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2013 DIGILAW 4041 (MAD)

K. Desam v. N. Venugopal

2013-11-28

S.VIMALA

body2013
JUDGMENT 1. As against the claim made for a sum of Rs.12 lakhs, the Tribunal awarded a sum of Rs.5,72,500/- to the legal representatives of the deceased Kuppan @ Chinnakuppan. Challenging the same, C.M.A.No.2848 of 2005 has been filed by the claimants seeking enhancement of compensation. 1.1. C.M.A.No.3247 of 2005 has been filed by the insurance company challenging the finding on negligence and quantum. 2. Kuppan @ Chinnakuppan, aged 39 years, a fisherman, earning a sum of Rs.7,500/- to Rs.10,000/- per month, sustained crush injury in the hip in the accident that took place on 14.10.2002 and died in the hospital on 16.10.2002. 2.1. The accident is said to have taken place when the deceased was standing on the eastern side of the Ennore Express road, the trailor lorry bearing Reg.No.TN-47-D-2611, which was driven in a rash and negligent manner (from north to south) and went to the extreme eastern side of the road and crushed the deceased. This is the version stated in the claim petition. 2.2. The first appellant, as the wife, and second, third and fourth appellant, as son and daughters, (C.M.A.No.2848 of 2005) filed the claim petition claiming a sum of Rs.12 lakhs. 3. The claim was contested by the appellant in C.M.A.No.3247 of 2005 on the ground that the deceased attempted to travel in the trailor lorry and as he was an unauthorised person in the goods vehicle, the insurance company is not liable. There is violation of terms and conditions of the policy with regard to the driving licence of the lorry driver and on account of the same, the insurance company is not liable. 4. The Tribunal gave a finding that the accident took place only on account of rash and negligent driving on the part of the lorry driver and therefore, the owner as well as the insurer are jointly and severally to compensate the claimants. Challenging the finding on negligence, the insurance company has preferred the appeal in C.M.A.No.3247 of 2005. 5. So far as the issue regarding negligence is concerned, the Tribunal has relied upon the fact that the driver voluntarily admitted the rash and negligent driving before the Judicial Magistrate Court, Thiruvottiyur and he has paid a fine of Rs.4,250/-. Challenging the finding on negligence, the insurance company has preferred the appeal in C.M.A.No.3247 of 2005. 5. So far as the issue regarding negligence is concerned, the Tribunal has relied upon the fact that the driver voluntarily admitted the rash and negligent driving before the Judicial Magistrate Court, Thiruvottiyur and he has paid a fine of Rs.4,250/-. The Tribunal has also relied upon the site plan, Ex.P-2 and from which, the inference was that the lorry which was going from north to south was found to be in the middle of the road at the time of accident, thereby giving an indication that the lorry was not stopped on the left hand side of the road, as contended by the owner of the vehicle. The non-examination of any witness on the part of the insurance company was also commented upon by the Tribunal. The issue regarding negligence has been rightly considered and correct conclusion has been arrived at by the Tribunal and therefore, the appeal challenging the finding on negligence has no merits. 6. So far as the issue regarding driving licence is concerned, the Tribunal has pointed out that, a)the insurance company has not issued any notice either to the owner or to the driver to produce the driving licence; b) R.T.O. Officer was not examined to prove "no licence". On these reasonings, the Tribunal rejected the contention regarding breach of policy conditions with reference to driving licence. The well reasoned order by the Tribunal, therefore, did not require any interference. 7. So far as the quantum of compensation is concerned, the contention of the claimants is that the monthly income taken at Rs.4,500/- per month is less. With regard to multiplier also, it is their contention that higher multiplier should have been taken and the multiplier taken at 15 is not correct. Whether these contentions can be accepted is the issue. 8. It is necessary to look into the details of award passed by the Tribunal to appreciate the contentions raised. 8.1. The Tribunal awarded a sum of Rs.5,72,500/- under the following break-up details: Heads Amount (Rs.) Loss of dependency (Rs.3000 x 12 x 15) 5,40,000/- Loss of consortium 10,000/- Loss of expectation of life 7,500/- Loss of love and affection 7,500/- Funeral expenses 7,500/- Total 5,72,500/- ? 8.2. Perusal of the award would go to show that income has been taken at Rs.150/- per day. 8.2. Perusal of the award would go to show that income has been taken at Rs.150/- per day. Fishing is a fluctuating business. Sometimes, the vendors may get the fish from water resources and sometimes, may not like rainy season or during rough weather. Still, the Tribunal has taken the monthly income at Rs.4,500/-. 8.3. In respect of the deceased aged 40, the appropriate multiplier is only 15, as per the reported decision in Sarla Verma and Others v. Delhi Transport Corporation and another, reported in 2009 (2) TN MAC 1 (SC) = 2009 (6) SCC 121 . Therefore, the multiplier and multiplicand cannot be said to be incorrect. Therefore, the amount of compensation granted can neither be said to be inadequate nor excessive. 9. In the result, both the Civil Miscellaneous Appeals are dismissed. No costs. The insurance company shall deposit the entire award amount together with interest and cost, if not already deposited. The claimants are at liberty to withdraw the entire award amount together with interest and cost, already deposited by the insurance company.