BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 10/02/2009 Coram The Honourable Mr.Justice M.JAICHANDREN C.M.A.(MD) No.587 of 2002 1.P.Gnanasundari 2.M/s.United India Insurance Co. Ltd., Square Market, Mettur Dam, Salem District-636 401. .. Appellants. Versus 1.Ponnammal 2.Sornammal 3.Kanga 4.Paramasivam 5.Pandiyan 6.K.Chellaiah .. Respondents. Prayer Appeal against the judgment and decree, dated 9.4.2001, made in M.C.O.P.No.135 of 2000, on the file of the Motor Accident Claims Tribunal (Principal District Judge), Karur. !For Appellants ... Mr.S.Natarajan ^For Respondents ... No Appearance :JUDGMENT
This Civil Miscellaneous Appeal has been filed against the judgment and
decree, dated 9.4.2001, made in M.C.O.P.No.135 of 2000, on the file of the Motor
Accidents Claims Tribunal, (Principal District Judge), Karur.
2. The appellants in the present appeal were the first and the third
respondents, in M.C.O.P.No.135 of 2000, before the Motor Accident Claims
Tribunal, Karur.
3. This appeal has been filed on various grounds stating that the judgment
and decree of the Motor Accidents Claims Tribunal, Karur, is contrary to law,
and the weight of evidence available on record. The Tribunal had erred in
granting a disproportionate amount, as compensation, to the claimants, for the
fatal accident that had occurred, on 26.7.98, without following the guidelines
and the norms prescribed for the awarding of such compensation. The Tribunal had
failed to note that the married sisters of the deceased, who was a Bachelor,
aged about 42 years, cannot be treated as his dependants. The Tribunal had
failed to note that the claimants 1 to 3 were married and the fourth claimant
was the elder brother of the deceased and the fifth claimant was the younger
brother of the deceased, aged about 40 years. None of the claimants can be
considered as the dependants of the deceased.
4. The appeal has also been filed on the ground that the Tribunal had
failed to note that the claimants had not produced any legal heir certificate,
ration card or other acceptable documents to establish the claim that the
deceased was living with them and that he was taking care of the family with his
income. Further, there was no evidence, either documentary or oral, available
before the Tribunal, to establish the monthly income of the deceased. While so,
the notional income of the deceased should have been taken only as Rs.1500 per
month, under Section 163-A of the Motor Vehicles Act, 1988. The Tribunal had
also failed to note that the claimants would be entitled to claim compensation
for the loss of expectation of life, only as legal heirs and they are not
entitled to claim any pecuniary loss. The amount of compensation granted to the
claimants by the Tribunal is excessive in nature and therefore, it is liable to
be reduced, in accordance with the norms and guidelines applicable to the case.
5. The claimants had filed the claim petition in M.C.O.P.No.135 of 2000,
before the Motor Accidents Claims Tribunal, Karur, stating that the petitioners
were the brothers and sisters of the deceased, who had died in the accident that
had occurred, on 26.7.98. The accident had occurred due to the rash and
negligent and driving of the driver of a lorry, which had dashed against the
bicycle, which the deceased Kolan @ Thangavel was riding. The deceased had died
due to the multiple injuries caused by the accident. At the time of the
accident, the deceased was in a good physical condition and he was working as a
carpenter, earning Rs.5,000/- per month. He was contributing all his earnings to
the petitioners. The petitioners are the only available class II legal heirs of
the deceased. The petitioners have been adversely affected due to the loss of
love and affection due to the death of Kolan @ Thangavel, who was living with
them. The petitioners had also been put to great pain and suffering, due to the
loss of their brother. The first respondent is the owner of the vehicle, which
had caused the accident. The second respondent is the driver of the said vehicle
and the third respondent is the insurer of the vehicle. The petitioners had
claimed that the respondents were jointly and severally liable to pay the
compensation of Rs.7,00,000/-, along with the interest and costs.
6. The second respondent had remained exparte. The contentions raised in
the counter affidavit filed by the third respondent had been adopted by the
first respondent. In the said counter affidavit, it has been stated that the
claim of the petitioners that, on 26.7.98, the driver of the lorry bearing
Registration No.TML-7462 had driven the lorry in a rash and negligent manner and
had caused the accident, due to which Kolan @ Thangavel had died, is false. It
is only the deceased Kolan @ Thangavel had been riding the bicycle in a
negligent manner due to which the accident had occured. Therefore, the third
respondent is not liable to pay any compensation to the petitioners. The claim
that the deceased was in a healthy physical condition had been denied. The claim
made by the petitioners is highly excessive in nature.
7. Based on the claims made by the petitioners and the contentions raised
on behalf of the first and the third respondents, the Motor Accident Claims
Tribunal, Karur, had framed the following points for consideration as follows:
“1. Whether the accident that has happened on 26.7.98 at about 10.30 hrs
in Karur Taluk near Thirumanilayur Bazaar is due to the rash and negligent
driving of the driver of the lorry belonging to the 1st respondent.?
2. Whether the petitioners are entitled to get compensation amount, and if
so to what amount and from whom?”
8. Based on the evidence available, both oral as well as documentary, the
Tribunal had come to the conclusion that the accident that had occured, on
26.7.98, was due to the rash and negligent driving of the driver of the lorry
belonging to the first respondent. The Tribunal had come to such a conclusion
from the evidence of P.W.1, and the documents marked as Exs.P-1, and P-3 to P-6.
Thus, the Tribunal had answered Point No.1 in favour of the claimants.
9. With regard to Point No.2 the Tribunal had held that the claimants 1 to
5 were entitled to get the compensation of Rs.2,78,800/-, from the third
respondent, who is the insurer of the vehicle, which had caused the accident.
The Tribunal had found that the age of the deceased, at the time of the
accident, was 42 years. He was working as a carpenter and he was earning
Rs.5,000/- per month.
10. P.W.1, who is the brother of the deceased Kolan @ Thangavel, had
deposed in his evidence stating that his deceased brother, aged about 42 years
was earning Rs.5,000/- per month, as a Carpenter. Since the deceased was a
bachelor at the time of the accident, he was living with the petitioners
contributing his entire income for the welfare of the petitioners.
11. From the evidence of P.W.1, the Tribunal had concluded that the
deceased was earning not less than Rs.2100/- per month. Deducting 1/3 rd of the
said amount towards his personal expenses, the balance sum of Rs.1,400/- was the
monthly contribution of the deceased to his family consisting of the
petitioners. Accordingly, the annual contribution of the deceased to the
petitioners was Rs.16,800/-. Since the deceased was a bachelor at the time of
the accident the age of his brother, who was the 5th petitioner in the claim
petition, had been taken into consideration by the Tribunal for arriving at the
multiplier. Since the age of the 5th petitioner was 40, the multiplier of 16 had
been applied. Accordingly, the total amount calculated, as the compensation to
be paid to the petitioners is Rs.2,68,800/-. For the loss of love and affection
a sum of Rs.10,000/- had been awarded. Thus, the total amount of compensation
awarded by the Tribunal to the claimants is Rs.2,78,800/-.
12. The main contentions of the learned counsel appearing on behalf of the
appellant are that the claimants have not adduced any evidence to show that they
are the dependants of the deceased person. Respondents 1 to 3 are said to be the
sisters and the respondents 4 and 5 are the brothers of the deceased. Further,
it has not been shown that they are the legal heirs of Kolan @ Thangavel, who
had died due to the accident. Even though the respondents had claimed that they
are the Class II heirs of the deceased person they have to prove that they are
his dependants. The legal heir certificate has not been produced before the
Tribunal to substantiate their claim. There is no proof of the income of the
deceased, even though it has been stated that he was a carpenter earning nearly
Rs.5000/- per month. The notional income could be taken to be a maximum of
Rs.15,000/-. Deducting 1/3 of the said amount for his personal expenses, it
would be Rs.10,000/- per annum. The fixing of Rs.2,100/- as the monthly income
of the deceased is arbitrary and excessive in nature. After deducting 1/3 of the
said sum, the Tribunal had taken Rs.1400/- as the monthly income of the deceased
and the calculation of the amount of compensation has been made on that basis.
The appropriate multiplier that could have been used for arriving at the
compensation would be 15. Further, the Tribunal had used the multiplier of 16,
which is inappropriate. Since the deceased person was 42 years of age at the
time of the accident, the multiplier of 15 should have been used by the Tribunal
to arrive at the amount of compensation due to be paid for the death of Kolan @
Thangavel. The awarding of the interest at the rate of 9% per annum is excessive
in nature. In such circumstances, only 7.5.% per annum would have been the
appropriate interest that should have been awarded by the Tribunal. Further,
taking the age of the younger brother of the deceased person, for applying the
multiplier method, is erroneous and invalid in the eye of law. In such
circumstances, the judgment and decree of the Motor Accidents Claims Tribunal,
Karur, dated 9.4.2001, made in M.C.O.P.No.135 of 2000, is liable to be set
aside.
13. There is no appearance on behalf of the respondents.
14. In view of the grounds raised by the appellants in the present appeal
and in view of the submissions made by the learned counsel appearing on behalf
of the appellants and on a perusal of the records available before this Court,
it is seen that the Motor Accidents Claims Tribunal, Karur, while awarding the
compensation to the claimants for the death of Kolan @ Thangavel, had come to
the conclusion that the claimants are the legal heirs of the deceased and that
they have been his dependants. The Tribunal had taken into account the notional
income of the deceased for calculating the amount to be awarded, as compensation
to the claimants. By fixing the notional monthly income of the deceased to be
Rs.2,100/-, after deducting 1/3 rd of the amount, Rs.1,400/- has been taken to
be the monthly loss of income of the claimants. Further, the Tribunal had taken
16 as the multiplier, considering the age of the younger brother of the
deceased, who was 40 years of age and it had come to the conclusion that the
appropriate compensation to be awarded to the claimants would be Rs.2,78,800/-,
at the interest at 9% per annum. In such circumstances, the judgment and
decree, dated 9.4.2001, made in M.C.O.P.No.135 of 2000, on the file of the Motor
Accident Claims Tribunal (Principal District Judge), Karur, stands confirmed.
Hence, the Civil Miscellaneous Appeal is dismissed. No costs.
csh
To
The Motor Accident Claims Tribunal
(Principal District Judge), Karur.