(Made by S.Manikumar, J.) Challenge in this appeal is to the judgment and decree dated 28.03.2016 made in M.C.O.P. No.210 of 2014 on the file of Motor Accident Claims Tribunal (Special District Court), Dharmapuri, by which, the Tribunal has awarded a compensation of Rs.48,13,000/-, to the legal representatives of R.Shankar, who died in a road accident.
2. Short facts leading to the filing of the civil miscellaneous appeal are that, on 12.09.2012 at 3.30 p.m, while R.Sankar, husband of the first respondent was riding his two wheeler bearing Registration No.TN-29 F- 3207 from Pennagaram DSP office to Dharmapuri, on Pennagaram to Dharmapuri Main Road, near Sukkuru Rice Mill, Athakkapadi Burial Ground, a TATA 407 vehicle bearing Registration No.TN-29 B-4509, which came in the opposite direction, driven in a rash and negligent manner and at a great speed, dashed against the motorcyclist. In the said collision, R.Sankar, sustained injuries all over his body and died. A case in Cr.No.235 of 2012 on the file of Indur Police Station, has been registered against the driver of TATA 407 vehicle, for offences, under Section 279 and 304-A IPC.
3. According to the legal representatives, prior to the accident, he was working as a Head Constable in Tamil Nadu Police Service. At the time of accident, he was 41 years and had 19 years of remaining service. He was a M.A. degree holder and due for promotion, to the post of Sub Inspector of Police. He cultivated his lands, raised food grains and earned a sum of Rs.5,00,000/- per annum in agriculture. For the death of their sole breadwinner, they filed a claim petition for compensation of Rs.80,00,000/-.
4. The appellant-insurance company denied the manner of accident. According to them, the accident occurred only due to the rash and negligence of the motorcyclist. That apart, it was also contended that the motorcyclist had no valid driving licence. Without prejudice to the above, appellant-insurance company, disputed the age, avocation, income and the compensation claimed under various heads.
5. Before the Tribunal, first respondent/first claimant examined herself as PW.1. and reiterated the averments made in the claim petition. PW2 is an independent witness. PW3 is a Computer Operator from the office of the Superintendent of Police, Dharmapuri. Ex.Pl - FIR, Ex.P2 - Policy copy, Ex.P3-Registration Certificate copy, Ex.P4-copy of driving licence, Ex.P5-copy of postmortem report, Ex.P6-Observation Mahazar, Ex.P7-rough sketch, Ex.P8-Salary certificate, Ex.P9-Copy of vehicle Registration certificate, Ex.P10-Copy of driving licence, Ex.P11- copy of Loan application, Ex.P12-Details of loan, Ex.P13-Copy of sale deed, Ex.P14-M.A. Degree Marksheet, Ex.P15-Legalheir certificate and Ex.P16 - Death certificate, have been marked on the side of the respondents/claimants.
6. On the side of the appellant/Insurance Company, three witnesses have been examined as RW1 - Mayavan, driver of TATA 407, RW2-Devaraj, Junior Assistant from the RTO office and RW3- Dr.Thiruvengadam. Seven documents have been marked as Ex.R1- summons, Ex.R2-copy of driving licence, Ex.R3-Letter from RTO, Dharmapuri, Ex.R4-copy of driving licence, Ex.R5-policy copy, Ex.R6-copy of vehicle permit, Ex.R7-Motor Vehicle Inspection Report.
7. Three documents were produced by the witnesses as, namely, Letter from the office of Superintendent of Police and casualty letter, from the office of the Superintendent of Police.
8. On evaluation of pleadings and evidence, the Tribunal held that the driver of the TATA 407 mini lorry, bearing Registration No.TN-29 B- 4509, belonging to the fifth respondent was negligent, in causing the accident and quantified the compensation as Rs.48,13,000/-with interest at the rate of 7.5% per annum and costs, as follows:
Loss of income : Rs.45,63,000/-
Loss of consortium : Rs. 1,00,000/- Loss of love and affection : Rs. 1,00,000/- Transportation : Rs. 25,000/-
Funeral Expenses : Rs. 25,000/-
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Total : Rs.48,13,000/-
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Following the judgment of this court in ICICI Lombard General Insurance Co. Ltd vs. Kannusamy and another reported in 2015 ACJ 252, the Tribunal, ordered pay and recovery against the appellant-insurance company.
8a. Being aggrieved by the quantum of compensation, the appellant-insurance company, has preferred the present appeal, on the grounds, inter alia that the Tribunal has erred, in adding Rs.2,000/- p.m, as income from agricultural lands, when the lands were stated to have purchased, only in the year 2012. The Tribunal has erred in fixing the age of the deceased and consequently, the multiplier. The Tribunal has not deducted any amount towards income tax. In addition to the above, the appellant-insurance company, has denied the income and compensation claimed under other heads.
9. Per contra, learned counsel for the claimants/respondents 1 to 4, contended that, after evaluating the pleadings and evidence, the Tribunal, has arrived at a just and reasonable compensation, and the same deserves to be confirmed.
Heard the learned counsel for the parties and perused the materials available on record.
10. As regards the manner of accident, PW.1, first respondent/first claimant has adduced evidence, reiterating the averments made in the claim petition. Though PW.1 has not witnessed the accident, her version is supported by an independent eye-witness to the accident, PW.2, and duly corroborated by EX.P1- FIR, registered in Cr.No.235 of 2012, against the driver of the TATA 407 vehicle, for the offences, under Sections 279 and 304 - A IPC, on the file of Indur Police Station.
11. RW1-driver of TATA 407 vehicle, in his evidence has admitted he did not possess a valid and effective driving licence to drive TATA 407 vehicle.
12. It is the well settled law that proceedings before the Claims Tribunal are summary in nature and it is suffice to consider, as to whether there is any preponderance of probability, as to the manner of accident, as detailed in the claim petition. Strict proof of evidence is not required. After considering the cumulative evidence adduced by the parties, the Tribunal has arrived at the conclusion that TATA 407 vehicle, bearing Registration NO.TN 29 B 4509, owned by the 5th respondent, was involved in the accident, and due to negligent driving of the said vehicle, the deriver has caused the death of the breadwinner of the respondents 1 to 4 herein/claimants. In this regard, it is useful to refer to a few decisions on the aspect of preponderance of probability.
13. In N.K.V.Brother's Private Limited v. Kurmai reported in AIR 1980 SC 1354, while dealing with the scope of the enquiry in the Claims Tribunal, the Apex Court has held that, "Accident Claims Tribunal, must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plaint cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. "
14. In a decision in Union of India v. Saraswathi Debnath reported in 1995 ACJ 980, High Court of Gauhati has held in Paragraph 6 as follows:
"The law is well settled that in a claim under the Motor Vehicles Act, the evidence should not be scrutinised in a manner as is done in a civil suit or a criminal case. In a civil case the rule is preponderance of probability and in a criminal case the rule is proof beyond reasonable doubt.It is not necessary to consider these niceties in a matter of accident claim case inasmuch as it is summary enquiry. If there is some evidence to arrive at the finding that itself is sufficient. No nicety, doubt or suspicion should weigh with the Claims Tribunal in deciding a motor accident claim case."
15. In Bimla Devi & Ors. Vs. Himachal RTC reported in 2009 (13) SCC 530, the Supreme Court held as follows:
"It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties. "
16. It is the well settled law that proceedings before the Claims Tribunal are summary in nature and it is suffice to consider, whether there is any preponderance of probability, as to the manner of accident, as detailed in the claim petition. Strict proof of evidence is not required.
17. In the light of the above discussion and decisions, this court is of the considered view that the approach of the Tribunal, in fixing negligence, on the driver of TATA 407 vehicle, cannot be said to be manifestly illegal, or perverse warranting interference. Hence, finding regarding negligence, is confirmed.
18. As regards the monthly income of the deceased, PWl has produced Ex.P8-salary certificate issued by office of the Superintendent of Police, Dharmapuri, to substantiate the contention that her husband earned Rs.23,909/- at the time of accident. PW1 has deposed that, in addition to the above, her husband, by raising agricultural crops in the lands belonging to them, earned a sum of Rs.5,00,000/- per annum. However, the Tribunal, has taken only a sum of Rs.2,000/- per month. In the absence of proof, and taking note of the fact, that the lands continue to be in possession of the claimants, from which, the claimants can derive agricultural income, we are of the view that addition of Rs.2,000/- is reasonable and it does not call for any interference. Going through the oral and documentary evidence, the Tribunal has fixed the monthly income as Rs.26,000/-. There is no error in fixing the monthly income of the deceased as Rs.26,000/-. At the time of accident, the deceased was aged 40 years and hence the Tribunal has added 30% of the income towards future prospects. Hence for the purpose of calculating the loss of income to the family, the monthly income of the deceased is taken as Rs.33,800/-(Rs.26,000 + 30%).
19. As per the statement in the claim petition, at the time of accident, he was aged about 40 years. Having regard to the entry in Ex.P4-Driving licence, Tribunal, has fixed the age. As per SARLA VERMA (SMT) AND OTHERS VS. DELHI TRANSPORT CORPORATION AND
ANOTHER reported in (2009) 6 SCC 121, '15' multiplier would be the appropriate multiplier and thus the Tribunal adopted correct multiplier. The deceased is survived by wife, two female children, and mother. As per Sarla Verma case, 1/4th of the income has been deducted towards personal and living expenses of the deceased. Loss of income to the family, computed by the Tribunal, is Rs.45,63,000/- (Rs.25,350/- x 12 x 15).
20. In addition to the above, the Tribunal has awarded the following amounts as compensation to the legal representatives:
Funeral Expenses : Rs.25,000/-
Transportation : Rs.25,000/-
Loss of consortium : Rs.1,00,000/-
Loss of love and affection to minor children : Rs. 1,00,000/-
Thus, the Tribunal has awarded an overall compensation of RS.48,13,000/- with interest at the rate of 7.5% per annum.
21. It is the contention of learned counsel for the appellant/insurance company that the Tribunal has erred in not deducting income tax and further contended that compensation awarded under some of the heads is high. Going through the award, we find that the Tribunal has awarded a sum of Rs.1,00,000/- alone under the head loss of love and affection, to the minor children. The Tribunal has failed to award compensation, under the said head, to the mother. The Tribunal has not awarded any amount, under the head, loss of estate and conventional damages.
22. From the evidence of PW1, it could be seen that the deceased was a M.A. degree holder. Respondents have claimed that at the time of accident, he was due for promotion to the post of Sub Inspector of Police and had 19 years of remaining service. Had he been alive, at the time of retirement he would have retired as a Deputy Superintendent of Police and that the income could be much more.
23. Hence, In the light of the above discussions, the judgment of the Tribunal, is confirmed. Appellant-Insurance company is directed to deposit, if not already deposited, the entire award amount with accrued interest and cost to the credit of M.C.O.P. No.210 of 2014, on the file of the Motor Accident Claims Tribunal (Special District Court), Dharmapuri District, within a period of four weeks from the date of receipt of a copy of this Judgment.
24. In the result, the Civil Miscellaneous Appeal is dismissed. No costs. It is made clear that dismissal of the appeal shall not foreclose the right of the claimants/respondents, to file an appeal, if so advised.
25. The appellant-Insurance is directed to deposit the entire award amount, with proportionate accrued interest and costs, if not already deposited, to the credit of M.C.O.P.No.210 of 2014, on the file of the Motor Accident Claims Tribunal (Special District Court), Dharmapuri, within a period of four weeks from the date of receipt of a copy of this Judgment. In all other respects, the Judgment of the Tribunal, shall hold good.
Index : Yes/No asr To The Motor Accident Claims Tribunal, (Special District Court) Dharmapuri District.
(S.M.K., J.) (M.G.R., J.) 27.06.2017
S.MANIKUMAR, J.
AND M.GOVINDARAJ, J.
asr C.M.A.No.808 of 2017 27.06.2017