Branch Manager The Oriental Insurance Co., Ltd., Tiruvannamalai v. Sagunthala & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.2112 of 2007andM.P.No.3 of 2007Branch ManagerThe Oriental Insurance Co., Ltd.,Tiruvannamalai.. Appellant/II Respondent Vs1.Sagunthala2.M.Senthilkumar .. Respondents/Petitioner &1st Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 30.01.2006, made inM.C.O.P.No.859 of 2003, on the file of the Motor Vehicles AccidentClaims Tribunal, District Judge, Tiruvannamalai.For appellant : Mr.R.SivakumarFor respondents : Mr.R.Rajarajan for M/s.G.Rajan, for R1 No appearance for R2J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant / second respondent against the Award and Decree, dated30.01.2006, made in M.C.O.P.No.859 of 2003, on the file of the MotorVehicles Accident Claims Tribunal, District Court, Tiruvannamalai,awarding a compensation of Rs.5,19,000/- with 7.5% interest per annumfrom the date of filing the petition till the date of payment of thecompensation.2.Aggrieved by the said Order, the appellant / secondrespondent, The Oriental Insurance Co., Ltd., has preferred the aboveappeal praying to set aside the above award and decree passed by theTribunal.3.The short facts of the case are as follows:The petitioner's son Sivaramakrishnan was a student in a ArunaiEngineering College, Tiruvannamalai. On 05.03.2003, when thepetitioner's son was travelling in the bus, belonging to the firstrespondent, titled 'Om Muruga', and when it was nearing Nirmal PetrolBunk on the Tiruvannamalai to Tirukkovilur road, the driver of thebus applied sudden brake as a result of which, the petitioner's son https://hcservices.ecourts.gov.in/hcservices/ fell down and sustained head injuries and died on the spot.Regarding the accident, a criminal case has been registered at theTiruvannamalai Police Station as Crime No.613/2003 under Sections 279and 304(A) of I.P.C. The accident had occurred only due to the rashand negligent driving of the driver of the first respondent. Thesaid bus has been insured with the second respondent/The OrientalInsurance Co., Ltd., Hence, the respondents are jointly andseverally liable to pay compensation to the petitioners. Thepetitioners have claimed a compensation of Rs.10,00,000/- withinterest and cost under Section 166 of the Motor Vehicles Act, 1988.4.The first respondent remained absent in spite of summonsissued to him and was set exparte.5.The second respondent/The Branch Manager, The OrientalInsurance Co., Ltd., in his Counter has resisted the claim statingthat the accident had occurred because the petitioner's son,Sivaramakrishnan was travelling on the foot board of the bus andbecause he had tried to get down suddenly from the bus. The firstrespondent's driver is not responsible for the cause of the accident.The petitioners should prove that they are the legal heirs of thedeceased and that they were dependent on the income of the deceased.For the above said reasons, the second respondent has prayed fordismissal of the claim.6.Based on the above pleadings, the Tribunal framed three issuesfor consideration namely(i)Was the accident caused due to the rash andhigh speed at which the driver of the bus haddriven the bus?(ii)Who is liable to pay compensation to thepetitioner?(iii)Is the petitioner entitled to get compensation?If so, what is the quantum of compensation?7.On the petitioner's side, two witnesses were examined. Thepetitioner herself was examined as PW1. In the evidence, she hasadduced that on 05.05.2003, at 10.30 a.m., the deceasedSivaramakrishnan, after receiving his hall ticket from ArunaiEngineering College, was travelling in the front portion of the busbearing registration No.TN25 C0894 as a standee and gripping the ironsupport in the inside of the bus. The bus driver was driving the busin a rash and negligent manner and when he had applied brakessuddenly, the deceased Sivaramakrishnan was thrown out of the bus andfell down and sustained injuries. The injured Sivaramakrishnan wastaken to Government Hospital at Tiruvannamalai, wherein, he was giventreatment but in spite of this, the injured Sivaramakrishnan died inthe Hospital at 10.45 a.m. The evidence given by PW1 is inconsonance with the contents of Exs.A1, A2 and A6 and also inconsonance with the evidence given by the PW2, who was the eye-witness to the accident. The Tribunal, therefore held that the proof https://hcservices.ecourts.gov.in/hcservices/ of guilt of the first respondent's driver has been established onscrutiny of evidence of PW1 and documentary evidence as per Ex.A1 –FIR, Ex.A2 – copy of Post-mortem Report and Ex.A6 – Death Certificateof the deceased Sivaramakrishnan.8.One Govindan, who was an eye witness of the accident has beenexamined as PW2. The PW2, in his evidence has adduced that he was aneye witness of the accident and that the bus 'Om Muruga', bearingregistration No.TN25 C0894 was driven at a high speed and that onapplication of sudden brake by the driver, the deceasedSivaramakrishnan, who was standing inside the bus was thrown out ofthe bus and was injured. He had stated that the accident was causedonly by the rash and negligent driving of the bus. On scrutiny ofthe evidence of the PW1 and PW2 and examination of Ex.A1 – FIR, it isfound that the manner of the accident stated is in consonance withone another and so, the Tribunal held that the accident has beencaused only by the rash and negligent driving of the driver of thefirst respondent.9.During enquiry, it has not been refuted by the respondentsthat during the time of the accident, the first respondent's bus hadbeen insured with the second respondent/Insurance Company. As such,the Tribunal held that the second respondent is liable to paycompensation to the mother of the deceased Sivaramakrishnan, ie. thepetitioner PW1 herein.10.The PW1, in her evidence had adduced that at the time of theaccident, her son Sivaramakrishnan's age was 18 years. This is foundto be correct after examination of A2 and A4, the Post-mortemCertificate and copy of the mark sheet of the deceasedSivaramakrishnan, respectively. As such, the Tribunal took the ageof the deceased Sivaramakrishnan as 18 years. The PW1 has stated inher evidence that her deceased son Sivaramakrishnan was studying inthe first year of his Engineering Degree Course at Arunai EngineeringCollege, Tiruvannamalai and that he was employed as a Tutor andworked in the evenings at a Private Computer Centre and was earning asum of Rs.5,000/- per month. The PW1 has also stated that thedeceased Sivaramakrishnan was her only son and that she had no othersons or daughters and also has stated that she is a widow. Onscrutiny of the Ex.A3, the Legalheir Certificate, it is evident thatthe petitioner does not have any other children besides the deceasedand on examination of Ex.A7 – Death Certificate of the husband of thepetitioner, the fact that the petitioner is a widow was evident. Onscrutiny of Ex.A4 – Marksheet of the deceased Sivaramakrishnan andEx.A5 – Receipt given by the College to the deceasedSivaramakrishnan, it is established that the deceased was studying inthe Arunai Engineering College. Though, PW1 has stated in herevidence that her deceased son was a part time Tutor in a ComputerFirm, no oral or documentary evidence has been furnished in supportof this contention. The employer of the deceased Sivaramakrishnanhas not been examined as a witness before the Tribunal to establishthat the deceased had been employed there and was earning a sum ofRs.5,000/- per month. The Tribunal however, accepted that thedeceased Sivaramakrishnan was a first year Engineering Student and https://hcservices.ecourts.gov.in/hcservices/ that the prospects of earning a good income is possible after hecompleted his Engineering Course also. Taking into consideration thefact that the petitioner has lost her only son and that she is aged45 years and not capable of earning. The Tribunal was of the viewthat the income of the deceased Sivaramakrishnan could be taken asRs.4,000/- per month for assessment of compensation. As such, theyearly income of the deceased was calculated as Rs.48,000/-.Deducting 1/3rd share of this for personal expenses of the deceased,the Tribunal assessed the loss of income incurred by the petitioneras Rs.32,000/- per year. Taking a multiplier of 16, the Tribunalawarded a compensation of Rs.32,000 X 16 = Rs.5,12,000/- to thepetitioner for loss of income. The Tribunal granted a sum ofRs.2,000/- for loss of love and affection. In total, the Tribunalawarded a sum of Rs.5,19,000/- as compensation to the petitioner anddirected the second respondent to deposit the above said award withinterest at the rate of 7.5% per annum from the date of filing thepetition till the date of payment of compensation, within a period oftwo months from the date of its Order. Further, after such deposithas been made, the petitioner was permitted to withdraw 40% of theaward and the remaining award amount has to be invested in aNationalised Bank for a period of three years. The accrued intereston the award and the costs incurred by the petitioner is to be paidto her after she paid the Court fees due on the award amount. TheAdvocate fees was fixed at Rs.12,190/-.11.The learned counsel for the appellant has contended in hisappeal that the Tribunal had erred in fixing that the accident hadoccurred due to the rash and negligent driving of the driver of thebus bearing registration No.TN25 C0894 belonging to the secondrespondent herein and insured with the appellant, in spite of thefact that the same has occurred due to the negligence on the part ofthe deceased alone, who was travelling on the part of the deceasedalone, who was travelling on the foot-board of the said bus at thetime of the accident.12.The learned counsel for the appellant pointed out that theTribunal had failed to note that the deceased was not a earningmember at the time of the accident. Further, the learned counsel forthe appellant pointed out that the Tribunal had erred in fixing themonthly income of the deceased at Rs.4,000/- and deducted 1/3rdtowards personal expenses, multiplier by 16 and awarded a sum ofRs.5,12,000/- towards loss of pecuniary benefits. Further, it hasbeen stated that the Tribunal had failed to note that the firstrespondent is the mother of the deceased and aged about 45 years.13.As such, it has been argued that the award of Rs.5,19,000/-granted by the Tribunal is excessive and liable to be set aside.14.In support of his arguments, the learned counsel for theappellant has cited a legal ruling made in 2009(2) TNMAC 303, HighCourt of Madras, The Managing Director, Tamil Nadu State TransportCorporation Ltd., Kumbakonam Vs. P.K.Mani, Sasikala, Minor.Sindhuja,Minor.Natarajan, the relevant head notes of which are as follows: https://hcservices.ecourts.gov.in/hcservices/ "Compensation – Quantum – Determination – FatalAccident – Deceased, a 19 years old girl, undergoingComputer Training after completing 12th Standard –Claimants : Father, mother, minor brother & sister ofdeceased – Claim : Rs.8,00,000 – Income: Tribunal, inview of deceased being a non-earning member, fixedmonthly income at Rs.3,000 – Contribution to Family :Deducting 1/3rd towards Personal Expenses, Rs.2,000/-p.m. fixed as contribution to family – Multiplier : Of15 adopted by Tribunal, not proper : Followingdecision of Apex Court in Bilkish, correct multiplierheld to be 12 and not 15 – Loss of Income : Fixingannual contribution to family at Rs.24,000/- andapplying multiplier of 12, Loss of Income worked outat Rs.2,88,000/- as against Rs.3,75,000/- awarded byTribunal – Loss of Love & Affection : Rs.15,000awarded by Tribunal being reasonable, confirmed –Funeral Expenses : Rs.5,000, confirmed in Appeal –Total Compensation : Rs.3,08,000 as againstRs.3,95,000 awarded by Tribunal against claim ofRs.8,00,000 – Interest : 9% p.a. awarded by Tribunalnot proper : Prevailing rate of interest on 6.6.2004(date of accident) being 7.5%, rate of interestmodified from 9% p.a. to 7.5% - Disbursement : Minor'sshare to be deposited in Nationalised Bank till minorsattain majority : Accrued interest allowed to bewithdrawn once in three months."15.The learned counsel for the respondent has argued that theclaimant is a widow, house wife and a non-earning member and that thedeceased, who was her son took care of her and he was maintaining thefamily by way of doing a private job as a Tutor. The learned counselfurther pointed out that the deceased was an Engineering Student andhad specialised knowledge in Computers and consequently he wasemployed in a private computer concern. As such, he maintained thefamily with his income.16.For the foregoing reasons and considering the facts andcircumstances of this case, arguments advanced by the learned counselon eitherside, perusal of the findings of the Tribunal, this Court isof the view that the deceased was an Engineering Student as per Ex.P5ie. College Fee Receipt. Further, it was established that theclaimant is a widow and a non-earning member as per Ex.P7 – DeathCertificate of husband of the claimant. In the circumstances, thedeceased was constrained to look after his mother, ie.the claimantherein and so necessarily the deceased would have undertaken parttime job to support his mother and would have contributed hisearnings to run the family. Considering these circumstances, theTribunal cannot be faulted in determining that the deceased was aearning member. As such, the Tribunal calculated compensation as permultiplier method, adopted a multiplier of 16 and assessedcompensation as Rs.32,000/- X 16 = Rs.5,12,000/-. The Court is ofthe view that the award under this head is appropriate and confirmsthe same. The Tribunal had awarded a sum of Rs.2,000/- for love and https://hcservices.ecourts.gov.in/hcservices/ affection to the petitioner, which is on the lower side. Though, theTribunal has awarded a sum of Rs.5,19,000/- they had accounted foraward of Rs.5,14,000/- only under the relevant heads. Rs.5,000/- hadbeen awarded under a non-existent head and the Tribunal hasmaintained silence regarding the head under which the award ofRs.5,000/- had been granted. This Court awards this under the headof funeral expenses.17.This Court therefore confirms the award of the Tribunal inspite of the fact that the quantum of compensation awarded for loveand affection is on the lower side as the deceased was the only sonof the petitioner. As such, the Court confirms the award of theTribunal.18.This Court imposed a condition on the appellant/OrientalInsurance Co., Ltd., to deposit a sum of Rs.3,50,000/- together withproportionate interest and entire costs by his order dated 04.09.2007.19.Now, this Court directs the appellant to deposit the balancecompensation with accrued interest of 7.5% per annum from the date offiling the petition till the date of payment, within a period of fourweeks from the date of receipt of this Order, into the credit of theM.C.O.P.No.859 of 2003, on the file of the Motor Vehicles AccidentClaims Tribunal, District Court, Tiruvannamalai. After such deposit,the claimant is permitted to withdraw the entire compensation amountwith accrued interest and costs, by filing necessary application, inaccordance with law.20.In the result, the Civil Miscellaneous Appeal is dismissedand the award passed by the Motor Vehicles Accident Claims Tribunal,District Court, Tiruvannamalai, in M.C.O.P.No.859 of 2003, isconfirmed. Consequently, connected miscellaneous petition is alsoclosed. No costs.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarkrkTo1. The Motor Vehicles Accident Claims Tribunal, District Judge, Tiruvannamalai.2. The Section Officer, VR Section, High Court, Madras.1 cc to Mr.R.Sivakumar, Advocate, Sr.No.695921 cc to Mr.G.Rajan, Advocate, Sr.No.69755 Order in C.M.A.No.2112 of 2007GV {CO}TP/7.1.2010.