C.S. Karnan, J.@mdashThe above appeal has been filed by the Appellant/The Oriental Insurance Company against the award and decree passed by the learned Motor Accident Claims Tribunal and Principal District Court, Salem, in MCOP No. 934 of 2004, dated 08.08.2006, awarding a compensation of Rs. 8,39,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of making of payment of compensation.
2. Aggrieved by the said award, the Appellant-The Oriental Insurance Company filed this appeal to scale down the said compensation amount.
3. The brief facts of the case are as follows:
On 21.10.2003, early morning, the deceased was riding his TVS Scooty Moped bearing registration No. TN 275 0039, slowly, on the extreme left side of Omalur to Salem Main Road. At about 1.00 a.m., when the deceased was nearing Sardar Punjabi Daba Hotel at Dalmia Board, one Tanker lorry bearing registration No. TN 28E 1177 belonging to the first Respondent and insured with the second Respondent came behind the deceased at a very high speed and in a rash and negligent manner and tried to overtake the deceased. The deceased also gave way to the Tanker Lorry. While the Tanker Lorry was overtaking the TVS Scooty the driver of the Tanker Lorry saw another lorry coming from opposite side very closely and in order to avoid a head on collision with that lorry, this Tanker lorry driver, suddenly turned his Tanker lorry towards the left side. As a result the Tanker lorry dashed on the TVS Scooty Moped. The Deceased sustained multiple fractures and grievous injuries all over his body and unfortunately he died on the way to Salem Government Hospital. Regarding the said accident, the Omalur Police has registered a case against the driver of the lorry in Crime No. 826/2003, under Sections 279, 304A of I.P.C. The deceased was aged about only 47 years at the time of the Accident. He was hale and healthy before the accident. He was the only earning member in the family. He was the proprietor of Sabari Constructions and leading Contractor in Railways, P.W.D., and Highways Department. He was earning Rs. 10,000/- per month. He was an Income Tax Assessee also. The claimants are the wife, children and parents of the deceased. As such they claimed a compensation of Rs. 25,00,000/- with interest before the Tribunal.
4. The second Respondent/The Oriental Insurance Company had resisted the claim petition by filing the counter statement on the following grounds.
3. It is not admitted that the accident took place due to the rash and negligent driving of the tanker lorry bearing Reg. No. TN.28.E.1177 by its driver. Actually the driver of the lorry who drove his vehicle slowly and deligently but the deceased who drove his TVS Scooty bearing Reg. No. TN.27.S.0039 in a rash and negligent manner and all of a sudden came on the centre of the road with out giving signals and hit on the lorry and sustained Fatal injuries and died. Since the deceased also contributed to the accident the quantum should be reduced in terms of the contributory negligence.
4. The Petitioner ought to have impleaded the owner and insurer of the TVS Scooty bearing Reg. No. TN.27.S.0039 for proper adjudication. This claim may be dismissed for non joinder of the proper parties.
5. The driver of the lorry was not having endorsement to drive Hazarduous goods vehicle in his D.L. At the time of the accident. And the deceased who is the rider of the T.V.S. Scooty was also not possessing D.L. Hence this Respondent is not liable to pay any compensation to the Petitioners.
6. The Petitioners are not entitled to get a sum of Rs. 5,000/- each for transport to the Hospital, damages to T.V.S. Scooty and damages to clothing respectively. And a sum of Rs. 25,000/- for loss of consortium, and a sum of Rs. 50,000/- for loss of love and affection, and a sum of Rs. 24,10,000/- for loss of earning power etc. Any how the total claim for a sum of Rs. 25,00,000/- is excessive, hypothetical and they are not entitled for it.
7. It is not admitted that the deceased was aged about 47 years and was earning a sum of Rs. 10,000/- per month from his business as Contractor in Railways, P.W.D., Highways, as a proprietor of Sabari constructions at the time of the accident. These are hypothetical and invented for the purpose of claiming more compensation.
8. This Respondent reserves his right to file an additional counter if and when more particulars are available to them at a later stage.
9. This Respondent is filing petition u/s 170 of M.V. Act in addition to this counter.
Therefore, this Respondent humbly prays that this Honourable Court may be pleased to dismiss the petition with costs and thus render justice.
5. The learned Motor Accident Claims Tribunal, after considering the plea of the claimant and the counter statement of the second Respondent, had framed two issues for consideration, namely,
(i) Whether the accident occurred due to the rash and negligent driving of the driver of the tanker lorry?
(ii) Whether the Petitioners are entitled to obtain compensation as claimed in the petition?
6. On the side of the claimant two witnesses were examined, namely, P.W.1 claimant/1st Respondent herein and P.W.2 one Madhu and sixteen documents were marked, namely, Ex.P.1-Certified copy of F.I.R., Ex.P.2-copy of Postmortem certificate, Ex.P.3-copy of charge sheet, Ex.P.4-Motor vehicle Inspector''s Report Ex.P.5-Certified copy of judgment in C.C. No. 139/2004 of J.M.-Cum-D.M., Omalur, Ex.P.6-Death certificate of Govindan, Ex.P.7-Rough sketch Ex.P.8-Legal heir certificate of deceased Govindan Ex.P.9-Letter sent by the E.E. TWAD Board, Ex.P.10-Letter sent by the E.E. TWAD Board, Ex.P.11-Assessment Order of Commercial Tax Dept., Ex.P.12-Assessment Order of Commercial Tax Dept., Ex.P.13-Income Tax Assessment for the year 2000-2001, Ex.P.14-SSLC Certificate of Govindan, Ex.P.15-Partnership Deed between A.C.Govindan and Tamil Selvi and Ex.P.16-Voters Identity Card of Govindan. On the side of the Respondents no witness was examined and no document was marked.
7. The Tribunal, after framing issues for consideration, passed order as follows:
(i) The person who had witnessed the accident has been examined as P.W.2. P.W.2 in his evidence has stated that on 12.06.2004 at about 1 p.m., while the deceased was proceeding in his TVS Scooty, he was proceeding in a TVS 50 behind him at Omalur to Salem Road and when they were nearing Dalmis, a lorry came behind them and proceeded by overtaking him and another lorry from Salem to Omalur in a rash and negligent manner and dashed against the deceased and as a result of which the deceased died on the way to Government Hospital, Salem. He has further stated that the accident occurred due to the rash and negligent driving of the tanker lorry bearing registration No. TN 28 E 1177. Nothing has been elicited during the cross examination of P.W.2 to discredit his evidence with regard to the same. Ex.P1 is the copy of FIR. In the FIR it is stated that the driver of the tanker lorry was at fault in causing the accident. From the Motor Vehicle Inspector''s Report which is marked as Ex.P.4, it is evident that the accident was not due to any mechanical defect. After investigation, the police has charge sheeted the tanker lorry driver and the same can be evidenced from the copy of the charge sheet marked as Ex.P3. Ex.P.6 is the death certificate of the deceased. Ex.P7 is the rough sketch. That apart the driver of the lorry has admitted his guilt and been convicted by the criminal court and the same can be evidenced from the copy of judgment of J.M. Omalur which is marked as Ex.P.5. to controvert the above evidence let in by the Petitioners, no proof has been adduced by the 2nd Respondent to show that the accident was not due to the rash and negligent driving of the tanker lorry driver, but the same occurred due to the negligent driving of the deceased. For the reasons stated above I hold that the accident occurred due to the rash and negligent driving by the driver of the tanker lorry.
(ii) the age of the deceased was 47 years at the time of the accident. Ex.P.2 is the Postmortem certificate of the deceased. From the same it is seen that the deceased was aged 47 years at the time of the accident. Therefore, the age of the deceased is fixed at 47 years at the time of the accident.
(iii) The deceased was stated to be a proprietor of Sabari Constructions and was a contractor in Railways P.W.D., and Highways and was earning a sum of Rs. 10,000/- per month. P.W.1 who is the wife of the deceased has categorically stated that the deceased along with P.W.1 was a partner and was running Sabari Construction and the deceased was also working as a contractor for P.W.D and National Highways and thereby earning a sum of Rs. 10,000/- per month. Ex.P.15 is the partnership deed. From the same it is seen that the deceased and the 1st Petitioner as partners were running the Sabari Constructions. Ex.P16 is the I.D. Card of the deceased. Ex.P9 and P10 are letters of Executive Engineer, Tamil Nadu Water Supply and Drainage Board addressed to the Sabari constructions. From the same it is seen that the deceased was doing contract work in the P.W.D. and National Highways. Ex.P11 and Ex.P12 are the Assessment Order of Commercial Tax Department in respect of Sabari Constructions. Ex.P13 is the Income Tax Assessment of Sabari Constructions for the year 2000-2001. From Ex.P13 it is seen that the deceased is an income tax Assessee.
8. After considering the evidence of P.W.2, the learned Motor Accident Claims Tribunal fixed the income of the deceased as Rs. 8,000/- per month on the basis of Ex.P.9 and Ex.10. The Tribunal fixed the age of the deceased as 47 years and adopted multiplier of 13 and awarded a compensation of Rs. 8,32,000/- under the head loss of income, after deducting 1/3 share towards personal expenses. The Tribunal awarded a sum of Rs. 5,000/- towards loss of consortium and Rs. 2,000/- under the head funeral expenses. In total the Tribunal awarded a sum of Rs. 8,39,000/- 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. The Tribunal further apportioned that the 1st claimant is entitled to receive a sum of Rs. 2,59,000/- and the 2nd and 3rd claimants are entitled to a sum of Rs. 2,50,000/- each and the claimants 4 and 5 are entitled to get a sum of Rs. 40,000/- each. Accordingly ordered.
9. Aggrieved by the said award and decree passed by the Motor Accident Claims Tribunal in MCOP No. 934 of 2004, dated 08.08.2006, the Appellant-The Oriental Insurance Company has filed the appeal to scale down the compensation amount.
10. The learned Counsel for the Appellant vehemently argued that the award passed by the learned Motor Accident Claims Tribunal is on the higher side and in an arbitrary manner. He further argued that in the absence of income proof, the learned Tribunal has fixed the income of the deceased at Rs. 8,000/- per month and awarded the compensation of Rs. 8,32,000/- under the head loss of income, which is not appropriate. The Tribunal further wrongly fixed the age of the deceased as 47. Hence he prays to scale down the compensation amount.
11. Considering the facts and circumstances of the case and the arguments advanced by the learned Counsel for the Appellant and the award and decree passed by the Motor Accident Claims Tribunal, in MCOP No. 934 of 2004, dated 08.08.2006, this Court is of the view that the award of a sum of Rs. 8,39,000/- is on the higher side. Hence, this Court decides to restructure the same as follows:
This Court fixes the income of the deceased at Rs. 6,000/- per month and adopts the multiplier of 11. Hence, the compensation amount under the head loss of income works out to Rs. 5,28,000/- (Rs. 6,000/-X 12 X 11) after deducting 1/3 share towards personal expenses. This Court awards a sum of Rs. 15,000/- under the head loss of consortium to the first claimant and Rs. 40,000/- under the head love and affection to the claimants 2 to 5 and another Rs. 10,000/- under the head funeral expenses. In total this Court awards a sum of Rs. 5,93,000/-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 which is equitable and fair.
12. This Court imposed a condition on the Appellant-The Oriental Insurance Company, on 07.08.2007, to deposit the entire compensation amount together with interest into the credit of MCOP No. 934 of 2004, on the file of the Motor Accident Claims Tribunal and Principal District Judge, Salem.
13. It is open to the claimants to withdraw their apportioned share amount as observed by the Tribunal with accrued interest thereon lying in the credit of MCOP No. 934 of 2004, dated 08.08.2006, on the file of the Motor Accident Claims Tribunal and Principal District Judge, Salem after filing necessary payment application necessary in accordance with law, subject to deductions of withdrawals if any and the minor attaining manhood. Likewise, the Appellant-The Oriental Insurance Company is at liberty to withdraw the excess compensation amount with accrued interest thereon after observing necessary formalities of the Court below.
14. In the result, the above Civil Miscellaneous Appeal is partly allowed and the award and decree passed by the Motor Accident Claims Tribunal, in MCOP No. 934 of 2004, dated 08.08.2006, is modified. No costs.
