This Civil Miscellaneous Appeal has been preferred by the appellant- Insurance Company against the fixing of liability on the driver of the bus insured with the appellant-Insurance Company and awarding a sum of Rs.10,35,000/- (Rupees Ten Lakhs and Thirty Five Thousand only) for the death of one K.Rajendran, aged about 35 years, a lorry driver and an agriculturalist, earning about Rs.8,000/- (Rupees Eight Thousand only), in the accident occurred on 01.03.2011, when he was riding his two wheeler from south to north, which was hit by the bus driven in a rash and negligent manner coming from north to south side.
2. Heard the learned Counsel for the appellant-Insurance Company.
3. It is submitted by the learned Counsel for the appellant-Insurance Company that the accident occurred in the middle of the road and therefore, there should be some contributory negligence on the part of the deceased to an extent of 50%. Secondly, he would submit that the complainant was not examined by the respondents 1 to 4/claimants and therefore, the award passed by the Tribunal has to be set aside.
4. The deceased was riding his two wheeler on Karur ? Vellore Main Road from south to north and the bus was coming from north to south side and the accident occurred at Punjaikadambankurichi. It is the case of the appellant- Insurance Company that the accident occurred in the middle of the road as proved by Ex.R.1 ? Rough Sketch, marked through R.W.2 ? Sub Inspector of Police. The Tribunal considered the very same issue and found that as per Ex.R.1 ? Rough Sketch, the accident took place on the western side of the divider line and there was a sufficient space for the movement of the bus on the eastern side of north to south road and therefore, the Tribunal found that Ex.R.1 ? Rough Sketch proved that R.W.1 ? the driver of the bus alone came in the wrong side and caused the accident.
5. When Ex.R.1 ? Rough Sketch marked on the side of the appellant- Insurance Company itself makes it very clear that the accident occurred on the western side, i.e. beyond the middle line from east, the Tribunal rightly found that the accident occurred because of the driver of the bus, who crossed the middle line and went into the opposite lane and caused the accident and therefore, the said finding is based on evidence and therefore, it cannot be interfered with and the same is confirmed.
6. The other point that has been canvassed by the learned Counsel for the appellant-Insurance Company is that the complainant was not examined.
7. The First Information Report is only an information given to the Police Station about the accident and it is only a piece of evidence and not based on the F.I.R alone, the accident and the manner of accident were proved and it was only based on the evidence of P.W.2 ? eyewitness as well as Ex.R.1 ? Rough Sketch. Hence, the non-examination of the complainant would in no way affect the case of the respondents 1 to 4/claimants and accordingly, the said contention is rejected.
8. Though the quantum of compensation is not in issue, when the award is perused by this Court, it would show that the Tribunal did not award the just compensation.
9. The deceased was aged 35 years as his date of birth is 01.05.1975, whereas the Tribunal took his age as 36 years as the deceased completed 35 years and 10 months. Therefore, the age of the deceased is determined at 35 years.
10. Ex.P.4 is the driving licence of the deceased and he was stated to be working as a Heavy Motor Vehicle driver earning about Rs.8,000/- (Rupees Eight Thousand only), apart from Rs.150/- (Rupees One Hundred and Fifty only) per day as batta per month. In the absence of any documentary evidence, the Tribunal found that a sum of Rs.6,000/- (Rupees Six Thousand only) would be the monthly income of the deceased and fixing a sum of Rs.50/- (Rupees Fifty only) as batta per day, took the same for 20 days and fixed the monthly income of the deceased at Rs.7,000/- (Rupees Seven Thousand only) [Rs.6,000/- + Rs.1,000/- {Rs.50/- X 20}]. The said determination is reasonable and the same is confirmed.
11. No amount towards future prospects was added, though the deceased was hardly 35 years old and therefore, 50% has to be added towards future prospects as per the dictum laid down by the Honourable Supreme Court in Rajesh and others v. Rajbir Singh and others reported in (2013) 9 Supreme Court Cases 54.
12. If 50% is added towards future prospects, the monthly income of the deceased would be Rs.10,500/- (Rupees Ten Thousand and Five Hundred only) [Rs.7,000/- + Rs.3,500/-].
13. Since the size of the family is 5 [the respondents 1 to 4 and 6], the Tribunal rightly deducted 1/4th amount towards personal expenses and the same is confirmed. After deducting 1/4th amount, the monthly income of the deceased would be Rs.7,875/- (Rupees Seven Thousand Eight Hundred and Seventy Five only) [Rs.10,500/- - Rs.2,625/-].
14. The Tribunal wrongly determined the age of the deceased as 36 and adopted the multiplier '15'.
15. As already this Court determined the age of the deceased as 35 and by applying the multiplier '16' as per the judgment of the Honourable Supreme Court in Sarla Verma v. Delhi Transport Corporation reported in 2009 (2) TN MAC 1 (SC), the loss of income would be Rs.15,12,000/- (Rupees Fifteen Lakhs and Twelve Thousand only) [Rs.7,875/- X 12 X 16].
16. A sum of Rs.30,000/- (Rupees Thirty Thousand only) awarded by the Tribunal towards loss of consortium to the first respondent/wife is too meagre as the first respondent/wife was hardly 30 years old at the time of the accident. Losing the husband itself is very painful and that too, at the age of 30 years. She has to undergo sufferings both physically and psychologically and emotionally too, due to loss of her life companion. Therefore, 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, this Court enhances a sum of Rs.30,000/- (Rupees Thirty Thousand only) to a sum of Rs.1,00,000/- (Rupees One Lakh only) towards loss of consortium to the first respondent/wife.
17. Similarly, only a sum of Rs.10,000/- (Rupees Ten Thousand only) each was awarded to the respondents 2 to 4 and 6 towards loss of love and affection. The minor respondents 2 to 4/claimants were aged about 11 years, 9 years and 7 years, who lost their father's love and affection throughout their life and therefore, a sum of Rs.10,000/- (Rupees Ten Thousand only) each awarded by the Tribunal towards loss of love and affection to the minor respondents 2 to 4/children and the sixth respondent/mother of the deceased is enhanced to a sum of Rs.75,000/- (Rupees Seventy Five Thousand only) each, totalling a sum of Rs.3,00,000/- (Rupees Three Lakhs only).
18. A sum of Rs.10,000/- (Rupees Ten Thousand only) awarded towards funeral expenses is enhanced to a sum of Rs.25,000/- (Rupees Twenty Five Thousand only).
19. No amount was awarded towards transportation charges and therefore, this Court awards a sum of Rs.10,000/- (Rupees Ten Thousand only) under the head 'transportation charges'.
20. Accordingly, the respondents 1 to 4/claimants (wife and children of the deceased) and the sixth respondent (mother of the deceased) are entitled to get the following compensation:
Sl.
No.
Heads Amount awarded by Tribunal (Rs.) Amount reduced/ enhanced by this Court (Rs.) Total (Rs.)
1. Loss of Income 9,45,000.00 (+) 5,67,000.00 15,12,000.00
2. Loss of Consortium to the first respondent/wife 30,000.00
3. Loss of Love and Affection to the first respondent/wife 10,000.00 (+) 70,000.00 1,00,000.00
3. Loss of Love and Affection to the respondents 2 to 4/minor children and to the sixth respondent/mother ? Rs.75,000/- Each. 40,000.00 (+) 2,60,000.00 3,00,000.00
4.
The rate of interest awarded by the Tribunal at 7.5% per annum is confirmed.
21. Accordingly, this Court suo motu enhances the award from Rs.10,35,000/- (Rupees Ten Lakhs and Thirty Five Thousand only) to a sum of Rs.19,50,000/- (Rupees Nineteen Lakhs and Fifty Thousand only) by reappreciating the evidence on record and by applying the correct principles of law invoking Order 41 Rule 33 of the Code of Civil Procedure, for which, this Court has got power and jurisdiction even in the absence of an appeal/cross appeal by the claimants and even without notice to them.
22. Therefore, the respondents 1 to 4/claimants (wife and children of the deceased) and the sixth respondent (mother of the deceased) are entitled to a sum of Rs.19,50,000/- (Rupees Nineteen Lakhs and Fifty Thousand only) along with interest at 7.5% per annum from the date of petition till date of realisation and proportionate costs and the apportionment of the compensation is as follows:
Sl.
No.
Claimants Amount(s) Rs.
1. 1st Respondent/1st Claimant/Wife of the deceased 6,50,000.00
2. 2nd Respondent/2nd Claimant/Minor Daughter of the deceased 4,00,000.00
3. 3rd Respondent/3rd Claimant/Minor Daughter of the deceased 4,00,000.00
4. 4th Respondent/4th Claimant/Minor Son of the deceased 4,00,000.00
5. 5th Respondent/5th Claimant/Mother of the deceased 1,00,000.00 Total 19,50,000.00
23. In the result,
(i) This Civil Miscellaneous Appeal is dismissed, however, enhancing the award of the Tribunal from Rs.10,35,000/- (Rupees Ten Lakhs and Thirty Five Thousand only) to a sum of Rs.19,50,000/- (Rupees Nineteen 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;
(ii) The appellant-Insurance Company is directed to transfer the respective share amounts of the first respondent/wife of the deceased and the sixth respondent/mother of the deceased to their respective Personal Savings Bank Account Numbers, less the amount already deposited, if any, through RTGS/NEFT system, after getting their Account Details by the Officials of the appellant-Insurance Company, within a period of six weeks from the date of receipt of a copy of this judgment;
(iii) Since this appeal is dismissed and the enhancement is suo motu made to a sum of Rs.19,50,000/- (Rupees Nineteen Lakhs and Fifty Thousand only) exparte, the Registry is directed to send a copy of this judgment to the respondents 1 to 4/claimants (wife and children of the deceased) and the sixth respondent (mother of the deceased), free of cost;
(iv) The respondents 1 to 4/claimants (wife and children of the deceased) and the sixth respondent (mother of the deceased) are directed to appear before this Court on 30.01.2017, so that, whether they received the copy of this judgment or not, the award amounts can be transferred to their Personal Savings Bank Account Numbers within the time limit fixed by this Court;
(v) The respective shares of the minor respondents 2 to 4/minor claimants are directed to be kept in an interest bearing Fixed Deposit in any one of the nationalised banks, till they attain majority and the first respondent/mother is permitted to withdraw the accrued interest thereon, once in every two months for the welfare of the minor respondents 2 to 4/minor claimants; and
(vi) In the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected civil miscellaneous petitions are closed.
List the matter on 30.01.2017 for the appearance of the respondents 1 to 4 and 6/claimants before this Court.
Note: Issue Order Copy To
1.The Motor Accident Claims Tribunal - cum - Principal District Judge, Karur.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai..