Aggrieved over the dismissal of claim petition filed by the claimants, seeking compensation for the death of one Jeyaraman, aged about 45 years, a Contractor and agriculturist, allegedly earning about Rs.10,000/-, in the accident occurred on 10.03.2007, the claimants are before this Court, by way of this appeal.
2. On 10.03.2007, the deceased Jeyaraman was travelling in a Motorcycle and the Motorcycle got colluded with Lorry leading to the death of said Jeyaraman. Therefore, claim petition.
3. On contest, the Tribunal found that the deceased was riding the motorcycle rash and negligently and dashed against the parked Lorry, which is proved by Ex.P1- First Information Report, and hence, dismissed the claim petition, as the deceased himself was responsible for the accident and it was not proved that the Lorry driver was responsible for accident as it was stopped without any signal and further, three persons had travelled in a motorcycle.
4. The Tribunal, on appreciation of evidence, especially contradiction between Ex.P1 - First Information Report and PW.2's evidence and accepting RW.1's evidence, found that the claimants have not proved that the accident had occurred because of the rash and negligent driving of the lorry.
5. The learned counsel appearing for the appellants would submit that the accident occurred because of rash and negligent driving of the Lorry Driver and in fact, PW.2 himself has stated that when the Lorry was suddenly stopped, without any signal, the Motorcycle got dashed against the Lorry and therefore, the evidence of PW.2 has to be believed and compensation has to be paid.
6. On the other hand, the learned counsel appearing for the Insurance Company would submit that there is contradiction between evidence of PW.2 and Ex.P1-First Information Report given by PW.2 and that was rightly accepted by the Tribunal. Further, he would submit that Lorry was loaded with 200 bags of cement and while Lorry was carrying the said cement it suddenly broke down and thereafter, the Lorry was parked on the left hand side of the road with proper signals. Therefore, the deceased was responsible for the accident. Hence, the dismissal has to be confirmed.
7. A close scrutiny of the records would reveal that as per Ex.P1 First Information Report, it has been stated by PW.2 that the deceased dashed his two wheeler against the parked Lorry loaded with cement. However, on oath PW.2 categorically stated that the Lorry loaded with cement was going in front and that the Lorry was stopped applying sudden break without any signal. The relevant portion of PW.2's evidence reads as follows:-
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8. There is no cross-examination of the said witness.
9. Though the Tribunal found that there was contradiction between Ex.P1 / First information Report and evidence of eye-witness PW.2, who gave Ex.P1, the Hon'ble Supreme Court already held that when there is a contradiction between the First Information Report and the submission made before Court, on oath, the submission before Court on oath has got more evidentiary value and that has to be accepted. It is a well settled position of law that when there is an inconsistency or contradiction between the F.I.R and the statement on oath, the statement on oath alone should be given evidentiary value as per the judgments of the Honourable Supreme Court in (i) New India Assurance Company Ltd., Coimbatore v. Manimaran and others reported in 2008 (2) TN MAC 137; (ii) New India Assurance Company Limited., Madras v. G.Vijaya Kandiban reported in 2006 (2) TN MAC 37; (iii) Oriental Insurance Company Limited v. Kamli and others reported in 2010 ACJ 1340 and (iv) Sabitri Mallick and others v. Haladhar Bhuyan and another reported in 2001 ACJ 2002. Accordingly, the evidence of PW.2 that the accident occurred because of applying of sudden break by moving lorry has caused accident, has to be accepted.
10. Though RW.1 stated that three persons were travelling in motorcycle and that the rider was under intoxication and they dashed against the parked vehicle, the said version is not proved beyond doubt. RW.2, who is the driver of the Lorry stated that the lorry was loaded with 200 bags of cement and it broke down and therefore, the Lorry was parked on the side of the road. The submission of the Insurance Company is that the Lorry broke down and thereafter, it was parked on the side of the road could not be accepted for the simple reason when the vehicle loaded with 200 bags of cement got broke down, it should be in the middle of the road only and it is impossible for the lorry loaded with 200 bags of cement to be taken to the side of the road. Therefore, even if the Insurance company's version is accepted that the lorry broke down, it could not have broke down on the side of the road and it could have been only on the middle of the road. If it had been parked in the middle of the road, there would be a cause for the accident. The version of RW.2 that vehicle loaded with 200 bags of cement was taken to the side of the road for parking after break down cannot be believed. Therefore, RW2's evidence is not reliable and the same is rejected.
11. The date of accident is on 10.03.2007, the deceased was aged about 45 years and he is stated to be a Contractor and Agriculturist. Though the claimants adduced evidence and spoke about the monthly earning of Rs.10,000/- , there is no material evidence to that effect. In the absence of any material evidence, following the judgment of the Honourable Supreme Court in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. reported in 2014 (1) TNMAC 459 (SC), wherein, for a vegetable vendor, who got injured in an accident occurred on 14.02.2008, a sum of Rs.6,500/- (Rupees Six Thousand and Five Hundred only) was fixed as monthly salary, since the accident in the case on hand occurred in the year 2007, one year before the accident occurred in Syed Sadiq's case, instead of Rs.6,500/- as monthly income, this Court takes Rs.6,000/- as monthly income and as per the Judgment of Hon'ble Supreme Court in Rajesh and others v. Rajbir Singh and others reported in (2013) 9 Supreme Court Cases 54, 30% has to be added towards ?future prospects?, wince the deceased was aged about 45 years as proved by Ex.P2 / Postmortem certificate. Along with future prospects, the monthly income would be Rs.6000/- + 30% = Rs.7,800/-. The size of the family is 5 and therefore, as per the Judgment of the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation reported in 2009 (2) TN MAC 1 (SC), 1/4th has to be deducted and after deduction of 1/4th , the loss of income would be Rs.5,850/-. The appropriate multiplier as per the age of the deceased, namely 45 years, is ?14? and the ?loss of income? would be as follows:
Rs.6000 + 30% - 1/4 th x 12 x 14 = Rs.9,82,800/-.
12. The first appellant / wife lost her husband and therefore, for loss of consortium Rs.1,00,000/- is awarded as per the judgment of the Honourable Supreme Court in Rajesh and others v. Rajbir Singh and others reported in (2013) 9 Supreme Court Cases 54. The appellants 2 to 5 are entitled to a sum of Rs.30,000/- each towards loss of ?love and affection?; Rs.20,000/- is awarded towards funeral expenses and Rs.10,000/- towards transportation and a sum of Rs.20,000/- is awarded towards loss of estate. Totally, a sum of Rs.12,52,800/- @ Rs.12,50,000/- is awarded.
13. Accordingly, the appellants/claimants are entitled to a sum of Rs.12,50,000/- (Rupees Twelve Lakhs and Fifty Thousand only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs.
14. In the result,
(i) This Civil Miscellaneous Appeal is allowed;
(ii) The appellants / claimants are entitled to a sum of Rs.12,50,000/- (Rupees Twelve Lakhs and Fifty Thousand only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs;
(iii) The first appellant / wife of the deceased is entitled to a sum of Rs.5,50,000/- and the appellants 2 to 4 are entitled to a sum of Rs.2,00,000/- each. The fifth respondent is entitled to a sum of Rs.1,00,000/- (Rupees Two Lakhs and Twenty Five Thousand only);
(iv) The appellants/claimants are directed to submit their Personal Savings Bank Account Numbers along with the copies of their passbooks to the Tribunal forthwith;
(v) The second respondent-Insurance Company is directed to deposit the entire award amount along with accrued interest and costs, less the amount deposited, if any, to the credit of M.C.O.P.No.4430 of 2013, by the Motor Accident Claims Tribunal - cum ? Special District Court, Trichy, within a period of four weeks from the date of receipt of a copy of this judgment;
(vi) On such deposit, the Tribunal is directed to transfer the respective share amount of the appellants / claimants directly to their Personal Savings Bank Account Numbers, through RTGS/NEFT system, after getting their Account Details, within a period of two weeks thereafter;
(vii) The appellants/claimants are directed to pay the additional Court Fees, if any, within a period of two weeks from the date of receipt of a copy of this judgment; and
(viii) In the facts and circumstances of the case, there shall be no order as to costs.
To
1.The Motor Accident Claims Tribunal - cum ?
Special District Court, Trichy.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.