IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.03.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.108 of 2009
and
M.P.No.1 of 2009
M/s.United India Insurance Co., Ltd.,
Erode .. Appellant
Vs
1.Rajeswari
2.Thangaraj
3.A.Sellamuthu
4.R.Sengodan .. Respondents
(R3 & R4 exparte in the trial court)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 24.09.2008, made in M.C.O.P.No.275 of 2007, on the file of the Motor Accident Claims Tribunal (Additional District Judge FTC No.4), Bhavani at Erode District.
For appellant : Mr.K.S.Narasimhan
For respondents : Mr.C.Kulanthaivel for RR1 & 2
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/third respondent against the Award and Decree, dated 24.09.2008, made in M.C.O.P.No.275 of 2007, on the file of the Motor Accident Claims Tribunal (Additional District Judge FTC No.4), Bhavani at Erode District, awarding a compensation of Rs.3,00,000/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/third respondent has filed the above appeal praying for scaling down and modifying the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
On 16.05.2007, at about 2.20 p.m. when the deceased Veerammal was in the process of boarding the town bus on route No.2A, bearing registration No.TN34 E9969 at Kooduthurai bus stop, the first respondent ie. the driver of the bus moved the bus rashly and negligently, without showing any concern for the passengers boarding the bus. As a result of this sudden movement of the bus, the deceased Veerammal fell down on the road and sustained severe grievious injuries on her head and some other parts of her body. She was immediately taken to Government Hospital, Bhavani, where first aid was given and then taken to Erode Government Hospital and treatment was given. In spite of several surgeries done on the deceased to revive her, the deceased Veerammal succumbed to the injuries on 21.05.2007.
4.Prior to her death,the deceased was a flower vendor selling flowers near the old bus stand at Bhavani. She was earning a monthly income of more than Rs.4,000/- and maintaining her family.
5.The first respondent is the driver, the second respondent is the owner of the said bus and the third respondent is the insurer of the said bus involved in the said accident. Hence, the first and second petitioners, who are the daughter and son of the deceased Veerammal have claimed a compensation of Rs.7,00,000/- together with interest at the rate of 18% per annum from the respondents, under Section 166 of the Motor Vehicles Act.
6.The Third respondent, in his counter, has resisted the claim denying the averments in the claim regarding the manner of accident. It has been submitted that as the owner of the vehicle involved in the accident, has not given the claim form to them with all the relevant details regarding the accident, he has committed a breach of rules of policy conditions of insurance and hence the third respondent has sought dismissal of claim petition as against them. It has also been submitted that the driver of the said vehicle ie.the first respondent did not possess a valid driving licence at the time of accident. It has also been submitted that the accident had occurred only due to the negligence on the part of the deceased Veerammal. As such, the third respondent has submitted that the claim of the petitioners that the accident had been caused only due to the rash and negligent driving of the first respondent, has to be proved by them through documentary evidence. It has also been submitted that the petitioners should prove that they are the legal heirs of the deceased Veerammal and that they were dependants on the income of the deceased Veerammal, through documentary evidence. The third respondent has also denied the averments in the claim regarding the age, income and occupation of the deceased Veerammal and have stated that the petitioners should prove all these though documentary evidence. It has been submitted that the claim is excessive and has to be dismissed with costs.
7.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Was the accident caused due to the rash and negligent driving of the first respondent?
(ii) Are the petitioners entitled to get compensation? If so, what is the quantum of compensation, which they are entitled to get?
8.On the petitioners’ side two witnesses were examined as PW1 and PW2 and seven documents were marked as Exs.P1 to P7. On the respondents side no witness was examined and no documents were marked.
9.The second petitioner in the claim was examined as PW1. The PW1, in his evidence deposed that he is the son of the deceased Veerammal and that the first petitioner was the daughter of the deceased Veerammal and that they are the legal heirs of the deceased; that their mother Veerammal was a flower vendor; that on 16.05.2007, when the deceased Veerammal was trying to board the bus bearing registration No.TN34 E9969, at the Kooduthurai bus stop at Bhavani, the driver of the bus had started the bus at a high speed and in a rash and negligent manner; that due to this the deceased Veerammal had fallen down from the bus and sustained severe injuries on her head and other parts of her body; that she was taken to Government Hospital, Bhavani for treatment. He had deposed that the accident had been caused only due to the rashness and negligence of the first respondent and in support of his evidence, he had marked Exs.P1 to P7 namely Ex.P1 is the copy of FIR; Ex.P2 is the copy of Rough Sketch; Ex.P3 is the copy of Accident Register; Ex.P4 is the copy of Motor Vehicle Inspector’s Report; Ex.P5 is the copy of Charge Sheet; Ex.P6 is the copy of Post-mortem Report and Ex.P7 is the copy of Legal Heir Certificate.
10.On scrutiny of the FIR, it is seen that the complaint had been given by one Vadivel. In his complaint, it has been stated that he is an an ambulance van driver; that he had received a telephonic call regarding the accident; that he had taken the ambulance to he site of accident and had carried the injured (deceased) Veerammal in the ambulance to Bhavani Government Hospital; that after first aid was given here, he had taken the (deceased) Veerammal to Government Hospital, Erode; that he had asked for suitable action to be taken on the driver of the said bus involved in the accident. Based on this complaint, the FIR has been prepared as against the first respondent. On a scrutiny of Exs.P2 and P3, the structure of the accident site can be visualised. It is evident from this, that the accident had happened at the bus stop at Kooduthurai and that the accident did not happen due to improper structure of the road near the accident site. From an examination of P4, the Motor Vehicle Inspector’s Report, it is seen that the accident had not occurred due to any mechanical defects in the said bus. On scrutiny of Ex.P5, the Charge Sheet, which has been laid as against the first respondent, it is evident that the accident had been caused only due to the fault of the first respondent. Further, from the evidence given by the eye witness of the accident, Matheswaran, who was examined as PW2, it is seen that the accident had occurred at the Kooduthurai bus stop, when the deceased Veerammal was trying to board the bus and that as the bus had been started and moved at a high speed and in a rash and negligent manner, the deceased Veerammal had fallen down and sustained injuries on her head. The Tribunal, on examination of evidence of PW2 were of the view that the accident had been caused by the fault of the first respondent. Further, as no contra evidence had been let in on the part of the respondent’s side to establish that the accident had been caused due to the negligence of the deceased Veerammal, either oral or documentary, the Tribunal accepting the petitioners had proved their case through documentary evidence held that the accident had been caused due to the rash and negligent manner of driving of the first respondent.
11.On the petitioners’ side, it has been stated that the deceased Veerammal was 55 years at the time of accident, that she was hale and healthy, that she was a flower vendor and earning a sum of Rs.4,000/- per month; that due to her sudden death, the petitioners had lost the income, love and affection of the deceased Veerammal and that they had claimed Rs.7,00,000/- as compensation. On scrutiny of Ex.P6, the Post-mortem Report, it is established that the age of the deceased Veerammal was 55 years at the time of accident. On an examination of Ex.P7, the Legal Heir Certificate, it is evident that the petitioners are the legal heirs of the deceased Veerammal. The Tribunal, on considering that the occupation and income of the deceased Veerammal had not been proved through documentary evidence held that the deceased Veerammal could have earned Rs.100/- per day. Considering her age, earning capacity and present economic considerations held that she could have earned an income of Rs.3,000/- every month. Deducting 1/3rd share of this for her personal expenses, the Tribunal assessed the loss of income to the petitioners as Rs.2,000/- per month. Accordingly, they assessed the yearly loss of income of the petitioners as Rs.24,000/-. Adopting a multiplier of 11, as was relevant to the age of the deceased ie.55 years and as was relevant under Schedule-II of the Motor Vehicles Act, the Tribunal assessed the future loss of income to the petitioners as Rs.24,000/- X 11 = Rs.2,64,000/- and granted this amount as award under the head of loss of income. Further, the Tribunal awarded Rs.15,000/- each to the first and second petitioners under the head of loss of love and affection. The Tribunal awarded a sum of Rs.5,000/- under the head of funeral expenses and Rs.1,000/- under the head of transport expenses. In total, the Tribunal awarded a sum of Rs.3,00,000/- to the petitioners and apportioned the award equally amongst the petitioners. The Tribunal directed the third respondent to pay and deposit the award together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation and costs of Rs.11,538/-, into the credit of the M.C.O.P.No.275 of 2007, on the file of the Motor Accident Claims Tribunal (Additional District Judge FTC No.4), Bhavani at Erode District, within a period of one month from the date of its Order. Further, after such deposit was made in Court, the petitioners were permitted to withdraw 50% of their apportioned share of award and the balance of apportioned share of their award amount was to be invested in a nationalised bank, as fixed deposit, for a period of three years. The petitioners were directed to pay the Court fees due on the award amount within a period of ten days from the date of its Order. The Advocate fees was fixed at Rs.9,000/-.
12.The learned counsel appearing for the appellant has contended in his appeal that the learned Tribunal had erred in holding that the driver of the bus was totally at fault without appreciating that the deceased had attempted to board in the moving bus, without heeding the signal of the conductor. It was pointed out that the learned Tribunal should have held that contributory negligence of the deceased was also a reason for the accident and hence the Tribunal should have apportioned the liability. It has also been contended that the learned Tribunal had failed to note that the deceased would have been more than 60 years and hence should have adopted a multiplier of 5 years only. It was also contended that the Tribunal had erred in holding that the deceased was earning a sum of Rs.3,000/- per month, without any evidence, and that the Tribunal should have adopted notional income to assess compensation. It was also pointed out that the Tribunal failed to note that the petitioners are not dependants of the deceased and as such it was contended that the award passed by the Tribunal was legally and factually unsustainable and has to be scaled down.
13.The learned counsel appearing for the respondents argued that the Tribunal awarded the compensation under proper heads on the basis of the age and income of the deceased. As such, the award granted by the Tribunal is fair and equitable.
14.Considering the facts and circumstances of the case and after scrutiny of findings of the Tribunal and after hearing arguments advanced by the learned counsels on either side, this Court is of the view that a multiplier of 10 only should be adopted in the instant case for assessment of compensation and not 11 as adopted by the Tribunal. However the monthly income of the deceased fixed by the Tribunal is found to be correct by this Court. As such, this Court awards the compensation as follows:
1.This Court awards a sum of (Rs.24,000/- X 10) Rs.2,40,000/- as compensation under the head of loss of income.
2.This Court awards a sum of Rs.10,000/- each to the claimants, ie.in total Rs.20,000/- as compensation under the head of loss of love and affection.
3.For Funeral expenses, the Tribunal awarded a sum of Rs.5,000/-, this Court enhances the award granted under this head to Rs.10,000/-.
4.For Transport expenses, the Tribunal awarded a sum of Rs.1,000/-, this Court confirms the award granted under this head.
In the result, this Court has scaled down the compensation awarded by the Tribunal from Rs.3,00,000/- to Rs.2,71,000/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation.
15.Therefore, this Court directs the appellant/United India Insurance Co., Ltd., to deposit the entire compensation amount ie.Rs.2.71,000/- as per this Court Order, after deducting the earlier deposits made into the credit of the M.C.O.P.No.275 of 2007, on the file of the Motor Accident Claims Tribunal (Additional District Judge FTC No.4), Bhavani at Erode District, within a period of four weeks from the date of receipt of a copy of this Order.
16.After such deposit has been made, it is open to the claimants to withdraw their apportioned share of award, with accrued interest thereon, lying in the credit of the M.C.O.P.No.275 of 2007, on the file of the Motor Accident Claims Tribunal (Additional District Judge FTC No.4), Bhavani at Erode District, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals made, if any.
17.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 24.09.2008, in M.C.O.P.No.275 of 2007, passed by the Additional District Judge, Motor Accident Claims Tribunal, Fast Track Court No.4, Bhavani at Erode District, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs.
17.03.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.Additional District Judge,
Motor Accident Claims Tribunal,
Fast Track Court No.4, Bhavani at Erode District.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-delivery Order in
C.M.A.No.108 of 2009
17.03.2010