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2023 DIGILAW 1079 (MAD)

R. Balu v. S. Arulraj

2023-03-15

R.THARANI

body2023
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the award, dated 21.12.2018, in M.C.O.P. No.1207 of 2015, on the file of the Motor Accidents Claims Tribunal – Special District Judge, Tiruchirappalli.) 1. This Civil Miscellaneous Appeal has been filed to enhance the compensation amount in M.C.O.P. No.1207 of 2015, on the file of the Motor Accidents Claims Tribunal-Special District Judge, Tiruchirappalli, dated 21.12.2018. The appellants herein are the claimants and the respondents herein are the respondents in the original M.C.O.P. Petition. 2. A brief substance of the petition, in M.C.O.P.No.1207 of 2015, is as follows:- On 15.06.2015, at about 8.00 pm., when the deceased - Rajalingam and his relatives were standing on the extreme left side of the road, near Musiri Kalappu Colony, a Honda Shine two wheeler bearing Registration No.TN-48-AX-0285 came in a rash and negligent manner, dashed against the deceased. The deceased sustained injuries and he was taken to L.G.Hospital, Musiri. After getting first aid, he was referred to Government Hospital, Musiri, but, on his way to Hospital, he died. The accident has happened due to the rash and negligent driving of the first respondent driver. The deceased was a retired Veterinary and Live stock Supervisor and he was receiving Rs.21,989/- as monthly pension. The petitioners are his dependants and they claim a sum of Rs.25,00,000/- as compensation. 3. A Brief substance of the counter filed by the second respondent in M.C.O.P.No.1207 of 2015, is as follows:- The manner of accident as narrated in the petition is wrong. It was the deceased, who suddenly crossed the road, without adhering the traffic. The first respondent was not having valid driving licence at the time of accident and there was violation of policy conditions. The respondent is not liable to pay compensation. Age, occupation and income of the deceased are are denied. The claimants are not the legal heirs and dependants of the deceased. The claim is excessive. 4. One (1) witness was examined and 5 documents were marked on the side of the petitioners. Two (2) witnesses were examined and One (1) document was marked on the side of the respondents. One document was marked as witness documents-Ex.X1. After considering both sides, the Tribunal has awarded a sum of Rs.2,70,000/- as compensation. 5. The claim is excessive. 4. One (1) witness was examined and 5 documents were marked on the side of the petitioners. Two (2) witnesses were examined and One (1) document was marked on the side of the respondents. One document was marked as witness documents-Ex.X1. After considering both sides, the Tribunal has awarded a sum of Rs.2,70,000/- as compensation. 5. Against the award, the claimants – appellants have filed this Appeal, for enhancement of compensation, on the following grounds:- The Tribunal has wrongly come to a conclusion that the appellants have not filed sufficient documents to prove the income of the deceased. The Tribunal has failed to consider Ex.P3-passbook of the deceased, wherein, the pension is deposited monthly. The Tribunal ought to have considered the evidence of P.W.1 with regard to income, when there is no contra evidence to disprove the same. 6. On the side of the appellants-claimants, it is stated that the Tribunal has failed to consider that a sum of Rs.21,361/- per month was credited to the account of the deceased by way of E.C.S. The order for isssuance of gratuity was marked and the passbook denoting the deposit of pension through E.C.S. was marked and accordingly, the income has to be enhanced. 7. On the side of the second respondent/Insurance Company, it is stated that no official witness was examined on the side of the claimants to prove the pension details. Only P.W.1 alone was examined. It is further stated that all the claimants are majors and they were not the dependants of the deceased and they are not entitled to claim compensation. 8. On the side of the appellants - claimants, it is stated that persons, who are having independant income can also claim compensation. A judgment of the Punjab and Haryana High Court at Chandigarh, reported in 2017-ACJ-1784 (National Insurance Co. Ltd., V. Paramjit Singh and others), wherein, it has held as follows:- “Whether major and married sons of the deceased who have independant income are entitled to claim compensation for the death of their father. The legal representative, even if he is not dependant, would be entitled to get compensation; of course, where claimants include parents, widow and both minor and major children, the fact that a child is major and married and has his own source of income would be taken into consideration while apportioning compensation amongst them.“ 9. The legal representative, even if he is not dependant, would be entitled to get compensation; of course, where claimants include parents, widow and both minor and major children, the fact that a child is major and married and has his own source of income would be taken into consideration while apportioning compensation amongst them.“ 9. Another Judgment of this Court reported in 2017-1-TN MAC-383 (DB) (Anandha Lakshmi V. Tamil Nadu State Transport Corporation), wherein, it is stated as follows:- “Legal Representatives includes legal heirs, who represent estate of deceased cannot be defined to exclude brother of deceased not dependent on deceased. The brother of deceased not dependent on deceased entitled to claim compensation. The right of LRs to claim compensation under Section 166, a legal right conferred by rule of law. The provision cannot be interpreted to exclude brother. Denial of compensation to brother opposed to object of Act and amounts to adding words to legislation. Exlusion in one legislation cannot be imported into another legislation “ 10. There is no dispute regarding the negligence. There is no appeal or cross objection filed on the side of the respondents. Hence, the liability fixed on the respondents is confirmed. 11. Savings passbook of the deceased was marked as Ex.P3. In Ex.P3, it was mentioned that the deceased was receiving Rs.21,361/- p.m., towards “CCS-ATO“. There are four entries (1) on 31.12.2014 (2) 31.01.2015 (3) 06.04.2015 and on (4) 04.05.2015. Since the same amount was credited on the account of the deceased and the amount was from the Assistant Treasury Office (A.T.O) at Musiri, it is decided that the deceased was receiving Rs.21,361/- as monthly pension. After deducting 1/3rd (Rs.7,120/-) for his own expenses, the deceased might have contributed Rs.14,241/- to his family. Considering the age of the deceased (80 years) at the time of accident, multiplier ''3'' alone is applicable and the loss of income is calculated as Rs.5,12,676/- (Rs.14,241/- X 12 X 3). 12. The Tribunal has awarded Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. As per the dictum of the Hon''ble Supreme Court in Pranay Sethi''s Case, the claimants are entitled to Rs.70,000/- towards conventional charges. 13. The total compensation is calculated as follows:- Loss of income Loss of income Conventional charges Rs. 70,000/- Total compensation Rs. 5,82,676/- 14. This appeal is partly allowed. The compensation is enhanced from Rs.2,70,000/- to Rs. 5,82,676/-. As per the dictum of the Hon''ble Supreme Court in Pranay Sethi''s Case, the claimants are entitled to Rs.70,000/- towards conventional charges. 13. The total compensation is calculated as follows:- Loss of income Loss of income Conventional charges Rs. 70,000/- Total compensation Rs. 5,82,676/- 14. This appeal is partly allowed. The compensation is enhanced from Rs.2,70,000/- to Rs. 5,82,676/-. (i) The first claimant is entitled to Rs.2,62,676/- with proportionate interest and costs, the second claimant is entitled to Rs.1,60,000/- with proportionate interest and the third claimant is entitled to Rs.1,60,000/- with proportionate interest. (ii) The second respondent herein - Insurance Company, is directed to deposit the entire compensation of Rs.5,82,676/- (less the amount if any already deposited) together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit and with costs, within a period of eight weeks from the date of receipt of a copy of this order. (iii) On such deposit being made, the appellants / claimants are permitted to withdraw their share as apportioned by this Court, on filing proper petition before the Tribunal, less any amount, if already withdrawn by them. The Claimants are not entitled for interest for the default period, if there is any default. No costs.