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2018 DIGILAW 3467 (MAD)

National Insurance Company Limited v. A. Thilaka

2018-10-03

V.M.VELUMANI

body2018
JUDGMENT 1. These Civil Miscellaneous Appeals have been filed against the Award dated 29.06.2017, made in MCOP No. 229 of 2014, on the file of Motor Accidents Claims Tribunal/Special District Judge (Full Additional Charge), Tiruchirappalli. 2. Both the appeals are arising out of the Award dated 29.06.2017, made in MCOP No. 229 of 2014, on the file of Motor Accidents Claims Tribunal/Special District Judge/Full Additional-in-charge), Tiruchirappalli, the same are disposed of by this common Judgment. CMA (MD) No. 60 of 2018 is filed by the Insurance Company to set aside the said award. CMA (MD) No. 543 of 2018 is filed by the claimants for enhancement of compensation. The parties are referred to as per their rank in the MCOP. 3. The claimants filed MCOP No. 229 of 2014 claiming a sum of Rs. 25,00,000/- as compensation for the death of one Arumugam, who is the husband of the first claimant and son of the second claimant. According to the claimants, on 09.01.2014, while the deceased was travelling as a pillion in the Hero Honda bike bearing Regn. No. TN 48 M 8906, on the extreme left side of the road from East to West, a bus bearing Regn. No. TN 48 U 4488, driven by its driver, in the opposite direction, in a rash and negligent manner and dashed against the bike, in which, the said Arumugam was travelling as a pillion and caused accident. Due to the accident, the said Arumugam and rider of the motorcycle were thrown out and sustained multiple grievous injuries and they were taken to Annal Gandhi Memorial Government Hospital, Trichy. In spite of treatment given, the said Arumugam died, due to the injuries sustained by him. The deceased was 25 years at the time of accident. He was working as a driver and was earning a sum of Rs. 15,000/- per month. The claimants are the legal heirs and dependants of the deceased. The accident occurred due to rash and negligent driving by the driver of the first respondent. The first respondent as owner of the vehicle and the second respondent as insurer of the vehicle are liable to pay compensation and therefore, the claimants have filed claim petition against the respondents 1 and 2. 4. The first respondent remained ex-parte before the Tribunal. 5. The first respondent as owner of the vehicle and the second respondent as insurer of the vehicle are liable to pay compensation and therefore, the claimants have filed claim petition against the respondents 1 and 2. 4. The first respondent remained ex-parte before the Tribunal. 5. The second respondent denied all the averments in the counter and contended that the accident occurred only due to rash and negligent driving by the rider of the motorcycle. There is no negligence on the part of the driver of the bus. At the time of accident, the rider of the two wheeler was not possessing valid driving licence. Hence, the second respondent is not liable to pay any compensation. 6. The Tribunal considering the pleadings oral and documentary evidence let in by the parties, came to the conclusion that the accident occurred only due to the rash and negligent driving by the driver of the bus and considering the age, nature of work and evidence let in by the claimants, awarded a sum of Rs. 11,89,000/- together with interest as compensation. 7. Challenging the said award, the second respondent/Insurance Company and the claimants have come out with the present appeals. 8. The learned counsel appearing for the appellant/second respondent contended that rider of the motorcycle while trying to overtake the lorry, dashed against the bus coming in the opposite direction. The second respondent has examined the driver of the bus as RW-1. The Tribunal an erroneous reason, rejected the evidence of RW-1. The Tribunal also failed to appreciate the rough sketch and evidence of Investigating Officer. In any event, the amount fixed as notional income of the deceased, is excessive and the amounts granted under other heads are also excessive. 9. Per contra, the learned counsel appearing for the claimants contended that the claimants have proved the manner of the accident by examining PW-2 eye witness, who was riding the motorcycle behind the motorbike involved in the accident. As per the evidence of PW-2 eye witness, the accident occurred only due to rash and negligent driving by the driver of the bus. The Tribunal accepted the said evidence and rejected the evidence of RW-1, on the ground that the second respondent has not pleaded in the counter that the rider of the motorcycle was trying to overtake the Lorry or Auto and dashed against the bus. 10. The Tribunal accepted the said evidence and rejected the evidence of RW-1, on the ground that the second respondent has not pleaded in the counter that the rider of the motorcycle was trying to overtake the Lorry or Auto and dashed against the bus. 10. I have heard the learned counsel appearing on either side and perused the materials available on record. 11. It is well settled that without any pleadings, no evidence can be let in. The Tribunal also rejected the rough sketch relying on the Judgments of this Court. The reasoning of the Tribunal for rejecting the evidence of RW-1 and RW-2 and the rough sketch are valid and there is no error warranting interference by this Court. The finding of the Tribunal that the accident had occurred only due to rash and negligent driving by driver of the bus, is confirmed. 12. As far as the quantum of compensation is concerned, PW-3 Managing Director of the Company deposed that the deceased was working in their company as a driver of heavy vehicle. He produced Ex.P6 - Salary Certificate to show that the deceased was paid a sum of Rs. 15,000/- per month as salary. The Tribunal did not accept the said document rightly on the ground that PW-3 has not produced any Register to show number of persons employed in the company and other registers. After rejecting Ex.P6 - Salary Certificate, the Tribunal considering the fact that the deceased was working as a heavy vehicle driver, fixed the notional income at Rs. 9,000/- per month, which is reasonable. The deceased was aged about 35 years at the time of accident, the Tribunal failed to grant any amount towards future prospects. As per the Judgment of the Hon'ble Apex Court reported in the case of Relience General Insurance Company Limited Vs. B. Chitra and Others, 2018 2 TNMAC 302, 40% has to be added towards future prospects. After adding 40% towards future prospects, the monthly income of the deceased would be Rs. 9,000/- + 40% = Rs. 12,600/- after deducting 1/3rd and by applying multiplier 16, the loss of dependency is as follows: Rs. 12,600/- x 2/3 x 12 x 16 = Rs. 16,12,800/- The claimants are entitled to a sum of Rs. 16,12,800/- towards loss of dependency. Rs. 9,000/- + 40% = Rs. 12,600/- after deducting 1/3rd and by applying multiplier 16, the loss of dependency is as follows: Rs. 12,600/- x 2/3 x 12 x 16 = Rs. 16,12,800/- The claimants are entitled to a sum of Rs. 16,12,800/- towards loss of dependency. Rs. 3,25,000/- awarded by the Tribunal towards conventional heads are excessive and hence, the same is set aside and the claimants are entitled to only a sum of Rs. 70,000/- under the conventional heads. Accordingly, the amount awarded by the Tribunal is modified to a sum of Rs. 16,82,200/- together with interest at 7.5% per annum from the date of petition till the date of deposit as compensation in the following manner:- S. No. Description Amount awarded by Tribunal Amount awarded by this Court Award confirmed or enhanced or granted 1 Loss of Dependency 8,64,000.00 16,12,800.00 Confirmed 2 Funeral and Transportation 25,0000 Reduced by Rs. 2,55,000.00 3 Love and affection for wife and son 2,00,000.00 70,000.00 4 Consortium 1,00,000.00 (set aside) (under conventional heads) Total 11,89,000.00 16,82,800.00 Reduced by Rs. 4,93,800.00 13. The interest awarded by the Tribunal at the rate of 7.5% per annum remains un-altered. 14. In the result, both CMA (MD) Nos. 60 and 543 of 2018 are partly allowed. No costs. Consequently, connected Miscellaneous Petition is closed. 15. The appellant in CMA (MD) No. 60 of 2018, Insurance Company is directed to deposit the modified award amount together with interest, after deducting the amount already deposited if any, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the claimants are permitted to withdraw their shares as per the apportionment fixed by the Tribunal, on filing proper application before the Tribunal.