Madras High Court
The New India Assurance Company Ltd vs S.Gnanaprakasam on 28 September, 2016
Bench: M.Sathyanarayanan, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.09.2016
CORAM
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.(MD)No.420 of 2006
and
C.M.P.(MD)No.2164 of 2006
The New India Assurance Company Ltd.,
No.161-A, East Veli Street,
Madurai ? 1.
Rep. through its Branch Manager. ... Appellant
Vs.
1.S.Gnanaprakasam
2.G.Paulpakkiam
3.G.Bernard
4.G.Irudayaraj
5.P.Udayakumar ... Respondents
Prayer:- Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the fair and decreetal order dated 20.01.2005 passed in
M.C.O.P.No.463 of 2002 on the file of the Motor Accidents Claims Tribunal
(Additional District and Sessions Judge ? Fast Track Court No.II), Madurai.
!For Appellant ... Mr.K.Elangovan
^For R1 & R5 ... Dismissed
For R2 to R4 ... Mr.C.K.Tamil Chelvan
:JUDGMENT
This Civil Miscellaneous Appeal has been filed against the fair and decreetal order dated 20.01.2005 passed in M.C.O.P.No.463 of 2002 on the file of the Motor Accidents Claims Tribunal (Additional District and Sessions Judge ? Fast Track Court No.II), Madurai.
2. The facts in brief leading to the filing of this Civil Miscellaneous Appeal, are as follows:
(i) The appellant/Insurance Company is the second respondent and the respondents 1 to 4 are the claimants and the fifth respondent/owner of the lorry is the first respondent in M.C.O.P.No.463 of 2002 on the file of the Court of Motor Accident Claims Tribunal (Additional District and Sessions Judge - Fast Track Court No.II), Madurai. The respondents 1 to 4 filed a claim petition in M.C.O.P.No.463 of 2002 against the appellant and the fifth respondent claiming a sum of Rs.50,00,000/- as compensation.
(ii) According to the respondents 1 to 4/claimants, on 14.07.2001 about 00.45 hours, one George J.Victor, son of the respondents 1 and 2, brother of the respondents 3 and 4 was driving his Maruthi Car bearing Registration No.TCU-2005 on Virudhunagar to Madurai Main Road from South to North. At that time, a lorry bearing Registration No.TMT-3425 belonging to the fifth respondent proceeding from the opposite direction, driven by it's driver in a rash and negligent manner with very high speed and dashed against the car. Due to the impact, the said George J.Victor sustained multiple injuries all over the body and died on the spot. A complaint was given against the driver of the lorry before the Virudhunagar Police Station and a case was registered in Crime No.179/2001 under Section 304(A) I.P.C. At the time of accident, the deceased was 34 years old and was working as a Coast Guard Deputy Commanding Officer and was earning a sum of Rs.21,000/- as salary per month. The deceased has further work span of 26 years and if the accident did not happen, he would have get his maximum promotions in his Department and he could have earned several lakhs of rupees through his employment. Even after retirement, the deceased would have secured a job for his remaining life span. Due to sudden demise, the respondents 1 and 2 have lost their love and affection of their deceased son and the respondents 3 and 4 have lost their brotherly care and affection. Therefore, they filed the claim petition claiming a sum of Rs.62,89,000/- as compensation, but restricted their claim to Rs.50,00,000/-.
(iii) The appellant filed counter denying all the allegations. According to the appellant, the driver of the lorry/fifth respondent was the owner of the lorry at the time of accident. Moreover, the fifth respondent is colluding with ulterior motive to help the respondents 1 to 4 and to cause loss and irreparable injuries to the appellant Insurance Company. The allegation that Geroge J.Victor was 34 years old at the time of accident is false and the same is also inconsistent and contradictory with the Post- mortem Certificate, in which, his age is mentioned as 35 years. The fact that the driver of the car received multiple injuries all over the body and died on the spot is disputed. The respondents 1 to 4 with ulterior motive have not impleaded the Insurer of the Maruthi Car, who is necessary and proper party. The claim petition is liable to be dismissed on the ground of non-joinder of necessary parties. In any event, the amount claimed is excessive.
(iv) Based on the pleadings, the Tribunal framed necessary points for consideration.
(v) Before the Tribunal, on behalf of the respondents 1 to 4/claimants, the second respondent herself examined as P.W.1 and one Sekar, eyewitness was examined as P.W.2 and marked ten documents as Exs.P.1 to P.10. On behalf of the appellant, neither oral nor documentary evidence was let in.
(vi) The fifth respondent remained ex-parte before the Tribunal.
(vii) The Tribunal considering all the materials available on record, came to the conclusion that the accident took place only due to rash and negligent driving by the driver of the fifth respondent and on consideration of oral and documentary evidence, awarded a sum of Rs.19,24,000/- as compensation with interest at the rate of 9% p.a., from the date of claim petition i.e., 01.11.2001 till realization under the following heads.
Sl.No. Heads Amount 1 Loss of Income 19,20,000 2 Funeral expenses 2,000 3 Loss of love and affection 2,000 Total 19,24,000
3. Aggrieved by the said award, the appellant Insurance Company has come out with the present appeal.
4. The learned counsel for the appellant contended that the Tribunal erred in taking into consideration the age of the deceased while applying multiplier. The Tribunal ought to have taken the age of the mother for arriving at the multiplier. The Tribunal erred in relying on the Service Register of the deceased, viz., Ex.P.10 for deciding the monthly income of the deceased, instead of relying on the salary certificate given by the Payment Authority. The respondents 1 to 4/claimants did not examine the person, who was maintaining the Service Register. Therefore, the Tribunal ought to have fixed only notional income described under Schedule II to Section 163-A of Motor Vehicles (Amendment) Act. The quantum of compensation and rate of interest is excessive.
5. Per contra, the learned counsel for the respondents 2 to 4 contended that the accident took place only due to rash and negligent driving by the driver of the fifth respondent. P.W.2, the eyewitness to the occurrence, has stated that the accident took place due to rash and negligent driving of the driver of the fifth respondent. In Ex.P.1 - First Information Report, it has been stated that the accident took place only due to the rash and negligent driving of the driver of the lorry belonging to the fifth respondent. He further contended that the Tribunal considered all the materials available on record in proper perspective and applied the same and awarded compensation. He also contended that taking into consideration the fact that there are four dependants, the Tribunal ought to have deducted 1/4th from the income of the deceased instead of 1/3rd and prayed for enhancement of compensation.
6. We have carefully perused all the materials available on record and considered the arguments advanced by the learned counsel appearing for the parties.
7. The points for consideration in this civil miscellaneous appeal are,
(i) Whether the Tribunal has awarded just compensation or the same has to be enhanced as per Order 41 Rule 33 C.P.C.?
(ii) Whether the rate of interest awarded is excessive?
8. At the time of death, the deceased was working as Coast Guard Deputy Commanding Officer. The respondents 1 to 4/claimants have produced Ex.P.10 ? Service Register, wherein, the income of the deceased and Dearness Allowance had been mentioned. The appellant did not dispute the fact that the deceased was working as Coast Guard Deputy Commanding Officer and Ex.P.10 was not genuine. No contra evidence was let in by the appellant. Therefore, the monthly income fixed by the Tribunal is correct. There are four dependants and therefore, as per the Judgment of the Hon'ble Apex Court, 1/4th has to be deducted and the Tribunal is not correct in deducting 1/3rd from the income. The contentions of the learned counsel for the appellant that the Tribunal erred in taking into consideration the age of the deceased for applying multiplier instead of age of mother, is untenable. It is now well settled by various judgments of the Hon'ble Apex Court and this Court, the age of the deceased in the circumstances can be taken into account for applying multiplier. This is a fit case for enhancement of compensation invoking Order 41 Rule 33 C.P.C., even though the respondents 1 to 4 are not filing cross objection. Therefore, the respondents 1 to 4 are entitled to enhancement of compensation. After deducting 1/4th of income of the deceased, the respondents 1 to 4 are entitled to a sum of Rs.21,60,000/- [Rs.15,000 ? Rs.3,750 (1/4th) = Rs.11,250 x 12 x 16] towards loss of income. The Tribunal has awarded a sum of Rs.2,000/- towards loss of love and affection to the respondents 1 to 4. This is too meager and the same has been enhanced to Rs.10,000/-. The amount awarded under the head funeral expenses at Rs.2,000/- is confirmed. The Tribunal awarded the interest at the rate of 9% p.a. It is excessive and the same is reduced to 7.5% p.a.
9. This Court on reappraisal of the materials in the form of oral and documentary evidence, is inclined to award the following amounts as compensation.
Sl.
No. Heads Amount awarded by the Tribunal Amount Awarded by this Court Award confirmed/ reduced/ granted/ deleted 1 Loss of Income 19,20,000 21,60,000 Enhanced by Rs.2,40,000/-
2Loss of love affection 2,000 10,000 Enhanced by Rs.8,000/-
3Funeral expenses 2,000 2,000 Confirmed Total 19,24,000 21,72,000 Enhanced by Rs.2,48,000/-
10. In the result, the Civil Miscellaneous Appeal is disposed of and the award and decree insofar as the compensation is enhanced to Rs.21,72,000/- with interest at 7.5% p.a. from the date of petition till the date of realisation. The appellant/Insurance Company is granted six weeks time to deposit the compensation amount, less the amount already deposited if any and on such deposit, the respondents 1 to 4/claimants are entitled to withdraw their share of compensation as per the apportionment determined by the Tribunal, less the amount if any, already withdrawn. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes (M.S.N., J.) (V.M.V., J.) Internet : Yes 28.09.2016 smn2 To
1. The Court of Motor Accidents Claims Tribunal, (Additional District and Sessions Judge ? Fast Track Court No.II), Madurai.
2. The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai..