The Oriental Insurance Company Ltd., Tiruppur-641 601 v. Bangarusamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.03.2010CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.606 of 2006andC.M.P.No.2494 of 2006The Oriental Insurance Company Ltd.,Tiruppur-641 601.. Appellant/ 2nd Respondent Vs1.Bangarusamy2.Bhanumathi3.N.Ramesh .. Respondents/ Petitioner and (R3 – ex-parte) I Respondent Appeal filed under Section 173 of the Motor Vehicles Act,1988, against the Award and Decree, dated 26.05.2005, made inM.C.O.P.No.17 of 2003, on the file of the Motor Accident ClaimsTribunal, Additional District Court, Fast Track Court No.V,Coimbatore at Tiruppur.For appellant : Mr.S.ManoharFor respondents : Mr.R.Subramanian Mrs.R.Meenal for RR1 & 2J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/second respondent against the Award and Decree, dated26.05.2005, made in M.C.O.P.No.17 of 2003, on the file of the MotorAccident Claims Tribunal, Additional District Court, Fast TrackCourt No.V, Coimbatore at Tiruppur, awarding a compensation ofRs.7,88,000/- together with interest at the rate of 9% per annumfrom the date of filing the petition till the date of payment ofcompensation.2.Aggrieved by the said Award and Decree, the appellant/secondrespondent, the Oriental Insurance Company Ltd., Tiruppur-641 601has filed the above appeal praying to set aside the award anddecree passed by the Tribunal.3.The short facts of the case are as follows: https://hcservices.ecourts.gov.in/hcservices/ On 14.02.2002, at about 06.00 p.m. while the deceasedAnandamoorthy was driving Kinetic Honda Scooter bearingregistration No.TN39 F0905 towards north on the extreme left sideof the Mangalam to Palladam road near Auttaiyampalayam junction, alorry bearing registration No.TN39 E2828 came in the same directiontowards north in a rash and negligent manner and dashed against themotorcycle, due to which the deceased sustained severe injuries anddied. The accident had happened due to the rash and negligentdriving of the driver of the lorry. As such, the owner of thelorry and the insurer of the said lorry are jointly and severallyliable to pay a compensation of Rs.10,00,000/- to the claimants.4.The claimants are the parents of the deceased Anandamoorthi.They have submitted that at the time of the said accident their sonwas working as Manager in S.V.Traders, Parapalayam, Tiruppur Taluk.Further, he was aged about 23 years and earning a sum of Rs.6,000/-per month. Regarding the said accident, a case was registered bythe Mangalam Police Station, in Crime No.37 of 2002, under Section304(A) of I.P.C. The claimants further submitted that the deceasedwas the only son to them and he extended his co-operation to theirfamily by way of contributing his earnings.5.The second respondent has filed a detailed counter statementand opposed the claim petition on various grounds stating that thefirst respondent has not submitted the claim for before the secondrespondent. Therefore, the second respondent is not liable to payany compensation on behalf of the first respondent. The secondrespondent does not admit that the lorry bearing registrationNo.TN39 E2828 was driven by its driver in a rash and negligentmanner and dashed against the scooter, which was driven by thedeceased. The second respondent further submitted that the saidaccident had happened due to the rash and negligent driving of thedeceased while trying to overtake one lorry and that he had onlydashed against the lorry bearing registration No.TN39 E2828. Assuch, the deceased was at fault and he had invited the accident byhis rash and negligent driving. The second respondent furthersubmitted that at the time of the said accident, the driver of thelorry was not having a valid and effective driving licence to drivethe said lorry. The second respondent does not admit the age,occupation and income of the deceased also. Further, the secondrespondent submitted that the claim amount of Rs.10,00,000/- withinterest is excessive.6.The Motor Accident Claims Tribunal framed two issues for theconsideration namely:(i)Who is responsible for the accident? (ii)Whether the petitioners are entitled toget compensation? If so, what is the quantumof compensation, which the petitioners areentitled to get? https://hcservices.ecourts.gov.in/hcservices/

7.On the petitioners' side three witnesses were examined asPW1, PW2 and PW3 and 12 documents were marked as Exs.P1 to P12. Onthe respondents' side no witnesses were examined and no documentswere marked.8.The first petitioner was examined as PW1. The PW1, in hisevidence, stated that the Ex.P1-First Information Report wasregistered against the driver of the lorry. The said case wasregistered by Mangalam Police Station in Crime No.37/2002. Ex.P2-Charge Sheet was filed against the driver of the lorry. Ex.P3-Motor Vehicle Inspector's Report, which reveals that there is nomechanical failure in the said lorry, at the time of the accident.Considering the evidence of the Exs.P1, P2 and P3 and evidence ofthe PW1, the learned Tribunal has come to the conclusion that theaccident had happened due to the rash and negligent driving of thesaid lorry. The PW1 further adduced evidence stating that at thetime of accident, his son was aged about 23 years old. He has alsomarked Ex.P4-Post Mortem Certificate. Further he adduced evidencestating that his son was working in S.V.Traders at Tiruppur.Further, the PW1 has marked Exs.P8, P9 and P10 namely RegistrationCertificate of the Company, Renewal of Licence and Auditing Reportrespectively. The PW1 further submitted that his son was earning asum of Rs.6,000/- per month. One Chandrasekaran, co-employee, wasexamined as PW3. The PW3 in his evidence stated that the deceasedwas working in S.V.Traders and had drawn a salary of Rs.6,000/- permonth. 9.Considering the evidence of the PW1 and documentaryevidence, the Tribunal has come to the conclusion to decide thecompensation on the basis of income and age. The Tribunal hasfixed the income of the deceased as Rs.72,000/- per annum. Afterdeducting 1/3rd share from this for his personal expenses andadopting multiplier method of 16, the Tribunal awarded a sum ofRs.7,68,000/- under the head of loss of income, Rs.15,000/- underthe head of loss of love and affection and Rs.5,000/- under thehead of funeral expenses. In total, the Tribunal awarded a sum ofRs.7,88,000/- as compensation to the petitioners, together withinterest at the rate of 9% per annum from the date of filing theclaim petition till the date of payment of compensation, anddirected the respondent to deposit the award with accrued interest,into the credit of the M.C.O.P.No.17 of 2003, on the file of theMotor Accident Claims Tribunal, Additional District Court, FastTrack Court No.V, Coimbatore at Tiruppur. The Tribunal directedthe second respondent that in the said compensation amount, sum ofRs.2,00,000/- each of the petitioners share of award was to bedeposited in any one of a nationalised bank for a period of threeyears, under the fixed deposit scheme, in the name of thepetitioners. The petitioners were permitted to withdraw theinterest once in six months from the bank. The petitioners were https://hcservices.ecourts.gov.in/hcservices/ permitted to withdraw the balance amount of Rs.3,88,000/- of theaward amount, which has to be shared equally, immediately, afterthe deposit was made. The Advocate fees was fixed at Rs.14,880/-. 10.Learned counsel appearing for the appellant argued that theclaim petition was filed under Section 163(A) r/w 166 of the MotorVehicles Act, 1988 and as such the multiplier method cannot beadopted. The learned counsel further pointed out that the Tribunalfailed to appreciate that it had jurisdiction to assess thecompensation only upto a maximum annual income of Rs.40,000/-.But, in this case, the deceased had drawn a sum of Rs.72,000/- perannum. As such, the claim petition is not maintainable. Thelearned counsel further pointed out that as there is no properproof for the income of the deceased, the award amount ofRs.7,68,000/- under the head of loss of income is erroneous and thecompensation amount of Rs.7,88,000/- granted by the Tribunal isexcessive. Hence, the learned counsel has prayed before this Courtto set aside the award and decree passed by the Tribunal.11.Learned counsel appearing for the first and secondrespondents argued that at the time of the accident, the deceasedwas aged about 23 years. Further, academic qualification is notrequired, since he was working in a textile unit. The learnedcounsel submits that the deceased is the only son to his agedparents and they were depending upon his income. After consideringthe evidence of the claimants and the documents marked as exhibits,the Tribunal awarded a compensation to the claimants. Regardingthe income of the deceased Ex.P7-Salary Certificate, Ex.P8-S.V.Traders Registration Certificate, Ex.P9-Renewal Certificate andEx.P10-Auditing particulars were marked. These are all properdocuments to establish that the deceased was working inS.V.Traders. The Co-employee had also adduced evidence. As such,the above Civil Miscellaneous Appeal is not maintainable.12.Considering, the facts and circumstances of the case,arguments advanced by the learned counsel appearing on either sideand on scrutiny of the findings of the Tribunal, this Court is ofthe view that there is no proof that the income of the deceased wasRs.6,000/- per month. Considering the work firm at Tiruppur, ageof the deceased and the date of accident, this Court decides theincome of the deceased as Rs.4,500/-. The multiplier methodadopted by the Tribunal as 16 is proper. Therefore, this Courttakes the multiplier as 16 and awards a sum of Rs.5,76,000/- underthe head of loss of income. The Tribunal awarded a sum ofRs.15,000/- under the head of loss of love and affection. ThisCourt enhances the said award amount to Rs.30,000/- under the samehead and the Tribunal awarded a sum of Rs.5,000/- under the head offuneral expenses. This Court enhances the said award amount toRs.10,000/-. In total, this Court grants a sum of Rs.6,16,000/- ascompensation to the claimants. The Tribunal fixed the rate of https://hcservices.ecourts.gov.in/hcservices/ interest as 9% per annum. The award was granted in the year 2005.As per the Reserve Bank guideline, the rate of interest is 7.5%.Hence, this Court has fixed the interest at the rate of 7.5% perannum from the date of filing the claim petition till the date ofpayment of compensation. Therefore, this Court reduces thecompensation amount from Rs.7,88,000/- to Rs.6,16,000/-, togetherwith interest at the rate of 7.5% per annum from the date of filingthe claim petition till the date of payment of compensation.13.On 27.02.2006, this Court imposed a condition on theappellant to deposit the entire compensation amount, with accruedinterest and costs, if any, to the credit of the M.C.O.P.No.17 of2003, on the file of the Motor Accident Claims Tribunal, AdditionalDistrict Court, Fast Track Court No.V, Coimbatore at Tiruppur,within a period of eight weeks from the date of receipt a copy ofits Order.14.As the accident had happened in the year 2002, it is opento the claimants to withdraw the entire compensation amount withaccrued interest as observed above, lying in the credit of theM.C.O.P.No.17 of 2003, on the file of the Motor Accident ClaimsTribunal, Additional District Court, Fast Track Court No.V,Coimbatore at Tiruppur, by making proper payment out application,in accordance with law, subject to deduction of withdrawal if any.15.The appellant/Insurance Company is at liberty to withdrawthe excess compensation amount, which has already been depositedinto the credit of the M.C.O.P.No.17 of 2003, on the file of theMotor Accident Claims Tribunal, Additional District Court, FastTrack Court No.V, Coimbatore at Tiruppur, by observing necessaryformalities before the Court.16.In the result, the above Civil Miscellaneous Appeal ispartly allowed and the Award and Decree, dated 26.05.2005, inM.C.O.P.No.17 of 2003, passed by the Motor Accident ClaimsTribunal, Additional District Court, Fast Track Court No.V,Coimbatore at Tiruppur, is modified. Consequently, connectedmiscellaneous petition is closed. There shall be no order as tocosts. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.krk https://hcservices.ecourts.gov.in/hcservices/ To1.The Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur.2. The Section Officer, VR Section, High Court, Madras.1 cc to Mr.S. Manohar, Advocate, SR. 202201 cc to Mr.R. Subramanian, Advocate, SR. 20391 C.M.A.No.606 of 2006KLT (CO)kk 31/5