This Civil Miscellaneous Appeal has been preferred by the claimants against the dismissal of their claim petition, claiming the compensation for the death of the husband of the first appellant/first claimant, namely, Subburaj, aged 33 years, allegedly doing jewellery business, earning a sum of Rs.5,000/- (Rupees Five Thousand only) per month, on 06.04.2003, when he was riding his two wheeler, which was hit behind by a lorry insured with the second respondent/Insurance Company.
2. On contest, the Tribunal found that the death was not due to the accident and it was a case of murder and therefore, dismissed the claim petition. Hence, this appeal.
3. Heard Mr.T.Selvakumaran, learned Counsel for the appellants/claimants and Mr.N.Murugesan, learned Counsel for the second respondent/Insurance Company.
4. Mr.T.Selvakumaran, learned Counsel for the appellants/ claimants would submit that originally, the F.I.R was registered under
Section 304-A I.P.C and later, after investigation, it was altered into
Section 302 I.P.C., etc. However, the criminal Court acquitted all the accused from the charges of murder and therefore, it should be treated as death due to the accident and not due to murder.
5. However, Mr.N.Murugesan, learned Counsel for the second respondent/Insurance Company would submit that it was the categorical evidence of the first appellant/wife of the deceased that he husband was murdered and therefore, it is clear that the death was not due to the accident and the Tribunal rightly dismissed the claim petition.
6. It is not in doubt that the deceased Subburaj died due to knocking down behind while he was riding his two wheeler by a lorry. Now, the question that arises for consideration is, whether the death was due to the accident or the accident has been made use as a method to murder the deceased Subburaj.
7. Though the wife of the deceased/P.W.1 stated that her husband was murdered by the accused, the criminal Court, viz., the Fast Track Court No.I, Tirunelveli, which tried the case of murder in S.C.No.250 of 2003, acquitted all the accused by the judgment dated 10.02.2005. When a criminal Court, after elaborate trial, found that the charges for the offence of murder were not proved against the accused and acquitted the accused, even thereafter, it cannot be termed as murder. The said judgment which has been marked as Ex.P.7 is also perused.
8. If the criminal Court acquitted the accused from the charges of murder and the Tribunal dismissed the claim petition on the strength of the evidence of P.W.1 that it is a case of murder, the appellants/claimants are put to loss in both ways. The Tribunal should have looked into this matter, especially, when the judgment of the criminal Court was exhibited before the Tribunal as Ex.P.7. When the criminal Court already found that the charges of the case of murder were not proved, the Tribunal based on other evidence, especially, P.W.2 and P.W.3 - eyewitnesses, should have come to the conclusion that the death was due to the accident only.
9. Though P.W.1/wife of the deceased stated that it is a case of murder, she was not an eyewitness and only P.W.2 and P.W.3 are the eyewitnesses. What is material, is only the evidence of eyewitnesses alone and not the evidence of P.W.1, who has not witnessed the occurrence. Therefore, the Tribunal committed a grave error in not believing the evidence of P.W.2 and P.W.3 - eyewitnesses, merely because they are relatives.
10. P.W.2 categorically stated that when he was travelling in his two wheeler and the deceased was travelling in front of him, a lorry came and hit behind the two wheeler of the deceased Subburaj, who died in the accident. Merely because someone is relative, the said evidence cannot be ignored. Therefore, this Court, by reappreciating the evidence on record, especially, the evidence of P.W.2 and P.W.3 - eyewitnesses, comes to the conclusion that the death of the deceased was due to the accident caused by the lorry owned by the first respondent, later on by the third respondent and insured with the second respondent/Insurance Company.
11. Even Ex.P.1 - F.I.R has been registered against the driver of the lorry. As stated above, when the F.I.R has been registered against the driver of the lorry and the criminal Court acquitted him from the charges of murder, the cause of death should be taken as accident only.
12. It cannot be that without any cause, the deceased Subburaj would not have died on that day, either he should be murdered or it should be an accident and when the criminal Court found that it was not due to murder, the Tribunal cannot say contrary to the same that it was due to murder.
13. Though the finding given by the criminal Court is not binding on the civil court, the evidence has to be appreciated in toto and therefore, this Court categorically comes to the conclusion that the deceased Subburaj died due to the accident.
14. As far as the quantum of compensation is concerned, the deceased was stated to be running a jewellery business as proved by Ex.P.6 - series and the evidence of P.W.1. Though there is no positive proof or material to come to the conclusion that the deceased was earning about Rs.5,000/- (Rupees Five Thousand only) per month, the Honourable Supreme Court in New India Assurance Company Limited v. Smt.Kalpana and others reported in 2007 (1) TN MAC 1 (SC), determined the monthly income of a driver, who died in the accident occurred in 1999, at Rs.4,500/- (Rupees Four Thousand and Five Hundred only). Whereas in the case on hand, the accident occurred on 06.04.2003. Therefore, this Court is inclined to follow the judgment of the Honourable Supreme Court in New India Assurance Company Limited v. Smt.Kalpana and others reported in 2007 (1) TN MAC 1 (SC), and accordingly, a sum of Rs.4,500/- (Rupees Four Thousand and Five Hundred only) per month, is taken as income of the deceased.
15. The age of the deceased at the time of the accident is 33 years as proved by Ex.P.5 - post-mortem certificate and the appropriate multiplier as per the judgment of the Honourable Supreme Court in Sarla Verma v. Delhi Transport Corporation reported in 2009 (2) TN MAC 1 (SC), is 16.
16. The size of the family is 4 and therefore, 1/4th amount has to be deducted and after deduction, the monthly income would be Rs.3,375/- (Rupees Three Thousand Three Hundred and Seventy Five only) [Rs.4,500/- - Rs.1,125/-] and accordingly, the loss of income would be Rs.6,48,000/- (Rupees Six Lakhs and Forty Eight Thousand only) [Rs.3,375/- X 12 X 16].
17. The first appellant/wife of the deceased is hardly aged 28 years, who lost her husband. Loosing the husband itself is painful and that too at the age of 28 years and she is bound to undergo both physical and psychological as well as emotional trauma throughout her life. Apart from that, she lost her companionship, which cannot be compensated by any amount of money. In an endeavour to do complete justice, this Court awards a sum of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) towards loss of consortium.
18. The fourth appellant/fourth claimant was not even born at the time of the accident and it is unfortunate to note that the fourth appellant was still born baby and she was born after the death of her father. She had no occasion for her to see her father's face, who will always be a care taker and giver of love and affection and therefore, a sum of Rs.2,00,000/- (Rupees Two Lakhs only) is awarded towards loss of love and affection.
19. The appellants 2 and 3/claimants 2 and 3 are entitled to a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each towards loss of love and affection.
20. A sum of Rs.20,000/- (Rupees Twenty Thousand only) is awarded towards funeral expenses and a sum of Rs.5,000/- (Rupees Five Thousand only) is awarded towards transportation charges.
21. Accordingly, the appellants/claimants are entitled to a sum of Rs.10,73,000/- (Rupees Ten Lakhs and Seventy Three Thousand only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and also proportionate costs.
22. However, Mr.N.Murugesan, learned Counsel for the second respondent/Insurance Company opposed the granting of a sum of Rs.10,73,000/- (Rupees Ten Lakhs and Seventy Three Thousand only) as the appellants/claimants chose to claim only a sum of Rs.5,00,000/- (Rupees Five Lakhs only).
23. It is not as if the Court automatically grants the award amount claimed in the claim petition and only based on evidence and applying the correct principles of law, this Court is expected to give just compensation.
24. Though lesser amount has been claimed, there is no prohibition for this Court to award more amount what has been claimed as held by the Honourable Supreme Court in Nagappa v. Gurudayal Singh and others reported in 2004 (2) TNMAC 398 (SC) : 2003 (2) SCC 274.
25. The first appellant/wife of the deceased is entitled to a sum of Rs.5,00,000/- (Rupees Five Lakhs only) and the minor fourth appellant/fourth claimant is entitled to a sum of Rs.4,00,000/- (Rupees Four Lakhs only) and the respondents 2 and 3/parents of the deceased are jointly entitled to a sum of Rs.1,73,000/- (Rupees One Lakh and Seventy Three Thousand only).
26. In the result,
(i) This Civil Miscellaneous Appeal is allowed;
(ii) The appellants/claimants are entitled to a sum of Rs.10,73,000/- (Rupees Ten Lakhs and Seventy Three Thousand only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and also proportionate costs;
(iii) The second respondent/Insurance Company is directed to deposit the entire award amount along with interest and costs to the credit of M.C.O.P.No.1107 of 2003, by the Motor Accident Claims Tribunal - cum ? II Additional District Judge, Tirunelveli, within a period of six weeks from the date of receipt of a copy of this judgment;
(iv) On such deposit, the Tribunal shall transfer the respective share amounts of the appellants 1 to 3/claimants 1 to 3 in the award amount, along with interest at rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs as per the apportionment made by this Court, directly to their respective Personal Savings Bank Account Numbers, through RTGS/NEFT, after getting their Account Details, within a period of two weeks thereafter;
(v) The appellants/claimants are directed to submit their Account Details along with the copies of their passbooks to the Tribunal forthwith;
(vi) Insofar as the share of the minor fourth appellant/daughter of the deceased is concerned, the Tribunal shall deposit the same in any one of the nationalised banks in an interest bearing Fixed Deposit under a renewable scheme, till she attains majority;
(vii) The first appellant/mother of the fourth appellant, is permitted to withdraw the interest accrued thereon once in two months for the welfare of the minor fourth appellant;
(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 -
II Additional District Judge, Tirunelveli.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
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