Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 2639 (MAD)

Rani v. M. Baskaran

2018-08-27

V.M.VELUMANI

body2018
JUDGMENT : This Civil Miscellaneous Appeal has been filed by the appellants against the fair and decretal order, dated 17.12.2008 made in M.C.O.P.No.870 of 2006, passed by the Principal District Judge, Dindigul (Motor Accident Claims Tribunal), Dindigul. 2. The appellants are claimants in M.C.O.P.No.870 of 2006 on the file of the Motor Accident Claims Tribunal, Principal District Judge, Dindigul. 3. Facts of the case:- According to the appellants, one Muniyandi husband of the first appellant, father of appellants 2 to 5 and son of sixth appellant died in the accident that occurred on 11.06.2006, at 2.30 p.m., due to the rash and negligent driving by driver of the first respondent. According to the appellants, while the deceased was standing in front of S.S.Mani provision store, a lorry bearing registration No.TN-30-K-7913 belonging to the fifth respondent, driven by its driver in a rash and negligent manner and dashed against the TVS Super XL bearing registration No.TN-34-9651 and dashed against the deceased and others. Due to the same, the said Muniyandi sustained grievous injuries and died on the spot. The owner of the TVS XL lodged a complaint before the Karumalaikoodal Police Station against the driver of the lorry. The deceased Muniyandi was the driver-cum-owner of the vehicle and was a mechanic and earning Rs.10,000/- per month. The appellants are the legal heirs and dependants of the deceased. They claimed a sum of Rs.6,00,000/- as compensation. The first respondent is the owner of the lorry and the second respondent is the insurer of the lorry. 4. The first respondent remained ex-parte before the Tribunal. 5. The second respondent filed counter affidavit and denied all the averments and contended that the accident occurred only due to the negligence of the deceased. The accident did not take place due to rash and negligent driving by driver of the lorry. There is a difference in the address of the deceased given in the FIR and address given in the claim petition. The appellant has to prove the age and income of the deceased. 6. Before the Tribunal, the first appellant examined herself as P.W.1 and third appellant was examined as P.W.2 and marked three documents as Ex.P1 to Ex.P3. The second respondent did not let in any oral and documentary evidence. 7. The appellant has to prove the age and income of the deceased. 6. Before the Tribunal, the first appellant examined herself as P.W.1 and third appellant was examined as P.W.2 and marked three documents as Ex.P1 to Ex.P3. The second respondent did not let in any oral and documentary evidence. 7. The Tribunal considering the pleadings, oral and documentary evidence dismissed the claim petition on the ground that the appellants did not prove that the accident occurred due to rash and negligent driving by driver of the first respondent and appellants have not explained the difference in the address given in the FIR and claim petition and other documents. 8. Aggrieved against the said order of dismissal, the appellants have come out with the present appeal. 9. The learned counsel appearing for the appellants contended that the accident occurred only due to rash and negligent driving by the driver of the lorry. The Tribunal highly on technical grounds rejected the evidence of P.Ws.1 & 2. The respondents have not let in any evidence to disprove the contention of the appellants as to how the accident had occurred. The proceedings before the Tribunal is summary in nature. The Tribunal erroneously magnified the discrepancy in the evidence of P.W.1 and pleadings, dismissed the claim petition. Non mentioning of the presence of third appellant along with the deceased at the time of accident in the claim petition, is not a ground for rejecting the evidence of P.Ws.1 & 2. P.W.1 has explained the discrepancy in the address. P.W.1 has stated that earlier they were residing in Govindapuram and subsequently, residing in the present address. The person, who lodged a complaint, knew only earlier address of the deceased and that cannot be put against the appellants. As per Ex.P3 Voter I.D., the age of the deceased is 58 years and as per the Post-mortem Certificate, the age is not correct. 10. Though notice was served on the first respondent and his name is also printed in the cause list, he has not chosen to appear either in person or through counsel. 11. The learned counsel appearing for the second respondent contended that the appellants have not examined any eye witness or the person, who lodged the complaint. The evidence of P.Ws.1 & 2 are not reliable and it was rightly rejected by the Tribunal. 11. The learned counsel appearing for the second respondent contended that the appellants have not examined any eye witness or the person, who lodged the complaint. The evidence of P.Ws.1 & 2 are not reliable and it was rightly rejected by the Tribunal. Due to the difference in the address given in the FIR and claim petition, the appellants are not entitled to any compensation. 12. I have heard the learned counsel appearing for the appellant and the second respondent and also perused the materials available on record. 13. The Tribunal dismissed the claim petition on the ground that the appellants have not proved that the accident occurred due to rash and negligent driving by driver of the lorry. The said conclusion is erroneous. The appellants have marked Ex.P1- FIR, wherein it has been categorically stated that the accident occurred only due to rash and negligent driving by the driver of the lorry. The said complaint was lodged by owner of TVS XL, whose vehicle was first hit by the lorry and subsequently, hit against the deceased and others. The second respondent in the counter statement has not denied the accident or deceased died in the accident. On the other hand, it is stated in the counter of the second respondent that the deceased died due to old age and negligence on the part of the deceased was the cause for the accident. The second respondent also did not deny other persons are also injured in the accident. The Tribunal without considering these facts, erroneously held that the appellants did not prove that the accident occurred only due to rash and negligent driving by driver of the lorry. The Tribunal has not given any reason for not accepting the FIR marked as Ex.P1. The Tribunal also failed to see that the respondents did not examine the driver of the lorry or any other witnesses to rebut the contention of the appellant. The learned counsel for the appellants referred the deposition of P.W.1 wherein, she explained the difference in the address mentioned in the FIR and the claim petition. The Tribunal also failed to see that the respondents did not examine the driver of the lorry or any other witnesses to rebut the contention of the appellant. The learned counsel for the appellants referred the deposition of P.W.1 wherein, she explained the difference in the address mentioned in the FIR and the claim petition. The second respondent has not produced any evidence to show that the deceased was not residing in the address given in the claim petition or the Muniyandi died in the accident is different Muniyandi and not the husband of the first appellant and father of the appellants 2 to 5 and son of the sixth appellant. 14. In view of the same, finding of the Tribunal that the accident did not occur due to rash and negligent driving by driver of the lorry is set aside and I hold that the accident occurred only due to rash and negligent driving by driver of the lorry and deceased Muniyandi died only due to the accident. The first respondent as owner and second respondent as insurer of vehicle are liable to pay compensation. 15. The appellants have claimed that the deceased was earning Rs.10,000/- per month by working as owner cum-driver of a vehicle and also working as a mechanic. They have not produced any documents to substantiate the said claim. In view of the same, the notional income of the deceased is fixed at Rs.6,000/- and 5 claimants are there and hence, 1/4th is deducted from Rs.6,000/-. The age of the deceased as per the claim petition is 58. To substantiate the same, the appellants filed Voter ID and the same is marked as Ex.P3. As per the post mortem certificate, the age of the deceased is 62 years. Considering the materials on record, the age of the deceased is fixed at 58 years. By fixing the notional income of the deceased at Rs.6,000/- per month and after deducting 1/4th towards his personal expenses and applying multiplier 9' the loss of income would be Rs.4,86,000/- (6,000 -, x 12 x 9). Apart from the above, a sum of Rs.10,000/- towards funeral expenses, Rs.20,000/- towards loss of consortium to the first respondent and Rs.10,000/- each to the appellants 2 to 6 towards loss of love and affection are hereby awarded. Apart from the above, a sum of Rs.10,000/- towards funeral expenses, Rs.20,000/- towards loss of consortium to the first respondent and Rs.10,000/- each to the appellants 2 to 6 towards loss of love and affection are hereby awarded. The rate of interest is fixed at 7.5% per annum from the date of claim petition till the date of realisation. 16. The heads of award are detailed hereunder:- S. No Description Amount 1 Loss of income 4,86,000 2 Loss of consortium to the first appellant 20,000 3 Loss of love and affection to the appellants 2 to 6 50,000 (10,000 x 5) 4 Loss of funeral expenses 10,000 Total Rs.5,66,000 17. In the result, (i) This Civil Miscellaneous Appeal is allowed, awarding the compensation of Rs.5,66,000/- (Rupees Five Lakhs Sixty Six Thousand only) along with interest at the rate of 7.5% per annum from the date of claim petition till the date of realisation. (ii) The second respondent Insurance Company is directed to deposit the compensation awarded by this Court with interest to the credit of M.C.O.P.No.870 of 2006, on the file of the Principal District Judge, Dindigul (Motor Accident Claims Tribunal), Dindigul, within a period of eight weeks from the date of receipt of copy of this Judgment. On such deposit being made, the first appellant/first claimant is entitled to a sum of Rs.2,16,000/- (Rupees Two Lakhs Sixteen Thousand only), the appellants 2 to 5/claimants 2 to 5 are entitled to a sum of Rs.75,000/- each (75,000 x 4) (Rupees Three Lakhs only)and the sixth appellant/sixth claimant is entitled to a sum of Rs.50,000/- (Rupees Fifty Thousand only) with respective proportionate interest by filing necessary application before the Tribunal. No costs.