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2015 DIGILAW 1293 (MAD)

D. Kousalya v. A. Madaiyan

2015-03-04

D.HARIPARANTHAMAN

body2015
Judgment :- 1. The appellant in C.M.A.(MD)No.141 of 2010 is the Insurance Company. The respondents 1 to 4 are the claimants in MCOP No.734 of 2005 on the file of the Motor Accidents Claims Tribunal (District Judge), Karur. The fifth respondent in C.M.A.(MD)No.141 of 2010 is the driver of the lorry involved in the accident that was insured with the appellant Insurance Company. The sixth respondent is the owner of the motorcycle, in which the deceased was travelling as a pillion rider. The seventh respondent is the Insurance Company to which the motorcycle was insured. 2. On 08.07.2005, the deceased by name Duraisamy travelled in the two-wheeler owned by the sixth respondent in C.M.A.(MD)No.141 of 2010, as a pillion rider. The said two-wheeler and the lorry that was insured with the appellant Insurance Company involved in the accident. In the accident, the pillion rider died. The details of the accident are not very much necessary for the disposal of these appeals. 3. The claimants claimed a sum of Rs.12,00,000/- as compensation before the Tribunal. The Tribunal passed the judgment and decree dated 06.07.2009 granting Rs.8,32,258/- with interest at 7.5% p.a., from the date of petition. 4. While the appellant Insurance Company filed C.M.A.(MD)No.141 of 2010 questioning the liability as well as quantum, the claimants filed an appeal in C.M.A.(MD)No.162 of 2015 seeking enhancement of compensation by Rs.2,00,000/-. 5. Heard both the sides. 6. The learned counsel for the appellant -Insurance Company has submitted that the lorry was driven by one Sekar but it was shown as if one Madaiyan who is the fifth respondent in C.M.A.(MD)No.141 of 2010, drove the lorry. According to the counsel for the appellant -Insurance Company, they filed additional counter statement in this regard, but the Tribunal has erroneously found that the lorry was driven only by Madaiyan. 7. As far as the quantum is concerned, the learned counsel for the appellant-Insurance Company has submitted that the Tribunal has awarded a sum of Rs.1,50,000/- towards medical expenses without producing any medical records. Hence, the aforesaid amount of Rs.1,50,000/- has to be set aside. 8. 7. As far as the quantum is concerned, the learned counsel for the appellant-Insurance Company has submitted that the Tribunal has awarded a sum of Rs.1,50,000/- towards medical expenses without producing any medical records. Hence, the aforesaid amount of Rs.1,50,000/- has to be set aside. 8. On the other hand, the learned counsel for the claimants has submitted that the Tribunal has considered in length about the defence set up by the Insurance Company in paragraph-9 of its judgment and has categorically held that the driver who drove the lorry was only Madaiyan, as per Ex.P1 as well as Ex.X1. According to him, Ex.P1 is the First Information Report and Ex.X1 is the charge sheet after investigation, filed by the police. Therefore, he has submitted that the appellant-Insurance Company is not correct in disputing their liability. 9. Even assuming that if it is accepted, the appellant Insurance Company could not escape from the liability, and at the most they can ask for pay and recovery, if the other person Sekar alleged to have driven, did not possess valid license. Hence, the same could not affect the outcome of the proceedings. Further, the learned counsel for the claimants has submitted that the deceased was employed in Karur Vysya Bank as Office Assistant and he was a permanent workman and he was getting Rs.11,017/- as his monthly pay and the same is established by way of Exs.X4 and X5. He has further fairly submitted that though the deceased took treatment in a reputed hospital, ie., K.G.Hospital at Coimbatore from 08.07.2005 till his death on 16.09.2005 for 50 days, no documents were produced and therefore, he submits that the same could be discarded and a fair and just compensation could be arrived at by this Court in the appeals. 10. He has further submitted that the Tribunal has provided deduction of 50% for personal expenses. When there are 3 dependents, particularly one dependent is a minor daughter, the Tribunal has committed an error in providing 50% towards deduction for personal expenses, he submitted. He further submitted that as per the judgment of the Hon'ble Supreme Court reported in 2009(2) TN MAC 1 (Sarla Varma and others vs. Delhi Transport Corporation and another), there should be deduction of only 1/4th. 11. He further submitted that as per the judgment of the Hon'ble Supreme Court reported in 2009(2) TN MAC 1 (Sarla Varma and others vs. Delhi Transport Corporation and another), there should be deduction of only 1/4th. 11. He has further submitted that while the Tribunal has provided 50% deduction towards personal expenses, the Tribunal adopted the multiplier of 14 and according to him, as per Sarla Verma's case (cited supra), the appropriate multiplier that should be adopted is only 9. He has stated that taking into account the monthly salary of the deceased as Rs.11,017/-, the loss of income after 1/4th deduction per month, would come to Rs.8,262/-. Thus, according to him, the yearly loss of income is Rs.99,144/-. If 9 is used as multiplier, according to him, the loss of income would be Rs.8,91,296/-. He has further submitted that the Tribunal has awarded only Rs.20,000/- towards loss of consortium to the first claimant. According to him, the Tribunal ought to have awarded Rs.1,00,000/- towards consortium. He has also submitted that the Tribunal is not correct in awarding Rs.45,000/- towards loss of love and affection for the claimants 2 to 4. According to him, the fourth claimant is a minor and therefore, the amount awarded towards loss of love and affection to the claimants 2 to 4 should have been Rs.1,00,000/-. Hence, he has submitted that the total compensation has to be enhanced by Rs.2,00,000/-. 12. I have considered the submissions made on either side. 13. The only contention of the appellant Insurance Company is that the driver of the lorry was not Mr.Madaiyan as alleged by the claimants. According to the investigation by the Insurance Company, he was only Sekar. But the Tribunal considered the entire issue on merits and recorded a categorical finding in paragraph-9 of its judgment that Madaiyan was the driver of the lorry at the time of accident, as per Ex.P1- First Information Report and Ex.X1- Charge Sheet filed by the police after investigation. The following passage from paragraph-9 of the judgment of the Tribunal is extracted hereunder: “This Tribunal considered Ex.X1. Ex.X1 is the charge sheet filed by the police after investigating the case. The charge sheet has been filed against the driver of the 1st respondent for committing the accident. There is no material or document available to reject Ex.X1 and Ex.P1. The following passage from paragraph-9 of the judgment of the Tribunal is extracted hereunder: “This Tribunal considered Ex.X1. Ex.X1 is the charge sheet filed by the police after investigating the case. The charge sheet has been filed against the driver of the 1st respondent for committing the accident. There is no material or document available to reject Ex.X1 and Ex.P1. Therefore, this Tribunal decides that the driver of the 1st respondent was responsible for the accident.” Hence, the contention of the Insurance Company relating to liability is rejected. 14. As per the learned counsel for the claimants, as stated above, the loss of income comes to Rs.8,91,296/-. I am in agreement with the same. As rightly contended by the learned counsel for the claimants, the consortium awarded by the Tribunal is a meagre amount. The first claimant lost her husband and hence, the amount awarded towards loss of consortium at Rs.20,000/- is meagre. In my considered view, the loss of consortium should be increased to Rs.50,000/-. In fact, the learned counsel for the claimants has contended that Rs.1,00,000/- shall be awarded towards loss of consortium relying on the judgment of the Hon'ble Supreme Court in Rajesh v. Rajbir Singh, reported in 2013 (2) TN MAC 55. In that case, the claimant lost her husband at the age of 30. Hence, the Apex Court granted Rs.1,00,000/- towards loss of consortium. In this case, I am of the view that the first claimant shall be given Rs.50,000/- towards loss of consortium. Likewise, the amount awarded by the Tribunal towards loss of love and affection to claimants 2 to 4 at the rate of Rs.15,000/- per claimant, is meagre and I am inclined to increase the same to Rs.30,000/- in the case of minor. Hence the amount awarded towards loss of love and affection to the claimants 2 to 4 comes to Rs.60,000/-. As far as the amount awarded at Rs.10,000/- towards funeral expenses is concerned, I am not inclined to interfere with the same and hence the same is confirmed. Though the deceased died after treatment in the hospital, since no medical records are produced, no amount could be awarded towards medical expenses due to the lack of evidence. The details of the modified compensation are as under: HEADS AMOUNT (Rs.) Loss of income 8,91,296/- Loss of consortium 50,000/- Loss of love and affection 60,000/- Funeral expenses 10,000/- Total.... 10,11,296/- 15. The details of the modified compensation are as under: HEADS AMOUNT (Rs.) Loss of income 8,91,296/- Loss of consortium 50,000/- Loss of love and affection 60,000/- Funeral expenses 10,000/- Total.... 10,11,296/- 15. The fourth claimant-Minor D.Jeyashree, who is the fourth respondent in C.M.A.(MD)No.141 of 2010 and fourth appellant in C.M.A.(MD)No.162 of 2015 has been declared major and the guardian has been discharged from guardianship, as per the order of this Court dated 26.09.2012 in C.M.A.(MD)No.141 of 2010. Therefore, the appellant Insurance Company is directed to deposit the modified amount of compensation of Rs.10,11,296/- with interest at 7.5% p.a., from the date of petition, after deducting the amount if any already deposited, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimants are permitted to withdraw their entire share with proportionate interest. 16. In the result, while dismissing the appeal filed by the Insurance Company in C.M.A.(MD)No.141 of 2010, the appeal filed by the claimants in C.M.A.(MD)No.162 of 2015 is disposed of with the above modification in the compensation. No costs.