IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.10.2010 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.3979 OF 2005 The United India Insurance Company Limited, Rep. By its Branch Manager, Tarapuram. ... Appellant Versus 1.Kamalathal 2.Shanmuga Sundaram 3.Santhamani 4.Sivagami ... Respondents Prayer: This appeal is preferred against the award and decree made in M.C.O.P.No.1178 of 1999, dated 21.07.2004, on the file of the Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.5, Coimbatore. For Appellant : M/s.P.Janaki For Respondents : No Appearance - - - J U D G M E N T
The above appeal has been filed by the appellant / United India Insurance Company Limited, against the award and decree dated 21.07.2004 made in M.C.O.P.No.1178 of 1999 on the file of Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.5, Coimbatore.
2.The short facts of the case are as follows:
On 20.05.1999, at about 5.30 p.m., the deceased Chinnasamy Gounder and one Deivasigamani were travelling on the Moped bearing Registration No.TN 41 9859. The Moped was driven by Deivasigamani and the petitioner was on the pillion. While the Moped was proceeding, towards west, in Koduvai to Pollachi Road, and when it was near Odakalpalayam Chinnakutti Gounder Onion Godown, the lorry bearing Registration No.M.D.L.27 coming in the opposite direction, towards east, and driven by its driver in a rash and negligent manner, dashed against the Moped. Due to the impact, the deceased sustained severe injuries and died. Deivasigamani also died in the accident. The deceased who was aged 45 years, was a self-employed person and the only earning member in his family and was doing Onion and Cotton business, earning more than Rs.10,000/- per month. Hence, the first petitioner, the wife of the deceased, the second petitioner, the son of the deceased and the 3rd, 4th petitioners, the daughters of the deceased have filed the claim petition, seeking a compensation of Rs.10,00,000/- from the first, second and third respondents, who are the driver, owner and insurer of the lorry bearing Registration No.M.D.L.27, respectively.
3.The third respondent in his counter has denied the allegations in the claim stating that the lorry bearing Registration No.M.D.L.27 was not insured with them on the date of accident. The third respondent has also denied the allegation in the claim regarding age, occupation and income of the deceased. It has further been stated that the claim is excessive and baseless. It has further been stated that there was no negligence on the part of the first respondent and that the accident occurred only due to the rash driving of the rider of the Moped. It was further stated that as the collusion involved two vehicles, the rider, owner and Insurance Company of the moped must be made necessary parties for proper adjudication.
4.After pleadings of both parties, the Motor Accidents Claims Tribunal framed two issues for consideration, namely;
(i)Who is responsible for the accident? Is compensation to be awarded? If yes, who is liable to pay compensation?
(ii)What is the quantum of compensation to be paid?
5.On the side of the petitioners three witnesses were examined as PW1, PW2 and PW3 and eight documents were marked as Exs.P1 to P8. On the side of the respondents no oral or documentary evidence was given.
6.PW1, the wife of the deceased pillion rider of the moped in her evidence adduced that the accident had happened only due to the rash and negligent driving of the first respondent and in support of this, she had marked Ex.P1, the First Information Report, Ex.P2, the Post mortem report and Ex.P3, the Death Certificate.
7.PW2, one Viswanathan, who had witnessed the accident, in his evidence adduced that at the time of accident, he had been riding on his cycle on the road and that when he was nearing Chinnakutti Gounder Onion Godown, at 5.30 p.m., he had seen two persons riding on a Moped ahead of him. At that time, the lorry bearing Registration No.M.D.L.27 coming from west to east on the opposite side and driven by its driver at a high speed in a rash and negligent manner had dashed, against the moped and as a result of the impact, both the rider and pillion rider had died on the spot. The Tribunal, on considering that there is no contra evidence on the part of the respondents side to dispute the petitioners version of accident, held that the accident had been caused by the first respondent and hence held the respondents liable to pay compensation. The Tribunal on considering that the deceased Chinnasami Gounder was aged 45 years and that he was the owner of 7.67 acres of land and that he was earning his occupation by plaughing his land, held that the loss of income to his family due to his death was Rs.4,000/- per month. The Tribunal on considering the future prospects and increased future earning capacity of deceased, decided to compute compensation, taking the deceased’s monthly income as Rs.6,000/- and adopting the multiplier method, awarded compensation as below:-
Loss of income to the petitioners due to
the death of deceased .. Rs.(6,000x 12 x 13 / 3 x 2)
Loss of love and affection at Rs.10,000/-
each to the four petitioners .. Rs. 40,000.00 Loss of consortium to the first petitioner .. Rs. 10,000.00 Funeral expenses .. Rs. 3,000.00 ------------------ Total .. Rs.6,77,000.00 ------------------ In total, the Tribunal had awarded a sum of Rs.6,77,000/- with interest at the rate of 9% per annum. 8.The learned counsel for the appellant had raised the following grounds in his appeal;
The compensation amount of a sum of Rs.6,77,000/- had been awarded by the Tribunal without any documentary evidence regarding age, income and occupation.
9.Considering the facts and circumstances and taking into account the grounds of appeal and on perusing the impugned order of the Tribunal, this Court is of the considered opinion that the compensation amount is on the higher side. Hence, this Court modifies the award as under:-
Loss of income to the petitioners due to
the death of deceased .. Rs.(5,000×12 x 13 x 2 / 3)
Loss of love and affection to the
2nd, 3rd and 4th petitioners @
Rs.15,000 each .. Rs. 45,000.00
Loss of consortium to the first petitioner .. Rs. 15,000.00
Funeral expenses .. Rs. 10,000.00
Total .. Rs.5,90,000.00
In total, this Court awards a sum of Rs.5,90,000/- with interest at the rate of 9% per annum, from the date of filing the claim petition till the date of payment of compensation, which is fair and equitable. Therefore, this Court scales down the compensation from Rs.6,77,000/- to Rs.5,90,000/- as compensation.
10.On 14.12.2005, this Court imposed condition on the appellant, to deposit entire compensation amount with accrued interest to the credit of M.C.O.P.No.1178 of 1999 on the file of Motor Accidents Claims Tibunal, Additional District Court, Fast Track Court No.5, Coimbatore. Further, this Court permitted the claimants to withdraw 50% of the amount with accrued interest thereon. Now, it is open to the claimants to withdraw their modified balance compensation as mentioned above and as apportioned by the Tribunal, with accrued interest thereon lying in the credit of M.C.O.P.No.1178 of 1999 on the file of Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.5, Coimbatore, after filing necessary payment out of application, in accordance with law, subject to withdrawals, if any made already, as per this Hon’ble Court’s order. Likewise, the appellant is at liberty to withdraw the excess compensation amount with accrued interest thereon after observing necessary formalities of the learned Tribunal.
11.In the result, this Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal on the file of Additional District Court, Fast Track Court No.5, Coimbatore made in M.C.O.P.No.1178 of 1999, dated 21.07.2004 is modified. There is no order as to costs.
r n s
The Motor Accidents Claims Tribunal,
Additional District Court, Fast Track Court No.5,