New India Assurance Co. Ltd.,Branch Office,KVR Complex, 3rd floor,80 feet road,Karur – 639 002 v. Mr.V.Nagaraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 5.1.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARC.M.A.No.3963 of 2008andM.P.No.1 of 2008New India Assurance Co. Ltd.,Branch Office,KVR Complex, 3rd floor,80 feet road,Karur – 639 002. ... Appellant/3rd Respondent vs.1.Mr.V.Nagaraj,2.Mrs.N.Muthulaxmi,3.Miss. N.Priya, 4.Mr.V.Velusamy,5.Mrs.B.Pappammal. ... Respondents/Petitioners 1 to 3 and respondents 1 and 2 Civil Miscellaneous Appeal is filed under Section 173 of MotorVehicles Act, 1988 against the award and decree dated 11.8.2006passed in M.C.O.P.No.128 of 2004 on the file of the Motor AccidentClaims Tribunal, (Sub Court), Dharapuram.For appellant : Mr.J.ChandranFor respondents : Mr.S.Dhanasekaran for R1 to R3 JUDGMENTThe New India Assurance Company is on appeal challenging theaward dated 11.8.2006 passed in M.C.O.P.No.128 of 2004 on the file ofthe Motor Accidents Claims Tribunal, (Sub Court), Dharapuram. 2. Respondents 1 to 3/claimants appear through counselMr.S.Dhanasekaran. By consent of both the counsel, main appealitself is taken up for final disposal.3. The finding of negligence on the part of the driver of thebus who is responsible for the accident and the death and the https://hcservices.ecourts.gov.in/hcservices/ liability fixed on the appellant insurance company to compensate theclaimants is not disputed by the counsel for the appellant and thesame is confirmed. The only contention raised by the learnedcounsel for the appellant is on the quantum of compensation.4. It is a case of fatal accident. The accident in this casehappened on 14.4.2004. The deceased N.Prakash alias Prakasam, aged 25years, said to be running a power loom factory, digital video andphoto studio at Vellakovil, was travelling in the bus insured withthe appellant, from Vellakovil to Thiruchendur. The driver of thebus drove the vehicle in a rash and negligent manner, lost hiscontrol and hit a road side tree. In that accident, severalpassengers suffered grievous injuries resulting in death. The saidPrakash alias Prakasam also sustained grievous injuries. He diedon the way to the hospital. The father aged about 50 years, motheraged 45 years and sister aged 20 years, filed a claim forcompensation in a sum of Rs.9 lakhs stating that the deceased wasearning a sum of Rs.5,000/- per month.5. In support of the claim, the father of the deceased wasexamined as P.W.1, One Rajavelu, the co-passenger was examined asP.W.2. One Subbarayan, the owner of a Lathe Workshop was examinedas P.W.3. Exs.P-1 to P-12 were marked, the details of which asmentioned in the award are as follows:-Ex.A-1 is the copy of FIR,Ex.A-2 is the copy of rough sketch,Ex.A-3 is the copy of observation mahazar,Ex.A-4 is the copy of post-mortem report,Ex.A-5 is the copy of Motor Vehicle Inspector's Inspection report,Ex.A-6 is the copy of charge sheet,Ex.A-7 is the death certificate,Ex.A-8 is the legal heir certificate,Ex.A-9 is the Assessment sheet of the deceased,Ex.A-10 is the certificate for studying computer course,Ex.A-11 is the conduct certificate issued by the Vellakovil Primary Health Centre andEx.A-12 is the salary certificate given by Vellakovil Anna Industries. No oral or documentary evidence was let in on behalf of the appellantinsurance company, the third respondent before the Tribunal.6. Though the claimants pleaded that the income of the deceasedwas Rs.5,000/- per month through his occupation in running a powerloom factory, part time employment in digital video and photo studioand regular employment in Anna Industries Workshop, unfortunately,before the Tribunal, no material was placed to support the nature ofemployment in power loom factory and the digital video and photostudio. It is only the oral evidence of P.W.1, the father of thedeceased, who claimed that his son was earning Rs.5,000/- per month https://hcservices.ecourts.gov.in/hcservices/ out of three modes of employment. According to the counsel for theclaimants, the evidence of P.W.1 is that the income of the deceasedwas Rs.5,000/- per month by all the three means. The Tribunal,however, came to the conclusion that the income is only Rs.3,000/-per month. This is because, no material was placed to show higherincome under the three different employment claimed. The Tribunalafter deducting 1/3 towards personal expenses of the deceased, fixedthe contribution to the family of the deceased at Rs.2,000/- permonth (i.e., Rs.24,000/- per annum). By adopting 17 multiplier, theTribunal fixed the pecuniary loss to the dependents of the deceasedat Rs.4,08,000/- (Rs.24,000/- x 17 = Rs.4,08,000/-). The Tribunalalso granted compensation under conventional heads. In all, theTribunal granted the following amounts as compensation with interestat 7.5%:- Sl.No.HeadAmount granted bythe Tribunal1Loss of pecuniary benefits to the family ofthe deceased Rs.4,08,000/-2loss of love and affection to the father,mother and sisterRs. 5,000/-3Funeral expensesRs. 5,000/-TotalRs.4,18,000/- 7. Insofar as the quantum of compensation is concerned, the pleataken by the appellant's counsel is that "17" multiplier adopted inthe case of death of a bachelor, is on the higher side andtherefore, the quantum of compensation has to be reduced. He reliedon the Apex Court's decision in Bijoy Kumar Dugar – vs. - BidyadharDutta and others reported in 2006 ACJ 1058. 8. Counsel for the respondents 1 to 3/claimants pleaded that thedeceased was 25 years old and robust in health and earning incomeas stated above. The counsel, however, fairly conceded thatunfortunately, before the Tribunal, no proper evidence was let inby the persons concerned. He pleaded that the quantum ofcompensation need not be reduced as meagre amount has been grantedtowards loss of love and affection for the mother, the father and theunmarried sister. Further, no amount has been granted towardstransport expenses and loss of estate.9. The accident in this case happened on 13.4.2004. Thedeceased was a 25 years old bachelor and earning member. The claimhas been filed by the mother aged 45 years, unmarried sister aged 20years and father aged 50 years. The possibility of the deceasedgetting married and the contribution to the dependents gettingreduced has to be considered as one component. Further, a lump sumamount is being granted to the claimants on the death of the https://hcservices.ecourts.gov.in/hcservices/ deceased. On the other hand, though the claimants pleaded that theincome of the deceased was at Rs.5,000/- per month, failed tosupport it by appropriate documentary evidence. If sufficientevidence had been let in, the income of the deceased in this case canbe fixed on a higher sum taking note of the fact that the deceasedwas an earning member in the Erode District known for its high volumeof production of goods and articles for domestic use and for export.The claimants, however, before the Tribunal failed to producesufficient materials for whatever reason, having made a plea in thisregard. It may be either ignorance or due to illiteracy or due tocasual approach to the claim. 10. This is one among the many cases where no proper evidenceis let in at the time of adjudication of the claims. For want ofrelevant oral or documentary evidence to support the claims greatprejudice is caused to the claimants.11. Considering the above said aspects, this court feels thatthe income of the deceased fixed by the Tribunal at Rs.3,000/- permonth is marginally lower than the prevailing living wages at theplace of occupation of the deceased. This court feels itappropriate to adopt a marginally higher multiplier of 14 as against17 multiplier so as to adequately compensate the claimants and thatwill also take care of the lesser amount of compensation granted bythe Tribunal for loss of love and affection. In this case, noamount has been granted towards loss of estate and transportexpenses. The sum of Rs.5,000/- granted towards funeral expenses isconfirmed. Accordingly, the award of the Tribunal is modified asfollows:-Sl.No.HeadAmount grantedby the TribunalAmount grantedby this Court1Loss of pecuniary benefits tothe family of the deceased(Rs.24,000/- x 17 =Rs.4,08,00/-)Rs.4,08,000/- ---1(a)Loss of pecuniary benefits tothe family of the deceased(Rs.24,000/- x 14 =Rs.3,36,000/-)---Rs.3,36,000/-2loss of love and affection tothe father, mother and sisterRs. 5,000/-Rs. 5,000/-3Funeral expensesRs. 5,000/-Rs. 5,000/-TotalRs.4,18,000/- Rs.3,46,000/- 12. Since the accident in this case happened on 13.4.2004 andthe award was passed on 11.8.2006, the interest granted by theTribunal at 7.5% is confirmed. https://hcservices.ecourts.gov.in/hcservices/

13. In the result, the Civil Miscellaneous Appeal is allowed inpart as follows:-(i) The award of the Tribunal is reduced to Rs.3,46,000/-fromRs.4,18,000/-.(ii) The interest granted by the Tribunal at 7.5% is confirmed.(iii) Counsel for the appellant seeks for eight weeks' time todeposit the award amount as ordered by this Court and it is granted. (iv) On such deposit, the claimants are permitted to withdraw thebalance amount as apportioned below:-1st respondent father Rs.1,00,000/- with proportionateinterest2nd respondent motherRs.1,50,000/- with proportionateinterest and entire costs3rd respondent unmarried sisterRs.96,000/- with proportionateinterest(v) There will be no order as to costs.(vi) Consequently, connected miscellaneous petition is closed. Sd/Asst.Registrar /true copy/Sub Asst.RegistrartsToThe Subordinate Judge, (The Motor Accident Tribunal),Dharapuram. 1 CC To Mr.J.Chandran, Advocate, SR NO.47 C.M.A.No.3963 of 2008ksk(co)pmk/28.1.2009.