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2018 DIGILAW 2709 (MAD)

L. Saraswathi v. C. Alagappan

2018-09-03

V.M.VELUMANI

body2018
JUDGMENT : V.M. VELUMANI, J. 1. This Civil Miscellaneous Appeal has been filed against the judgment and decree dated 03.11.2006 made in M.C.O.P. No. 2613 of 2001 on the file of the Motor Vehicles Accidents Claims Tribunal-cum-Additional District Judge, (Fast Track Court No. 2), Tiruchirappalli. 2. The appellants are the claimants. They have filed a claim petition in M.C.O.P. No. 2613 of 2001, claiming a sum of Rs. 4,00,000/- (Rupees Four Lakhs Only) for the death of one Lakshmana Rao in the accident that occurred on 03.10.1998. According to the appellants, the deceased and the first appellant along with others travelled in a car bearing Registration No. TN-H6285, belonging to the first respondent, insured with the second respondent from Chennai to Mahabalipuram. At that time, a van bearing Registration No. TN-01F-4393, belonging to the third respondent insured with the fourth respondent driven by its driver in rash and negligent manner, dashed against the car. Due to the same, the husband of the first appellant and father of the appellants 2 and 3 died. The first appellant sustained multiple injuries. The appellants are the legal heirs and dependents of the deceased. The deceased was aged about 60 years at the time of accident and was earning a sum of Rs. 10,000/- (Rupees Ten Thousand Only) per month. The respondents 1 and 3 are the owners of the vehicles involved in the accident and the respondents 2 and 4 are the insurers of the vehicles. Hence, the appellants filed claim petition, claiming compensation against the respondents. 3. The respondents 1 and 3 herein remained ex-parte before the Tribunal. 4. The respondents 2 and 4 filed counter statements and contended that the car belonging to the first respondent did not insure with the second respondent. The accident occurred only due to rash and negligent driving of the driver of the car. The respondents 2 and 4 are not liable to pay any compensation. In any event, the compensation claimed is excessive. The appellants have to prove the age and income of the deceased and prayed for dismissal of the claim petition. 5. Before the Tribunal, the first appellant examined herself as PW-1, Krishna Rao and Srinivasan were examined as PW-2 and PW-3 and marked four documents as Exs.P1 to P4. One Elangovan was examined as RW-1 and marked one document as Ex.R.1. 6. 5. Before the Tribunal, the first appellant examined herself as PW-1, Krishna Rao and Srinivasan were examined as PW-2 and PW-3 and marked four documents as Exs.P1 to P4. One Elangovan was examined as RW-1 and marked one document as Ex.R.1. 6. The Tribunal, considering the pleadings, oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by the driver of the car and only the first respondent is liable to pay compensation and dismissed the claim petition against the respondents 2 to 4 and awarded a sum of Rs. 3,33,000/- (Rupees Three Lakhs Thirty Three Thousand Only) as compensation. 7. Against the said award, the present Civil Miscellaneous Appeal has been filed before this Court by the claimants. 8. The appellants filed C.M.P. (MD) No. 11400 of 2017 to receive the additional documents being the award dated 30.04.2009 in M.C.O.P. No. 117 of 2002 filed by the first appellant, claiming compensation for the injuries sustained by her in the very same accident. In view of the fact that the award now sought to be challenged relating to the very same accident, wherein compensation was awarded to the first appellant and being satisfied with the reasons given in the affidavit filed in support of this petition, C.M.P. (MD) No. 11400 of 2017 is ordered and the award dated 30.04.2009, made in M.C.O.P. No. 117 of 2002 on the file of the Subordinate Court, Trichy, is marked as Ex.P.5. 9. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents 2 and 4. 10. The contention of the learned counsel appearing for the appellants that the Tribunal erred in dismissing the claim petition against the respondents 2 to 4 only based on the First Information Report and the judgment of the Criminal Court, has considerable force. It is well settled that the judgment of the Criminal Court is not binding on the Tribunal. The Tribunal has to independently consider the evidence let in by the parties in the claim petition and decide the negligence issue on the part of the driver of the vehicle. The Tribunal erred in relying on the rough sketch attached to the judgment of criminal Court to come to the conclusion that the accident occurred only due to rash and negligent driving by the driver of the car belonging to the first respondent. The Tribunal erred in relying on the rough sketch attached to the judgment of criminal Court to come to the conclusion that the accident occurred only due to rash and negligent driving by the driver of the car belonging to the first respondent. The reason given by the Tribunal for rejecting the evidence of PW-1 on the ground that the same differs from the First Information Report is not valid. The first appellant, who is the eyewitness examined as PW-1, has deposed that the accident occurred only due to the rash and negligent driving by the drivers of both vehicles. This evidence has been accepted by the Tribunal in M.C.O.P. No. 117 of 2002 filed by the first appellant, claiming compensation for the injuries sustained by her in the very same accident. The reason given by the Tribunal for coming to the conclusion that the accident occurred due to rash and negligent driving by the drivers of both vehicles is applicable to the present case also. 11. In view of the same, the award of Tribunal, dismissing the claim petition against the respondents 2 to 4 is set aside and I hold that the accident occurred due to rash and negligent driving by the drivers of both vehicles. The car is not insured with the second respondent and therefore, the first respondent on one hand and the respondents 3 and 4 on the other hand are equally liable to pay compensation. The Tribunal taking into consideration of the age and income of the deceased, awarded a sum of Rs. 3,00,000/- towards loss of income and Rs. 33,000/- towards conventional heads. There is no error in the award passed in the head of loss of income and the same is confirmed. As far as the amount awarded on the other heads are concerned, it is very meagre and the same has to be enhanced. 12. Therefore, this Court modifies the award of the Tribunal by enhancing the compensation, as under:- S. No. Description Amount awarded by Tribunal Amount awarded by this Court Award confirmed, or enhanced or granted 1. For loss of income Rs. 3,00,000 Rs. 3,00,000 Confirmed 2. For loss of love and affection Rs. 10,000 Rs. 10,000 Confirmed 3. For loss of funeral expenses Rs. 5,000 Rs. 15,000 Enhanced 4. For transportation Rs. 3,000 Rs. 3,000 Confirmed 5. For loss of estate -- Rs. 15,000 Awarded 6. For loss of income Rs. 3,00,000 Rs. 3,00,000 Confirmed 2. For loss of love and affection Rs. 10,000 Rs. 10,000 Confirmed 3. For loss of funeral expenses Rs. 5,000 Rs. 15,000 Enhanced 4. For transportation Rs. 3,000 Rs. 3,000 Confirmed 5. For loss of estate -- Rs. 15,000 Awarded 6. For loss of consortium to the first claimant Rs. 15,000 Rs. 40,000 Enhanced Total Rs. 3,33,000 Rs. 3,83,000 By enhancing a sum of Rs. 50,000/- 13. Therefore, the first respondent is liable to pay 50% and the respondents 3 and 4 are liable to pay another 50% with interest at 7.5% p.a. from the date of claim petition till the date of deposit and proportionate costs. 14. In the result, this Civil Miscellaneous Appeal is partly allowed. No costs. 15. The first respondent and the respondents 3 and 4 are directed to deposit the enhanced compensation amount with accrued interest and costs to the credit of M.C.O.P. No. 2613 of 2001, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, (Fast Track Court No. 2), Tiruchirappalli, within a period of eight weeks from the date of receipt of copy of this judgment, less the amount, if any, already deposited. The first appellant is entitled to a sum of Rs. 1,93,000/- the second and third appellants are entitled to a sum of Rs. 95,000/- each. On such deposit, the appellants are permitted to withdraw the said award amount, less the amount, if any, already withdrawn, by making necessary application before the Tribunal.