Madras High Court
The Oriental Insurance Company Limited vs Govindaswamy on 5 November, 2013
Author: K.Kalyanasundaram
Bench: R.Banumathi, K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.11.2013 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE K.KALYANASUNDARAM C.M.A. No.3914 of 2011 and M.P.No.1 of 2012 The Oriental Insurance Company Limited, Erode-638 011. .... Appellant Vs 1. Govindaswamy, 2. G.Poongodi, 3. C.Selvi .... Respondents Prayer: Appeal is preferred under Section 173 of Motor Vehicles Act, 1959 against the award and decree dated 25.6.2001 made in M.A.C.T.O.P.No.826 of 1998 on the file of Motor Accidents Claims Tribunal (II Additional District Judge), Salem. For Appellant .. Mr.S.J.Jagadev For Respondents .. Mr.R.Jagadeesan for RR1 and 2 No appearance for R.3 JUDGMENT
(Judgment of the Court was delivered by K.KALYANASUNDARAM,J.) Being dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal (II Additional District Judge), Salem in M.A.C.T.O.P.No.826 of 1998 for the death of the deceased G.Kathiravan in the road traffic accident occurred on 4.4.1998, the appellant Oriental Insurance Company Limited, Erode has filed this appeal.
2.Brief facts are that on 4.4.1998 when the deceased G.Kathiravan was travelling in Her Honda Splendar Motor cycle bearing Regn.No.TN 28 D 2379 near Karrukkur village on Namakkal to Trichengode Main Road, a tipper lorry bearing Regn.No.TME 8937 was driven by its driver in a rash and negligent manner and hit the motor cycle and deceased sustained fatal injury and died on the spot. A criminal case in Crime No.216 of 1998 was registered on the file of Elachipalayam Police Station for the offence under Section 304A I.P.C. The deceased was aged 29 years old and a bachelor at the time of accident and working as Application Developer (Engineer) in Complete Business Solution (India) Limited, (in short, "C.B.S.I.Limited") at Chennai and he studied B.E., Mechanical and Computer and obtained Diploma in T.B.M., Mainframe and Y2K Technology and also Certificate for Autocade Training Info Data Systems and got high technical qualifications and was drawing a salary of Rs.10,200/- per month. Alleging that the accident was due to the rash and negligent driving of the driver of the tipper lorry owned by the 3rd respondent herein and insured with the appellant Insurance company, the claimants/respondents No.1 and 2 herein, who are parents of the deceased, have filed the claim petition, claiming compensation of Rs.30,00,000/-.
3.Resisting the claim petition, the appellant Insurance Company filed a counter affidavit, denying the manner of accident, age, avocation and income of the deceased, besides contending that the claim made by the claimants is very excessive and the claimants have to prove that the driver of the lorry had a valid driving licence and that the lorry is insured with the appellant. The deceased had no valid driving licence to ride the motor cycle and the accident took place due to the negligence of the deceased.
4.To substantiate the claim, father of the deceased examined himself as P.W.1. Eye witness S.Subramanian was examined as P.W.2. On the side of the claimants, Exs.A1 to A.31 were marked. On the side of the appellant Insurance Company, no witnesses were examined and no documents were marked.
5. Upon consideration of the oral and documentary evidence, the Tribunal held that the accident was due to the rash and negligent driving of the driver of the tipper lorry bearing Regn.No.TME 8937 and the 3rd respondent, being owner of the tipper lorry and appellant Insurance Company, being the insurer of the tipper lorry, are liable to pay the compensation. The deceased was aged 29 years at the time of accident and working as Application Developer (Engineer) in Complete Business Solution (India) Limited and was on probation and was getting a monthly income of Rs.10,200/- as per Ex.A.21. Considering the future prospects of the deceased and the age of parents of deceased, the Tribunal has fixed the monthly income of deceased at Rs.11,000/- i.e., Rs.1,32,000/- per annum. Adopting multiplier 15 and deducting 1/3rd therefrom towards personal expenses of deceased, the Tribunal has arrived at a sum of Rs.13,20,000/- (Rs.1,32,000 x 15 x 2/3) towards loss of dependency. Adding conventional damages, the Tribunal has awarded a total compensation of Rs.13,34,500/- together with interest at 9% per annum by apportioning the said amount to the claimants equally.
6. It is not necessary for us to refer to the manner of accident and fastening of liability upon the appellant Insurance, since only quantum of compensation awarded to the claimants is under challenge.
7. Learned counsel appearing for the appellant Insurance Company submitted that the deceased was a Bachelor and as per the decision of 2009 ACJ 1298 (Sarla Verma and others Vs. Delhi Transport Corporation), 50% has to be deducted for the personal expenses of the deceased and that the quantum of compensation awarded by the Tribunal is very much on the higher side and prayed for reduction.
8. Per contra, learned counsel appearing for the respondents/ claimants submitted that the award passed by the Tribunal is very reasonable and it requires no interference by this Court.
9. It is seen from the records that the deceased was 29 years old at the time of accident and he was employed as an Application Developer (Engineer) in CBSI Limited and as on the date of accident, the deceased was drawing a sum of Rs.10,200/- per month as per Ex.A.21 and the Tribunal has fixed the income of the deceased at Rs.11,000/- per month. Considering the age of the mother/ 2nd claimant, the multiplier was fixed as 15. As per the Second Schedule of the Motor Vehicles Act, the multiplier adopted by the Tribunal is correct and the same is confirmed. The Tribunal has deducted 1/3rd of the income for the personal expenses of the deceased.
10. The deceased was under the employment of CBSI Limited as Application Developer and he was undergoing probation in the said Company. After some years, the deceased would have been made permanent and he would have earned more salary. Even though the deceased was employed in a private company, applying the ratio of Santosh Devi v. NIC [2012 ACJ 1428], addition ought to have been made towards future prospects. However, the Tribunal has taken the income only at Rs.11,000/-. In such circumstances, though the the Tribunal has not added any amount towards future prospects of the deceased, we are not inclined to make further deductions from the salary of the deceased towards personal expenses. So, the deduction of 1/3rd for the personal expenses is confirmed.
11. The Tribunal has fixed the income as Rs.11,000/- per month and deducted 1/3rd therefrom towards personal expenses and adopted multiplier of 15 and arrived at a sum of Rs.13,20,000/- (Rs.11,000 x 12 x 15 x 2/3) towards loss of dependency. Further, a sum of Rs.5,000/- was awarded towards loss of love and affection; a sum of Rs.2,500/- was awarded towards loss of estate and a sum of Rs.2,000/- was awarded towards funeral expenses. Adding the said conventional damages the total compensation awarded by the Tribunal comes to Rs.13,34,500/-, which in our considered view, is very reasonable. The Tribunal has awarded interest at the rate of 9% p.a. on the compensation awarded and as per the decision of the Supreme Court in S.Rajapriya's case [2005 AIR SCW 2542], the claimants are entitled to interest at 7.5% p.a.
12. In the result, the Civil Miscellaneous Appeal is partly allowed and the compensation awarded in M.A.C.T.O.P.No.826 of 1998 on the file of Motor Accidents Claims Tribunal (II Additional District Judge), Salem is confirmed and the rate of interest is reduced from 9% p.a. to 7.5% p.a. It is stated that the appellant-Insurance Company has deposited the entire compensation amount along with accrued interest at the rate of 9% per annum. The claimants are permitted to withdraw their respective share of compensation as apportioned by the Tribunal, along with accrued interest at the rate of 7.5% p.a. The appellant - Insurance Company is permitted to withdraw the excess compensation, if any, which is lying to the credit in M.C.O.P.No.826 of 1998 on the file of Motor Accident Claims Tribunal (District Judge), Salem.
However, there is no order as to costs. Consequently, connected M.P. is closed.
(R.B.I.J.) (M.K.K.S.,J.) 05.11.2013 Index:Yes/No Internet:Yes/No usk To
1. The Motor Accidents Claims Tribunal (II Additional District Judge), Salem
2. The Record Keeper, V.R. Section, High Court, Madras.
R.BANUMATHI, J.
and K.KALYANASUNDARAM, J.
usk C.M.A.No.3914 of 2011 5.11.2013