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2017 DIGILAW 1233 (MAD)

J. Padma v. M. Arulraj

2017-04-25

P.VELMURUGAN, T.S.SIVAGNANAM

body2017
JUDGMENT : P. VELMURUGAN, J. This Civil Miscellaneous Appeal has been filed by the appellant/claimants against the order and decree dated 10.11.2004, passed in M.A.C.O.P. No. 384 of 1999 of the file of the Motor Accidents Claims Tribunal, Principal District Court, Virudhunagar. 2. The case of the claimants in the claim petition before the Tribunal is that on 02.09.1999, the deceased Jeganathan and his relative were travelling in Maruti Gypsy bearing Registration No. PY-01 M-2702, belonging to the third respondent. The said Gypsy was driven by one Tirumalai Kumar. On 02.09.1999 at about 6.30 pm, driver of the said Gypsy had driven the vehicle from North to South on the Madurai - Rajapalayam main road near Kadaneri diversion within the limits of the T.Kallupatti Police Station, in a normal speed adhering the traffic rules and regulations. At that time the lorry bearing Registration No. TAA 9612 belonging to the first respondent came in a rash and negligent manner without observing the traffic rules and regulations from the opposite direction and dashed heavily against the van bearing Registration No. PY-01 M-2702, dragged the van to the Western side of the road, as a result of which, the deceased Jeganathan sustained fatal injuries on his skull, forehead, jaws, hip and legs and succumbed to the injuries on the spot. A co-passenger also sustained grievous injuries. The accident occurred solely due to rash and negligent driving of the driver of the first respondent. A case was also registered against the driver of the first respondent and F.I.R was lodged and Charge sheet was also laid against the driver of the first respondent. Since the offending vehicle of the first respondent is insured with the second respondent, both the first and second respondents are jointly and severally liable to pay compensation to the claimants. The first, second and third claimants are wife, the then minor son and mother of the deceased respectively. Hence, the claimants claimed compensation as follows: HEAD AMOUNT CLAIMED BY THE CLAIMANT (Rs.) HEAD AMOUNT CLAIMED BY THE CLAIMANT (Rs.) Loss of income 30,00,000/- Loss of love and affection 1,75,000/- Loss of expectation of deceased 2,00,000/- Loss of consortium 1,00,000/- Loss of estate 5,00,000/- Funeral expenses 25,000/- Total 40,00,000/- 3. Hence, the claimants claimed compensation as follows: HEAD AMOUNT CLAIMED BY THE CLAIMANT (Rs.) HEAD AMOUNT CLAIMED BY THE CLAIMANT (Rs.) Loss of income 30,00,000/- Loss of love and affection 1,75,000/- Loss of expectation of deceased 2,00,000/- Loss of consortium 1,00,000/- Loss of estate 5,00,000/- Funeral expenses 25,000/- Total 40,00,000/- 3. The case of the second respondent before the Tribunal is that the accident occurred not due to rash and negligent driving of the driver of the first respondent lorry bearing Registration No. TAA 9612 and the accident occurred only due to the negligence on the part of the driver of van belonged to the third respondent and the said van is insured with the fourth respondent. If at all, the claimants are entitled to compensation, income and avocation of the deceased have got to be proved and further they can claim the compensation only from the third and fourth respondents but not from the first and second respondents. 4. In order to prove the case of the claimants, on the side of the claimants, P.W.1 and P.W.2 were examined and Exs.P.1 to Exs.P.29 were marked. On the side of the respondents, no oral evidence was let in and no documentary evidence was produced. 5. Considering the case of the parties and oral and documentary evidence let in by the claimants, the Tribunal has fixed the liability on the first and second respondents and awarded the compensation as follows: HEAD AMOUNT AWRDED BY THE TRIBUNAL(Rs) Loss of income 7,68,000/- Loss of love and affection 10,000/- Loss of consortium 10,000/- Funeral expenses 2,000/- Total 7,90,000/- 6. Aggrieved with the impugned award passed by the Tribunal, the claimants have filed this Civil Miscellaneous Appeal, for enhancement of compensation. 7. Heard both sides and perused the entire records submitted before the Tribunal and also the award passed by the Tribunal. 8. The learned counsel appearing for the appellants would submit that the accident occurred due to rash and negligent driving of the driver of the lorry bearing Registration No. TAA 9612. 7. Heard both sides and perused the entire records submitted before the Tribunal and also the award passed by the Tribunal. 8. The learned counsel appearing for the appellants would submit that the accident occurred due to rash and negligent driving of the driver of the lorry bearing Registration No. TAA 9612. A case was also registered against the driver of first respondent and F.I.R was lodged against him and after investigation, the jurisdictional Police had laid Charge sheet against the driver of the first respondent and the driver of the first respondent appeared before the Judicial Magistrate, Tirumangalam and admitted the case and also paid the fine amount, which shows that the accident occurred only due to rash and negligent driving of the driver of the offending vehicle bearing Registration No. TAA 9612 which is insured with the second respondent. Therefore, the first and second respondents are jointly and severally liable to pay compensation to the claimants. 9. He would further submit that prior to the accident, the deceased was running a dealership of the Atlas Cycles in the name of M/s. S.M.V. Thirupathi Raja, where his wife/first claimant was a partners. After the demise of the deceased, she closed the business and lost the income. The deceased was also earning through agricultural lands and his average monthly income was Rs.20,000/-. The deceased was an income tax assessee. He was having Pan Card and Passport and he frequently used to take his family members to foreign countries. Due to the demise of the deceased the claimants, lost the income and therefore, the first and second respondents are liable to pay compensation. 10. The learned counsel appearing for the second respondent would submit that, the accident occurred not due to rash and negligent driving of the driver of the lorry bearing Registration No. TAA 9612. The accident occurred only due to negligence on the part of the driver of the third respondent. Further, the income of the deceased Rs. 20,000/- per month was not proved and the documents produced by the claimants are not genuine. The Tribunal correctly disbelieved the documents produced by the claimants and fixed Rs.6,000/- as notional monthly income of the deceased and the award passed by the Tribunal is just and reasonable and needs no interference of this Court. 11. 20,000/- per month was not proved and the documents produced by the claimants are not genuine. The Tribunal correctly disbelieved the documents produced by the claimants and fixed Rs.6,000/- as notional monthly income of the deceased and the award passed by the Tribunal is just and reasonable and needs no interference of this Court. 11. Points for consideration:- (i) Whether the accident occurred due to rash and negligent driving of the driver of the first respondent lorry bearing Registration No. TAA 9612? (ii) Whether the award passed by the Tribunal is just and reasonable? Point No.1 12. In order to prove the manner of the accident, the claimants examined P.W.2, who is one of the co-passengers in the Gypsy at the time of the accident. He had spoken about the manner of the accident as stated in the claim petition and the documents marked before the Tribunal shows that a case was registered against the driver of first respondent and F.I.R was lodged against him and after investigation the jurisdictional Police had laid Charge sheet against the driver of the first respondent and the driver of the first respondent appeared before the Judicial Magistrate, Tirumangalam and admitted the case and also paid the fine amount. After considering the oral and documentary evidence, the Tribunal has arrived at an independent conclusion from the available evidence. However, respondents 1 and 2 had not examined any witness on their side to deny the manner of the accident. The first and second respondents ought to have examined the driver of the first respondent to disprove the manner of accident. The driver who appeared before the Judicial Magistrate, not appeared before the Tribunal for raising any serious objections with regard to the manner of accident. Therefore, there is no reason to disbelieve the evidence of P.W.2, when there was no contra evidence let in on the side of the respondents. From the above said materials, this Court also comes to the conclusion that the accident occurred only due to rash and negligent driving of the driver of the first respondent lorry bearing Registration No. TAA 9612 and the Tribunal has also correctly fixed the liability on the first and second respondents. Accordingly this point is answered. Point No.2 13. As far as the quantum of compensation is concerned, according to the claimants, the deceased and his wife/first claimant were partners of M/s. S.M.V. Thirupathi Raja. Accordingly this point is answered. Point No.2 13. As far as the quantum of compensation is concerned, according to the claimants, the deceased and his wife/first claimant were partners of M/s. S.M.V. Thirupathi Raja. Prior to the accident, the deceased was a dealer of the Atlas Cycle company. The deceased owned 3.8 acres of wet lands at Rajapalayam village and he was cultivating on his own by raising paddy and sugar cane, besides, he had taken 10 acres of agricultural lands on lease and was doing agriculture and getting from that sources. The deceased carried on the business of purchasing and selling of bicycles and spare parts under partnership firm and in the name and style of M/s. S.M.V. Thirupathi Raja at Rajapalayam, which was once his family business. Due to the accident, the family lost monthly income of Rs.20,000/- which the deceased was earning. 14. To prove the income of the deceased, the first claimant/wife of the deceased was examined as P.W.1 and through her Exs.P.8 to Exs.P.29 were marked. The learned counsel for the claimants would submit that, though P.W.1 had produced documents, the Tribunal had come to the conclusion that the documents had not been proved. Therefore, the Tribunal has fixed at Rs.6,000/- as notional monthly income of the deceased which needs interference of this Court. 15. We perused the evidence of P.W.1 and Exs.P.8 to Exs.P.29. Perusal of Ex.P.8 shows that it is the patta and stands in the name of the claimants and it was also obtained after the accident. No documents like Adangal were produced to show that the deceased was doing agriculture and he was getting income from the lease land also. The income from the partnership business is concerned, P.W.1 produced Exs.P.10 to Exs.P.16. Exs.P.10 and 11 are the invoices, Ex.P.12 is the letter sent from the M/s. S.M.V. Thirupathi Raja to Commercial Tax Office and Ex.P.13 is the letter sent by the Commercial Tax Office to M/s. S.M.V. Thirupathi Raja. Ex.P.14 is the proceedings of the Commercial Tax Officer. However, no documents were produced to prove that the partnership firm stood in the name of deceased Jeganathan. Ex.P.15 the Pan card, Ex.P.16 is the assessment order. Exs.P.18 and 19 are the income tax returns submitted by M/s. S.M.V. Thirupathi Raja but no income tax returns had been submitted in the individual capacity. However, no documents were produced to prove that the partnership firm stood in the name of deceased Jeganathan. Ex.P.15 the Pan card, Ex.P.16 is the assessment order. Exs.P.18 and 19 are the income tax returns submitted by M/s. S.M.V. Thirupathi Raja but no income tax returns had been submitted in the individual capacity. Ex.P.22 is the Form No.20 submitted to the Income Tax Department and Exs.P.23, 24 and 25 are the income tax challans. Ex.P.16 is the passport of the deceased. Exs.P.27, 28 and 29 are the Visas. However, all the documents produced by the claimants related to the year 1998 - 2000. The partnership was executed on 03.08.1990, but no documents were produced relating to the year between 1992 and 1998, which creates suspicion. Perusal of Ex.P.9 partnership deed shows, it is an unregistered document, the stamps used for the partnership deed appears to have been in different dates and obtained from different vendors and the Registration certificate of the firm had also not been filed, which shows that they had created the documents only for the purpose of claiming higher compensation. Therefore, the Tribunal has correctly arrived at the conclusion that the claimants have not proved the income of the deceased. Further they had not produced any statement of accounts or any ledgers with respect to the business transactions. As already stated, the claimants had not proved the income from the agricultural sources and business as the manner known to law and in the absence of such proof, we can not fix the income as claimed in the claim petition. 14. Considering all the aspects, it would be appropriate to fix Rs.7,500/- as notional monthly income of the deceased. With regard to the age of the deceased, as per Ex.P.15, the PAN Card, the date of birth of deceased shown as 18.10.1961 and the date of accident is on 02.09.1999. Hence, the age of the deceased at the time of accident would be 38 and 15 multiplier has to be adopted. Accordingly, the loss of income of the deceased would be Rs.7500X12X15 = Rs.13,50,000/- 15. As per the judgment in Rajesh and Others Vs. Hence, the age of the deceased at the time of accident would be 38 and 15 multiplier has to be adopted. Accordingly, the loss of income of the deceased would be Rs.7500X12X15 = Rs.13,50,000/- 15. As per the judgment in Rajesh and Others Vs. Rajbir Singh and others reported in 2013 ACJ 1403 (SC), the Hon'ble Supreme Court has held that even in a case where persons are not having any permanent income, future prospects will have to be taken into consideration and in the age group upto 40, future prospects has to be taken as 50% from the income. So, in this case the age of the deceased at the time of accident is 38 and 50% of the notional monthly income is taken for calculating future prospects. Therefore, the future prospects would be Rs.3750X12X15 = Rs.6,75,000/-. 16. In view of the law laid down by the Hon'ble Apex Court in Saralaverma's case reported in 2009 ACJ 1298 (SC) and upheld by a larger Bench of the Hon'ble Apex Court in the case of Reshma Kumari, reported in 2013 ACJ 1253 (SC), since, there are three dependants, 1/3 of the income has to be deducted towards personal expenses. Therefore, the loss of income would be Rs.9,00,000/- and future prospects would be Rs. 4,50,000/-. 17. The Tribunal had awarded Rs.10,000/- for loss of love and affection and this Court enhances the same to Rs.1,00,000/-, The Tribunal has awarded Rs.10,000/- towards loss of consortium and the same is enhanced to Rs.1,00,000/- and the Tribunal had awarded Rs. 2,000/- towards funeral expenses and this Court enhances the same to Rs.25,000/-. Since the Tribunal has not awarded compensation towards loss of estate, this Court awards Rs.5,000/- towards the same and the Tribunal has not awarded compensation towards transportation and damages to cloth, so, this Court awards Rs.10,000/- towards the same. Considering the facts and circumstances of the case we are of the view that the above said compensation is just and reasonable. 18. Considering the facts and circumstances of the case we are of the view that the above said compensation is just and reasonable. 18. The compensation claimed by the claimant, the compensation awarded by the Tribunal and the compensation enhanced by this Court are as follows:- HEAD AMOUNT CLAIMED BY THE CLAIMANT (Rs.) AMOUNT AWRDED BY THE TRIBUNAL(Rs) AMOUNT AWARDED BY THIS COURT (Rs.) Loss of income 30,00,000/- 7,68,000/- 9,00,000/- Loss of future prospects - - 4,50,000/- Transportation and damages to cloths - - 10,000/- Loss of love and affection 1,75,000/- 10,000/- 1,00,000/- Loss of expectation of deceased 2,00,000/- - - Loss of consortium 1,00,000/- 10,000/- 1,00,000/- Loss of estate 5,00,000/- 5,000/- Funeral expenses 25,000/- 2,000/- 25,000/- Total 40,00,000/- 7,90,000/- 15,90,000/- 19. In the result, (i) This Civil Miscellaneous Appeal in C.M.A.(MD)No.736 of 2005 is allowed and the award passed by the claims Tribunal is enhanced as shown above. (iv) In the facts and circumstances of the case, there shall be no order as to costs. The second respondent is directed to deposit the compensation with interest at 7.5% per annum from the date of petition, less the amount already deposited if any, along with proportionate interest and cost to the credit of the claim petition, within a period of six weeks from the date of receipt of a copy of this order. The claimant are entitled to the enhanced compensation, in which the 1st claimant being the wife of deceased as well as the first class heir is entitled to Rs.10,00,00/- and 2nd claimant son of the deceased is entitled to Rs.5,90,000/-. The 3rd claimant mother of the deceased died during the pendency of the appeal. Since the accident occurred in the year of 1999, the claimants are permitted to withdraw the entire amount that would be deposited by the appellant. The claimants are permitted to withdraw their share with award amount less the amount already withdrawn if any, with proportionate interest and cost, through RTGS by filing necessary Application before the Tribunal.