Mr.K.Selvaraj, learned counsel appears for the respondents 1 and 2/caveators. By consent of both parties, the main appeal itself is taken up for final disposal.
2. The National Insurance Company is on appeal challenging the award dated 29.4.2008 passed in M.C.O.P.No.365 of 2007 on the file of the Motor Accidents Claims Tribunal(Sub Court), Sankari, Salem District.
3. It is a case of fatal accident. The brief facts of this cases are as follows:- The accident in this case happened on 9.5.2004. The deceased Selvan, aged 29 years, was travelling as a cleaner in the truck near Surat. The driver of the truck drove the truck in a rash and negligent manner and hit a stationary truck. In that accident, the said Selvan died on the spot. The father aged 52 years and the mother aged 49 years filed a claim for compensation in a sum of Rs.6,00,000/- stating that the deceased was earning a sum of Rs.6,000/- per month and he is a cleaner in a heavy duty truck moving all over India.
4. In support of the claim, the father of the deceased was examined as P.W.1 Documents Exs.A-1 to A-6 were marked, the details of which are as follows:-
Ex.A-1 is the English translation copy of FIR dated 12.5.2004, Ex.A-2 is the English translation copy of Panchanama dated 12.5.2004, Ex.A-3 is the English translation copy of panchanama Inquest Report, Ex.A-4 is the English translation copy of charge-sheet, Ex.A-5 is the English translation copy of post-mortem certificate dated 12.5.2004 and Ex.A-6 is the death certificate dated 9.10.2004.
No oral or documentary evidence was let in on behalf of the appellant Insurance company, the third respondent before the Tribunal.
5. The finding of negligence on the part of the driver of the heavy vehicle (truck), in which the deceased travelled and who is held responsible for the accident and the death, and the liability fixed on the appellant insurance company to compensate the claimants is not seriously disputed by the appellant's counsel and the same is confirmed. The only contention raised by the counsel for the appellant is on the quantum of compensation.
6. The Tribunal fixed the income of the deceased at Rs.5,000/- per month (i.e.) Rs.60,000/- per annum. After deducting 1/3 towards personal expenses of the deceased, the Tribunal fixed the loss of income to the parents of the deceased at Rs.40,000/- per annum. By adopting multiplier 13, the Tribunal granted a sum of Rs.5,20,000/- towards pecuniary loss to the parents of the deceased. The Tribunal also granted compensation under conventional heads. In all, the Tribunal granted the following amounts as compensation with interest at 7.5% per annum:-
Sl.No.
Head Amount granted by the Tribunal 1 Loss of pecuniary benefits to the parents of the deceased (Rs.40,000/- x 13 = Rs.5,20,000/-) Rs.5,20,000/-
Loss of love and affection to the parents on the death of their son (Rs.5,000/- each) Rs. 10,000/-
4 Transport charges Rs. 10,000/- 5 Loss of legal heir Rs. 10,000/- Total Rs. 5,55,000/-
7. The learned counsel for the appellant stated that the Tribunal erred in fixing the income of the deceased at Rs.5,000/- per month without any material to support the higher income of the deceased. He stated that the accident in this case happened in the year 2004 and there was no proof to show that he was earning a sum of Rs.5,000/- per month as a cleaner in the truck at the time of accident. Therefore, he pleaded that the income should be suitably reduced. The multiplier 13 is not in dispute. He also pleaded that the amount granted under the head loss of legal heir is not correct. The other amounts granted by the Tribunal are not disputed by the learned counsel for the appellant.
8. On the other hand, learned counsel for the claimants submitted that the deceased was a regular employee as cleaner in the truck. His basic income along with bonus and batta was much more and therefore, the income fixed by the Tribunal is justified. He pleaded that the appeal should be dismissed.
9. As far as income of the persons like the deceased, in the present case, the following two decisions will have to be kept in mind while fixing the income of the deceased:-
(i) A Division Bench of this Court in B.Anandhi vs. - Latha reported in 2002 ACJ 233 (P.SATHASIVAM,J., as he then was) observed that a coolie would earn Rs.100/- per day. In that case, the accident happened in the year 1995.
(ii) The Apex Court in State of Haryana and another vs. - Jasbir Kaur and others reported in 2004-1 Law Weekly, was of the view that an agriculturist would earn Rs.3,000/- per month. In that case, the accident happened in the year 1999.
In the above cited cases, the income of the deceased was taken at Rs.3,000/- per month for the year 1995 and 1999 respectively, whereas in the present case, the accident happened in the year 2004. Considering the cost of living, rise in price of commodities and the living wages applicable from time to time, the Tribunal should have fixed the income of the deceased at a rational basis. On the other hand without any reason, a sum of Rs.5,000/- per month was taken as income of the deceased, who was a cleaner. The multiplier of 13 adopted is not disputed. It is because of higher income taken without any proof, the appeal is filed for modification. The contention of the counsel for the appellant deserves to be accepted for the simple reason that the deceased 29 years old cleaner by occupation was stated to be earning Rs.6,000/- per month for which no proof by way of documents was produced from the owner of the vehicle that he was paying Rs.6,000/- per month as salary. The fixing of income at Rs.5,000/- per month by the Tribunal is excessive as it is not supported by material evidence applicable to the relevant time (i.e.) 2004. In view of the decisions cited supra, the uncertainty in employment and the nature of employment, the income of the deceased at best should be fixed at Rs.4,000/- per month. The compensation based on higher income has to be reduced.
10. Accordingly, the annual income of the deceased will be Rs.48,000/- (Rs.4,000/-X 12 = Rs.48,000/-) and of which 1/3 should be deducted for personal expenses of the deceased and the contribution to the dependents will be Rs.32,000/- per annum. By adopting multiplier 13, the total pecuniary loss to the parents of the deceased will be Rs.4,16,000/- (Rs.32,000/- x 13 = Rs.4,16,000/-). The sum of Rs.10,000/- granted towards loss of legal heir has no basis. However, the above said sum of Rs.10,000/- can be adjusted towards loss of love and affection to the parents as a paltry sum of Rs.10,000/- alone was granted towards loss of love and affection to the parents, which is very low. Hence, a sum of Rs.10,000/- each is granted for loss of love and affection to the parents, in all Rs.20,000/-. The sum of Rs.5,000/- granted towards funeral expenses is confirmed. It is stated that the body of the deceased was brought from North India by air. Hence, the sum of Rs.10,000/- granted towards transportation expenses is justified. Accordingly, the award of the Tribunal is modified as follows:-
Sl. No. Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of pecuniary benefits to the parents (Rs.40,000/- x 13 = Rs.5,20,000/-) Rs.5,20,000/-
---
1(a) Loss of pecuniary benefits to the parents (Rs.32,000/- x 13 = Rs.4,16,000/-)
---
Rs.4,16,000/-
2 Funeral Expenses Rs. 5,000/- Rs. 5,000/- 3 Loss of love and affection to the parents (Rs.5,000/- each) Rs. 10,000/- --- 3(a) Loss of love and affection to the parents (Rs.10,000/- each) --- Rs. 20,000/- 4 Transport expenses Rs. 10,000/- Rs. 10,000/- 5 Loss of legal heir Rs. 10,000/- --- Total Rs. 5,55,000/- Rs.4,61,000/-
11. Since the accident in this case happened in the year 2004 and the award is of the year 2008, the interest granted by the Tribunal at 7.5% stands confirmed.
12. In the result, the Civil Miscellaneous Appeal is allowed in part as follows:-
(i) The award of the Tribunal is reduced to Rs.4,61,000/- from Rs.5,55,000/-.
(ii) The interest granted by the Tribunal at 7.5% is confirmed.
(iii) Counsel for appellant prays for eight weeks' time to deposit the award amount as ordered by this court and is granted.
(iv) On such deposit, the claimants are permitted to withdraw the award amount as apportioned below:-
Mother, the 2nd respondent Rs.3,00,000/- with proportionate interest and entire costs Father, the 1st respondent Rs.1,61,000/- with proportionate interest
(v) There will be no order as to costs.
(vi) Consequently, connected miscellaneous petition is closed.
19.1.2009 Index : No Internet : Yes ts To The Subordinate Judge, (The Motor Accidents Claims Tribunal), Sankari. R.SUDHAKAR,J. ts Judgment in C.M.A.No.20 of 2009 19.1.2009