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2023 DIGILAW 1846 (MAD)

S. Santhi A. Sarkarai (Died) v. S. Palaniyappan

2023-04-28

D.KRISHNAKUMAR, K.GOVINDARAJAN THILAKAVADI

body2023
JUDGMENT (Prayer: Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgement and decree dated 04.10.2019 made in M.C.O.P.No.1088 of 2016 on the file of the Additional District Court (FAC) (Motor Accidents Claims Tribunal), Namakkal.) D. Krishnakumar, J. 1. Dissatisfied with the award, dated 4.10.2019, passed by the Motor Accidents Claims Tribunal, Namakkal, in M.C.O.P.No.1088 of 2016, the claimants have preferred the instant appeal for enhancement of compensation awarded by the tribunal. 2. According to the appellant, on 22.05.2014 at about 7.45 a.m. near Rayarpalayam bus stop in Namakkal to Tiruchengode main road, the deceased Prasanth was travelling as a pillion rider in a Apachi bike bearing registration No.TN 37 BS 9067 driven by its rider drove the vehicle on the left side of the road towards Kolli Hills from his residence, a tanker lorry bearing registration No.TN 28 AE 5369 driven by its driver in a rash and negligent manner, without following the traffic rules came in the opposite direction and suddenly hit against the aforesaid bike and caused accident. Consequently, the deceased sustained multiple fractures and grievous injuries in his head, both legs and some other injuries all over the body. The deceased was admitted in Vivekanantha Hospital, Tiruchengode for first aid and then he was admitted in Sudha Hospital, Erode for treatment and then, he was admitted in Ganga Hospital, Coimbatore for further treatment. However, the deceased died in the hospital due to severe fatal injuries suffered by the deceased. A criminal case has been registered by Tiruchengode Rural Police in Cr.No.281 of 2014 under Sec.279, 338 and 304 (A) of I.P.C. Mother, father (died), brother and sister being the dependents of the deceased, have filed the claim petition for Rs.1,00,00,000/-. However, restricted their claim to Rs.75,00,000/- only, from the second respondent Insurance Company. 3. Counter affidavit has been filed by the second respondent refuting the allegations made in the claim petition and stated that the claimants have to prove the averments made in the claim petition. However, restricted their claim to Rs.75,00,000/- only, from the second respondent Insurance Company. 3. Counter affidavit has been filed by the second respondent refuting the allegations made in the claim petition and stated that the claimants have to prove the averments made in the claim petition. It is further stated in the counter affidavit that the while the deceased Prasanth was riding as a pillion rider on a TVS Apache bike bearing registration No.TN 37 BS 9067 which was ridden by the petitioner No.3/second appellant herein in a rash and negligent manner without having driving licence and without following traffic rules, hit against a tanker lorry bearing registration No.TN 28 AE 5369 which was driven by its driver slowely and carefully and therefore, the act of the two wheeler rider is the cause for accident. Therefore, the second respondent Insurance Company is not liable to pay any compensation to the claimants/appellants. 4. To prove the claim, P.W.1 and P.W.2 were examined and documents Ex.P1 to P21 were marked. On the side of the second respondent, no witness was examined and no documents were marked. Based on the oral and documentary evidence, the Tribunal has come to a conclusion that negligent driving of the tanker lorry driver is the cause for accident. Based on the decisions of the Hon''ble Supreme Court, the tribunal has awarded a sum of Rs.22,68,000/- towards loss of income to the deceased family. A sum of Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral expenses, Rs.67,131/- towards medical expenses and Rs.5,000/- for transport expenses incurred by the claimants. Thus, the tribunal has awarded a sum of Rs.23,70,131/- as total compensation along with interest at the rate of 7.5% p.a from the date of petition till realization. The total compensation awarded by the tribunal under various heads are as follows: Heads Amount in Rs. Loss of income 10500 x 12 x 18 22,68,000/- Loss of estate 15,000/- Funeral expenses 15,000/- Medical expenses 67,131/- Transport expenses 5,000/- Total 23,70,131/- 5 Aggrieved by the said award, the claimants have preferred the instant appeal for enhancement of compensation. 6. Heard, the learned counsel appearing for the claimants/appellants and the learned counsel appearing for the respondent/Insurance company and perused the materials available on record. 7. 6. Heard, the learned counsel appearing for the claimants/appellants and the learned counsel appearing for the respondent/Insurance company and perused the materials available on record. 7. According to the learned counsel appearing for the appellant, the tribunal has not appreciated the case of the appellants in proper perspective and stated that the tribunal failed to take note of the fact that at the time of accident, the deceased was earning Rs.40,000/- p.m. and in view of the qualifications obtained by the deceased, he would have become Marine Engineer. Ex.P11 to P19 are the testimonials of the deceased in respect of the Marine Engineering. Inspite of that, tribunal has fixed the income of the deceased as Rs.15,000/- p.m. which is unreasonable and not on par with the qualifications possessed by the deceased in the field of Marine Engineering. Tribunal ought to have fixed Rs.40,000/- as monthly income of the deceased. The award granted by the tribunal in sofar as the other heads also, not just and reasonable compensation Therefore, seeks enhancement of the compensation awarded by the tribunal. 8. Per contra, the learned counsel appearing for the second respondent/ Insurance company would submit that the tribunal taking note of the decisions of the Hon''ble Supreme Court and considering the facts and circumstance of the case, awarded just and reasonable compensation. The appellants/claimants have not produced any document in respect of his employment in any of the company and considering the age of the deceased, the tribunal has rightly fixed the notional income of the deceased as Rs.15,000/- p.m. Therefore, no interference is called for. 9. A perusal of the award passed by the tribunal goes to show that the deceased Prasanth was working in a shipping company from 20.7.2012 to 16.2.2014, to that effect, Ex.P16 and Ex.P17 were marked. Ex.P19 is the qualifying Certificate issued to the deceased for service of tankers. Taking note of the experience gained by the deceased, qualifications obtained and age of the deceased, we are inclined to fix Rs.20,000/- as income of the deceased. Tribunal has rightly awarded 40% towards future prospects. i.e. Rs.20,000/- + Rs.8000/- (40%) = Rs.28,000/-. Since the deceased was a bachlor, 50% is deducted towards personal and living expenses. Therefore, after deduction, Rs.14,000/- p.m. is the monthly income contributed to his family. Accordingly, the claimants are entitled for Rs.14,000/- x 12 x 18 towards loss of income. Tribunal has rightly awarded 40% towards future prospects. i.e. Rs.20,000/- + Rs.8000/- (40%) = Rs.28,000/-. Since the deceased was a bachlor, 50% is deducted towards personal and living expenses. Therefore, after deduction, Rs.14,000/- p.m. is the monthly income contributed to his family. Accordingly, the claimants are entitled for Rs.14,000/- x 12 x 18 towards loss of income. In sofar as love and affection, Rs.40,000/- each awarded to the claimants/appellants. The compensation awarded by the tribunal is enhanced/modified under the following heads: Heads Amount in Rs. Loss of Income 14,000/- x 12 x 18 30,24,000/- Love and affection Rs.40,000/- each 1,20,000/- Loss of estate 15,000/- Funeral expenses 15,000/- Medical expenses 67,131/- Total : 32,46,131/- Rounded off 32,46,000/- The compensation awarded by the tribunal is enhanced/modified to the aforesaid extent. Except the above modification, the award passed by the tribunal is confirmed. 10. The appellants/claimants are entitled to withdraw Rs.32,46,000/- (Rupees thirty two lakhs and forty six thousand only) along with interest at the rate of 7.5% p.a. from the date of petition till realization. The second respondent/Insurance company is directed to deposit the enhanced compensation of Rs.32,46,000/- after deducting the amount already deposited along with interest at the rate of 7.5% p.a. from the date of petition till realization, within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit being made by the second respondent/Insurance Company, the appellants/claimants are entitled to withdraw the amount by filing appropriate application. 11. In the result, the Civil Miscellaneous Appeal is partly allowed to the aforesaid extent. No costs.