BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 08/12/2008 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN C.M.A.(MD) No.1251 of 2005 and M.P.(MD) No.1 of 2008 The Branch Manager, The Oriental Insurance Co. Ltd., H.P.O. Junction, Nagercoil. ... Appellant/2nd Respondent Vs. 1.Balan alias Pelis 2.Baby 3.Somasekar 4.Premlalitha ... Respondents 1 to 4/ Petitioners 5.K.Kumar (Remained exparte before the Tribunal) ... 5th Respondent/ 1st Respondent Prayer Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the judgment and decree dated 15.04.2005, passed in M.C.O.P.No.758 of 2004 by the Motor Accident Claims Tribunal (II Additional District Judge), Tirunelveli. !For Appellant ... Mr.K.Bhaskaran ^For Respondents 1 to 4 ... Mr.C.Raja Kumar * * * * * :JUDGMENT
This Civil Miscellaneous Appeal is directed against the judgment and
decree dated 15.04.2005, passed in M.C.O.P.No.758 of 2004 by the Motor Accident
Claims Tribunal (II Additional District Judge), Tirunelveli.
2. Before the tribunal, the appellant is 2nd respondent, respondents 1 to
4 are the petitioners and the 5th respondent is the 1st respondent.
3. The brief case of the petitioners in the claim petition is as follows:
The petitioners are the parents, brother and sister of the deceased Somarajan.
On the fateful day, i.e. on 19.09.2002 at about 15.20 hours, when the deceased
Somarajan was driving the motor cycle bearing registration number TN-74-D-2989
along with one Jones as a pillion rider, the 1st respondent’s lorry bearing
registration number TN-74-3848 was driven by its driver in a rash and negligent
manner and dashed against the deceased. Due to the accident deceased Somarajan
sustained grievous injuries and died on the spot. A criminal case was
registered against the driver of the lorry in Crime No.922 of 2002 under Section
304(A) I.P.C. on the file of the Kuzhithurai Police station. The deceased
Somarajan was working as a Night Watchman and was earning a sum of Rs.4,000/-
per month. Due to his sudden demise, the petitioners have lost his income and
love and affection. So, the petitioners, who are the parents, brother and sister
of the deceased have filed the claim petition claiming a compensation of
Rs.9,00,000/- before the Tribunal.
4. The 2nd respondent insurance company filed counter wherein it was
contended that the accident occurred only due to the rash and negligence of the
deceased; the deceased was not having a valid driving licence; the petition is
bad for non-joinder of necessary parties; the driver of the 1st respondent was
not in any way responsible for the accident; the claim is exhorbitant and
excessive and hence, the petition is liable to be dismissed.
5. Before the Tribunal, on the side of the claimants, P.W.1 to P.W.3 were
examined and Exs.P.1 to P.8 were marked. The respondents have not chosen to
adduce any oral or documentary evidence.
6. On consideration of the evidence on both sides, the Tribunal fixed the
compensation at Rs.3,85,000/- (Rupees Three Lakhs and Eighty Five Thousand only)
with interest at 9% p.a. from the date of petition till the date of deposit.
7. Aggrieved over the said award passed by the Tribunal, this appeal has
been filed by the insurance company. At the out set, the learned counsel for
the appellant submitted that he is disputing only the quantum of compensation
assessed by the Tribunal and he is not disputing the rash and negligence of the
driver of the 1st respondent. Hence, the finding of the Tribunal regarding rash
and negligence of the driver of the 1st respondent’s lorry is confirmed. Now,
this Court has to find as to what is the just compensation.
8. The point for determination in this appeal is:
(i) What is the just compensation?
9. Point : The deceased was aged 27 years at the time of accident. The
petitioners claimed that the deceased was working as a night watchman and was
earning a sum of Rs.4,000/- per month. After careful consideration of the
evidence on record the tribunal has correctly fixed his monthly income as
Rs.2,500/- per month. So, the annual income comes to Rs.30,000/-. After
deducting 1/3rd income towards his personal expenditure, the annual income comes
to Rs.20,000/-. The tribunal has adopted the multiplier 18, considering the age
of the deceased, which is not correct. As per the decision of the Honourable
Apex Court, for the death of the unmarried person, the age of the parents must
be taken into consideration. In this case, age of the father was 60 and the age
of the mother was 50 at the time of accident. So, considering the age of mother
of the deceased, the proper multiplier is 13. If accordingly worked out, the
loss of income comes to Rs.20,000/- x 13 = Rs.2,60,000/-. So, the compensation
awarded by the Tribunal is reduced from Rs.3,60,000/- to Rs.2,60,000/- (Rupees
Two Lakhs and Sixty Thousand only). The Tribunal also awarded a sum of
Rs.5,000/- each of the claimants towards loss of love and affection and
Rs.5,000/- towards funeral expenses, which are reasonable and hence, they are
confirmed. So, the compensation fixed by the Tribunal is reassessed as under:
(i) For loss of income – Rs.2,60,000.00
(ii) For loss of love and
affection – Rs. 20,000.00
(iii)For Funeral Expenses – Rs. 5,000.00
—————-
Total – Rs.2,85,000.00
—————-
Accordingly, this point is answered.
10. In the result, the Civil Miscellaneous Appeal is partly allowed and
the total compensation awarded by the Tribunal is reduced from Rs.3,85,000/-
(Rupees Three Lakhs and Eighty Five Thousand only) to Rs.2,85,000/- (Rupees Two
Lakhs and Eighty Five Thousand only). Proportionately there will be variation in
the allotments to each of the claimants depending upon the variation in the
total compensation awarded. In other respects, the award of the Tribunal is
sustained. No costs.
sj
To:
The Motor Accident Claims Tribunal,
(The II Additional District Judge),
Tirunelveli.