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2014 DIGILAW 75 (MAD)

Kalaimani v. Sivakuppusamy

2014-01-09

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. Expressing dissatisfaction regarding the amount awarded by the Motor Accident Claims Tribunal (Additional District Judge cum Fast Track Court No.1), Salem as compensation, the claimants before the Motor Accident Claims Tribunal/the parents of the deceased boy, who died in the accident, have brought-forth this appeal under Section 173 of the Motor Vehicles Act, 1988 for enhancement. 2. One Jayavel aged about 13 years sustained grievous injuries in an accident that occurred near M.D.C. Petrol Bunk, Kamalapuram, Omalur on 01.01.2009 at about 6.30 p.m and on the way to the hospital, he died. The vehicle involved in the accident is a Maruti Zen car bearing Regn. No.TN-48 B-1956. The said car, as on the date of accident, belonged to K.Sivakuppusamy, the first respondent herein and it stood insured with the second respondent herein under Policy No.650400/31/07/ 6100001625. The first respondent (owner of the car) filed a counter statement stating that the amount claimed was exorbitant and contending that if at all the appellants are entitled to recover any amount as compensation, it should be recovered from the insurer, namely the second respondent alone. The second respondent filed a counter containing similar averments, as found in the counter statement of the first respondent. In addition the 2nd respondent contended that there was no negligence on the part of the driver of the car; that on the other hand the deceased alone was responsible for the accident and that hence the 2nd respondent was not liable to pay any compensation. 3. In the trial before the Tribunal, two witnesses were examined as PWs.1 and 2 and four documents were marked as Exs.P1 to P4 on the side of the appellants herein/claimants. No witness was examined and two documents were marked as Exs.R1 and R2 on the side of the respondents. On an appreciation of evidence adduced on both sides, the Tribunal rendered a finding that the accident took place solely due to the rash and negligent driving of the car bearing Regn. No. TN-48 B-1956 by its driver. 4. Since admittedly the car was owned by the first respondent and it stood insured with the second respondent, the Tribunal mulcted the liability on the first and second respondents holding them jointly and severally liable to pay compensation to the appellants, who are the parents of the deceased boy. No. TN-48 B-1956 by its driver. 4. Since admittedly the car was owned by the first respondent and it stood insured with the second respondent, the Tribunal mulcted the liability on the first and second respondents holding them jointly and severally liable to pay compensation to the appellants, who are the parents of the deceased boy. The Tribunal took the age of the deceased to be 13 years observing that he was a school going boy studying in 8th standard, it simply fixed a total sum of Rs.3,06,000/- as compensation and passed an award directing the respondents 1 and 2 to jointly and severally pay the said amount with an interest at the rate of 7.5% per annum from the date of filing of the MCOP till the date of deposit, excluding the period if any, during which the petition stood dismissed for default and also cost. The said award came to be passed on 18.02.2011. 5. Challenging the said award in respect of the quantum alone and contending that the amount awarded by the Tribunal is inadequate and the same should be enhanced, the appellants have come forward with the present appeal under section 173 of the Motor Vehicles Act, 1988 on various grounds set out in the Memorandum of grounds of Civil Miscellaneous Appeal. None of the respondents have come forward with any cross objection or separate appeal challenging the finding of the Tribunal either regarding negligence or regarding quantum. Hence the only question that arises for consideration in this appeal is: "whether the amount awarded by the Tribunal as compensation is inadequate requiring upward revision?" 6. The arguments advanced by Mr.R.Marudhachalamurthy, learned counsel for the appellants and by Mr.G.Udayasankar, learned counsel for the 2nd respondent were heard. The materials available on record were also perused. 7. The factum of accident is not in dispute. On 01.01.2009 at about 6.30 p.m Jayavel, the son of the appellants herein was hit by a Maruti Zen car bearing Regn. No.TN-48 B-1956 near M.D.C. Petrol Bunk, Kamalapuram, Omalur. Due to the said impact, he sustained grievous injuries, which proved to be fatal as he died on the way to the hospital. A case was registered against the driver of the car for offences punishable under sections 279 and 304-A of the Indian Penal Code in Crime No.08/2009 on the file of Omalur Police Station. Due to the said impact, he sustained grievous injuries, which proved to be fatal as he died on the way to the hospital. A case was registered against the driver of the car for offences punishable under sections 279 and 304-A of the Indian Penal Code in Crime No.08/2009 on the file of Omalur Police Station. A copy of the first information report has been marked as Ex.P1. The copy of the postmortem certificate marked as Ex.P2 evidences the fact that the deceased Jayavel died due to the injuries sustained by him in the accident. A copy of the death certificate has also been produced and marked as Ex.P3. Ex.P4 – Legal heir certificate shows that the appellants are the parents of the deceased boy. Though the first appellant has figured as PW.1, she does not claim to be an eye witness. On the other hand, one Ganesan was examined as an eye witness to speak about the occurrence. In clear terms, he has stated that, near M.D.C. Petrol Bunk, the Maruti car bearing Regn. No.TN-48 B-1956 came driven by its driver in a rash and negligent manner, hit Jayavel while he was walking on the edge of the road; that due to the impact Jayavel was thrown at a distance; that as he (PW2) was standing in the nearby puncture shop along with his friends by name Babu and Thangadurai, he saw the accident in question; that with the help of others they took the injured boy to Omalur Government Hospital and that the Medical Officer, on examination, informed that the boy had died on the way to the hospital. It is his further evidence that immediately thereafter they informed the police of the occurrence and based on their information a case was registered against the driver of the car in Crime No.08/2009 on the file of Omalur Police Station. From Ex.P1 it is obvious that PW2 was the informant and based on his complaint alone the criminal case came to be registered against the driver. 8. As against the said clear and categorical plea made and evidence adduced on the side of the appellants/claimants, there is no evidence adduced on the side of the respondents either to discredit the evidence of the witnesses examined on the side of the appellants/claimants or to prove that the accident did not take place in the manner spoken to by PW2. The Tribunal, upon considering the evidence of PW2 and Ex.P1, came to a correct conclusion that the accident took place solely due to the rash and negligent driving of the Maruti Zen car bearing Regn. No.TN-48 B-1956 belonging to the first respondent herein. In fact, regarding the said finding, none of the respondents had chosen to file any appeal or cross objection. It has also not been canvassed, at least in order to support the amount awarded as compensation that the finding on the question of negligence ought to have been different. In view of the same, the finding of the Tribunal that the accident took place solely due to the rash and negligent driving of the car belonging to the first respondent herein bearing Regn. No.TN-48 B-1956 deserves to be confirmed, as it remains unchallenged. 9. Even regarding quantum, the respondents have not come forward with any plea that the amount awarded by the Tribunal is excessive. On the other hand, the appellants alone have come forward with the plea that the amount awarded by the Tribunal is grossly inadequate and hence the same must be enhanced. In this regard, it is pertinent to note that the Tribunal, without assigning any reason, calculating a particular sum on each head, has simply awarded a total sum of Rs.3,06,000/- as compensation with the following split up particulars: Pecuniary Loss Rs.1,50,000/- Funeral Expenses Rs. 5,000/- loss of books Rs. 1,000/- Non-pecuniary Loss Rs. 75,000/- Loss of future prospects Rs. 75,000/- Total Rs.3,06,000/- The learned counsel for the appellants would contend that the Tribunal, without adopting multiplier method in case of a fatal accident which has become the recognised method for assessment of compensation, has simply awarded a lumpsum and in doing so, the Tribunal awarded a lesser amount as compensation. 10. On the contrary, it is contended on behalf of the contesting respondent that though the method adopted by the Tribunal may not be in tune with the current trend, the amount awarded by the Tribunal shall be even more than the reasonable amount that could have been awarded as compensation and that hence no interference is needed in this appeal. This court paid its anxious consideration to the above said submissions made on both sides. 11. In order to prove the age of the deceased, neither the school certificate nor the birth certificate has been produced. This court paid its anxious consideration to the above said submissions made on both sides. 11. In order to prove the age of the deceased, neither the school certificate nor the birth certificate has been produced. On the other hand, the only document available for the proof of the age of the deceased is the copy of postmortem certificate marked as Ex.P2 and death certificate marked as Ex.P3. In both the documents, the age of the deceased Jayavel has been noted as 13 years. In the absence of any other document, the finding of the Tribunal that the deceased was aged 13 years does not deserve any interference. 12. The appellants/petitioners have pleaded in their petition that their son Jayavel was studying in 8th standard in V.C.School, Omalur. PW1, the first appellant has repeated the same in her testimony. She was not confronted with any suggestion that her son's age was not correctly given or he was not studying in 8th standard, as claimed by the appellants. As the evidence of PW1 was not challenged in this regard, the finding of the Tribunal that the deceased was a school going boy and he was studying in 8th standard at the time of his death in the accident has got to be confirmed. 13. By a catena of cases, the Hon'ble Supreme Court has laid down the Law that in the cases of fatal accidents, multiplier method alone shall be applied. Especially, a Three Judge Bench of the Hon'ble Supreme Court in Reshma Kumari and others vs. Madan Mohan and another reported in 2013(2) CTC 680, has held that in fatal cases, multiplier method alone should be adopted and that irrespective of the section under which the claim has been made either under Section 166 or under Section 163-A, where the age of the deceased is up to 15 years, multiplier 15' shall be adopted. 14. If a claim is made under Section 163-A of the Motor Vehicles Act, 1988 then in the absence of any proof that the deceased was having any income, the notional income shall be fixed at Rs.15,000/- per annum. But such a restriction shall not be applicable in case of a claim made under Section 166 of the Motor Vehicles Act, 1988. But such a restriction shall not be applicable in case of a claim made under Section 166 of the Motor Vehicles Act, 1988. In respect of a claim made under Section 166 of the Motor Vehicles Act, 1988, there must be some evidence to show that the deceased was having any income and he would have started earning within a short span of time. In this case, the deceased having been found to be 13 years old boy, could not be expected to start earning at least for a period of five years. Though it can be presumed that after the age of 18 years, he would have started earning, we cannot assume fabulous income. If a higher amount is to be taken as his earning which would have started after five years from the date of accident, there would not be any justification in loading his income with certain percentage for future prospects, if the notional income itself is fixed. In case a lesser amount is taken as his notional income, then it can be loaded with some percentage for future prospects. In either case, fixing the average monthly income notionally at 3,000/- shall be just and proper. This can be done by taking his initial income at Rs.2,000/- and loading it with 50% for future prospects and thus fixing the average monthly income at Rs.3,000/-. If such a calculation is made, the annual income shall be Rs.36,000/-. We have to allow deduction towards his personal and living expenses. When the parents alone are the claimants, the deductions to be allowed shall be 50%. If deduction for personal expenses at 50% of the annual income is allowed, then the annual pecuniary loss caused to the appellants/claimants can be fixed at Rs.18,000/-. This shall be the multiplicand and it should be multiplied by the multiplier 15'. The product Rs.2,70,000/- shall be the amount that can be awarded as compensation for the pecuniary loss caused to the appellants due to the death of their son Jayavel. 15. Apart from compensation for pecuniary loss, damages towards conventional heads also should be awarded. This shall be the multiplicand and it should be multiplied by the multiplier 15'. The product Rs.2,70,000/- shall be the amount that can be awarded as compensation for the pecuniary loss caused to the appellants due to the death of their son Jayavel. 15. Apart from compensation for pecuniary loss, damages towards conventional heads also should be awarded. The Hon'ble Supreme Court in Rajesh & others vs. Rajbir Singh & others reported in 2013(3) CTC 883, has held that, funeral expenses shall not be the bare minimum expenses for the burial or cremation and it shall include the other expenses connected with the ceremonies in accordance with the custom followed by the parties. It has been held in the said case by the Hon'ble Apex Court that at least a sum of Rs.25,000/- shall be awarded for funeral expenses. Hence the compensation for funeral expenses should be enhanced to Rs.25,000/- from Rs.5,000/-. Apart from that the appellants shall be entitled to a reasonable amount towards loss of love and affection. Since it has been claimed that the deceased was the only son of the appellants, for the loss of love and affection a sum of Rs.15,000/- can be awarded. The Tribunal has awarded a sum of Rs.1,000/- towards loss of books etc. The same is not seriously challenged and hence said amount can be allowed. If such calculations are made, the total amount shall come to Rs.3,11,500/-, which is a little more than what was awarded by the Tribunal. 16. Accordingly, this court comes to the conclusion that the appellants are entitled to enhancement of the compensation by Rs.5,000/- alone by fixing the total amount of compensation at Rs.3,11,500/-, which amount is to be equally apportioned between the appellants/claimants. The Tribunal has also correctly awarded interest at the rate of 7.5% per annum and the same needs no interference. In the result, the appeal is allowed in part and the award of the Tribunal is modified by enhancing the compensation from Rs.3,06,500/- to Rs.3,11,500/-, which amount is to be equally apportioned between the appellants/claimants. In all other respects, subject to the above modification, including the rate of interest, the award of the Tribunal shall stand confirmed. However, there shall be no order as to costs in this appeal.