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2014 DIGILAW 1514 (MAD)

S. Dhanapalan v. M. Chitra

2014-06-18

K.KALYANASUNDARAM

body2014
Judgment : 1. Challenging the award passed by the Motor Accidents Claims Tribunal-cum-Chief Judicial Magistrate Court, Thanjavur at Kumbakonam, in MCOP No.562 of 2003 dated 23.04.2004, the Insurance Company has filed the present Civil Miscellaneous Appeal. 2. The brief facts arising out of this Civil Miscellaneous Appeal are as under: On 21.03.2001 at about 5.30 p.m., a mini bus bearing Registration No.TN-49-V-1942 rammed against a Tiffin Centre run by the deceased Murugesan in the name and style of “Sri Raghavendra Tiffin Centre” at Madagadi Street, Main Road, Kumbakonam, causing the death of Murugesan and damage to the articles. Alleging that the accident had taken place due to the negligence of the driver of the mini bus, the wife of the deceased Murugesan laid a petition before the Motor Accidents Claims Tribunal-cum- Chief Judicial Magistrate Court, Thanjavur at Kumbakonam, claiming a compensation of Rs.15 lakhs. 3. Resisting the claim petition the second appellant-Insurance Company filed a counter disputing the age, income, avocation of the deceased, the manner of accident and its liability to pay compensation to the claimant. 4. To substantiate the case, the claimant examined herself as P.W.1 and marked Exs.P1 to P10. On the side of the Insurance Company, two witnesses were examined and Exs.R1 to R12 were marked. The Tribunal, relying on the evidence of the claimant / P.W.1 and Ex.P1- First Information Report, Ex.P4–Charge Sheet and Ex.P5-Judgment in C.C.No.669 of 2001 in which the accused pleaded guilty and paid the fine amount, held that the driver of the bus was responsible for the accident and awarded a total compensation of Rs.9,35,000/- with interest at 9% p.a. Challenging the award, the present Civil Miscellaneous Appeal has been filed. 5. Heard Mr.A.K.Baskarapandian, learned counsel for the Insurance Company and Mr.Jesubalan Raja for Ms.N.Poongothai for the first respondent and perused the records. 6. The learned counsel for the appellants submitted that the Tribunal has erred in fixing the monthly income of the deceased at Rs.5,000/- without any proof; that there is no evidence to show that the hotel business has been closed after the death of the deceased and that the award passed by the Tribunal is excessive. 7. 6. The learned counsel for the appellants submitted that the Tribunal has erred in fixing the monthly income of the deceased at Rs.5,000/- without any proof; that there is no evidence to show that the hotel business has been closed after the death of the deceased and that the award passed by the Tribunal is excessive. 7. Per contra, the learned counsel for the first respondent submitted that the first respondent is the wife of the deceased Murugesan and she is the only dependant and legal heir of the deceased; that the first respondent / claimant, earlier filed a claim petition along with her father-in-law in MCOP No.399 of 2001 seeking compensation and subsequently withdrew the petition and filed the present claim petition. In the claim petition filed in MCOP No.399 of 2001, it was categorically stated that the deceased Murugesan was running a Tiffin Centre in the name and Style of “Raghavendra Hotel”. The learned counsel for the first respondent further submitted that the fifth respondent in the claim petition, who is the brother of the deceased Murugesan, had given a complaint immediately after the accident stating that the Tiffin Centre was being run by his brother deceased Murugesan and he was working under him. The learned counsel for the first respondent further submitted that till the death of the deceased, the Tiffin Centre was being run by the deceased and after his demise, the brothers are running the business. 8. The main contention of the learned counsel for the first respondent is that the Tribunal ought to have awarded the entire amount to the only legal heir, ie., the wife of the deceased and awarding compensation to his brothers is not sustainable in law. 9. The Insurance Company has filed this appeal only challenging the quantum of compensation awarded by the Tribunal, and the Insurance Company has not questioned the manner of accident and their liability. Therefore, it is not necessary to elaborate on the other aspects. 10. P.W.1 has given evidence categorically stating that the Tiffin Centre was run by her husband. R.W.1-Narayanan, who is the brother of the deceased, in his evidence, has admitted that he gave a complaint to the Police immediately after the accident stating that the Tiffin Centre was run by his deceased brother Murugesan alone. In the claim petition in MCOP No.399 of 2001, the father of the deceased, viz. R.W.1-Narayanan, who is the brother of the deceased, in his evidence, has admitted that he gave a complaint to the Police immediately after the accident stating that the Tiffin Centre was run by his deceased brother Murugesan alone. In the claim petition in MCOP No.399 of 2001, the father of the deceased, viz. Sundaram Chettiar has specifically admitted that the Tiffin Centre was run by his son Murugesan. For the reasons best known to the claimant, MCOP No.399 of 2001 was withdrawn subsequently and the present claim petition in MCOP No.562 of 2003 was filed citing the father of the deceased as first respondent in the claim petition. There is no evidence to show that till the life time of the first respondent, he had disputed the case of the claimant. After his demise, his other sons and daughters were impleaded as respondents 4 to 8 in the claim petition. After the impleadment of the legal heirs, they have taken a stand that the Tiffin Centre is a joint family property of Sundaram Chettiar and the deceased was one of the member of the joint family. R.W.1 has also produced documents to establish that after the demise of Murugesan, they are now running the Tiffin Centre. 11. It is not in dispute that the accident had taken place in the year 2001 and the documents produced by the respondents are subsequent to the claim petition. The averments made in the claim petition in MCOP No.399 of 2001 and Ex.P1- First Information Report, would categorically establish that the Tiffin Centre “Sri Raghavendra Tiffin Centre” was being run by the deceased alone and it was not a joint family business. Further, the respondents 4 to 8 in the claim petition / respondents 2 to 6 herein, have not produced any evidence to show that they are dependents of the deceased Murugesan. 12. The learned counsel for the appellant-Insurance Company submitted that the accident had taken place in the year 2001 and the income of Rs.5,000/- fixed by the Tribunal is on the higher side. Admittedly, the claimant has not produced any documentary evidence to prove the income of the deceased. Hence in such circumstances, the income of the deceased is fixed at Rs.4,500/- per month and 1/3rd of the amount is deducted towards his personal and living expenses of the deceased. Admittedly, the claimant has not produced any documentary evidence to prove the income of the deceased. Hence in such circumstances, the income of the deceased is fixed at Rs.4,500/- per month and 1/3rd of the amount is deducted towards his personal and living expenses of the deceased. If 1/3rd is deducted, Rs.3,000/- would be the contribution to his family. Ex.P3- Post Mortem Certificate would show that the deceased was 30 years at the time of accident. As per the judgment of the Supreme Court in SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER, reported in (2009) 4 MLJ 997, the proper multiplier would be 17. The Tribunal has adopted the correct multiplier of 17 and awarded a compensation of Rs.6,80,000/- towards loss of income. Since the contribution to the family is reduced to Rs.3,000/-, the loss of dependency works out to Rs.6,12,200/- (Rs.3,000/- x 12 x 17). Further the claimant will be entitled to a sum of Rs.30,000/- towards loss of consortium and Rs.8,000/- towards funeral expenses. Thus, totally the claimant is entitled to a sum of Rs.6,50,200/-, rounded off to Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand Only). The respondents 4 to 8 in the claim petition / respondents 2 to 6 herein, have not produced any material to show that they are the dependants of the deceased Murugesan. On the other hand, the evidence of R.W.1 and other documents viz. Exs.R3 to R11, shows that the respondents 4 to 8 were running the Tiffin Centre, excluding the claimant -Chitra. 13. It is settled law that even in the absence of appeal by the claimant, under Order 41 Rule 33 of CPC, the appellate Court enjoys power to pass appropriate order to meet the ends of justice. Order 41 Rule 33 of CPC reads as follows: “33. 13. It is settled law that even in the absence of appeal by the claimant, under Order 41 Rule 33 of CPC, the appellate Court enjoys power to pass appropriate order to meet the ends of justice. Order 41 Rule 33 of CPC reads as follows: “33. Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.” 14. The Hon'ble Apex Court, in the judgment reported in Mahant Dhangir and Another v. Madan Mohan and Others, has held as follows: “The appellate Court could also pass such other decree or order as the case may require. The words “as the case may require” used in R.33 of O.41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice.” 15. Out of the compensation of Rs.9,35,000/-, the Tribunal awarded Rs.2,35,000/- to the claimant / wife of the deceased and Rs.7,00,000/- to the respondents 5, 7 and 8, who are brothers and sister of the deceased. 16. In view of my finding that the respondents 4 to 8 are not dependants, the award passed by the Tribunal in favour of respondents 5, 7 and 8 in the claim petition, is set aside and the claimant Chitra alone is entitled for the entire compensation of Rs.6,50,000/-. 16. In view of my finding that the respondents 4 to 8 are not dependants, the award passed by the Tribunal in favour of respondents 5, 7 and 8 in the claim petition, is set aside and the claimant Chitra alone is entitled for the entire compensation of Rs.6,50,000/-. The interest rate fixed by the Tribunal at 9% p.a., is reduced to 7.5%, as per the decision of the Hon'ble Supreme Court in Tamil Nadu State Transport Corporation Limited v. S.Rajapriya and others, reported in 2005 ACJ 1441 . 17. In the result, the Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.9,35,000/- with interest at 9% p.a., from the date of petition stands modified to Rs.6,50,000/- with interest at 7.5% p.a., from the date of petition. No costs. 18. It is represented by the learned counsel for the Insurance Company that they have already deposited the entire compensation awarded by the Tribunal and the claimant was permitted to withdraw portion of the award. The claimant-Chitra is now permitted to withdraw the modified compensation amount of Rs.6,50,000/-with interest at 7.5% p.a., less the amount if any already withdrawn. The Tribunal shall return the balance amount to the appellant Insurance Company.