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2013 DIGILAW 3818 (MAD)

M. Subramani v. M. Nallappan

2013-11-06

C.S.KARNAN

body2013
Judgment : 1. The appellant / claimant has preferred the present appeal against the judgment and decree dated 12.11.2008, made in M.C.O.P.No.375 of 2006, on the file of the Motor Accident Claims Tribunal-cum-Principal Sub-Court, Krishnagiri. 2. The short facts of the case are as follows:- The claimant, who is the father of the deceased Rindhiya, had filed a claim petition in M.C.O.P.No.375 of 2006, on the file of the Motor Accident Claims Tribunal-cum-Principal Sub-Court, Krishnagiri, against the respondents, claiming a sum of Rs.5,00,000/- as compensation, for the death of his child Rindhiya in a motor vehicle accident. 3. It was submitted that on 18.08.2005, the claimant was proceeding along with his wife and female child, on the Hero Honda motorcycle bearing registration No.KA05 EQ6269, from Thenkanikottai to Salivaram and at about 06.45 p.m., when the vehicle had crossed Maragatta Forest Office, the second respondent's lorry bearing registration No.TN29 V3166, coming in the opposite direction and driven in a rash and negligent manner by it's driver, dashed against the motorcycle. The claimant escaped with minor injuries, but his wife Palaniammal and his third child by name Rindhiya sustained grievous and fatal injuries and the latter died on the spot. At the time of accident, the deceased Rindhiya was aged 2 years. Hence, the claimant had filed a claim petition against the respondents, who are the driver, owner and insurer of the lorry bearing registration No.TN29 V3166. 4. The second respondent, in her counter affidavit, had submitted that the first respondent drove the lorry bearing registration No.TN29 V3166, slowly and cautiously and that the accident was caused only due to the rash and negligent driving of the claimant, who had driven his motorcycle in a rash and negligent manner and dashed it against the lorry. It was submitted that the claimant did not have a valid licence to drive the motorcycle at the time of accident. Further, it was submitted that the claim was bad for non-joinder of the owner and insurer of the motorcycle as necessary parties. It was also submitted that the claimant had not produced any legal heir certificate to prove that he is the legal heir of the deceased. It was submitted further that the claim was excessive. 5. Further, it was submitted that the claim was bad for non-joinder of the owner and insurer of the motorcycle as necessary parties. It was also submitted that the claimant had not produced any legal heir certificate to prove that he is the legal heir of the deceased. It was submitted further that the claim was excessive. 5. On considering the averments of both sides, the Tribunal had framed two issues for consideration namely: i. Whether the accident was caused by the rash and negligent driving by the first respondent? and ii. Whether the claimant is entitled to get compensation as prayed for? 6. On the claimant's side, the claimant was examined as P.W.1 and two documents were marked as Exs.P1 and P2 namely copy of postmortem report and copy of FIR. On the respondents' side no witness was let in and no document was marked. 7. P.W.1 had adduced evidence, which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence, he had marked Exs.P1 and P2. The Tribunal, on scrutiny of Ex.P2, observed that the FIR had been registered against the first respondent. The Tribunal, on observing that the second respondent had not examined the first respondent, to prove his contentions that the accident had been caused by the rash and negligent driving by the claimant and on scrutiny of evidence of P.Ws.1 and 2, held that the accident had been caused by the rash and negligent driving by the first respondent. 8. Further, P.W.1 had adduced evidence that his deceased child Rindhiya was aged 2 years and was very intelligent, hale and healthy and she would have studied well and settled down in her life as a professional and would have contributed a major portion of her earning to the claimant. 9. The Tribunal relying upon a rulings reported in 2006 (4) MLJ, G.Rajamanickam and another vs. Rajendran and others and 2001 ALJ 1735, awarded a lumpsum compensation of a sum of Rs.1,00,000/-to the claimant under the head of loss of income, loss of love and affection and funeral expenses. The Tribunal directed the respondents to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, with costs, within a period of two months from the date of it's order. The Tribunal directed the respondents to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, with costs, within a period of two months from the date of it's order. 10. Not being satisfied by the said Award passed by the Tribunal, the claimant has preferred the present civil miscellaneous appeal. 11. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal after having arrived at a conclusion that the accident occurred only due to the negligent driving of the first respondent, ought to have awarded the compensation as prayed for. Further, it is contended that the Tribunal failed to look into the method ascertained towards compensation and the multiplier applicable to the case of a minor child, who is a non-earning member and had also failed to grant award in an appropriate manner. It is contended further that the award of Rs.1,00,000/-granted under the heads of love and affection, funeral expenses and also towards compensation for death, is totally unwarranted and unjustifiable and it ought to have granted compensation separately under each of the above heads. It is also contended that the Tribunal failed to note that loss of life is to be compensated by just and reasonable compensation and the same should not be ignored by discriminating the lives of the minor and adult members. Further, it is contended that the finding of the Tribunal is against the rulings laid down in 2006 (5) CTC 46 , 2005 ACJ 99 and Hence, it is prayed for grant of additional compensation of Rs.4,00,000/-. 12. The highly competent counsel appearing for the Insurance Company has submitted that the deceased was aged about 2 years and therefore the compensation of a sum of Rs.1,00,000/- has been granted after following several rulings of the High Court in similar cases. Therefore, the above appeal is not maintainable. Further, in the said accident, the father of the deceased had ridden his motorcycle in a negligent manner and caused the accident and as such contributory negligence is to be attributed in the instant case. The rider of the motorcycle did not possess a valid driving licence. However, the Tribunal granted adequate compensation to the claimant. 13. Further, in the said accident, the father of the deceased had ridden his motorcycle in a negligent manner and caused the accident and as such contributory negligence is to be attributed in the instant case. The rider of the motorcycle did not possess a valid driving licence. However, the Tribunal granted adequate compensation to the claimant. 13. On considering 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 is on the lower side. Therefore, this Court is inclined to grant additional compensation of a sum of Rs.2,75,000/- for the death of the said minor girl, loss of love and affection, funeral expenses and transport expenses. This additional 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, as it is found to be appropriate in the instant case. 14. This Court directs the third respondent Insurance Company to deposit the said amount, with accrued interest thereon, to the credit of M.C.O.P.No.375 of 2006, on the file of the Motor Accident Claims Tribunal-cum-Principal Sub-Court, Krishnagiri, within a period of four weeks from the date of receipt of a copy of this Judgment. 15. After such a deposit having been made, it is open to the claimant to withdraw the said compensation amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.375 of 2006, on the file of the Motor Accident Claims Tribunal-cum-Principal Sub-Court, Krishnagiri, after filing a memo, along with a copy of this Judgment. 16. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 12.11.2008, made in M.C.O.P.No.375 of 2006, on the file of the Motor Accident Claims Tribunal-cum-Principal Sub-Court, Krishnagiri, is modified. No costs.