The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 24.01.2003, made in M.C.O.P.No.488 of 2001, on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge), Tindivanam, awarding a compensation of Rs.5,20,000/- with 9% interest from the date of filing the petition to till the date of payment of compensation.
2.Aggrieved by the said Order, the appellant/second respondent has filed the above appeal praying for reconsideration of the award granted by the Tribunal. The learned counsel appearing for the appellant has contended in the appeal that in the absence of any documentary evidence in support of the income of the deceased, the notional income of Rs.15,000/- per annum ought to have been taken by the Tribunal for computing compensation. Further, the Tribunal should have rejected the plea of the claimants that the deceased was a wholesale and retail timber businessman, as the same has not been supported by any documentary evidence like Sales Tax Certificate, Income Tax Returns, Licence etc., Further, the award of Rs.5,20,000/- awarded by the learned Tribunal is highly excessive and has to be scaled down.
3.The short facts of the case are as follows:
On 19.03.2001, the deceased and his father were walking on the left side of the GST Road, Tindivanam from the Teashop towards his shop. At that time, a lorry bearing registration No.TN31 W293, proceeding from Marakkanam side, driven in a rash and negligent manner with high speed, and without proper care and caution, dashed against the deceased. He was at once taken to Government Hospital, Tindivanam, but on the way itself, he died. The accident occurred due to the negligence of the lorry driver alone. There is no fault of the deceased. The deceased was aged only about 25 years at time of accident. Due to the above said accident, the entire family had lost their only earning member.
4.The first respondent is the owner of the lorry bearing registration No.TN31 W293 and the second respondent is the insurer of the first respondent's lorry and hence both of them are jointly, severally and vicariously liable to pay the compensation to the petitioners. The petitioners, who are the legal heirs of the deceased, have claimed a compensation of Rs.10,00,000/- as against the respondents with interest and costs under
Section 166(1) of the Motor Vehicles Act.
5.The second respondent/The United India Insurance Company, in its Counter, has resisted the claim stating that it does not admit the age, occupation and monthly income of the deceased Velu. Further, the petitioners have to prove that they are the legal heirs of the deceased. Further, the claim of the petitioners of Rs.10,00,000/- is excessive and has been stated without giving particulars of losses sustained by them under various heads and so this renders the petition not maintainable. Further, it was denied that the vehicle registration No.TN31 W293 was driven rashly and negligently at the time of the accident. The petitioners have to prove that the driver of the vehicle violated the traffic rules and regulations. Further, the petitioners have to prove that the driver of the lorry bearing registration No.TN31 W293 possessed valid driving licence at the time of the accident and that it had been insured with the second respondent. As such, it was prayed that the Tribunal should dismiss the petitioners' claim petition with costs.
6.The first respondent, in spite of being served with summon, did not render appearance before the Tribunal and was set-exparte.
7.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Was the accident caused due to the rash and negligent driving of the first respondent?
(ii) What is the quantum of compensation, which the petitioners are entitled to?
8.On the petitioners side, four documents were marked as Exs.P1 to P4 and the petitioner himself was examined as PW1. On the respondents side no witnesses were examined and one document was marked as Ex.R1.
9.The Tribunal on hearing arguments advanced by the learned counsels on eitherside and after scrutinising of available evidence on record held the first respondent as guilty of rash and negligent driving and awarded a compensation of Rs.5,20,000/- with interest to be paid by the second respondent to the petitioners.
10.The second respondent aggrieved by the above award of the Tribunal has preferred this appeal before this Court. In the appeal, the contentions raised by the learned counsel appearing for the appellant is only on the quantum of compensation awarded by Tribunal and no contentions have been raised in the appeal as against the finding of negligence on the part of the appellant driver. Hence, this Court confirms the finding of negligence by the Tribunal.
11.Coming to the point of compensation, the learned counsel appearing for the appellant has contended that in the absence of any documentary evidence in support of the income of the deceased, the notional income of Rs.15,000/- per annum only should have been taken by the Tribunal for computing compensation, but, the Tribunal had erroneously fixed an income of Rs.48,000/- per annum as the income earned by the deceased.
12.On the findings regarding this aspect by the Tribunal, they had scrutinised the Ex.P3, the Post-mortem Report of the deceased given by the Tindivanam Government Hospital. In this, it has been stated that the age of the deceased at the time of his death was 25 years. Though, it has been claimed by the petitioners that the deceased was earning a sum of Rs.5,000/- per month through sale of wood in bulk, there was no documentary proof advanced in evidence to prove the above. No details regarding the investments made for conducting the wood business shop, the monthly returns on such investments from the wood business and the yearly income of the deceased has been furnished by the petitioners. Further, evidence has been provided to come to a conclusion as to whether the deceased was a registered Vendor and was an income tax assessee and that he was submitting yearly returns to the income tax department. As such, the Tribunal was not inclined to take the salary of the deceased as Rs.5,000/- as claimed by the claimants in their petition, but had come to the conclusion that the salary of the deceased could be taken as Rs.4,000/- only per month. As such, they calculated that the earnings of the deceased per year could be taken as Rs.48,000/-.
13.The Tribunal then deducted 1/3rd share of the annual income of the deceased for personal expenses ie.Rs.16,000/- and taking into consideration that he could have contributed a sum of Rs.32,000/- annually to his dependants, and adopting a multiplier of 16, assessed the total loss of income to his family as Rs.5,12,000/-. The Tribunal awarded a sum of Rs.6,000/- as loss of consortium to the first petitioner and a sum of Rs.2,000/- for funeral expenses. In total, the Tribunal awarded a sum of Rs.5,20,000/- as compensation to the petitioners and apportioned a sum of Rs.3,20,000/- from the award to the first petitioner; a sum of Rs.50,000/- each to the second and third petitioners, a sum of Rs.15,000/- each to the fourth and fifth petitioners; a sum of Rs.25,000/- each to the sixth and seventh petitioners and a sum of Rs.20,000/- to the eighth petitioner.
14.The Tribunal then directed the second respondent to deposit the above said award with interest at the rate of 9% from the date of filing the petition to till the date of payment of the compensation, into the credit of the M.C.O.P.No.488 of 2001, on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge), Tindivanam. Further, after the deposit of the award amount, the apportioned award amount of the 1st, 4th, 5th, 6th, 7th and 8th petitioners should be deposited in a Nationalised Bank as fixed deposit for a period of three years and the interest on such deposit can be received by the first petitioner once in six months and this should be utilised for the welfare of the minor children of the deceased. The Tribunal further directed the petitioners to pay the Court fee on the award granted. Further, the excess Court fee, if any, paid by the petitioners should be returned to them. The Advocate fees was fixed as Rs.12,200/-.
15.The appellant has contended that the award of Rs.5,20,000/- granted by the Tribunal is excessive and has to be scaled down.
16.The learned counsel appearing for the appellant submitted that an award passed of Rs.5,20,000/- is on the higher side. The petitioners have not given any documentary evidence to prove that the deceased salary was Rs.4,000/- per month without documentary proof, the award given by the Tribunal is not maintainable. Further, the multiplier of 16 adopted by the Tribunal is also erroneous.
17.The learned counsel appearing for the respondents argued that the deceased was a woodseller and that his age was 25 at the time of the accident. Rs.6,000/- awarded to the first claimant is on lower side. Rs.2,000/- awarded as funeral expenses is also on lower side.
18.The learned counsel appearing for the respondents further argued that the Tribunal's award of Rs.5,20,000/- is reasonable and fair.
19.For the foregoing reasons and on consideration of the facts and circumstances of the case, the findings of the Tribunal and arguments of the learned counsels for their respective parties, the Court is of the opinion that the appellant's counsel raised a point that in the absence of documentary evidence for income proof, the notional income of the deceased should have been taken as Rs.15,000/- per annum only. This Court stoutly rejects the contentions in this aspect, because the claimants, who are 8 in number namely widow of the deceased, children of the deceased, parents of the deceased and sisters and brother of the deceased, were all dependency on the deceased income. Further, the age of the deceased was only 25 at the time of the accident. At the time of accident, the deceased was a physically healthy person and as such the notional income cannot be taken in the instant case. The income of the deceased as fixed by the Tribunal is a reasonable one.
20.Further, the Tribunal had not considered the award's for love and affection to the claimants 2nd to 8th, even though they are entitled to receive this. The consortium of Rs.6,000/- fixed by the Tribunal is also on the lower side. As such, the appeal challenging the quantum of compensation awarded by the Tribunal is not maintainable.
21.The deceased was a wood seller in the Village. So for the said business, the Court cannot expect documentary proof for the said business. Hence, the award passed in M.C.O.P.No.488 of 2001, on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge), Tindivanam, dated 24.01.2003, awarding a compensation of Rs.5,20,000/- is reasonable, and the multiplier adopted by the Tribunal is also reasonable. For the aforesaid award, the rate of interest granted by the Tribunal as 9% is admissible. This Court does not find any error to interfere with the findings of the Motor Accident Claims Tribunal in its Order dated 24.01.2003 in M.C.O.P.No.488 of 2001.
22.Accordingly, the award of the Tribunal is confirmed by this Court, as the award is equitable, fair and prudent too and is payable by the appellant/United India Insurance Co., Ltd., Tindivanam.
23.At the time of admission, this Court directed the appellant to deposit the balance compensation amount including interest and costs to the credit of M.C.O.P.No.488 of 2001, on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge), Tindivanam, within a period of eight weeks.
24.Further, this Court permitted the respondents 1st, 4th to 8th to withdraw 50% of their respective shares from the award amount with entire accrued interest and costs. This Court also directed the Tribunal, to invest the minors' share i.e. Respondents 2 and 3, in a Nationalised Bank till the disposal of the appeal.
25.If the Tribunal's Order has not been complied with already, this Court directs the appellant/United India Insurance Co., Ltd., to comply with the order of the Motor Accident Claims Tribunal (Principal Subordinate Judge), Tindivanam, in its Order dated 24.01.2003, passed in M.C.O.P.No.488 of 2001, within a period of six weeks from the date of receipt of this Order.
26.It is open to the 1st, 4th to 8th respondents/claimants, to receive the balance amount, after such deposit, lying to the credit of M.C.O.P.No.488 of 2001, on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge), Tindivanam, by filing necessary payment out application in accordance with law. Already, this Court Order dated 22.03.2005 passed in C.M.P.No.3179 of 2005 is in force stating that the first claimant, namely Manimegalai is permitted to withdraw the accrued interest on the deposit of the minors share of the award amount once in three months directly from the bank for the welfare of the minors. This Order is also confirmed by this Court, till the minors become major. As soon as, the minors become major, they are permitted to withdraw their respective apportioned amount of the award.
27.In the result, the Civil Miscellaneous Appeal is dismissed and the award passed in M.C.O.P.No.488 of 2001, on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge), Tindivanam, is confirmed. Consequently, connected miscellaneous petition is also closed. No costs.
07.12.2009 Index: Yes/No Internet: Yes/No krk To
1.Motor Vehicles Accident Claims Tribunal, Principal Subordinate Judge, Tindivanam.
2. The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk Pre-deliver Order in C.M.A.No.605 of 2005 07.12.2009