Madras High Court
The New India Assurance Co vs Mohan on 6 January, 2010
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.1838 of 2007
The New India Assurance Co., Ltd., .. Appellant
Vs
1.Mohan
2.Janaki
3.Sathesh Kumar
4.Minor.Vimal
(rep.by mother and natural guardian)
5.K.Sathiyanarayanan .. Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 11.01.2007, made in M.C.O.P.No.488 of 2005, on the file of the Motor Accident Claims Tribunal, Principle District Judge, Namakkal.
For appellant : Mr.J.Chandran
For respondents : Mr.Ma.P.Thangavel, for RR1 to 4
NA for R5
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 11.01.2007, made in M.C.O.P.No.488 of 2005, on the file of the Motor Accident Claims Tribunal, Principle District Judge, Namakkal, awarding a compensation of Rs.3,61,300/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/second respondent, The New India Assurance Co., Ltd., has filed the above appeal praying to set aside the said award and decree.
3.The short facts of the case are as follows:
On 24.05.2005, at about 4.30 a.m. when one Satheesh Kumar was pushing the bicycle loaded with tamarind tree logs with the deceased Ganesan also pushing the above said bicycle from behind, on the Rasipuram to Tiruchengode Road near Palapalayam Bridge, a SPBS bus bearing registration No.TN28 Q1369, coming from Rasipuram to Tiruchengode and driven by its driver in a rash and negligent manner and without following road traffic rules, hit the backside of the bicycle and the deceased Ganesan was thrown away and fell down. Due to this accident, the above said Ganesan sustained multiple grievous injuries and died on the spot itself. The accident had occurred only due to the rash and negligent driving of the driver of vehicle bearing registration No.TN28 Q1369.
4.The above accident was reported to the Rasipuram Police Station and a case was registered in Crime No.569/2005, under Sections 279, 337 and 304(a) of I.P.C. on 24.05.2005 against the driver of the vehicle bearing registration No.TN28 Q1369 and the case is pending before the Judicial Magistrate, Rasipuram.
5.The deceased Ganesan was aged about 21 years at the time of the accident and he was a hale and healthy. He was doing milk business and was earning more than Rs.4,500/- per month. The petitioners, who are legal heirs of the deceased, have therefore claimed a compensation of Rs.5,00,000/- from the respondents under Section 166 of the Motor Vehicles Act.
6.The first respondent, the owner and the second respondent the insurer of the vehicle bearing registration No.TN28 Q1369 are jointly and severally liable to pay the above said compensation to the petitioners for the death of Ganesan in the said accident.
7.The first respondent did not render appearance, in spite of summons sent to him, and was set-exparte.
8.The second respondent, in its Counter has resisted the claim stating that the deceased Ganesan was pushing the bicycle with a heavy load of tamarind tree logs on the carrier, at the time of the accident. With the said heavy load on the carriers, he attempted to cross the road in a hasty and reckless manner, lost his balance and fell in the middle of the road with his bicycle. The driver of the bus, who was driving at a moderate speed could not avoid the accident, in spite of his best efforts. Thus, the accident was caused only due to the recklessness of the deceased. Further, the age, income and occupation of the petitioner was not admitted. Further, the amount claimed under various heads are excessive and inflated. As such, the second respondent has prayed for dismissal of claim petition with costs.
9.The Motor Accident Claims Tribunal framed three issues for the consideration namely:
(i) Was the accident caused by the rash and negligent driving of the vehicle and the high speed at which it was driven by the driver of the first respondent's vehicle bearing registration No.TN28 Q1369?
(ii) Are the petitioners entitled to receive compensation? If so, what is the quantum of compensation they are entitled to?
(iii)To what other relief are the petitioners entitled to receive?
10.On the petitioners' side, the father of the deceased was examined as PW1, and one witness named Sankar was examined as PW2 and six documents were marked as Exs.P1 to P6. On the second respondent's side, one witness named Sengodan was examined as RW1. No documents were marked on the respondents side.
11.PW1 has adduced in his evidence and petition that he is the father of the deceased and the first petitioner; that the second petitioner is his wife and third and fourth petitioners are sons. He has further stated that on 24.05.2005, at 4.30 a.m., when his son (deceased) Ganesan was returning in his cycle and when he was nearing Palapalayam Bridge, the said S.B.B.S bus had dashed against his (deceased) son and that he had died on the spot. His son was taken to the Rasipuram Government Hospital and after doing post-mortem of his son's body, the dead body of his son was given to them.
12.PW2, Sankar, the eye-witness of the accident, in his evidence has adduced that on 24.05.2005, at 4.30 a.m., the S.B.B.S. Bus bearing registration No.TN28 Q1369, coming from Rasipuram to Tiruchengode had dashed against one Satish and (deceased) Ganesan, who were pushing the cycle loaded with logs, on the extreme left side of the Palapalayam Bridge, and in the result the (deceased) Ganesan sustained injuries on his legs, head and all over his body and bleeding injuries in his nose and ears and that he had died on the spot. He has also stated that the other person Sathish, who was also injured was taken to Rasipuram Government Hospital for treatment and that it was only Satish, who had given the complaint to the Police regarding the accident and marked Ex.P1-FIR. On scrutiny of the FIR, it is seen that the said Sathish had given the complaint, wherein he had stated that on 24.05.2005, at 4.15 a.m., while he was pushing the cycle belonging to the (deceased) Ganesan loaded with a branch of a Tamarind Tree and the (deceased) Ganesan was holding the branch of the tamarind tree loaded on the carrier of the bicycle and coming towards their house at Adidravidar Street at Palapalayam and when they were crossing the Palapalayam Bridge at 4.30 a.m., the S.B.B.S. Bus bearing registration No.TN28 Q1369, coming from Rasipuram towards Erode, driven rashly negligently and with high speed by its driver, dashed against them. In the collusion, the said Sathish was thrown out along with the bicycle and sustained blood injuries on his right forehead, right cheek, left cheek, right fore arm, hip, left foreleg. In spite of severe pain, he had seen the deceased (Ganesan) lying in a pool of blood. His father had come there and taken him to Rasipuram Government Hospital for treatment.
13.The Tribunal on scrutiny of Ex.P2, the Post-mortem Report of (deceased) Ganesan, wherein it is established by the Doctor, who had done the post-mortem, that the (deceased) Ganesan had died due to shock, injuries and loss of blood sustained in the accident, about 8 to 14 hrs prior to the time of conducting the post-mortem. Further, on scrutiny of Ex.P3, the Motor Vehicle Inspector's Report on the said bus, it is established that the accident had not happened due to mechanical defects in the bus. On examination of Ex.P4, the Charge Sheet, it is found that the Rasipuram Police had registered a criminal case against the driver of the said bus, Sengodan, under Sections 337, 279 and 304 (A) I.P.C.in connection with the said accident. It is also seen from the Judgement delivered in the Criminal Case against the driver of the bus, listed as case No.364 of 2005, that the driver of the bus had voluntarily accepted his guilt, before the Judicial Magistrate, Rasipuram and has also paid the fine imposed on him. Further, the first respondent, in spite of summons issued to him, did not render appearance. On the second respondent's side, the driver of the said bus bearing registration No.TN28 Q1369 was examined as RW1. The RW1, in his evidence has adduced that when he was driving the bus bearing registration No.TN28 Q1369 from Rasipuram towards Erode, he had seen a person pushing cycle loaded with logs and that when the bus came near of the cycle, the person was not able to control the cycle and had fallen in front of the bus. On cross-examination, RW1 had stated that a criminal case had been filed against him in Criminal Case No.364/2004 before the Rasipuram Court and that in the criminal case he had pleaded guilty and paid fine.
14.Considering the above circumstances of the case, the Tribunal was not inclined to accept the averments of the second respondent regarding the manner of version as stated in his Counter and further as the first and second respondent have not refuted the claim that they were the owner and insurer of the said bus, the Tribunal held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's bus, which had been insured with the second respondent at the time of the accident.
15.The PW1, in his evidence has adduced that they were depending on the income of the (deceased) Ganesan to run the family and that he does not have the capacity to do any work. He has stated that due to the loss of his son, the whole family has lost their source of income as well as the love and affection of their deceased son, and as such they were suffering. From a scrutiny of Ex.P7, the legal heir certificate issued by the Rasipuram Tahsildar, it is seen that only the second petitioner is the legal heir of the (deceased) Ganesan and also that the petitioners 1 to 4 were dependant on the income of the (deceased) Ganesan. As such, the Tribunal held that the first and second respondents are liable to pay compensation to the petitioners.
16.Further, the Tribunal after scrutiny of Ex.P2, the Post-mortem Report and also going through the claim petition of the petitioners, held that the age of the deceased Ganesan at the time of the accident was 21 years. The Tribunal then adopted a multiplier of 17 to assess loss of income to the petitioners as per second Schedule of the Motor Vehicles Act.
17.Though, it has been stated in the petition, as well as in the evidence of PW1 that the deceased (Ganesan) was engaged in milk business and was earning between Rs.5,000/- to Rs.6,000/- per month, no documentary evidence has been furnished as proof, in support of this claim. As such, the Tribunal, following Judgements given in 2001(3) CTC 219, Chennai High Court, G.Nagendradevi and three others vs. Y.Moses and two others" which is a similar case, held that the deceased Ganesan's notional income could be taken as Rs.2,500/- per month.
18.The Tribunal, for determining loss of income to the petitioners followed the manner adopted regarding this aspect in Judgement in 1996(4) SCC 362, UP State Road Transport Corporation & Others vs. Trilok Chandra & Others, wherein the formula adopted, where no definite evidence was forthcoming, was to break up the family into units, taking two units for an adult and one unit for a minor. The Tribunal therefore adopted two units each for the (deceased) Ganesan, the first, second and third petitioners and one unit for the (minor) fourth petitioner. As such considering that the total units were to be taken as 9, the income of the (deceased) Ganesan was taken as Rs.2,500/- the share per unit was worked out as Rs.2,500/9=277. So, the (deceased) was allotted Rs.277 X 2 = Rs.544/- his personal expenses and considering the deceased as an earning member, out of pocket expenses of Rs.246/- was also taken as his additional expenses. In total, the Tribunal held that the deceased Ganesan would have spent a sum of Rs.800/- on himself and so estimated that the balance of Rs.1,700/- would have been the contribution of the deceased to his family. Taking a multiplier of 17, the Tribunal assessed the loss of income to the petitioners as Rs.1,700/- X 12 X 17 = Rs.3,46,800/-. Further, the Tribunal took the compensation for the loss of expectation of life as Rs.10,000/- and held that the total loss on both the above heads suffered by the petitioners as Rs.3,56,800/-. For funeral expenses, a sum of Rs.2,000/- was granted and for loss of estate, the Tribunal awarded a sum of Rs.2,500/- to the petitioners. So, the Tribunal awarded a total compensation of Rs.3,61,300/-, together with interest at the rate of 7.5% from the date of filing the petition till the date of payment of compensation excluding the default period (ie.from 13.04.2005 to 20.09.2006) as the petition had been dismissed for default during this period, and costs and directed the respondents to deposit the said award with accrued interest into the credit of the M.C.O.P.No.488 of 2005, on the file of the Motor Accident Claims Tribunal, (Court of Principle District Judge), Namakkal, within a period of two months from the date of its Order. Out of the award amount, the Tribunal apportioned Rs.1,00,000/- each with accrued interest to the 1st, 2nd and 4th petitioners and Rs.61,300/- with accrued interest to the 3rd petitioner. Further, after deducting the Advocate fees from the award granted, the balance apportioned share of the 1st, 2nd and 3rd petitioners were to be deposited in a Nationalised Bank for a period of three years and the apportioned share of the 4th petitioner was to be deposited in a Nationalised Bank till such period he attains the age of a major. The 1st, 2nd and 3rd petitioners were permitted to withdraw the interest on their apportioned share of deposit directly from the bank and the 2nd petitioner, being mother and natural guardian of the 4th petitioner was permitted to withdraw interest on the 4th petitioner's apportioned share of award periodically after taking permission of the Tribunal. The Court fees on the award granted was to be paid by the petitioners within a period of 15 days from the date of its Order.
19.The learned counsel for the appellant has contended in his appeal that the accident had happened solely due to the rash and negligent act of the deceased in having suddenly crossed the road, pushing the bicycle with heavy load of tamarind woods. Further, it has been contended that the learned Tribunal should have considered the probability that if the deceased had been alive, in the normal course of life, after marriage, he would have spent more for himself and his own family and contribution to the parent, depending upon their longevity, would be reduced, ought to have deducted atleast 50% towards personal expenses of deceased, while arriving at the compensation.
20.Further, it has been contended that the Tribunal on considering the age of the parents as 56 and 45 years and also that they have two more sons to support them in future ought not to have taken the huge multiplier of 17 years. It is submitted that the learned Tribunal following the Judgement of Hon'ble Supreme Court in Rajapriya Case 2005 ACJ and 2006 ACJ 2114, in which the multiplier of 12-13 years was adopted in a case of claimants, who were wife and minor children, ought to have arrived at the compensation after adopting multiplier of 10 years only.
21.As such, the learned counsel for the appellant has prayed to set aside the award and decree made in M.C.O.P.No.488 of 2005, on the file of the Motor Accident Claims Tribunal, Principle District Judge, Namakkal.
22.The learned counsel for the respondent argued that the deceased was aged about 21 years and he was the only person contributing and supporting the family. He was doing milk business besides agricultural work. The Tribunal's award of Rs.3,61,300/- is on the lower side. The claimants are 4 in number and as such 1/4th of the income of the deceased only, should have been deducted. But, in this case, about 1/3rd of the deceased income has been deducted for personal expenses. As such, the claimants are entitled to get more compensation.
23.After considering the facts and circumstances of the case, arguments advanced by the learned counsel on eitherside, this Court is of the view that the Tribunal's conclusion that the deceased aged was 21 years and his income was Rs.2,500/- per month in the year 2005, is a reasonable one. The multiplier of 17 adopted by Tribunal is also not erroneous. As such, the award of Rs.3,46,800/- granted by the Tribunal under the heads of loss of income is correct. The award of Rs.10,000/- granted by the Tribunal under the head of loss of expectation of life should be treated as an award of Rs.5,000/- under the head of loss of expectation of life and an award of Rs.5,000/- to the second petitioner for loss of love and affection. The Tribunal awarded a sum of Rs.2,500/- for loss of estate and a sum of Rs.2,000/- for funeral expenses. This Court awards the total of Rs.4,500/- under the head of funeral expenses only. In total, the award granted by the Tribunal ie. a sum of Rs.3,61,300 with interest at the rate of 7.5% per annum is equitable and fair. Hence, the Court is not warranted to interfere with the award passed by the Tribunal.
24.At the time of admission, this Court directed the appellant to deposit the entire compensation amount, into the credit of the M.C.O.P.No.488 of 2005, on the file of the Motor Accident Claims Tribunal, Principle District Judge, Namakkal.
25.Therefore, it is open to the claimants to withdraw their apportioned share of the award amount, with accrued interest, as per the Tribunal Order, lying in the credit of the M.C.O.P.No.488 of 2005, on the file of the Motor Accident Claims Tribunal, Principle District Judge, Namakkal, by filing necessary application, in accordance with law.
26.In the result, the above Civil Miscellaneous Appeal is dismissed and consequently, the award and decree passed by the Principle District Judge, Motor Accident Claims Tribunal, Namakkal, in M.C.O.P.No.488 of 2005, is confirmed. No costs.
krk To
1.Motor Vehicles Accident Claims Tribunal, Principle District Judge, Namakkal.
2. The Section Officer, VR Section, High Court, Madras