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2014 DIGILAW 2650 (MAD)

New India Assurance Co. Ltd v. G. Renuka

2014-08-14

G.CHOCKALINGAM, V.DHANAPALAN

body2014
Judgment V. Dhanapalan, J. 1. This miscellaneous appeal is directed against the judgment and decree dated 17.03.2010 made in M.C.O.P. No: 506 of 2008 on the file of the Motor Accident Claims Tribunal, 1st Additional District Court, Coimbatore, in and by which the Tribunal awarded a sum of Rs.14,32,500/- as compensation as against the claim of Rs.49,43,000/-. 2. The claimants are the wife, parents and sons of the deceased Ganesan. The case of the claimants before the Tribunal was that on 15.07.2005 at about 23.15 hours, deceased Ganesan was travelling in his motor cycle bearing Registration No: TN 37 K 1989 in Avinashi Road at Peelamedu, Coimbatore, from West to East. When he was driving his vehicle near Padmavathi Cultural Centre, keeping to the left side of the road with care and caution, a vehicle bearing Regn. No: TN 38 P 5374, which was coming from East to West, driven by its driver in a rash and negligent manner dashed against Ganesan, by crossing on the wrong side of the road. In that accident, Ganesan sustained grievous injuries and was taken to K.M.C.H. Hospital, Coimbatore. Though the Doctors tried their level best, Ganesan succumbed to the injuries on 20.07.2005. Claiming that the deceased Ganesan, was engaged in bakery business and was running his chain of bakeries in and around Coimbatore City and was earning not less than a sum of Rs.25,000/-per month, the cliamants sought a sum of Rs.49,43,000/- as compensation for the death of the deceased. 3. The Motor Accident Claims Tribunal, Coimbatore, on going through the evidence brought on record, both oral and documentary, arrived at the conclusion that the claimants are entitled to a sum of Rs. 14,32,500/- as total compensation for the death of the deceased. The amount awarded under different heads are (i) For the loss of income – Rs. 12,80,000/- (ii) For loss of consortium – Rs. 50,000/- (iii)For funeral expenses – Rs. 5,000/- (iv) For transport expenses Rs.5,000/- (v) For loss of estate – Rs. 2,500/- (vi) For medical expenses – Rs. 90,000/-. Challenging the said award, the present appeal is filed. 4. We have heard the learned counsel appearing for the parties and perused the materil documents made available on record. 5. 50,000/- (iii)For funeral expenses – Rs. 5,000/- (iv) For transport expenses Rs.5,000/- (v) For loss of estate – Rs. 2,500/- (vi) For medical expenses – Rs. 90,000/-. Challenging the said award, the present appeal is filed. 4. We have heard the learned counsel appearing for the parties and perused the materil documents made available on record. 5. The insurer is the appellant herein questioning the liability on the part of the insurer in a case where the driver of the vehicle did not have a valid driving licence. It is also the case of the insurer that the quantum awarded by the Tribunal is not as per the settled principles. Though such grounds have been incidentally raised, learned counsel appearing for the appellant very fairly submitted that as regards the quantum of compensation, the income arrived at by the Tribunal is against the principles of law in the absence of any tangible material to arrive at such a conclusion, except the income tax returns. In the light of the aforesaid submission, we have ananlysed the circumstance as to how the Tribunal has fixed the income of the deceased to arrive at the dependency. 6. It is seen that the deceased was running chain of bakeries in the name of R.V. Bakery in Dr. Nanjappan Road, Coimbatore, with branches at R.S. Puram, Avinashi Road, Theppakular Street all at Coimbatore and Singanallur and Avinashi Road and was earning a sum of Rs. 2,50,000/-per annum. In support of their claim as to the monthly income of the deceased, the claimants have filed the 'saral forms' both in the name of R.V. Bakery and also in the name of the deceased personally. They are marked as Exs. P.17 and P.18 series. Evidencing the business establishments of the deceased, the claimants have filed Exs. P.8 to P.11, licences issued by the Police Commissioner, Coimbatore, to run the chain of bakeries at different places. A perusal of these documents filed by the claimants show that the income tax returns for the years 2003-2004, 2004-2005 and 2005-2006 were filed only on 19.07.2005 i.e. Four days after the accident (the date of accident being 15.07.2005). The injured Ganesan died on 20.07.2005. Therefore, the Tribunal has not taken into consideration the income shown in the returns filed by the claimants and in our view, rightly so. The injured Ganesan died on 20.07.2005. Therefore, the Tribunal has not taken into consideration the income shown in the returns filed by the claimants and in our view, rightly so. At the same time, we cannot brush aside the claim of the claimants that the deceased Ganesan was in fact engaged in the business of bakery and was running a chain of bakeries and sweet stalls with branches in and around the city of Coimbatore, in toto. In fact, to prove their claim, the claimants have also examined the auditor as P.W.4 who had spoken to the fact about the deceased running the bakery business. Since the income tax returns for the year 2003-2004, 2004-2005 and 2005-2006 were filed only subsequent to the accident, the Tribunal has taken into account, the income tax returns filed for the previous to that of the assessment year 2003-2004 and came to the conclusion that the deceased would have earned a sum of Rs. 1,20,000/- per annum from his chain of bakery business. After deducting one third from this sum, the Tribunal determined the contribution to the family at Rs.80,000/- and by applying 16 as multiplier, the total compensation payable to the family was arrived at a sum of Rs. 12,80,000/-. Then a sum of Rs. 50,000/- was awarded to the wife of the deceased for loss of consortium; Rs.5,000/- towards funeral expenses; another sum of Rs.5,000/-for transport expenses; Rs.2,500/- towards loss of estate and lastly, based on the medical bills marked as Ex.P.4 a sum of Rs.90,000/- is awarded towards medical expenses. It is the contention of the appellant insurer that the compensation awarded is on the higher side. As per the decision of the Supreme Court rendered in Sarla Verma and others vs. Delhi Transport Corporation and another, reported in 2009 (6) S.C.C. 121 , the correct multiplier to be applied for the age group of 36 to 40 is 15. The deceased in this case was aged 37 years at the time of accident. Therefore, the correct multiplier would be 15. But the Tribunal, has taken 16 as multiplier. However, after going through the materials made available on record, it is seen that the Tribunal has not awarded any amount towards loss of love and affection either to the parents of the deceased or to both the sons of the deceased. Therefore, the correct multiplier would be 15. But the Tribunal, has taken 16 as multiplier. However, after going through the materials made available on record, it is seen that the Tribunal has not awarded any amount towards loss of love and affection either to the parents of the deceased or to both the sons of the deceased. Records reveal that the parents of the deceased were aged more than 75, the father being 82 years and the mother being 78 years, at the time of filing the claim petition. The first son of the deceased was aged 4 years and the second son not was even born on the date of the accident, the 1st petitioner was shown to be 7 months pregnant at the time of accident. At this tender age, they have lost their father which never be compensated by anyone in words and deeds. Still, the Tribunal, has not chosen to award any amount towards loss of love and affection to neither the parents nor the children. Considering all these things together, we are not inclined to interfere with the quantum awarded by the Tribunal as compensation in this case. 7. Regarding the claim of the appellant insurer that the Tribunal has erred in fastening the liability on the insurer in a case where the driver of the vehicle did not have a valid driving licence, the Tribunal has rendered a finding that except sending some registered notices, no effective steps have been taken by the insurer to prove the fact that the driver, third respondent in the claim petition, did not have a valid licence and that, sending of the notice by itself would not prove that the insurer has proved the non availability of the licence of the driver of the vehicle involved in the accident. The Tribunal went on to hold that, in the absence of evidence about the non – availability of the licence in favour of the driver, the Insurance company cannot be absolved from its liability. Even before us, except raising a ground to the above effect, the insurance company, as appellant has not filed any material document to prove the claim that the driver of the vehicle did not possess a valid driving lincence at the time of the accident. Even before us, except raising a ground to the above effect, the insurance company, as appellant has not filed any material document to prove the claim that the driver of the vehicle did not possess a valid driving lincence at the time of the accident. Therefore, we are left with no other option but to confirm the view taken by the Tribunal and uphold the impugned judgment. 8. Accordingly, while confirming the judgment under challenge, this Civil Miscellaneous Appeal is dismissed. Consequently, connected miscellaneous petition is also dismissed. There shall be no orders as to the costs. The appellant is hereby directed to deposit the balance 50% of the compensation amount along with accrued interest within a period of two weeks from the date of receipt of a copy of this order and on such deposit being made, the claimants 1 to 3, shall make an appropriate application before the Tribunal to withdraw their respective share in accordance with law and as regards the share of the minor, it is needless to state that their share will be deposited in a nationalised bank and the first claimant shall be permitted to withdraw the interest accrued thereon once in three months.