The appellant/second respondent has filed this civil miscellaneous appeal against the judgment and decree dated 16.09.2003 passed in MCOP No.328 of 2002 by the Motor Accident Claims Tribunal/Subordinate Court, Chidambaram awarding a compensation of a sum of Rs.1,50,000/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation.
2. The short facts of the case are as follows;
The first and second claimants daughter namely Sabornisha, aged about 1 1/2 years, was playing in front of her house at the extreme side of the street. The first respondent's car bearing registration No.TN-32-B-3148 was standing on the opposite side of the house of the petitioner. The child was playing near the car. Without noticing the child, the driver of the car, drove the car and dashed against the child. The child sustained grievous injuries and died on the spot.
The claimants further submitted that due to the careless and negligent act of the driver of the first respondent, the accident happened. The first respondent is the owner of the car which is insured with the second respondent/United India Insurance Company Limited. As such, both the respondents are jointly and severally liable to pay compensation to the petitioners. The petitioners have claimed a compensation of Rs.3,00,000/- against the respondents for their mental suffering, loss of love and affection etc.,
3. The second respondent/United India Insurance Company had filed a counter statement and resisted the claim of the petitioners. The second respondent denied the accident, which happened on 24.10.2002. Further, the second respondent has alleged that the accident had happened due to the carelessness of the petitioners. The second respondent does not admit the age of the child, her injuries and the manner of death. The driver of the first respondent started the car in a slow and diligent manner and sounded horn. At that time, the child was playing under the car, which was not noticed by the driver. it is the sole negligence of the parents, who allowed the child to play under the car, which had led to the accident. As such, the respondents are not liable to pay compensation. Further, the petitioners have claimed 18% interest. This has also been strongly opposed by the second respondent.
4. On the side of the petitioners, both the petitioners were examined as PW1 and PW2. PW3 was also examined on the side of the petitioners as eye witness. On the side of the petitioners, four documents were marked as exhibits as Ex.P1 to Ex.P4 namely; 1) first information report which disclosed that the criminal case was registered against the driver of the car in crime No.351 of 2002 on an alleged offence under
Section 304(A) of IPC, Ex.P2-Motor Inspector's report for the said car bearing registration No.TN-32-B-3148, Ex.P3-postmortem report of the deceased child and Ex.P4- judgment of criminal case against the driver of the car.
5. The Motor Accident Claims Tribunal has framed two issues namely 1) Whether the accident happened due to negligence of the first respondent driver and 2) If so, what is the quantum of compensation to the claimants?
6. The learned Tribunal considered the evidence of PW1 to PW3, first information report and judgment of criminal Court i.e. Ex.P4, wherein the driver of the car was punished due to his rash and negligent driving. As such, the Tribunal has come to a conclusion that the first and second respondent i.e. owner of the Car and insurance company are liable to pay compensation to the claimants.
7. Regarding the second issue, the Tribunal has come to a conclusion that the deceased was the only child to the petitioners. Therefore, Tribunal granted a sum of Rs.1,50,000/- as compensation for the loss of love and affection and mental agony suffered by the petitioners.
8. On the side of the respondents, no evidence was examined and no document was marked. Aggrieved by the said compensation awarded by the Tribunal, the appellant/Insurance Company has filed the above appeal in CMA No.1076 of 2005.
9. The learned counsel for the appellant argued that the Tribunal has awarded Rs.1,50,000/- as lumpsum compensation without any basis. In the instant case, there is no dependancy for the claimants. The compensation is on the higher side.
10. The learned counsel for the respondents argued that the compensation awarded by the Tribunal is reasonable. The petitioners had lost their only child. For fatal accidents, compensation of Rs.1,50,000/- awarded is reasonable. The appellant cannot challenge the dependancy, but the Court has to consider the future income of the deceased.
11. For the foregoing reasons and facts and circumstances of the case, the Court is of the view that the learned counsel for the appellant has only challenged the quantum of compensation awarded. The Court considered the Apex Court judgment reported in 2007 ACJ 160(SC) (New India Assurance Company Limited vs. Satender) and another judgment reported in 2009 ACJ (1866) (Mansingh Kushwah and others vs. Balweer Singh Narwaria and others), wherein they had awarded Rs.1,50,000/- to the claimants for the death of their deceased 2 year old child in the accident. The operative portion of the said judgment is as under;
" The Court assessed the notional income of the deceased as Rs.15,000 per annum as prescribed for non earning member in the second schedule to the Motor Vehicles Act and applying the multiplier of 15, which is applicable upto the age of 15 years, making 1/3rd deduction towards self expenditure, annual dependancy comes to Rs.10,000/- capatlising with the multiplier of 15, the amount comes to Rs.1,50,000/-, is awarded."
12. This court therefore does not find any error in the judgment and decree passed in MCOP No.328 of 2002 by the Motor Accidents Claims Tribunal, Chidambaram together with interest at the rate of 9% per annum. This award is equitable and fair.
13. The Court directs the appellant/second respondent/United India Insurance Company Limited to deposit the balance compensation amount with accrued interest at the rate of 9% from the date of filing the compensation petition till date of payment of compensation, within six weeks from the date of receipt of this order.
14. It is open to the respondents/claimants to receive the balance amount lying to the credit of MCOP No.328 of 2002 on the file of the Motor Accident Claims Tribunal/Subordinate Court, Chidambaram by filing necessary payment out application in accordance with law. Resultingly, the civil miscellaneous appeal is dismissed. The award passed by the Motor Accidents Claim Tribunal/Subordinate Court, Chidambaram dated 16.09.2003 in MCOP No.328 of 2002 is confirmed for the reasons assigned by this Court in this appeal. The parties are directed to bear their own costs in this appeal.
JIKR To The Subordinate Court Motor Accidents Claims Tribunal Chidambaram