Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 401 (MAD)

New India Assurance Company Limited v. D. R. Samu

2013-01-18

C.S.KARNAN

body2013
Judgment 1. The appellant/ 3rd respondent has preferred the present appeal in CMA(MD).No.148 of 2004, against the judgment and decree passed in M.C.O.P.No.180 of 2002, on the file of the Motor Accident Claims Tribunal, Subordinate Court, Devakottai. 2. The petitioners, who are the parents of the deceased Sivaramasubramanian, have filed the claim in M.C.O.P.No.180 of 2002, claiming compensation of a sum of Rs.10,00,000/- from the respondents, for the death of the said Sivaramasubramanian, in a motor vehicle accident. It was submitted that on 14.08.2002, at about 05.30 p.m., when the deceased Sivaramasubramanian was riding his Scooty near the Pasumalai Vinayagar temple, the 1st respondents lorry bearing registration No.TMT-5259, coming from behind the scooter and driven at a high speed and in a rash and negligent manner by its driver dashed against the Scooty and dragged the Scooty for about 20 feet and caused the accident. In the impact the (deceased) Sivaramasubramanian sustained severe injuries and was admitted at the nearby hospital and subsequently admitted at Madurai Rajaji Government Hospital, wherein it was declared that the (deceased) has been brought dead. The deceased Sivaramasubramanian was the only son of the petitioner and if it had not been for the accident, he would have earned not less than Rs.20,000/- per month. Hence, the petitioners have filed the claim against the 1st and 2nd respondents who are the owner and insurer of the lorry bearing registration No.TMT-5259. 3. The 2nd respondent in his counter has submitted that on 14.08.2002, at about 05.30 p.m., when the 1st respondent's driver was driving the lorry bearing registration No.TNT-5259, carefully and cautiously and the vehicle was nearing Pasupathi Pillayar Temple, the (deceased) Sivaramasubramanian had suddenly come on to the middle of the road, without giving any indication and that inspite of the 1st respondent's lorry driver stopping the lorry, the accident had occurred. Hence, it was submitted that the accident occurred only due to the negligence of the (deceased) Sivaramasubramanian. The averments in the claim regarding age, income and occupation of the deceased was also not admitted. It was also submitted that the claim for loss of income, medical expenses, loss of love and affection, loss of estate and for loss of companionship were excessive. It was submitted that the petitioners should prove that the driver of the 1st respondent's lorry had a valid driving licence at the time of accident. 4. It was also submitted that the claim for loss of income, medical expenses, loss of love and affection, loss of estate and for loss of companionship were excessive. It was submitted that the petitioners should prove that the driver of the 1st respondent's lorry had a valid driving licence at the time of accident. 4. The Motor Accident Claims Tribunal framed two issues for consideration in the case namely: (1) Due to whose negligence did the accident occur?; (2) Are the petitioners entitled to get compensation? If so what is the quantum of compensation which the petitioners are entitled to get? 5. 4. The Motor Accident Claims Tribunal framed two issues for consideration in the case namely: (1) Due to whose negligence did the accident occur?; (2) Are the petitioners entitled to get compensation? If so what is the quantum of compensation which the petitioners are entitled to get? 5. On the petitioner's side, two witnesses were examined and seventy two documents were marked as Ex.P1 to Ex.P72 namely: Ex.P1-F.I.R; Ex.P2-Post mortem report; Ex.P3-appointment order issued by Pooma Nursing Home dated 20.03.2002; Ex.P4-Course certificate issued by Madurai Vikasa School, Madurai dated 27.05.1999; Ex.P5-Migration certificate issued by Vikasa School Madurai dated 27.05.1999; Exs.P6 and P7-Merit cards issued by Vikasa School, dated 14.09.1999 and 11.09.1997; Exs.P8, P9, P10-Mark statements ; Exs.P11 and P12-certified issued for participation in drawing compensation at Children day function; Ex.P13-Merit certificate issued at Vikasa School dated 10.02.1995; Ex.P14-Certificate issued for participation in games dated 31.01.1992; Ex.P15-certificate for proficiency in sports; Ex.P16-certificate issued for participation in Yoga; Ex.P17-Merit certificates issued at Vikasa School; Exs.P18 and P19-Merit certificates issued by Vikasa School dated 30.07.1993 and 08.10.1994; Exs.P20 and P20- certificates issued at NCC Annual training Camp; Exs.P22 and P23certificate issued by Army Officer dated 16.03.1998; Ex.P24-certificate issued for participation in Volley Ball competition for students; Exs.P25,25 and 27-certificate issued at HRH Tube and Timberg; Ex.P28-NSS Certificate dated 03.06.1999 issued by Vikasa Matriculation school; Ex.P29-appreciation certificate issued Vikasa Matriculation school Exs.P30 to 36-B.Com., mark sheet to prove completion of B.Com at Madura College, Madurai dated 19.04.2000, 14.07.2000, 29.01.2001, 18.07.2001, 25.02.2002, 21.06.2002 and 04.02.2002; Ex.P37-certificate issued at TVS Lakshmi Memorial School dated 01.08.1998; Exs.P38 to P47-merit certificates issued at Vikasa school pertaining to period from the year of 1993 to 1995; Ex.P48-certificate issued at Vikasa school for participation in foot ball dated 31.07.1992; Exs.49 to 51-certificate issued at Vikasha school for proficiency in relay competitions; Ex.52-certificate issued at Ladu Doak College, Madurai dated 01.03.2002; Ex.P53-certificate issued at Vikasha School for the year of 98-99; Ex.P54 and P55-certificate issued for participation in Music competition at Sourashtra College, Madurai; Exs.P57 and P58-certificates issued at Madurai Lady Doak College dated 01.03.2002; Ex.P59-merit certificate issued at Madura College; Exs.P60 and P61-certificates issued by Madurai Lady Doak College; Ex.P62-certificate issued by RS Institute of management, Madurai; Exs.P63 and P64-certificates issued at Madura College; Ex.P65 and 66-commercial proficiency certificate issued in the year 2002 by Madurai Lady Doak College; Ex.P67-proficiency certificate; Ex.P68-death certificate dated 26.08.2002; Ex.P69-Fitness certificate for enrollment at MBA course; Ex.P70-provisional certificate issued at Madurai Kamaraj University dated 01.07.2002; Ex.P71-transfer certificate dated 27.05.1999; Ex.P72-transfer and conduct certificate issued at Madurai Thyagaraja College dated 23.08.2002. On the respondent's side, no witness, no documents. 6. PW.1, Somu, the father of the deceased Sivaramasubramanian had adduced evidence that he has two daughters and that the said Sivaramasubramanian was born subsequently. He deposed that his son was doing his 1st year MBA course at the Thyagaraja School of management, Tirupparankunram and that on 18.08.2002, the accident had occurred at Pasumalai while he was returning from college. He deposed that when his son was riding his TVS-Scooty the lorry bearing registration No.TMT-5259, coming from behind him and driven by its driver at a high speed had dashed behind the scooty and that the Scooty was dragged for about 20 feet before the lorry was stopped. He deposed that the lorry had also hit against another cycle which was going behind the Scooty ridden by his son. He deposed that after first aid was given to his son at a nearby hospital, he was taken to Madurai Rajaji Hospital, wherein he was declared dead on arrival. He also deposed that his son was academically brilliant and that he had bright prospects of going abroad and getting employment. In support of his evidence, he had marked the exhibits listed as P1 to P72. 7. PW.2, Umashankar, the eyewitness of the accident and the son-in-law of PW.1 had deposed evidence that the deceased Sivaramasubramanian was brilliant both in academics and sports and that he had ability to earn over Rs.20,000/- per month in his future. He deposed that the accident had occurred only due to the negligence of the 1st respondent's driver. 8. It was argued on the 2nd respondent's side that the accident occurred only due to the negligence of the (deceased) Sivaramasubramanian. However, the tribunal observed that another person namely Angusamy, who had been injured in the same accident had given a compliant, while he was taking treatment at Madurai Rajaji Hospital, that the accident had been caused only by the negligence of the lorry driver. Hence, the tribunal, on scrutiny of Ex.P1 and the evidence of PW.1 and PW.2 held that the accident had been caused only due to the negligence of the driver of the 1st respondent's lorry and hence held the 1st and 2nd respondents jointly and severally liable to pay compensation to the petitioner. 9. Hence, the tribunal, on scrutiny of Ex.P1 and the evidence of PW.1 and PW.2 held that the accident had been caused only due to the negligence of the driver of the 1st respondent's lorry and hence held the 1st and 2nd respondents jointly and severally liable to pay compensation to the petitioner. 9. On scrutiny of Ex.P2, Post mortem report and on scrutiny of Exs.P71 and 72, the tribunal held that the (deceased) Sivaramasubramanian was aged 21 years at the time of accident. On scrutiny of Ex.P3, the appointment letter issued to the (deceased) Sivaramasubramanian dated 20.03.2002 by Bhooma Nursing Home, Madurai, it is seen that the deceased consolidated salary had been mentioned as Rs.4,500/- and that the order of appointment was effective from 01.04.2002. Hence, the tribunal on adopting a multiplier of 17' as was relevant to the age of the deceased Sivaramasubramanian and deducting 1/3rd of it for his personal expenses, awarded a compensation of Rs.6,12,000/-(Rs.4,500x1/3x2x12x17) as compensation to the petitioners under the head of loss of income. The tribunal further awarded a sum of Rs.1,000/-towards funeral expenses; Rs.5,000/- under the head of loss of companionship; Rs.2,500/-towards loss of estate; Rs.10,000/-under the head of loss of love and affection and Rs.15,000/- under the head of damages of Scooty and articles. In total, the tribunal awarded a sum of Rs.6,45,500/- as compensation to the petitioners and directed the 1st and 2nd respondents to jointly and severally deposit the said sum together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, within one month from the date of its order. 10. Aggrieved by the said award passed by the tribunal, the 2nd respondent/New India Assurance Company Limited, Dindigul, has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the tribunal failed to appreciate that when it was pleaded that the deceased was a first year M.B.A. Course statement, there was no pleading that the deceased was appointed as an Accountant on a monthly consolidated pay of Rs.4,500/-as per ex.P3. It was pointed out that the tribunal failed to appreciate that ex.P3 was got up for the claim purposes, especially, when it was not proved through the author i.e., the alleged employer. It was pointed out that the tribunal failed to appreciate that ex.P3 was got up for the claim purposes, especially, when it was not proved through the author i.e., the alleged employer. It was pointed out that the tribunal failed to appreciate that the deceased got his provisional degree certificate only on 01.07.2002 and therefore, the deceased ought to have been a student studying B.Com Course on 20.03.2002, when the alleged appointment order Ex.P3 was executed. It was pointed out that the tribunal failed to appreciate that the mother and father were aged more than 50 at the time of accident and therefore only the age of the parents should have been considered while fixing the proper multiplier and that only a multiplier of 8' should have been adopted. It was pointed out that the tribunal after granting Rs.15,000/-for alleged damage to dress and scooter have been given without any oral or documentary evidence to substantiate the claim. It was also contended that the tribunal failed to appreciate that when the claim was made under section 163-A of the Act, it had no jurisdiction to consider the claim beyond the income of Rs.40,000/- per annum. It was contended that the claim was excessive and hence it was prayed to set aside the award. 11. The learned counsel for the claimant argued that the deceased was the only son to the claimants. At the time of accident, the deceased was studying in the M.B.A Course and he had got very good prospects of getting a good job. While he was studying in the MBA course, he had got an appointment and prior to his joining the job, the accident took place. In order to prove the same, the appointment order had been marked. There is no specific law or provision to deduct 50% of the deceased income for his personal expenses since, he was a bachelor. Further, there is no specific rule of adopt a multiplier based on the tribunal had not granted compensation under the head of transport. An adequate compensation had not been granted under the head of funeral expenses. Further, the parents of the deceased are aged about more than 50 years and as such it is not possible for them to be get another child. Now, both the claimants are living without any legal heir support. An adequate compensation had not been granted under the head of funeral expenses. Further, the parents of the deceased are aged about more than 50 years and as such it is not possible for them to be get another child. Now, both the claimants are living without any legal heir support. Besides, both had resigned their respective jobs due to mental shock and unable to come to normal life and as such both have been affected mentally and physically. Hence, the learned counsel entreats the Court to dismiss the appeal. 12. Considering the facts and circumstances 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 liability and quantum of compensation. This Court is of the further view that the deceased had completed his B.Com Course and then he has entered into the master of Business Administration Course and that while he was studying in the said course, he had got an appointment from a private concern. This Court is of the further view that the claimants are aged about 50 years and as such there is no possibility for them to be get another child for their support. Further, after the claimants life time, they have no legal heir in their family to carry on their family name. Further, the parents had resigned their respective jobs due to mental shock and intolerable grief. Therefore, this court declines to interfere with the impugned award of the tribunal. As per the Court records, it is seen that the appellant had deposited to entire compensation amount with accrued interest thereon. Considering the nature of case, the rate of interest fixed by the tribunal at 9% per annum is unaltered. 13. After, such deposit has been made by the appellant, it is open to the claimants to withdraw their apportioned share amount, as per tribunal order, lying in the credit of M.C.O.P.No.180 of 2002, on the file of the Motor Accident Claims Tribunal, Subordinate Court, Devakottai, after filing a memo along with a copy of this order, subject to deduction of withdrawals if any, made by the claimants, as per this Court's earlier order. 14. In the result, this Civil Miscellaneous Appeal is dismissed. 14. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.180 of 2002, on the file of the Motor Accident Claims Tribunal, Subordinate Court, Devakottai, is confirmed, dated 12.04.2004. No costs.