C.S. Karnan, J.@mdashThe above Civil Miscellaneous Appeal has been filed by the appellant/third respondent against the Award and Decree,
dated 27.07.2004, made in M.C.O.P. No. 2813 of 2000, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. VI,
Chennai, awarding a compensation of Rs.5,00,000/- together with interest at the rate of 9% per annum from the date of filing the petition till the
date of payment of compensation.
2. Aggrieved by the said Award and Decree, the appellant/third respondent, The National Insurance Co., Ltd., Chennai-600 108 has filed the
above appeal praying to set aside the award and decree passed by the Tribunal.
3. The short facts of the case are as follows:
On 20.03.2000, at 09.30 a.m. the (deceased) Rajesh Kumar was driving his two wheeler bearing registration No. TN09 D8698, from north to
south direction, on the 100 feet road, when he was nearing Nerkundram Junction, a van bearing registration No. TNQ3895, driven by its driver in
a rash and negligent manner, hit the said motorcycle and caused the accident. The (deceased) Rajesh Kumar sustained injuries and died on the
spot. Hence, the petitioners, who are the parents of the (deceased) Rajesh Kumar have claimed a compensation of Rs.15,00,000/- together with
interest and costs from the second and third respondents, who are the owner and insurer of the said van involved in the said accident, under
Sections 166 Rule 3 of the Motor Vehicles Act.
4.The first and second respondents, in their common counter, have resisted the claim and have stated that the first respondent is not responsible for
causing the accident. It was submitted that the deceased rode the motor cycle at a high speed and in a rash and negligent manner, violated the
traffic rules and caused the accident. It has been submitted that when the van moved forward from east to west at 100 feet road near the
Nerkundram Junction, after receiving the traffic signal, the (deceased) Rajesh Kumar, riding his motorcycle in a rash and negligent manner, from
south towards north, and in violation of traffic rules had dashed the motorcycle against the van. As such, it has been submitted that the first and
second respondents are not liable to pay compensation to the petitioners. The respondents have further denied the averments in the claim regarding
the income and occupation of the deceased. It was also stated that the claim was excessive. It was also submitted that in the event of liability being
fastened on them to pay compensation, it is the third respondent, who should be held liable as the said van had been covered under a valid policy
of insurance with the third respondent, at the time of the said accident.
5.The third respondent, in his counter has resisted the claim stating that the petitioners should prove that the (deceased) Rajesh Kumar had a valid
driving licence to drive the vehicle at the time of accident. It was also submitted the accident had been caused only by the rash and negligent
manner of riding the motor cycle by the (deceased) Rajesh Kumar. It was also submitted that the petitioners should establish the age, income and
occupation of the deceased through documentary evidence. It was also submitted that the third respondent cannot be held liable to pay the
compensation as the accident had been caused only due to the fault of the (deceased) Rajesh Kumar. It was also submitted that the claim is
excessive and has to be dismissed with costs.
6.In the additional counter filed by the third respondent, it has been stated that in the criminal case filed against the first respondent, the driver of the
van, has been acquitted and as such no liability can be fastened on the respondents.
7.The first and second respondents remained absent and were set ex-parte.
8.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Who is responsible for the accident?
(ii)Whether the petitioners are entitled to get compensation? If so, what is the quantum of compensation, which they are entitled to get?
9. On the petitioners'' side three witnesses were examined as PW1, PW2 and PW3 and eight documents were marked as Exs.P1 to P8. On the
third respondent''s side no witnesses were examined and no documents were marked.
10. The eye witness of the accident, one Lakshminarayanan was examined as PW3. The PW3, in his evidence, deposed that on the date of the
said accident, he was drinking tea at a tea shop at 09.30 a.m. and at that time, the vegetable van coming towards Vadapalani, on the 100 feet
road, had dashed against the motorcycle near the Nerkundram Junction; that as a result of the said accident, the motorcyclist had sustained severe
injuries and one of his hands had also been severed off; that the injured motorcyclist was taken by him to the Royapettah Hospital, where he was
pronounced dead; that he had immediately informed the relatives of the deceased motorcyclist about the accident. Regarding the said accident, the
petitioners have filed FIR as Ex.P1 and the copy of the Charge Sheet has been marked as Ex.P2. No contra evidence has been produced on the
part of the respondents'' side to refute the claim of the petitioners as regards the manner of the said accident. However, on the third respondent''s
side, it was contended that only the deceased had been responsible for the cause of the accident and that he did not have a valid driving licence at
the time of the said accident. It was also contended that as the driver of the van had been acquitted in the criminal case lodged against him, there
was no necessity for the third respondent to pay any compensation to the petitioners.
11. But, the Tribunal, on considering that no contra evidence has been let in to prove the manner of accident as alleged by the petitioners'' side and
also considering that no documentary evidence has been let in by the third respondent to establish their contention that the first respondent had
been acquitted in the criminal case filed against him, held that the accident had been caused by the fault of the driver of the van. Further, the third
respondent has also not let in evidence to establish that the (deceased) Rajesh Kumar, the motorcyclist did not have a valid driving licence at the
time of the said accident. The Tribunal also considering that the third respondent has not refuted the contentions in the claim that the second
respondent''s vehicle had been insured with the third respondent at the time of the said accident, held that the compensation assessed by them has
to be paid by the third respondent, on behalf of the first and second respondents.
12. The father of the (deceased) Rajesh Kumar was examined as PW1. The PW1, in his evidence has deposed that his son had been employed as
a Managing Director of Sourcecom Technologies Private Ltd., that he was a diploma holder in Electronics Engineering and had also studied
Automation; that he was earning a sum of Rs.20,000/- per month. He had deposed that he had claimed a compensation of Rs.15,00,000/- for loss
incurred due to the death of his son. The post-mortem report of the (deceased) Rajesh Kumar has been marked as Ex.P3 and the legal heir
certificate has been marked as Ex.P4.
13. One Loganathan was examined as PW2. The PW2, in his evidence, has deposed that the (deceased) Rajesh Kumar had been working in his
firm of Sourcecom Technologies Pvt., Ltd., as the Managing Director and was earning a sum of Rs.20,000/- per month. In support of his
evidence, he has marked Ex.P5, the Memorandum of Association and Ex.P6, the Salary Certificate and Ex.P7, the copy of the Central Sales Tax
Registration of the company and Ex.P8, the Forms No. 3 and 2, wherein it is shown that the deceased person has been identified as the said
Rajesh Kumar. He has further deposed that due to the death of the said Rajesh Kumar, two of the companies projects, which were being
executed had been stopped and that the company had consequently incurred a loss. He had further deposed that the (deceased) Rajesh Kumar
was a technically qualified person and that he could have earned much more, if he had been alive. As the (deceased) Rajesh Kumar was a
bachelor, the petitioners had claimed that they are the only legal heirs of the deceased and are dependants of the (deceased) Rajesh Kumar.
14. The PW1 and PW2, in their evidence, had stated that the (deceased) Rajesh Kumar was employed as Managing Director of Sourcecom
Technologies Pvt., Ltd., and was earning a monthly salary of Rs.20,000/- and in support of their evidence, they have marked Exs.P5 to P7. On
the third respondent''s side, it was contended that as the said firm had been established only a few months prior to the said accident, the employer
could not have given such an excessive salary of Rs.20,000/- to the deceased and have contended that the documents marked as Exs.P5 to P7
have been fabricated to establish the case of the petitioners.
15. On a scrutiny of Ex.P5, it is seen that Sourcecom Technologies Pvt., Ltd., was established on 30.08.1999. The accident had taken place on
20.03.2000. It is seen from Ex.P5 that the (deceased) Rajesh Kumar was one of the directors of the company and on scrutiny of Ex.P6, it is seen
that he had been appointed as Managing Director of the said firm. It has also been decided in the minutes of the company meeting that the salary of
the Managing Director is to be fixed at Rs.20,000/- per month and the salary of the directors of the company is to be fixed at Rs.5,000/- per
month. But, on the petitioners'' side, no evidence has been let in to establish that the resolution adopted at the minutes of meeting had been
followed and that the (deceased) Rajesh Kumar had been paid a salary of Rs.20,000/- per month. The PW1, has also stated in his evidence that
his (deceased) son had joined in the said firm only eight months prior to the said accident and that he had not marked any document to establish
that his son had been getting a monthly salary of Rs.20,000/-. The PW2, in his evidence, has also deposed that he had not marked any receipts or
vouchers to establish that the (deceased) Rajesh Kumar was getting a monthly salary of Rs.20,000/-. He had further stated that a separate book is
maintained, wherein the payments to the directors of the company are recorded. He had stated that he had not marked the said book as evidence
in the case. As such, the Tribunal on considering that no documentary evidence had been let in by the petitioners'' side to establish the income of
the deceased, were not inclined to accept the evidence of the petitioners'' side regarding the income of the deceased. However, the Tribunal on
considering that the (deceased) Rajesh Kumar had been employed in the computer field, held that he could have earned a monthly salary of
Rs.7,500/- and accordingly fixed the notional income of the (deceased) Rajesh Kumar as Rs.7,500/- per month.
16. On a scrutiny of Ex.P4, it is seen that the age of the first petitioner has been stated as 71 years and that of the second petitioner as 66 years.
The Tribunal, on the basis of this, held that the age of the second petitioner was 60 years at the time of the said accident. The Tribunal, then
adopted a multiplier of 5 as was relevant to the age of the second petitioner at the time of the said accident, and as was relevant under Schedule II,
Section 163A of the Motor Vehicles Act to assess the compensation payable to the petitioners.
17. The yearly income of the (deceased) Rajesh Kumar was calculated as Rs.7,500/- X 12 = Rs.90,000/- and his total future income was
assessed at Rs.90,000/- X 5 = Rs.4,50,000/-. Deducting 1/3rd share of this for his personal expenses, the Tribunal assessed the total contribution
of the (deceased) Rajesh Kumar to his family as Rs.3,00,000/-. The Tribunal accordingly awarded a compensation of Rs.3,00,000/- to the
petitioners under the head of loss of income. The Tribunal, on considering that the (deceased) Rajesh Kumar was the only son of the petitioners
and that they had not other children, awarded a compensation of Rs.1,00,000/- to the petitioners under the head of loss of love and affection. The
Tribunal further awarded a sum of Rs.1,00,000/- as compensation to the petitioners under the head of loss of estate.
18. In total, the Tribunal awarded a compensation of Rs.5,00,000/- to the petitioners together with interest at the rate of 9% per annum from the
date of filing the petition till the date of payment of compensation. Further, the Tribunal directed the third respondent to pay the said compensation,
on behalf of the first and second respondents, to the petitioners, into the credit of the M.C.O.P. No. 2813 of 2000, on the file of the Motor
Accident Claims Tribunal, Small Causes Court No. VI, Chennai, within a period of eight weeks from the date of its order. The Tribunal
apportioned the award equally amongst the first and second petitioners. After the deposit was made into Court, the Tribunal permitted each of the
petitioners to withdraw a sum of Rs.1,25,000/- from their apportioned share of award together with accrued interest on their total apportioned
share, immediately, to meet their necessary expenses. The balance of their apportioned share of award was to be invested in a nationalised bank at
Chennai, as fixed deposit, for a period of three years. The Advocate fees was fixed at Rs.12,000/- and the excess Court fee paid by the
petitioners has to be refunded to them.
19. Learned Counsel appearing for the appellant has contended in his appeal that the Lower Court has grossly erred in awarding a sum of
Rs.3,00,000/- under the head of pecuniary loss, without any acceptable evidence for proof of earnings and relevance for the age of the claimants.
It has also been contended that the lower Court ought to have seen that there was no credible income tax assessment or any other documentary
proof for the employment and earnings of the deceased to justify the amount awarded. It has also been contended that the other reasoning of the
Lower Court in awarding an inordinately high sum as compensation are unsustainable and liable to be interfered with in the interest of Justice.
20. Learned Counsel appearing for the first and second respondents/claimants has filed a cross objection No. 31 of 2009 for an additional
compensation of Rs.5,00,000/- together with interest.
21. The learned Counsel appearing for the first and second respondents/claimants argued that at the time of the said accident, the deceased was
engaged in the computer profession and was earning a sum of Rs.20,000/- per month. The Tribunal ought to have deduced a sum of Rs.5,000/-
from the deceased salary for his personal expenses and held that the balance monthly salary of Rs.15,000/- could be contributed to the claimants.
But, the Tribunal had fixed the monthly income of the deceased as only Rs.7,500/- and adopted a multiplier of 5 and awarded the compensation to
the claimants and as such this is on the lower side. The learned Counsel further argued that the Tribunal had failed to award compensation under
the head of funeral expenses and transport expenses, as the body, after post-mortem, had been brought from the hospital to the residence. Hence,
the learned Counsel has sought an additional compensation of Rs.5,00,000/- from the appellant herein with interest.
22. Considering the facts and circumstances of the case, scrutiny of findings of the Tribunal, arguments advanced by the learned Counsel appearing
on either side and the cross objection of the claimants, this Court is of the view that as the deceased was aged only 25 years and as he had a
diploma in engineering and was also the only son of the claimants herein, the compensation awarded by the Tribunal is on the lower side. Hence,
this Court awards the compensation as follows:
1.As the employer of the deceased had deposed before the Tribunal and marked the Salary Certificate as Ex.P6 and as it is an admitted fact that
the deceased was a technically qualified person, the notional income of the deceased is taken as Rs.10,000/- instead of Rs.7,500/- fixed by the
Tribunal and his annual salary is assessed at Rs.1,20,000/-. Deducting 1/3rd share from this for personal expenses of the deceased, the
contribution to the claimants is worked out as Rs.80,000/- per year. Taking a multiplier of 5 as is relevant to the age of the second petitioner the
compensation payable to the claimants is assessed at Rs.4,00,000/- under the head of loss of income.
2.The Tribunal had not awarded any compensation under the head of funeral expenses. This Court grants an award of Rs.10,000/- as
compensation under the head of funeral expenses.
3.The Tribunal had granted an award of Rs.1,00,000/- as compensation under the head of loss of love and affection and a compensation of
Rs.1,00,000/- under the head of loss of estate. This Court, confirms the award granted under the above said heads as it is found to be reasonable
and fair in the circumstances and facts of the case.
As such, this Court grants a total compensation of Rs.6,10,000/- to the claimants. In effect, this Court grants an additional compensation of
Rs.1,10,000/- to the claimants, as it is found to be fair and equitable.
23. Therefore, this Court hereby directs the appellant/third respondent to deposit the additional compensation amount of Rs.1,10,000/- together
with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, into the credit of the
M.C.O.P. No. 2813 of 2000, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. VI, Chennai, within a period of four
weeks from the date of receipt of this Order.
24. After such deposit is made, it is open to the claimants to withdraw the balance compensation and the additional compensation granted by this
Court as observed above, lying in the credit of the M.C.O.P. No. 2813 of 2000, on the file of the Motor Accident Claims Tribunal, Small Causes
Court No. VI, Chennai. The said amount should be shared equally amongst the claimants, after observing formalities for withdrawing the above
amount, subject to deduction of withdrawals made, if any, as per this Court''s earlier order.
25. In the result, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, dated 27.07.2004, in M.C.O.P. No.
2813 of 2000, passed by the Motor Accident Claims Tribunal, Small Causes Court No. VI, Chennai, is modified and Cross Objection No. 31 of
2009 is partly allowed. There shall be no order as to costs.
