[Judgment of the Court was delivered by K.KALYANASUNDARAM, J] CMA(MD)Nos.367 and 368 of 2010 are directed against the common award passed by the Motor Accidents Claims Tribunal (Additional District Court/Fast Track Court No.2), Tirunelveli in MACOP Nos.1698 and 1699 of 2007, dated 22.06.2009, whereas CMA(MD)No.678 of 2011 is directed against the award passed by the Motor Accidents Claims Tribunal (Additional District Court/Fast Track Court No.1), Thoothukudi, in MCOP No.125 of 2009, dated 02.08.2010.
2.Since these appeals arise out of the same accident, they are heard together and disposed of by a Common Judgment.
3.The brief facts of the case are that on 30.08.2007 at 21.30 hours, a TATA Sumo bearing registration No.TN-28-R-3889 was proceeding from Pudukkottai to Tuticorin Thermal Nagar. While the vehicle was proceeding near St.Jhon Container Yard, a Lorry bearing registration No.TN-69-F-5445 belonging to M/s Hari and Co., Tuticorin, came from opposite direction in a rash and negligent manner rammed the TATA Sumo Car. In the accident, the driver of the Car, Danial Raj, passengers Laxmi and Panga Durai died on the http://www.judis.nic.in 5 spot, while another passenger minor Arunkumar sustained grievous injuries.
4.MCOP No.1698 of 2007 was filed by injured minor Arunkumar seeking compensation of Rs.10,00,000/- . The said Arunkumar along with Minor Jasmine Suganthi filed MCOP No.1699 of 2007 as legal- heirs of the deceased Laxmi claiming compensation of Rs. 30,00,000/-. The legal heirs of the deceased Driver Danial Raj filed MCOP No.125 of 2009 for awarding compensation of Rs.20,00,000/-.
5.According to the claimants, the accident occurred due to the negligent driving of the container lorry driver. The claim petitions were resisted by the respondents stating that the driver was not responsible for the accident and the claim was excessive.
6.Before the Tribunal, one Rajasekar, who witnessed the accident, was examined as PW4. The injured claimant Arunkumar, was examined as PW2. On behalf of the Insurance Company, one Abraham Gurus was examined as RW1 and through him Ex.R1 site Map and Ex.R2, Observation Mahazar were marked. However, the Tribunal, upon consideration of the oral and documentary evidence, came to the conclusion that the driver of the lorry was responsible for the accident and awarded compensation. Challenging the award, these http://www.judis.nic.in appeals have been filed. 6
7.Mr.N.Dlipkumar, learned counsel appearing for the appellant Insurance Company contended that the evidence was not properly appreciated by the Tribunal and the reports of the Motor Vehicle Inspector would amply establish that there was a head on collision and the accident occurred in the middle of the road. So, the entire negligence cannot be fastened on the driver of the lorry.
8.On the other hand, the learned counsel appearing for the respondents/claimants argued in support of the findings of the Tribunal and prayed for dismissal of the appeals.
9.A perusal of the materials would reveal that the accident had happened in the middle of the road and that there was heavy damage to both the vehicles. But, the Tribunal overlooking material evidence held that the driver of the container lorry was solely responsible for the accident. In our considered opinion, the negligence could be fixed at the ratio of 60:40 on the driver of the lorry and TATA Sumo Car respectively.
CMA(MD)No.367 of 2010:-
10.With regard to the quantum of compensation in CMA(MD)No.367 of 2010, it is stated that the deceased Laxmi was 40 years old at the time of accident and she was working as 'Chemist' at Tuticorin Thermal Power Station and she was earning Rs.16,441/-. http://www.judis.nic.in 7
11.PW3, Jhon, a Junior Assistant from the Thermal Power Station has given evidence stating that the deceased was paid Rs. 16,441/- and produced Ex.P15, Salary Certificate. Ex.P16 Service Register shows that the deceased was born on 05.04.1963 and died at the age of 44 years. The Tribunal, based on the evidence, fixed the monthly income of the deceased at Rs.16,441/- and by following decision in the case of Sarla Verma, applied Multiplier '14' and after deducting 1/3rd towards her personal and living expenses, awarded Rs.18,41,392/-; Rs.50,000/- towards loss of love and affection and Rs.5,000/- for funeral expenses. In total, Rs.18,96,392/- was awarded together with interest @ 7.5% p.a. In our considered view, the award passed based on the evidence is fair and reasonable. Hence, it is confirmed.
CMA(MD)No.368 of 2010:-
12.The claimant / Arunkumar was aged about 16 years on the date of accident. Immediately, after the accident, he was admitted at Thoothukudi Government Hospital, where he took treatment as inpatient from 31.08.2007 to 09.09.2007 and thereafter, at Shree Sudharson Hospital, Tirunelveli from 09.09.2007 to 22.09.2007. Ex.P3 Discharge Summary, Ex.P4 Scan Report and Ex.P6 Discharge Summary were marked to corroborate the evidence of the injured claimant/PW2.
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13.P.W.5. Dr.Ramaguru deposed that after examining the claimant and perusal of the medical records, he assessed his disability at 55% and issued Ex.P18 Disability Certificate. Ex.P19 is the X-ray. The Tribunal, awarded Rs.1,10,000/- towards permanent disability; Rs.15,000/- towards pain and suffering; Rs.5000/- towards extra nourishment; Rs.60,179/- towards medical expenses as per Ex.P8. In total, the Tribunal has awarded Rs.1,90,180/- along with interest @ 7.5% p.a. This court is of the considered view that the award is reasonable and the same is confirmed.
CMA(MD)No.678 of 2011:-
14.The claimants in MCOP No.125 of 2009 are the mother, brothers and sisters of the deceased Danial Raj and they claimed that the deceased was a driver and thereby he was earning Rs.6,000/- per month. Ex.P7 Driving license reveals that the deceased was born on 03.06.1979 and the age of the deceased at the time of accident was 28 years. The Tribunal, by fixing the notional monthly income at Rs. 3,000/- and by applying multiplier '18' arrived at Rs.6,48,000/- for loss of income and after deducting, 1/3 towards personal expenses, awarded http://www.judis.nic.in Rs.4,32,000/- towards loss of contribution to the family. In 9 addition, Rs.10,000/- towards loss of love and affection; Rs.3,000/- towards funeral expenses and Rs.1000/- towards loss of estate were awarded. In total, a sum of Rs.4,46,000/- was awarded as compensation.
15.In the instant case, it is not in dispute that the deceased was a bachelor driver, and he died at the age of 28 years. Though the Tribunal fixed at Rs.3000/- per month as the notional income of the deceased, but failed to add 40% towards future prospects. Hence, the income of the deceased comes to Rs.4,200/-.
16.In similar circumstances, the Division Bench of this Court in 2012(2) TN MAC 838 (Salini vs. Meiyarasu), has held that if the deceased is a bachelor and the claimants are parents, proper multiplier shall be adopted taking the age of the mother. Another Division Bench in 2017(2) TN MAC 73 (R.Vijayalakshmi vs M. Muthu Viswanath), following the consistent view taken by the Hon'ble Supreme Court in the judgments in (i) Shakti Devi v. New India Insurance Co. Ltd. and another, [2010 (2) TN MAC 612] (SC); (ii) National Insurance Co. Ltd. v. Shyam Singh and others, [2011 (2) TN MAC 317] (SC) and (iii) Vijay Shankar Shinde http://www.judis.nic.in and others v. State of Maharastra, [2008 (2) SCC 670], 10 has opined that between the age of the deceased of a road accident, and the age of the claimant, whichever is higher of the two, is liable to be taken into account and consideration for determining compensation.
17.In the light of the above facts, it would be appropriate to apply multiplier of '5', taking into consideration the age of the mother as 66 years. So this Court awards Rs.2,52,000/- [Rs.4,200/- x 12 x 5] towards loss of dependency. In addition, Rs.15,000/- for funeral expenses; Rs.15,000/- towards loss of estate and Rs.18,000/- towards loss of love affection. In total, Rs.3,00,000/- is awarded as compensation together with interest @ 7.5% p.a. After deducting 40% towards negligence on the part of the deceased, the claimants would be entitled to Rs.1,80,000/- along with interest @ 7.5% p.a. Out of the modified award of Rs.1,80,000/-, the first claimant being the mother of the deceased is entitled to Rs.90,000/- and the claimants 2 to 7 being the brothers and sisters of the deceased would be entitled to Rs.15,000/- each together with accrued interest and costs.
18.In fine, all Civil Miscellaneous Appeals are partly allowed as indicated above. The compensation amount awarded in respect of claimants viz., C.M.A.(MD)Nos.367 and 368 of 2010 shall be paid by the appellant and 5th respondent Insurance Company at the ratio of 60:40 http://www.judis.nic.in as stated in paragraph No.9 together with accrued interest and 11 costs. The Insurance Companies shall deposit the award amount, less the amount already deposited within a period of six weeks from the date of receipt of a copy of this Judgment. On such compliance, the claimants are entitled to withdraw their share as indicated above. The excess amount, if any, shall be refunded to the Appellant Insurance Company. No costs.
[M.K.K.S.,J.] & [V.B.S,J.] 21.11.2017 Index : Yes / No Internet : Yes / No skn To
1.The Motor Accident Claims Tribunal (Additional District Court/FTC-II), Tirunelveli.
2.The Motor Accident Claims Tribunal (Additional District and Sessions Judge/FTC-I,) Tuticorin.
3.The V.R. Section, Madurai Bench of Madras High court, Madurai.
http://www.judis.nic.in 12 K.KALYANASUNDARAM,J.
AND V.BHAVANI SUBBAROYAN,J.
skn C.M.A(MD)Nos.367 and 368 of 2010 and 678 of 2011 21.11.2017 http://www.judis.nic.in