Madras High Court
The Branch Manager vs Pandi on 26 November, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/11/2012 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.1479 of 2011 The Branch Manager, The Oriental Insurance Company Limited, 90-A, Thuraiyur Road, Namakkal. .. Appellant vs 1.Pandi 2.Marriammal 3.Murugesan (3rd respondent remained ex-parte before the Lower Court) .. Respondents Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the award made in M.C.O.P.No.692 of 2004, dated 21.02.2011, on the file of the Motor Accident Claims Tribunal cum Additional District and Sessions Judge(FTC), Dindigul. !For Appellant ... Mr.K. Baskaran ^For Respondent ... Mr.A.Hariharan for R1 and R2 No Appearance for R3 :JUDGMENT
The appellant/2nd respondent has preferred the present appeal in CMA(MD).No.1479 of 2011, against the judgment and decree passed in M.C.O.P.No.692 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Judge (FTC), Dindigul.
2. The short facts of the case are as follows:-
The petitioners, who are the legal heirs of the deceased Manikandan, have filed a claim in M.C.O.P.No.692 of 2004, claiming a compensation of Rs.5,00,000/- from the respondents for the death of the said Manikandan, in a motor vehicles accident. It was submitted that on 04.08.2004, at about 12.30 p.m., in the afternoon, when the (deceased) Manikandan was walking along with his mother, near Anjaneya Temple adjacent to the Ammainakkanoor market, on the Dindigul-Madurai main road, the 1st respondents lorry bearing registration No.KA-01T-5490, coming on the same road from south to west and driven by its driver in a rash and negligent manner and at a high speed, dashed against the (deceased) Manikandan, who sustained grievous injuries and died on the spot. A criminal case was filed against the driver of the lorry by the Ammainaickanoor Police station in Crime No.303 of 2004. Hence, the petitioners have filed a claim for Rs.5,00,000/- against the 1st and 2nd respondents, who are the owner and insurer of the said lorry.
3. The 2nd respondent, in his counter has submitted that the accident was caused only because of the negligence of the (deceased) Manikandan, who had tried to cross the road suddenly. It was submitted that the claim was excessive.
4. The motor accident claims Tribunal framed two issues for consideration in the case namely: (1) Was the accident caused by the negligence of and rash driving by the driver of the 1st respondents lorry bearing registration No.KA- 01T-5490?; (2) If so, what is the quantum of compensation which the petitioners are entitled to get?
5. On the petitioners side, two witnesses were examined and four documents were marked as Exs.P1 to P4 namely; Ex.P1-copy of F.I.R dated 04.08.2004; Ex.P2-copy of post mortem report dated 04.08.2004; Ex.P3-copy of death certificate dated 04.08.2004; Ex.P4-legal heir certificate dated 05.10.2009. On the respondents side, no witness, no documents.
6. PW.1, Pandi, the father of the (deceased) Manikandan had adduced evidence which is corroborative of the statements made in the complaint. He deposed that his son was aged ten years at the time of accident and that he was studying in the 4th standard.
7. PW.2, Kaniappan, the grandfather of the (deceased) Manikandan, who is an eyewitnesses of the accident deposed that his grandson had walked on the corner of the road and had denied the allegation raised on the side of the 2nd respondent that the (deceased) Manikandan had walked in the middle of the road.
8. The learned judge, after scrutiny of Ex.P1-F.I.R and on perusal of evidence of PW.1 and PW.2, held that the accident had been caused by the rash and negligent driving of the 1st respondent's driver and held the 1st and 2nd respondent jointly liable to pay compensation to the petitioners. The learned Judge, awarded a compensation of Rs.2,25,000/- under the head of pecuniary damages and Rs.75,000/- under the head of non-pecuniary damages. The Tribunal awarded a sum of Rs.75,000/- under the head of loss of future prospects. In total, the Tribunal awarded a sum of Rs.3,75,000/- as compensation to the petitioners and directed the 1st and 2nd respondents to pay the said compensation together with interest of 7.5% per annum from the date of filing the claim till date of payment of compensation, within one month from the date of its order.
9. Aggrieved by the said award passed by the Tribunal, the 2nd respondent has preferred the present appeal. The learned counsel for the appellant has contended that the claims Tribunal had failed to see that a mere speculative possibility of benefit is not sufficient for the parents to be entitled for compensation for the death of an infant and that parents have to establish that they had a reasonable expectation of pecuniary benefit if he child had lived. It was pointed out that the lower court has failed o note that at the time of accident, the deceased had suddenly crossed the road, carelessly without noticing the movement of the vehicle and as a compensation of Rs.3,75,000/- granted is highly excessive and exorbitant. It was also pointed out that as per schedule II of the Motor Vehicles Act, 1988, which provides that notional income for the purpose of compensation to those who had no income can be taken to be Rs.15,000/- per annum, out of which 1/3rd has to be deducted for notional personal expenses and only thereafter an application of appropriate multiplier the compensation can be ascertained.
10. The learned counsel for the claimant submits that the deceased is aged about 10 years and the boy was studying in the 4th standard and he was an active and brilliant student. The parents of the deceased had a lot of expectations about their deceased sons' bright future. The learned counsel further submits that the Tribunal had not granted adequate compensation to the claimants. The learned counsel, in support his contentions, had cited the following judgments reported in 2012(2) TN MAC 60 (Del.) in Shasi Bhushan and others Vs. National Insurance Company Limited and others. Motor Accident Claim-compensation-quantum-determination-fatal accident- deceased, aged 6 years, a school going girl-Rs.2,52,000/- awarded by the Tribunal, if exorbitant and excessive. In case of school going child, parents entitled to compensation of Rs.3,75,000/- i.e., Rs.2,25,000/- towards loss of dependancy + Rs.75,000/- towards future prospectus (supreme court followed)- in such circumstances compensation of Rs.2,52,000/- liable to be enhanced to Rs.3,75,000/-.
11. On hearing the arguments of the learned counsels on either side and on scrutinising the impugned award of the Tribunal, this Court does not find any discrepancy in the said award, since the deceased was aged about 10 years and he was studying in the IV standard and his parents expected the support of their deceased son, in future. Hence, this Court confirms the order passed by the Tribunal. This Court directs the appellant to pay the entire compensation amount, with accrued interest as per Tribunal order, within a period of four weeks from the date of receipt of this order, subject to earlier deposits made, if any. After such deposit being made, it is open to the claimants to withdraw their apportioned share amount, with accrued interest thereon, as per Tribunal order, lying in the credit of M.C.O.P.No.692 of 2004, on the file of Motor Accident Claims Tribunal cum Additional District and Sessions Judge, Fast Track Court, Dindigul, after filing a memo along with a copy of this order.
12. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.692 of 2004, on the file the Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Dindigul, dated21.02.2011, is confirmed. No costs.
ub To
1.The Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Dindigul.
2.The Section Officer, VR Section, High Court, Madras.