The New India Assurance Company Ltd.,Thiruchengode v. Vijaya

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.2057 of 2007andM.P.No.1 of 2007The New India Assurance Company Ltd.,Thiruchengode.. Appellant/IInd RespondentVs1.Vijaya2.Minor.Pradeep3.Minor.Priyanga4.Rasammal5.Murugesan6.Poonkodi... Respondents/Petitioners &(Minors 2nd and 3rd respondents 1st Respondent rep.by their next friend and mother Vijaya) Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree Order dated 05.02.2007, made inM.C.O.P.No.263 of 2005, on the file of the Motor Accident ClaimsTribunal, Sub-Court, Sangagiri.For appellant : No appearanceFor respondents : Mr.Pannerselvam for Mr.N.Manokaran for RR1 to 5J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/second respondent, against the Award and Decree Order dated05.02.2007, made in M.C.O.P.No.263 of 2005, on the file of the MotorAccident Claims Tribunal, Sub-Court, Sangagiri, awarding acompensation of Rs.8,01,000/-, with 7.5% interest per annum, from thedate of filing petition to till the date of payment of compensation.2.Aggrieved by the said award and decree, the appellant/secondrespondent, The New India Assurance Company Ltd., has filed the aboveappeal praying to set aside the award passed by the Tribunal.3.The short facts of the case are as follows:On 23.05.2005, at about 4.15 p.m. the deceased Dhanapal alongwith his friend was going towards Tiruchengode from Salem in aMaruthi Car bearing registration No.TN33 AA8532 and when the car was https://hcservices.ecourts.gov.in/hcservices/ nearing Kallukadai bus stop at Tiruchengode to Salem road, the driverof the said Maruthi Car drove the vehicle in a rash and negligentmanner and hit against the Tamarind Tree and in the result, thedeceased Dhanabal sustained injuries on the head and fact and he wastaken to Tiruchengode Government Hospital for first aid and then hewas taken to LKM Hospital, Erode and Nallusamy Hospital, Erode andsuccumbed to the injuries later in the hospital and post-mortem wasconducted by duty Doctor of Government Hospital, Erode.4.The accident occurred only due to the rash and negligentdriving of the driver of the car bearing registration No.TN33 AA8532.The above accident was reported to the Mallasamudram Police Stationand a case in Crime No.146/2005, under Sections 279 and 337 I.P.C.was registered initially and the same was altered subsequently underSection 304(A) IPC and the same is pending before the TiruchengodeJudicial Magistrate Court.5.The deceased was aged only 36 years at the time of theaccident and he was hale and healthy. He was a hard worker. He wasworking as Carpenter and was earning a sum of Rs.10,000/- per month,by doing Carpenter work. Due to this accident, the petitioners havelost not only the entire income of the deceased but, also the head oftheir family. Only out of his income, he was maintaining his entirefamily. But for the accident, the deceased would have lived andearned for the family for at least another 34 years.6.Due to the sudden death of the said Dhanabal, the firstpetitioner lost her loving husband. The second and third petitionerhave not only lost their loving father but also lost their support intheir young age and the fourth and fifth petitioners have lost thesupport of their son in their old age. As such, the petitioners haveclaimed a compensation of Rs.10,00,000/- from the respondents.7.The first respondent is the owner of the vehicle bearingregistration No.TN33 AA8532, which caused the accident. The secondrespondent is the Insurance Company, under which the above vehiclewas insured.8.As such, both the respondents are jointly and severally liableto pay compensation of Rs.10,00,000/- to the petitioners withinterest and cost, under Section 166 of the Motor Vehicles Act.9.The second respondent, the New India Assurance Company Ltd.,Tiruchengode, in his Counter has resisted the claim stating that thedeceased Dhanabal was an unauthorised passenger in the car at thetime of the accident and so the first respondent has violated thepolicy conditions and as such the second respondent cannot be heldliable to pay any compensation to the petitioners. Further, it wassubmitted that the driver of the Maruthi Car, bearing registrationNo.TN33 AA8532 was not having valid licence to drive the Car at thetime of the accident.10.Further, the age, income and occupation of the deceased, thelegal heirship of the petitioners were not admitted. The manner of https://hcservices.ecourts.gov.in/hcservices/ the accident as alleged in the claim petition was also not admitted.Further, the claim of the petitioners under various heads wereexcessive and had been calculated without any basis. As such, thesecond respondent has prayed for dismissal of the claim against thesecond respondent.11.The Motor Accident Claims Tribunal framed two issues forconsideration namely:(i)Was the accident caused due to the rash andnegligent driving of the first respondent, thedriver of the Maruti Car bearing registrationNo.TN33 AA8532 ?(ii)If so, what is the quantum of compensationthat the petitioners are entitled to receive?12.At the time of trial before the Tribunal, on the petitionersside two witness were examined as PW1 and PW2 and 12 documents weremarked as Exs.P1 to P12. On the respondent's side, two witnesseswere examined as RW1 and RW2 and two documents were marked as Exs.R1and R2.13.As the first petitioner in the claim, PW1, before theTribunal, was not an eye witness of the accident, the Tribunaldecided not to take into account evidence adduced by her on thisaspect. Further, the Tribunal considered the FIR registered by thedeceased Danabal ie.PW1's husband. In the FIR lodged by him, he hadstated that he has working as a carpenter; that one Senthil, son ofVenkatachalam had come to his place to pick him up, for doing somehouse hold work in Venkatachalam's house; that he had gone a longwith the said Senthil in his Maruti Car bearing registration No.TN33AA8532 , at about 1.30 a.m. on 23.05.2005 from Tiruchengode to Salem;that after receiving quotations from shops in Salem were coming backin the car towards Tiruchengode; that at 4.15 p.m. in the evening,when the car was nearing Sengodakounderkadu, near Kallukadai busstop, as the driver Senthil felt that a vehicle was coming directlyin front of him from the opposite side, he swerved the car to theleft and because the car was driven at a high speed by the driverSenthil, he lost control and dashed against a tamarind tree and socaused the accident. The eye witness to the accident, PW2, oneMr.Suresh has confirmed the above version of the accident given bythe husband of PW1.14.The learned counsel appearing for the first respondent hadargued that the accident did not happen due to rash driving of thedriver Senthil. The owner of the car, first respondent herein in hisevidence had marked the driving licence of the driver of car,Senthil. Further, he had also adduced evidence that his son ie.thedriver of the car, Senthil had also died in the accident due toinjuries sustained by him in the accident. From an examination ofEx.P3, the Motor Vehicle Inspector's Report, it is evident that theaccident had not occurred due to any mechanical defects in the saidcar. The Tribunal, on scrutiny of Ex.P4, the Rough Sketch of the https://hcservices.ecourts.gov.in/hcservices/ accident, was of the view that the accident could have happened asper the version stated in the claim petition.15.Considering the oral and documentary evidence on record, theTribunal came to a conclusion that the accident had happened only dueto the negligence, of the deceased driver of the car and the highspeed at which he had driven the car.16.PW1, in her evidence had stated that in the accident, herhusband had sustained severe head injuries and injuries in his rightknee, right fore arm, left knee and in right eyebrow and that he wasimmediately admitted in Tiruchengode Government Hospital and firstaid was given here. For further treatment, he was admitted in LKMHospital at Erode and Nallusami Hospital,Erode, wherein he was giventreatment but in spite of the medical treatment given, her husbanddied on 21.06.2005, at the hospital, due to the injuries sustained byhim in the accident. Further, she had stated in her evidence thatthe medical expenses incurred by her on this count was Rs.3,50,000/-.Further, she had stated that at the time of accident, her husband wasaged about 36 years and that he was working as a carpenter and earneda sum of Rs.10,000/- per month; that due to the sudden demise of herhusband in the accident, her family had lost their source of incomeand as such she had claimed a compensation of Rs.10,00,000/- from thefirst and second respondents. To prove the above, she had markedEx.P2, the Post-mortem Report; Ex.P5, the Medical Bills; Ex.P6, thecopy of the Insurance Policy, for the Maruti Car involved in theaccident; Ex.P7, the series of 19 X'rays of the deceased; Ex.P8, thefour numbers of C.T.Scans of the deceased; Ex.P9, the report aboutthe CT Scans; Ex.P10, the Transfer Certificate issued by the School,in which the deceased had studied; Ex.P11, the Death Certificate ofthe deceased and the Ex.P12, the Legal heirship Certificate.17.The learned counsel appearing for the secondrespondent/Insurance Company has contended that at the time of theaccident, the deceased had travelled as an unauthorised passenger inthe said Maruti Car bearing registration No.TN33 AA8532 ; that thedriver of the said Maruti Car, Senthilkumar did not have validdriving licence at the time of the accident and as such the firstrespondent had violated the policy conditions as laid out in theinsurance policy taken for the said maruti car and in support of thiscontention, the Officer of the Insurance Company was examined as RW2and through him Ex.R2, the copy of the Insurance Policy for the saidMaruti Car, was marked. But, the learned counsel appearing for thepetitioner has contended that the deceased Danapal had travelled inthe car only for the purpose of carrying out the first respondent'swork and as such had not violated the policy conditions of insurance.RW2, during cross-examination, before Tribunal had accepted that theconditions of Insurance have not been breached by the firstrespondent and has also admitted that the said Maruti Car had beeninsured with the second respondent at the time of the accident. Assuch, the Tribunal held that the second respondent was held liable topay the compensation to the petitioners.18.Though, it has been stated by the petitioners that the https://hcservices.ecourts.gov.in/hcservices/ deceased had been earning a sum of Rs.10,000/- per month throughcarpentry work at the time of accident, as there was no documentaryevidence furnished in support of this, the Tribunal held that asalary of Rs.3,000/- per month could have been earned by thedeceased. Deducting 1/3rd share of this for personal expenses, theTribunal held that the deceased could have contributed a sum ofRs.2,000/- per month to his family. Taking this figure, the yearlycontribution to his family was worked at Rs.24,000/-. From ascrutiny of Ex.P10, School Transfer Certificate of the deceased, itwas established that the date of birth of deceased was 25.05.1968.From an examination of Ex.P2-Post Mortem Report, the age of thedeceased was seen to be 37 years. So, the Tribunal on taking amultiplier of 16, as relevant to the above said age of the deceased,computed the loss of income to the petitioners as Rs.24,000/- X 16 =Rs.3,84,000/-.19.From an examination of Ex.P5-Medical Bills and receipts,Exs.P7 to P9, it is evident that the deceased had been givenintensive care treatment for injuries sustained in the accident from23.05.2005 to 21.06.2005. The Tribunal, on scrutiny of Ex.P5,Medical Bills, granted an award of Rs.2,88,000/- towards the expenseslisted in the said bills. For transport expenses incurred for takingthe deceased to Hospital and then to funeral ground, the Tribunalgranted a sum of Rs.2,000/-. For funeral expenses, the Tribunalgranted a sum of Rs.2,000/-. The Tribunal granted a sum ofRs.25,000/- to the first petitioner for loss of consortium; theTribunal also awarded a sum of Rs.20,000/- each to the 1st, 2nd, 3rd, 4thand 5th petitioners ie. in total Rs.1,00,000/- to the five petitionersfor loss of love and affection and as such the Tribunal awarded atotal compensation of Rs.8,01,000/- to the petitioners.20.Further, the Tribunal directed the first and secondrespondents, either jointly and severally, to deposit the saidcompensation to the petitioners together with interest at the rate of7.5% per annum from the date of filing the petition to till the dateof payment of compensation, into the credit of the M.C.O.P.No.263 of2005, on the file of the Motor Accident Claims Tribunal, Sub-Court,Sangagiri, within a period of a month. Further, the Tribunalapportioned Rs.5,26,000/- with accrued interest to the firstpetitioner; a sum of Rs.1,00,000/- each, with accrued interest, tothe second and third petitioners; a sum of Rs.50,000/- with accruedinterest to the fourth petitioner and a sum of Rs.25,000/- withaccrued interest to the fifth petitioner.21.Further, the Tribunal permitted the first petitioner toreceive a sum of Rs.3,76,000/- of her apportioned award with interestand the fourth and fifth petitioners were also permitted to receivetheir total apportioned share of award, immediately, after thedeposit was made by the second respondent. Further, the balance ofthe apportioned share of award of the first petitioner and theapportioned share of award of the second and third petitioners has tobe invested in a Nationalised Bank, for a period of three years andthe first petitioner was permitted to receive the interest on thesedeposits, once in three months, directly from the Bank. Further, the https://hcservices.ecourts.gov.in/hcservices/ Tribunal directed the petitioners to pay the Court fees on the awardgranted within a period of one month from the date of its Order. TheAdvocate fees was fixed at Rs.15,010/-. The respondents weredirected to pay a sum of Rs.22,497.50 to the petitioners as costs.22.The learned counsel appearing for the appellant has raisedthe points in his appeal that the Tribunal had erred in coming to theconclusion that the accident had occurred due to rash and negligentdriving of the driver of the Maruti Car bearing registration No.TN33AA8532. Further, the Tribunal had erred in fixing the monthly incomeof the deceased at Rs.3,000/- without any basis. Even the multiplierof 16 adopted by the Tribunal, considering the age of the deceased,as 37 years is on the higher side and the Tribunal should haveadopted a lesser multiplier as per the Supreme Court Judgementreported in 2007(1) CTC Page 523 and 2007 (2) TLNJ 361 (Civil).Further, the awards granted under various heads are without any basisand is excessive.23.The learned counsel appearing for the respondent argued thatthe accident had happened due to the rash and negligent driving ofthe driver of the car. The same was established before the Tribunal.Regarding quantum of compensation, medical expenses alone amounted toa sum of Rs.2,88,000/-. The rest of the amount awarded by theTribunal are pertinent considering the age and income of the deceasedand dependancy.24.For the foregoing reasons, facts and circumstances of thecase, grounds of the appeal, arguments for the learned counselappearing for the respondents, this Court is of the view that thenegligence point has been confirmed by the Tribunal on the basis ofFIR, which had been registered by the Police Officer on the basis ofthe statement given by the deceased. As such, this Court confirmsthe finding of negligence of the Tribunal on this count. Regardingcompensation, medical expenses alone amounted Rs.2,88,000/-. Forloss of earning a sum of Rs.3,84,000/- was awarded by the Tribunal onthe basis of monthly contribution to family as Rs.2,000/- only afterdeducting 1/3rd share as personal expenses of deceased andconsidering the age of the deceased as 37 years. For consortium asum of Rs.25,000/- was awarded to the first claimant. For love andaffection, a sum of Rs.20,000/- each was awarded to all the fiveclaimants including the first claimant, but the Court is of the viewthat the first claimant is not entitled to head an award ofRs.20,000/- under the head of love and affection. The Tribunalawarded a sum of Rs.2,000/- for funeral expenses. This Courtenhances the amount granted under this head to Rs.12,000/-. Fortransport, the Tribunal awarded a sum of Rs.2,000/-. This Courtenhances the amount granted under this head to Rs.12,000/-, since thedeceased was in hospital for a period of one month and so necessarilythe claimants would have incurred transport and attender charges aswell. In total, the Tribunal awarded a sum of Rs.8,01,000/- togetherwith interest at the rate of 7.5% per annum from the date of filingthe claim petition to till the date of payment of compensation andthis Court is of the view that the award granted is fair andequitable and payable by the appellant/New India Assurance Company https://hcservices.ecourts.gov.in/hcservices/ Ltd.,25.This Court imposed condition on the appellant on 13.08.2007to deposit a sum of Rs.6,00,000/- to the credit of the M.C.O.P.No.263of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Sangagiri, within a period of six weeks. Thereafter, theclaimants 1st, 4th and 5th were permitted to withdraw 50% of theirapportioned share from the said amount deposited with the Tribunal.26.Now, this Court directs the appellant/New India AssuranceCompany Ltd., to deposit the balance award amount with interest atthe rate of 7.5% per annum from the date of filing the petition totill the date of payment of compensation into the credit of theM.C.O.P.No.263 of 2005, on the file of the Motor Accident ClaimsTribunal, Sub-Court, Sangagiri, within a period of six weeks, fromthe date of receipt of this Order.27.It is open to the 1st, 4th and 5th claimants to withdraw theirbalance compensation, with accrued interest, lying into the credit ofthe M.C.O.P.No.263 of 2005, on the file of the Motor Accident ClaimsTribunal, Sub-Court, Sangagiri, for their respective share amounts asper the Tribunal Order, by filing necessary payment out application,in accordance with law. The minor's share of apportioned amountshall be deposited in any one of the Nationalised Bank in re-investment scheme till they become major. After becoming major, theminor's are permitted to withdraw their apportioned share withinterest by filing necessary application, before the Tribunal, inaccordance with law.28.In the result, the Civil Miscellaneous Appeal is dismissedand the award and decree dated 05.02.2007, made in M.C.O.P.No.263 of2005, on the file of the Motor Accident Claims Tribunal, Sub-Court,Sangagiri, is confirmed. Consequently, connected miscellaneouspetition is also closed. No costs.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarkrkTo1.Motor Accidents Claims Tribunal, Sub-Court, Sangagiri.2.The Section Officer, VR Section, High Court, Madras.1 cc to Mr.N.Manokaran, Advocate, Sr.No.683701 cc to Mr.R.Sivakumar, Advocate, Sr.No.67988 Order in C.M.A.No.2057 of 2007GV {CO}TP/31.12.2009.