ex.P11, observed that the deceased was earning Rs.5,393/- per month. 12. P.W.1 had further adduced evidence that she had lost her only son Vijayakumar in the said accident. She deposed that he was aged 27 years and was working as an Assistant Engineer in Kancheepuram Electricity Board and earning Rs.7,652/-per month. The Tribunal, on scrutiny of Ex.P11, observed that the deceased was earning Rs.5,393/- per month. The Tribunal, on observing that the age of P.W.1 was 53 years, adopted a multiplier of 11 and awarded a sum of Rs.5,74,584/-as compensation under the head of loss of income (5393 X 2/3 X 11), Rs.1,000/-was awarded for transport expenses, Rs.10,000/- was awarded under the head of loss of love and affection, the Tribunal on considering that the deceased had died after three hours from the time of accident, awarded a sum of Rs.2,000/- under the head of pain and suffering, Rs.5,000/-was awarded for funeral expenses. In total, the Tribunal awarded a sum of Rs.4,92,584/- as compensation to the claimants and directed the first respondent to pay the said sum together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, with costs, within a period of one month from the date of it's order. The claim as against the second respondent was dismissed. 13. Not being satisfied with the quantum of compensation, the claimant has preferred the present civil miscellaneous appeal. 14. The learned counsel appearing for the appellants has contended in the appeal that the Tribunal erred in passing award against the first respondent/owner of the lorry and that the Tribunal ought to have directed the second respondent to pay the award amount and recover it from the owner of the lorry. It is contended that the amounts awarded under the heads of loss of love and affection and pain and suffering were on the lower side. It is also contended that the Tribunal failed to appreciate the future prospects of the deceased by way of postmortem certificate and also erred in taking the basic pay of the deceased while calculating the loss of income for the appellants. Hence, it is prayed for grant of additional compensation of Rs.5,07,416/-. 15. The learned counsel appearing for the Insurance Company has submitted that in the said accident, two vehicles were involved and as such contributory negligence had been fixed on the drivers of both vehicles. Hence, it is prayed for grant of additional compensation of Rs.5,07,416/-. 15. The learned counsel appearing for the Insurance Company has submitted that in the said accident, two vehicles were involved and as such contributory negligence had been fixed on the drivers of both vehicles. However, the quantum of compensation imposed as liability is erroneous as the contributory negligence factor had not been taken into consideration. The learned counsel has submitted further that the deceased was a bachelor and the claimants were not depending upon the income of the deceased. Further, the deceased was travelling as an unauthorized passenger in the mini lorry. 16. 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 contributory negligence and liability. However, the Tribunal had directed the first respondent to pay the entire compensation which is not appropriate in the instant case since the negligence had been attributed equally between both the drivers of the vehicles. Further, this Court is of the view that the compensation awarded is on the lower side since the deceased was a permanent employee and earning Rs.7,652/- per month. 17. This Court, on considering that no statutory deductions had been mentioned, takes the gross income of the deceased at Rs.15,000/-. This Court, on deducting 50% of the income of the deceased for his personal expenses and on taking the multiplier at 11, awards a sum of Rs.9,90,000/- (15000 X 1/2 X 12 X 11) as compensation. On deducting 50% of the assessed compensation for contributory negligence, this Court awards Rs.4,95,000/- as compensation to the claimants under the head of loss of income, Rs.10,000/- is awarded to each of the claimants under the head of loss of love and affection, Rs.10,000/- is awarded under the head of funeral expenses and Rs.10,000/-is awarded under the head of transport expenses. In total, this Court awards a sum of Rs.5,35,000/- as compensation to the claimants. The rate of interest is modified by this Court from 9% to 7.5% per annum. 18. In total, this Court awards a sum of Rs.5,35,000/- as compensation to the claimants. The rate of interest is modified by this Court from 9% to 7.5% per annum. 18. This Court directs the second respondent herein/Insurance Company to execute this Court's Judgment, by way of depositing the compensation amount, to the credit of M.C.O.P.No.97 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Ranipet, Vellore, within a period of four weeks from the date of receipt of a copy of this Judgment. 19. After such a deposit having been made, it is open to the claimants to withdraw their apportioned share amount, lying in the credit of M.C.O.P.No.97 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Ranipet, Vellore, with accrued interest thereon, equally, after filing a memo, along with a copy of this Judgment. 20. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 07.03.2006, made in M.C.O.P.No.97 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Ranipet, Vellore, is modified. No costs.