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2013 DIGILAW 3742 (MAD)

Subbathal v. A. Kaja Najmudeen

2013-10-30

C.S.KARNAN

body2013
Judgment : The appellants / claimants have preferred the present appeal against the judgment and decree dated 11.03.2005, made in M.C.O.P.No.509 of 2001, on the file of the Motor Accident Claims Tribunal, Sub-Court, Tiruppur. 2. The short facts of the case are as follows:- The claimants, who are the wife and son of the deceased Kaliappan, had filed a claim petition in M.C.O.P.No.509 of 2001, on the file of the Motor Accident Claims Tribunal, Sub-Court, Tiruppur, claiming a sum of Rs.10,00,000/-as compensation from the respondents for the death of the said Kaliappan in a motor vehicle accident. 3. It was submitted that on 27.05.1996 at about 04.00 p.m., when the deceased Kaliappan was driving a Maruthi Car bearing registration No.TN37 D9119, from east to west, on the left of Palladam-Coimbatore Main Road, near Anna Nagar, a Ciello Car bearing registration No.PY01 E9018, coming from west to east, on the same road and driven in a rash and negligent manner by it's driver, dashed against the Maruthi Car. As a result, the deceased Kaliappan sustained grievous injuries and died while being taken to the hospital at Palladam. At the time of accident, the deceased was aged 55 years and was the owner of 18 Acres of agricultural land. Besides this, he was the Proprietor of Rajendra Textiles and running Seizing Mill by name Saraswathi Sizing Mill as a lessee and was also running 24 power looms and was earning Rs.50,000/- per month. Hence, the claimants had filed the claim petition against the respondents. The respondents 1 to 3 are the driver, owner and insurer of the Ciello Car bearing registration No.PY01 E9018 and the respondents 4 and 5 are the owner and insurer of the Maruthi Car bearing registration No.TN37 D9119. 4. The respondents 3 and 5 Insurance Company, in their counter affidavit, had submitted that the claimants have to prove that the deceased had a valid driving licence to drive the car. The averments made in the claim petition regarding age, income and occupation of the deceased was also not admitted. It was also submitted that the second claimant, who is the son of the deceased was aged 33 years and was not dependent on the income of the deceased. It was also submitted that the claim was excessive. The averments made in the claim petition regarding age, income and occupation of the deceased was also not admitted. It was also submitted that the second claimant, who is the son of the deceased was aged 33 years and was not dependent on the income of the deceased. It was also submitted that the claim was excessive. Further, it was submitted that the claimants have to prove that the accident was caused due to the rash and negligent driving of the driver of the Ciello Car. 5. On considering the averments of both sides, the Tribunal had framed two issues for consideration namely: i. Was the accident caused by the rash and negligent driving by the driver of the Ciello Car bearing registration No.PY01 E9018? and ii. Whether the claimants are entitled to get compensation? If so, what is the quantum of compensation? 6. On the claimants' side two witnesses were examined as P.Ws.1 and 2 and thirteen documents were marked as Exs.P1 to P13 namely copy of criminal Court Judgment, postmortem report, legal heir certificate, proceedings of Sulur Panchayat President, sales tax receipts (series), form showing conduction of powerloom by the deceased, deed showing reasons for removal of K.Subbathal from Co-operative Society, letter written by Advocate Munir.M.Merchant to M/s.Sarathi Sizing Mill, tax receipt series, copy of sale deed showing purchase of land from Karuppasami by Kaliappan for Rs.5,250/-, copy of sale deed showing purchase of land by the deceased from Chinnammal and others for Rs.95,000/-, copy of sale deed showing purchase of land by the deceased and K.Rama from one N.Jagannathan and others for Rs.53,900/-. On the respondents' side no evidence was let in and no document was marked. 7. P.W.1 Rajendran had adduced evidence, which is corroborative of the statements made in the claim petition regarding manner of accident and in support of his evidence, he had marked Ex.P1. 8. P.W.2 Ponnusami, eye-witness of the accident, had adduced evidence that the accident had been caused by the rash and negligent driving by the driver of the Ciello Car. He deposed that the deceased Kaliappan and others sustained injuries in the accident and that he had admitted them at the Palladam Government Hospital and that the deceased Kaliappan and one Ganapathiappan had died while being taken to the hospital. 9. He deposed that the deceased Kaliappan and others sustained injuries in the accident and that he had admitted them at the Palladam Government Hospital and that the deceased Kaliappan and one Ganapathiappan had died while being taken to the hospital. 9. However, the Tribunal, on scrutiny of Ex.P1, observed that the criminal case had been filed against the deceased Kaliappan, based on the complaint given by the first respondent at Palladam Police Station. The Tribunal further observed that P.W.2 had not given the complaint regarding the accident at the Police Station and had also not stated that he had deposed about the accident before any other Court. 10. It was contended on the respondents' side that two other claim petitions had been filed in the said accident and that in these cases, it was decided that the accident had been caused by the contributory negligence of both the drivers of the vehicles involved in the accident. However, the Tribunal observed that the copies of Judgments made in connected cases had not been filed by the respondents. The Tribunal observed that no rough sketch had been marked and that no witness had been examined by the claimants to prove the contentions of P.W.2 regarding manner of accident. The Tribunal, on considering that the respondents had not even examined the first respondent to prove that the accident had been caused by the rash and negligent driving by the driver of the Maruthi Car, held that the accident had been caused by the negligence of both the drivers of the vehicles involved in the accident and apportioned the negligence equally amongst them. 11. On scrutiny of Ex.P2, it is seen that the learned Kaliappan, was aged 51 years at the time of accident. The Tribunal, on observing that no income tax returns had been filed by the claimants to prove the income of the deceased, held that the notional income of the deceased could only be taken as Rs.5,000/-per month. The Tribunal, on adopting a multiplier of 11, awarded a sum of Rs.4,40,000/-(5,000 X 2/3 X 12 X 11) as compensation under the head of loss of income, Rs.2,000/-was awarded for funeral expenses, Rs.10,000/- was awarded to the first claimant under the head of loss of consortium. In total, the Tribunal assessed the compensation payable to the claimants as Rs.4,52,000/-. The Tribunal, on adopting a multiplier of 11, awarded a sum of Rs.4,40,000/-(5,000 X 2/3 X 12 X 11) as compensation under the head of loss of income, Rs.2,000/-was awarded for funeral expenses, Rs.10,000/- was awarded to the first claimant under the head of loss of consortium. In total, the Tribunal assessed the compensation payable to the claimants as Rs.4,52,000/-. On deducting Rs.2,26,000/-for the contributory negligence of the deceased, the Tribunal held that the claimants are entitled to get a compensation of Rs.2,26,000/- and directed the respondents 3 and 5 Insurance Company to pay the said compensation amount together with interest at the rate of 6% 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. 12. Not being satisfied with the award passed by the Tribunal the claimants have preferred the present civil miscellaneous appeal. 13. The learned counsel appearing for the appellants has contended in the appeal that the Tribunal failed to note that the accident had been caused by the rash and negligent driving by the driver of the Ceilo Car and not due to any rash and negligent driving by the deceased Kaliappan and hence the Tribunal ought to have held that the accident had been caused only due to the negligence of the first respondent herein. It is contended further that the Tribunal erred in rejecting the evidence of P.W.2, who had given valid and acceptable reasons to be present in the scene of occurrence of accident and that the Tribunal failed to note that P.W.2 had taken the victims to the hospital after the accident and in such circumstances, he cannot be expected to go to the Police Station to lodge the complaint. It is also contended that the Tribunal failed to note that the first respondent, who was responsible for the accident had given a false complaint and on that basis Ex.P1 complaint was registered against the driver of the Maruthi Car. 14. It is also contended that the Tribunal failed to note that the first respondent, who was responsible for the accident had given a false complaint and on that basis Ex.P1 complaint was registered against the driver of the Maruthi Car. 14. Further, it is contended in the appeal that the Tribunal ought to have seen that the deceased is having 18 Acres of agricultural land and was the sole proprietor of textile mill and owning 24 powerlooms and as such should have observed that he was earning Rs.50,000/- per month as per exhibits marked as Exs.P4 to P13, but the Tribunal without considering them, held that the income of the deceased was Rs.5,000/-per month, which is a meagre amount and not sustainable in law. Further, it is contended that the Tribunal failed to note that the deceased was the only breadwinner of the family and that due to his death, the dependants were not able to carry on the business. It is also contended that the Tribunal ought to have granted a sum of Rs.50,000/- to the first appellant as loss of consortium and awarded a sum of Rs.50,000/- towards loss of love and affection. Hence, it is prayed for grant of additional compensation of Rs.3,00,000/-. 15. The learned counsel appearing for the Insurance Company has vehemently argued that the FIR had been registered against the deceased, who had driven the Maruthi Car bearing registration No.TN37 D9119 in a rash and negligent manner and dashed against the Ceilo Car. Hence, the FIR had been registered against the deceased. As such, the entire negligence for the cause of accident lies only with the deceased. However, in the said accident, two vehicles have been involved. Therefore, contributory negligence had been attributed by the Trial Court. However, the Insurance Company had paid the said compensation amount. 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 is of the view that the deceased had driven the Maruthi Car bearing registration No.TN37 D9119 and that it had been involved in an accident due to collision with a Ceilo Car and that he had expired while being taken to hospital. The FIR had been filed against the dead person. The FIR had been filed against the dead person. In order to prove the contents of the FIR, rough sketch is absolutely necessary, but the same had not been marked by both parties. Therefore, the contributory negligence, which had been fastened on the deceased, is not appropriate in the instant case. Besides this, on the respondents' side, no oral or documentary evidence had been let in to rebut the claim of the claimants before the Trial Court. Under this circumstance, this Court fastens the entire liability on the third respondent Insurance Company, since the second respondent's car had been insured with them. Further, the deceased's age was 55 years and he was working as a Cloth Merchant and was also involved in agricultural operations, as per the evidence of the claimant. Therefore, the appeal value i.e., a sum of Rs.3,00,000/-sought as additional compensation before this Court is reasonable, considering the age of the deceased and dependants and as such this Court allows the appeal and grants a sum of Rs.3,00,000/-as additional compensation, which comprises of additional compensation under the heads of loss of earning, loss of consortium, loss of love and affection, funeral expenses and transport expenses, as it is found to be appropriate in the instant case. 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. 17. This Court directs the third respondent Insurance Company to execute this Court's Judgment, by way of depositing the additional award amount, with interest, to the credit of M.C.O.P.No.509 of 2001, on the file of the Motor Accident Claims Tribunal, Sub-Court, Tiruppur, within a period of four weeks from the date of receipt of a copy of this Judgment. 18. After such a deposit having been made, the first claimant is permitted to withdraw her apportioned share amount, with proportionate interest thereon, as per the ratio fixed by the Tribunal, lying in the credit of M.C.O.P.No.509 of 2001, on the file of the Motor Accident Claims Tribunal, Sub-Court, Tiruppur, after filing a memo along with a copy of this Judgment. 19. 19. Further, the learned Sub Judge, Motor Accident Claims Tribunal, Sub-Court, Tiruppur, is directed to deposit the minor claimants' share amounts with accrued interest thereon, in a nationalized bank under the accumulative deposit scheme, till they attain majorhood and hand over the fixed deposit certificates to the mother of the minor claimants. 20. In the result, this civil miscellaneous appeal is allowed and the Judgment and decree dated 11.03.2005, made in M.C.O.P.No.509 of 2001, on the file of the Motor Accident Claims Tribunal, Sub-Court, Tiruppur, is modified. No costs.