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2013 DIGILAW 3679 (MAD)

Branch Manager, National Insurance Co. Ltd. , Sankagiri v. Thangam

2013-10-22

R.BANUMATHI, R.SUBBIAH

body2013
Judgment : R. Subbiah, J. The present civil miscellaneous appeal has been filed by the Insurance company challenging the award dated 16.05.2007 made in M.C.O.P.No.703 of 2005 on the file of the Motor Accidents Claims Tribunal (Additional District Court -Fast Track Court No.V), Coimbatore at Tiruppur, questioning the quantum of compensation awarded by the Tribunal. 2. The respondents 1 to 4 are the claimants before the Tribunal and they have made a claim for a sum of Rs.25 laksh as compensation before the Tribunal for the death of one Devendiran, who is the husband of the 1st respondent. The 2nd and 3rd respondents are the daughter and son of the deceased Devendiran respectively. The 4th respondent is the father of the deceased Devendiran. 3. The Tribunal hasawarded the entire amount of Rs.25 lakhs as claimed by the respondents 1 to 4/claimants as compensation. Aggrieved over the quantum of compensation, the present appeal has been filed by the Insurance Company. The claimants/respondents 1 to 4 have filed Cross Objection No.SR76474 of 2012. 4. Now, the claimants/respondents 1 to 4 have taken out an application M.P.No.1 of 2013 in Cross Objection No.SR76474 of 2012 seeking to amend the claim made by them in M.C.O.P.No.703 of 2005 as Rs.28,33,000/-in stead of Rs.25 lakhs. Thus, they seek for enhancement of the compensation amount. 5. The brief facts, which are necessary to decide the questions involved in this appeal as well as cross objection, are as follows:- The deceased Devendiran was employed in Tamil Nadu Police Service under the Superintendent of Police, Coimbatore Region, as Inspector (L & O). On 23.03.2005 at about 24.00 hours, while he was driving Police Jeep bearing Registration No.TN-38-G-2002 from West to East in NH-47 road, a lorry bearing Registration No.TN-39-X-9164 came in a rash and negligent manner from East to West and dashed against the jeep and thus, caused the accident. In the said accident, the said Devendiran sustained grievous injuries all over the body and died on the spot itself. Hence, the respondents 1 to 4/claimants made a claim as against the owner of the lorry as well as the insurer of the lorry viz., appellant herein. 6. In the said accident, the said Devendiran sustained grievous injuries all over the body and died on the spot itself. Hence, the respondents 1 to 4/claimants made a claim as against the owner of the lorry as well as the insurer of the lorry viz., appellant herein. 6. The case of the claimants was resisted by the Insurance company stating that the accident had occurred only due to the rash and negligent driving of the jeep by the deceased Devendiran and the driver of the lorry was not responsible for the accident. Hence, the appellant/insurance company is not liable to pay any compensation amount. 7. In order to prove the claim, on the side of the claimants, the wife of the deceased examined herself as P.W.1 besides examining three other witnesses as P.W.2 & P.W.4 and marked 15 documents as Ex.P.1 to Ex.P.15. On the side of the insurance company, surveyor of the insurance company was examined as R.W.1 and two documents were marked as Ex.R.1 & Ex.R.2. 8. The Tribunal, after analyzing the entire materials available on record, has come to the conclusion that the accident is the result of the rash and negligent driving of the lorry insured with the appellant/insurance company. Thereafter, the Tribunal assessed the compensation under different heads and passed an award for a total sum of Rs.25 lakhs as compensation. 9. It is the case of the appellant/insurance company that the Tribunal for the purpose of calculating the loss of income had taken a sum of Rs.20,475/-as monthly income of the deceased. But, no documentary evidence was produced before the Tribunal on the side of the claimants to show that the deceased was earning a sum of Rs.20,475/-per month. Further, the learned counsel for the appellant/insurance company submitted that the document produced on the side of the claimants viz., salary certificate marked as Ex.P.6 would show that the deceased was earning a sum of Rs.13,650/- per month. Hence, by fixing a sum of Rs. 13,650/-as monthly income of the deceased, the compensation amount awarded by the Tribunal has to be modified. 10. Hence, by fixing a sum of Rs. 13,650/-as monthly income of the deceased, the compensation amount awarded by the Tribunal has to be modified. 10. But, the learned counsel for the claimants/respondents 1 to 4 submitted that the deceased Devendiran was working as Inspector (L & O) at the time of this death and he was 45 hears old and he was having 13 more years of service and had he been alive, he would have got further promotions and he would have retired as Deputy Superintendent of Police. Considering the future prospects of the deceased, the Tribunal ought to have fixed the monthly income of the deceased more than Rs.20,000/-. Therefore, by amending the claim made by the claimants in the claim petition from Rs.25 lakhs to Rs.28,33,000/-, the entire compensation amount of Rs.28,33,000/-has to be awarded. 11. Keeping the submissions made by the learned counsel on either side, We have carefully gone through the entire materials available on record. 12. In order to prove the income earned by the deceased Devendiran, on the side of the claimants, an Assistant from the Office of the Superintendent of Police was examined as P.W.2. Based on his evidence and also by placing reliance on Ex.P.6-salary certificate, the Tribunal has come to the conclusion that the monthly income of the deceased was Rs.13,650/-. Thereafter, the Tribunal by adding another sum of Rs.13,650/- arrived at a sum of Rs.27,300. Thereafter, the Tribunal once again added a sum of Rs.13,650/- and arrived at a sum of Rs.40,950/-and thereafter, divided the same by 2 and fixed a sum of Rs.20,475/-as monthly loss of income. It is the main submission of the learned counsel for the appellant/insurance company that the method adopted by the Tribunal to fix a sum of Rs.20,475/-as monthly loss of income is not correct and therefore, by placing reliance on Ex.P.6-salary certificate, the monthly income of the deceased has to be fixed at Rs.13,650/-and the calculation has to be made on that basis under the head of loss of income. 13. But, We find that the monthly income of the deceased was fixed at Rs.13,650/-and 50% of the amount is worked out to Rs.6,825/-and if the same is added to the monthly income, it comes to Rs.20,475/-. 13. But, We find that the monthly income of the deceased was fixed at Rs.13,650/-and 50% of the amount is worked out to Rs.6,825/-and if the same is added to the monthly income, it comes to Rs.20,475/-. Even though the method adopted by the Tribunal is not correct, considering the future prospects of the deceased, the monthly loss of income fixed by the Tribunal at Rs.20,475/- can not be found fault with. 14. Further, as contended by the learned counsel for the claimants, considering the further promotional chances of the deceased Devendiran, at any cost, a sum of Rs.20,475/- fixed by the Tribunal, as loss of monthly income cannot be said to be wrong. Further, We find that Tribunal by applying multiplier 15 based on the age of the deceased, after deducting 1/3 amount towards personal expenses, arrived at a sum of Rs.24,57,000/- as loss of income. That apart, the Tribunal by adding a sum of Rs.30,000/- towards loss of consortium to the 1st respondent/wife, a sum of Rs.30,000/-(Rs.15,000/- each) towards loss of love & affection to the minor children, a sum of Rs.10,000/- towards loss of love & affection to the father/4th respondent and a sum of Rs.5,000/- for funeral expenses, has arrived at a sum of Rs.25,32,000/- as fair and just compensation and thereafter, the Tribunal has rounded off the compensation amount to Rs.25 lakhs, since the claim itself was made only to Rs.25 lakhs. We do not find any infirmity in the award passed by the Tribunal. In fact, the calculation made by the Tribunal is only in accordance with the principles laid down by the Hon'ble Apex Court in various Judgments. Under such circumstances, We are not inclined to interfere with the award passed by the Tribunal. 15. So far as the amendment of the claim petition is concerned, We do not find any material to enhance the compensation amount more than the amount awarded by the Tribunal viz., Rs.25 lakhs. Under such circumstances, in allowing the amendment petition no useful purpose is going to be served. Hence, the cross-objection as well as amendment petition are liable to be dismissed. 16. In the result, the civil miscellaneous appeal as well as the cross objection are dismissed, confirming the award passed by the Tribunal. Consequently, M.P.No.1 of 2011 is closed and M.P.No.1 of 2013 is dismissed. There is no order as to costs. Hence, the cross-objection as well as amendment petition are liable to be dismissed. 16. In the result, the civil miscellaneous appeal as well as the cross objection are dismissed, confirming the award passed by the Tribunal. Consequently, M.P.No.1 of 2011 is closed and M.P.No.1 of 2013 is dismissed. There is no order as to costs. The appellant/insurance company is directed to deposit the entire award amount, if not deposited so far, with 7.5% interest per annum from the date of petition till the date of deposit, within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the respondents 1 & 4 viz., wife and father of the deceased are permitted to withdraw their share amounts as apportioned by the Tribunal. So far the minor claimants viz., R2 & R3 are concerned, they would have attained majority by this time. Therefore, they are permitted to withdraw their respective share amounts, after obtaining necessary orders from the Tribunal declaring them as Major, by filing a proper application.