R. Banumathi, J.@mdashChallenge in this appeal is the order in M.C.O.P. No. 214 of 2009 (6.4.2011) on the file of Motor Accident Claims Tribunal (Sub-Court), Vellore awarding compensation of Rs. 14,81,400/- for the death of deceased Karthikeyan in the road traffic accident on 02.12.2007. Brief facts are that on 02.12.2007 deceased Karthikeyan took his friend K.A. Abdul Samad''s Maruthi Omni van bearing registration No. TN-23 AC 8062 to attend a marriage at Bangalore. At about 9.30 P.M., when deceased Karthikeyan and his friend Khalid was proceeding on Chittoor-Palamaner NH-4 Road, Mogili Ghat, Bangarupalayam Mandal in the Maruthi Omni van, the Eicher van bearing No. TN-23 Q 6939 came on the opposite direction driven by its driver in a rash and negligent manner dashed against the Maruthi Omni van. Due to the impact, Karthikeyan and his friend Khalid sustained grievous injuries. Immediately after the accident, Karthikeyan was taken to Palamaner Government Hospital, where the Doctor examined and declared dead. Injured Khalid fell in Coma stage and was sent to Chittoor Government Hospital for treatment and inspite of treatment fell in Coma. Regarding the accident, a criminal case was registered against Karthikeyan (driver of Maruthi Omni van) in Crime No. 152 of 2007 under Sections 337 and 304(A) I.P.C. of Bangarupalayam Police Station. At the time of accident, deceased Karthikeyan was running Nest Tour and Travels in Vellore. He was also running Naga Poly Bags business and was earning Rs. 30,000/- per month. Alleging that the accident was due to rash and negligent driving of Eicher van driver and that the family has lost the support, the Claimants who are wife and minor son have filed Claim Petition claiming compensation of Rs. 30,00,000/-.
2. Denying the accident, Appellant-Insurance Company filed counter contending that deceased Karthikeyan drove the Maruthi Omni van and dashed against the Eicher van and Ex. P1-FIR was registered against Karthikeyan. Since Karthikeyan died, later the case was closed as charge abated. It was averred that since accident occurred due to rash and negligent driving of Karthikeyan, Appellant-Insurance Company is not liable to pay any compensation. The Claim Petition is bad for non-joinder of owner and insurer of Maruthi Omni van. Appellant-Insurance Company also denied age, occupation, monthly income of the deceased and that the compensation claimed is excessive.
3. Before the Tribunal, 1st Claimant-Priya Karthikeyan examined herself as P.W.1. Eye-witness Srinivasulu was examined as P.W.2. Exs. P1 to P20 were marked. On the side of Appellant-Insurance Company, the driver of Eicher van (P. Arumugam) was examined as R.W.1. The Investigating Officer of Appellant-Insurance Company (Sampath Kumar) was examined as R.W.2. Exs. R1 to R3 were marked.
4. Upon consideration of oral and documentary evidence and accepting the case of Claimants, Tribunal held that the accident was due to rash and negligent driving of Eicher van driver and that owner of Eicher van and his insurer are jointly and severally liable to pay compensation to the Claimants. Based on Exs. P9, P10, P11 and P12 and evidence of P.W.1. Tribunal had taken the monthly income of deceased at Rs. 12,000/- per month and calculated the annual income at Rs. 1,44,000/-. Adopting multiplier "16", Tribunal calculated the loss of income at Rs. 23,04,000/-. Deducting one-third i.e. Rs. 7,68,000/- for personal expenses, Tribunal calculated the loss of contribution to the family at Rs. 15,36,000/-. Adding conventional damages, Tribunal calculated compensation of Rs. 16,46,000/-. Deducting 10% towards income tax i.e. Rs. 1,64,600/-, Tribunal awarded total compensation of Rs. 14,81,400/- to the Claimants.
5. The impugned award is challenged on two grounds negligence as well as quantum. Mr. S. Manohar, learned counsel for Appellant-Insurance Company submitted that Tribunal failed to appreciate that the accident was only due to rash and negligent driving of Maruthi Omni van driven by the deceased Karthikeyan and that Tribunal failed to appreciate that Ex. P1-FIR was registered only against the deceased Karthikeyan. It was further submitted that Tribunal did not properly appreciate the evidence of R.W.1 Eicher van driver whose evidence is amply supported by the evidence of R.W.2-Investigating Officer and Ex. R3-rough sketch and Tribunal erred in disbelieving the evidence of R.Ws. 1 and 2. Learned counsel submitted that the quantum of compensation awarded by the Tribunal is excessive.
6. Mr. K. Surya Narayanan, learned counsel for Claimants submitted that Tribunal has recorded factual finding that the accident was due to rash and negligent driving of Eicher van driver and that the factual finding recorded by the Tribunal cannot be interfered with.
7. To speak about the accident, Claimants examined eye-witness P.W.2-Srinivasulu. In his evidence, P.W.2 stated that on 02.12.2007 at about 9.30 P.M., while he was standing in Chittoor-Palamaner Road, near Mogili Ghat, Bangarupalayam Mandal saw the Maruthi Omni van bearing registration No. TN-23 AC 8062 proceeding slowly keeping on its left side. P.W.2 had also stated that Eicher van bearing registration No. TN-23 Q 6939 which came in the opposite direction driven in a rash and negligent manner without sounding horn hit against the Maruthi Omni van and that the accident was only due to rash and negligent driving of Eicher van driver.
8. Evidence of P.W.2 is sought to be assailed contending that P.W.2 has not lodged any complaint before the Police and that he is related to the Claimants. P.W.2 is resident of Chittoor and appears to be the natural witness and his presence in Chittoor-Palamaner Road cannot be doubted. In his evidence, P.W.2 stated that on knowing about the registration of Ex. P1-FIR at the instance of R.W.1-Arumugham, he went to the Police Station and informed the Police and that the Police did not listen to him. We find no reason to disbelieve the statement of P.W.2. Tribunal which had an opportunity of seeing the eye-witness P.W.2, accepted the evidence of P.W.2 and we find no reason to take a different view. Insofar as the suggestion that P.W.2 is related to the Claimants, excepting the mere suggestion, no evidence is forthcoming to substantiate the said plea.
9. To establish its defence plea that the accident was due to negligent driving of the Maruthi Omni van, Appellant-Insurance Company examined R.W.1-Arumugam, Eicher van driver. In his evidence, R.W.1 stated that the place of accident is "Ghat" and he was climbing the mount keeping his left and only the Maruthi Omni van came in high speed driven in a rash and negligent manner hit against the Eicher van. Contention of Appellant-Insurance Company is that evidence of R.W.1 is corroborated by the contents of Ex. P1-FIR. To the same extent is the evidence of R.W.2-Sampath Kumar, Investigating Officer. Apart from the interested testimony of R.Ws. 1 and 2, Appellant-Insurance Company has not adduced any independent evidence.
10. From Ex. R3-rough sketch, it is seen that the place of accident is "Ghat" and a sharp curve. Maruthi Omni van was proceeding from West to East and Eicher van was proceeding from East to West. Both the vehicles were traversing the curve. In Ex. P1-FIR, R.W.1 has not stated about the location nor stated about the location that it is a Hilly area and that Eicher van was climbing the hill and that Maruthi Omni van was traversing the sharp curve. In his evidence, R.W.1 stated that deceased Karthikeyan was drunk and therefore, Karthikeyan was negligence in driving. No evidence was adduced to substantiate that there was drunken driving by Karthikeyan. As pointed out by the Tribunal in Ex. P3-Post Mortem certificate, viscera is stated as "food material with no foul smell". In Ex. P3-Post Mortem Certificate nothing to indicate that deceased Karthikeyan was drunk. Tribunal rightly disbelieved the version of R.W.1 that deceased was drunk.
11. As pointed out earlier, Ex. P1-FIR was registered on the complaint of R.W.1-Eicher van driver and that Ex. P1-FIR was registered against the deceased Karthikeyan. Reliance was placed upon registration upon Ex. P1-FIR in Crime No. 152 of 2007 against the deceased Karthikeyan. As pointed out earlier, Karthikeyan succumbed to the injuries and another injured person Khalid was in Coma stage. As suggested by Claimants, driver of Eicher van had taken advantage of the death of Karthikeyan and another person entering into Coma. In his evidence, R.W.1 stated that he had not written the complaint and whatever was written by the Police in Telugu, he had signed. R.W.1 also admits that he was not aware of the contents of Ex. P1-FIR.
12. Ex. P1-FIR is only a coloured version of R.W.1. Registration of criminal case against the driver of Maruthi Omni van could only be a piece of evidence and not a conclusive proof to hold that accident was due to negligence of the deceased Karthikeyan.
13. To contend that accident was due to negligence of Maruthi Omni van driver, Appellant-Insurance Company places reliance upon Ex. R3-rough sketch. Chittoor-Palamaner road is Ghat road and the scene of accident the road is East-West direction. Maruthi Omni van was proceeding from West to East and Eicher van was proceeding from East to West. In Ex. R3-rough sketch, the place of accident is shown on the south of the median indicating that Maruthi Omni van crossed the median and caused the accident. Accident occurred on 02.12.2007 at 9.30 P.M. Ex. R3-rough sketch was prepared on 03.12.2007 at 11.00 A.M. Admittedly, there is heavy traffic in Chittor-Palamaner road. Due to the accident in the middle of the road, the vehicles must have been stranded on both sides of the road. Vehicles involved in the accident must have been cleared to ensure free flow of traffic. Ex. R3-rough sketch was prepared on the next day appears to have been prepared to fall in line the version in Ex. P1-FIR. Therefore, Ex. R3-rough sketch cannot be taken''s the conclusive proof.
14. Tribunal disbelieved the evidence of R.Ws. 1 and 2 and we find no reason to take a different view. Based on the evidence of P.W.2, Tribunal recorded factual finding that the accident was due to rash and negligent driving of Eicher van by its driver. We are of the view that the factual findings recorded by the Tribunal does not suffer from any perversity warranting interference.
15. Insofar as quantum of compensation, learned counsel for Appellant-Insurance Company submitted that without any basis, Tribunal has taken the income of the deceased at Rs. 12,000/- per month and that deceased Karthikeyan was not even an income tax assessee. Learned counsel also submitted that 20% ought to have been deducted from the compensation towards income tax.
16. Per contra, learned counsel for Claimants reiterated the award made by the Tribunal and submitted that the compensation awarded by the Tribunal is reasonable warranting no interference.
17. From Ex. P8-Certificate, it is seen that deceased Karthikeyan completed his B.E. Degree Course in Computer Science and he was running Naga Poly Bags business. Ex. P9 is the Certificate of Registration issued by Deputy Commercial Tax Officer, Gudiyattam (East) for Naga Poly Bags. Ex. P11 is the Tax Payer''s Identification Number Certificate (TIN) issued by Deputy Commercial Tax Officer, Gudiyattam for Naga Poly Bags. Ex. P12 is the Certificate of Government of Tamil Nadu, Department of Industries and Commerce regarding Naga Poly Bags. In her evidence, P.W.1 stated that her husband was doing good business in Poly Bags and that he used to travel abroad in connection with his business and also running Nest Tour and Travels Company and that deceased was earning more than Rs. 30,000/- per month. Claimants have produced Exs. P9 to P12 to show that deceased was running Naga Poly Bags business and was also running Travels. Even though deceased was not an income tax assessee, having regard to the qualification as B.E. Graduate and the business he was running, we are of the view that the monthly income taken by the Tribunal at Rs. 12,000/- per month is very reasonable.
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19. Deceased was aged 37 years at the time of accident. As per Second Schedule to M.V. Act, the proper multiplier to be adopted is "16", which the Tribunal has rightly adopted. Taking the monthly income at Rs. 12,000/- per month, the annual income is calculated at Rs. 1,44,000/-. Deducting one-third i.e. Rs. 48,000/- for personal expenses and adopting multiplier "16", Tribunal has calculated the loss of dependency at Rs. 15,36,000/- (Rs. 96,000 x 16 = Rs. 15,36,000/-), which in our considered view is very reasonable warranting no interference.
20. Insofar as conventional damages, Tribunal has awarded Rs. 50,000/- for "loss of consortium" to the 1st Claimant. Though the said amount of Rs. 50,000/- awarded for "loss of consortium" is slightly on the higher side, considering the fact that 1st Claimant-wife has lost her husband at the young age of 30 years, Rs. 50,000/- awarded by the Tribunal for "loss of consortium" is maintained. Tribunal awarded Rs. 50,000/- for "loss of love and affection" to the 2nd Claimant-minor son. Since the 2nd Claimant-minor has lost love and affection of his father at the age of 13, we are of the view that Rs. 50,000/- awarded by the Tribunal for "loss of love and affection" is quite reasonable and the same is maintained. Tribunal also awarded Rs. 10,000/- for funeral expenses and the same is maintained. Thus the total compensation of Rs. 16,46,000/- arrived at by the Tribunal is reasonable, warranting no interference.
21. After so arriving Rs. 16,46,000/- as total compensation, Tribunal deducted 10% i.e. Rs. 1,64,600/- towards income tax. The annual income of the deceased is fixed at Rs. 1,44,000/-. After giving standard deduction, the deceased may not fall under the slab of income tax assessment. However, in the facts and circumstances of the case, we are not inclined to interfere with the deduction of 10% made by the Tribunal towards income tax from the total compensation of Rs. 16,46,000/-. We confirm the total compensation of Rs. 14,81,400/- awarded by the Tribunal. In the result, compensation of Rs. 14,81,400/- awarded by the Tribunal in M.C.O.P. No. 214 of 2009 (6.4.2011) on the file of Motor Accident Claims Tribunal (Sub-Court), Vellore is confirmed and the appeal is dismissed.
It was stated before us that Appellant-Insurance Company has deposited the entire compensation amount. Out of which, 1st Claimant is said to have withdrawn lumpsum amount of Rs. 5,00,000/-. 1st Claimant is permitted to withdraw the balance compensation amount apportioned to her along with proportionate accrued interest. The compensation amount in respect of minor 2nd Claimant is ordered to be invested in anyone of the nationalised bank till the minor 2nd Claimant attains majority. 1st Claimant is permitted to withdraw the accrued interest once in three months directly from the bank.
Consequently, connected M.P. is closed. No costs.
