BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/09/2009 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.NO.201 OF 2005 1.Parvathy 2.Nirmala 3.Minor Senthilvelmurugan 4.Minor Lakshmi 5.Minor Suresh . . Appellants/Claimants (Minor appellants 3 to 5 represented through their mother the first appellant) Vs. 1.Arumuga Kani 2.New India Assurance Company Limited, Through its Branch Manager, Office at 84-A, Trivandrum Road, Palayamcottai, Tirunelveli-627 002. . . Respondents/Respondents Prayer The civil miscellaneous appeal is filed against the judgment and decree dated 10.09.2003 made in M.C.O.P.No.1168 of 2002 by the learned Motor Accidents Claims Tribunal (II Additional District Judge), Tirunelveli. !For Appellant ... Mrs.Chitra Sampath ^For Respondents... Mr.A.K.Baskara Pandian for R2 :JUDGMENT
The above appeal has been preferred by the appellants/claimants against
the judgment and decree passed by the Motor Accident Claims Tribunal (II
Additional District Judge), Tirunelveli, in MCOP.No:1168 of 2002, dated
10.9.2003.
2.The appellants/claimants have filed the Claim Petition claiming a total
compensation of Rs.5,00,000/=. The Tribunal awarded a sum of Rs.57,000/= with
interest at the rate of 9% from the date of filing of the claim petition till
date of deposit of the Award amount. Aggrieved by this judgment of the learned
Motor Accident Claims Tribunal (II Additional District Judge) Tirunelveli passed
in MCOP.No.1168 of 2002, dated 10.9.2003, the claimants/appellants have
preferred this appeal.
3. The appellants/claimants originally had claimed Rs.5,00,000/= before
the learned Motor Accident Claims Tribunal. Now, the appellants have restricted
their claim at Rs.1 lakh in this appeal.
4. The brief facts of the case are as follows:-
(i) On 31.5.2002, the deceased Natarajan was travelling as a pillion
rider in a TVS 50 Motor cycle bearing registration No. TN 72 C 4543 from Kakkan
Nagar to Tirunelveli junction. The said vehicle was nearing the Tamarabarani
Bridge, at Kokkirakulam and the rider of the vehicle was riding the vehicle on
the left hand side of the road. At that time, a lorry bearing registration No.
TN 29 B 0405, belonging to the 1st respondent/Arumugakani and the same insured
with the respondent/New India Assurance Co., Ltd., came from just behind of the
TVS 50 with a high speed and driven in a rash and negligent manner, dashed
against the TVS 50 motorcycle. In the result, the deceased Natarajan and the
rider were thrown out of the vehicle and sustained multiple injuries all over
the body. Both were taken to the Shifa Poly Clinic for initial treatment. The
very same day, they were shifted to Tirunelveli Medical College Hospital,
Palayamkottai, where the said Natarajan succumbed to his injuries. The concerned
police registered a criminal case in Crime No.436 of 2002 for an alleged offence
under Section 279, 337 and 304 (A) of the Indian Penal Code. The said Criminal
Case was registered against the driver of the 1st respondent/owner of the lorry.
5. At the time of accident, the deceased was aged about 62 years and he
was hale and healthy. The deceased was a retired Office Assistant at Town
Library and he was getting a monthly pension of Rs.2,135/-. After retirement,
the deceased was running a poultry farm and also was involved in agricultural
operations. In this way, he was earning about Rs.5000/- per month. The claimants
further stated that he contributed all his income to the family. The claimants
were depending upon the deceased’s income and the deceased was the sole
breadwinner of the family. At the time of accident, the deceased’s children were
of tender age and they were students.
6. The claimants further submitted that they have spent Rs.5,000/= towards
funeral expenses and they have claimed Rs. 1 lakh, for the loss of consortium,
for love and affection Rs.2 lakhs and Rs.1 lakh for mental agony and pain and
suffering. For loss of earning, they have claimed Rs.4,28,100/=, in total they
have claimed Rs.8,33,100/=. However, the petitioners restricted their claim to
a sum of Rs.5 lakhs, and the same was claimed before the learned Motor Accident
Claims Tribunal, Tirunelveli.
7. The claimants further submitted that the 1st respondent’s driver has
driven the lorry in a rash and negligent manner and hence the accident took
place. The 1st respondent is the owner of the vehicle and the said vehicle has
been insured with the 2nd respondent/the insurance company. So, both the
respondents are jointly and severally and vicariously liable to pay the
compensation to the claimants.
8. The second respondent herein had filed counter statement and strongly
opposed the claim stating that the age, occupation and monthly income of the
deceased was not correct. Further, the claimants have claimed compensation on
various heads and they are also not correct. The manner of accident also is
incorrect. The alleged accident took place due to the the rashness and
negligence of the driver of the TVS 50 motorcycle bearing registration No. TN 72
C 4543. Further, the claimants’ claim is highly excessive and exorbitant and so
the 2nd respondent/insurance company is not liable to pay any compensation to
the claimants.
9. The learned Tribunal framed two issues for consideration, namely,
(i) Whether the 1st respondent’s driver is responsible for the said
accident?
(ii) If so, what is the quantum of compensation to the claimants?
10. Nine documents were marked in support of the appellants/claimants and
3 witnesses were examined. On the respondents’ side neither any witnesses were
examined nor any documents were marked.
11. On the side of the claimants, the 1st claimant/P.W.1 was examined and
she gave evidence that the deceased was her husband, and other claimants are
their children. Through her, 9 documents were marked as exhibits, namely,
(i) First Information Report;
(ii) Charge sheet;
(iii)Observation Mahazar;
(iv) Motor Vehicle Inspector’s Report;
(v) TVS-50 inspection report’
(vi) Postmortem report;
(vii)Sketch;
(viii)deceased’s passbook; and
(ix) Pension book of the deceased.
P.W.2 is the owner of the TVS-50. His evidence also supports the claimants
case. P.W.3 is the landlord who leased out the land to the deceased Natarajan
and this case also be taken as proof that the deceased has been engaged in
agricultural occupation as lessee.
12. After considering the evidence on the claimants side, and perusal of
the documents marked by the claimants side, the learned Tribunal has come to a
conclusion that the 1st respondent’s driver had driven the lorry in a rash and
negligent manner and hence the accident had occurred. Further, the learned
Tribunal has come to a conclusion that the deceased was 62 years at the time of
accident, and then he was a pensioner, but there has been no proof regarding
poultry income and agricultural operations. Thereafter, the learned Tribunal
awarded the compensation as per Schedule 2 under Section 163 A of the Motor
Vehicles Act. The compensation awarded was (i) Rs.50,000/- for loss of income;
(ii) Rs.5,000/- for consortium; and (iii) Rs.2000/- for funeral expenses, in
total Rs.57,000/= and held that the 2nd respondent is liable to pay the said
amount to the claimants. The learned Tribunal further ordered that the 1st
claimant is entitled to Rs.24,000/- and the claimants 3 to 5 are entitled to
Rs.11,000/- each and that the said award amount will carry an interest of 9% per
annum.
13. The learned counsel for the appellant referred the below
mentioned cases in support of their appeal;
i) 2008 (I) TNMAC 408, (The Managing Director, Tamil Nadu State Transport
Corporation, (Villupuram Division-I) Limited, Villupuram Vs. Velambal & Ors);
ii) 2004(2) TNMAC 110(DB), (Gnanam Santhanam & Ors v. M/s.Sathyalakshmi
Enterprises (DB));
iii) III (2003) ACC 132, Delhi High Court (Satwanti & Others v. Rajendar
Singh & Ors);
iv) II (2008) ACC 102, Madhya Pradesh High Court (Sarabai v. Satish &
Ors); and
V) 2007 (1) TN MAC 507, (National Insurance Company Limited vs. Padmavathy
& Ors.)
14. The learned counsel for the Insurance Company strongly opposed the
appeal.
15. Considering the facts and circumstances of the case, this Court
confirms the award amount as Rs.50,000/= for loss of income. This Court awards
Rs.10,000/- towards transport and funeral expenses, Rs.20,000/- as compensation
for loss of consortium, Rs.10,000/- for loss of love and affection and
Rs.10,000/- as compensation for mental agony, in total a sum of Rs.1,00,000/-
(Rupees one lakh only).
16. The balance award amount of Rs.43,000/- will carry an interest of 7.5%
per annum which is payable by the insurance company within a period of six weeks
from the date of receipt of a copy of this order. The rate of interest will be
calculated from the date of filing the claim petition till the date of payment.
After such payment by the insurance company, the appellants/claimants are at
liberty to withdraw the same as apportioned by the Tribunal, by filing necessary
payment out application before the Motor Accident Claims Tribunal (II Additional
District Judge), Tirunelveli. As far as the amount that has been awarded to the
minors are concerned, it should be deposited in the names of the minors in any
one of the Nationalised Banks initially for a period of three years, renewable
thereafter till the attainment of the majority. The first
appellant/mother/guardian is permitted to withdraw the interest accrued thereon,
once in three months directly from the bank till the attainment of majority of
the minors. Resultantly, the Civil Miscellaneous Appeal is allowed in the above
terms and consequently, the award passed by the Motor Accident Claims Tribunal
(II Additional District Judge) Tirunelveli in MCOP No:1168 of 2002 is modified.
The parties are directed to bear their own costs in this appeal.
JIKR
To
The Motor Accidents Claims Tribunal,
(II Additional District Judge),
Tirunelveli.