Madras High Court
National Insurance Co. Ltd vs Venkatesh on 23 April, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OFJUDICATURE AT MADRAS DATED: 23.04.2014 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR C.M.A.No.84 of 2011 National Insurance Co. Ltd. Rep. by its Manager Branch Office 1631/1-B, First Floor Salem-Bhavani Main Road Sankagiri 637 301 .. Appellant Vs. 1.Venkatesh 2.Minor Rajeswari 3.Minor Suriya 4.R.Subamanian .. Respondents Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 as against the judgment and decree of the Motor Accident Claims Tribunal (Principal District Judge) at Dharmapuri dated 23.12.2009 made in M.C.O.P.No.622 of 2008. For Appellant : Ms.R.Sreevidhya For Respondents : Mr.M.Selvam for R1 to R3 - - - - - J U D G M E N T
The insurer, who figured as the second respondent before the Tribunal, is the appellant in the Civil Miscellaneous Appeal. The petitioners in MCOP (claimants) are the respondents 1 to 3 in the appeal. The owner of the vehicle, who figured as the first respondent in the MCOP, is the fourth respondent in the appeal.
2. Respondents 1 to 3 herein had filed MCOP No.622/2008 (originally MCOP No.333/2005) on the file of the Tribunal, namely Motor Accident Claims Tribunal (Court of Subordinate Judge), Dharmapuri against the fourth respondent herein and the appellant herein as owner and insurer of the offending vehicle, claiming a sum of Rs.10,00,000/- as compensation for the death of Jaishankar, the son of the first respondent herein in an accident that took place on 23.02.2005 at about 10.00 hours at Gudipatti diversion on the Salem to Dharmapuri main road. The respondents 1 to 3/claimants contended that, while the deceased Jaishankar was proceeding in his TVS 50 motorcycle bearing Regn. No.TN-29 A-3109 from Gudipatti to Nallampalli on the Salem Dharmapuri main road, the lorry bearing Regn. No.KA-05 AF-9496 belonging to the fourth respondent herein/first respondent in the MCOP came there from Dharmapuri side towards Salem, driven by its driver in a rash and negligent manner, as a result of which the driver lost his control and dashed the lorry against the TVS 50 vehicle in which the deceased was proceeding; that due to the said impact, the deceased was thrown away from the vehicle and he sustained severe injuries all over the body; that the deceased was taken to the Government Hospital, Dharmapuri and was given treatment there as an in-patient; that there he succumbed to the injuries on the same day and that hence the 4th respondent herein as the owner of the lorry (offending vehicle) was liable to compensate the respondents 1 to 3 herein, who are father and sisters of the deceased Jaishankar. Contending further that the said vehicle, namely lorry bearing Regn. No.KA-05 AF-9496, stood insured at the time of accident with the appellant herein, namely National Insurance Company Ltd and the appellant herein was also liable to pay compensation on behalf of the owner of the vehicle, the respondents 1 to 3 made the claim for compensation against the 4th respondent herein and the appellant herein. Contending that the deceased was aged about 22 years and was employed as a Head Cook making sweets and other items for Sweet Stalls, marriage and other functions and was deriving an income of Rs.10,000/- per month and that though the respondents 1 to 3 calculated the reasonable compensation at Rs.32,50,000/-, they would restrict their claim to Rs.10,00,000/- alone, they prayed for passing an award against the 4th respondent herein and the appellant herein to jointly and severally pay the said amount together with an interest from the date of claim petition till realisation and cost.
3. The owner of the vehicle, namely the 4th respondent herein/first respondent in the MCOP, did not contest the case and he remained ex-parte. The insurer of the lorry, namely National Insurance Company Ltd, who is the appellant herein/second respondent in the MCOP alone contested the case by filing a counter contending that the deceased Jaishankar was not riding the TVS 50 vehicle bearing Regn. No.TN-39 A-3109 when the accident took place on 23.02.2005 and on the other hand, it was driven by one Manoharan and the deceased Jaishankar was seated as a pillion rider; that the rider of the TVS 50, drove it at a high speed from Gudipatti branch road towards the main road; that at that point of time, a town bus with Route No.2A also came in National Highways towards Gudipatti branch road and that when the rider of the TVS 50, namely Manoharan moved his vehicle sidelining the town bus in an attempt to enter the main road, namely NH-7, he came to the extreme end of the road, lost his balance and fell down. It was further contended that on account of such fall, the pillion rider Jaishankar also fell down and backside of his head received injuries leading to his death and that the accident occurred due to the careless driving of the TVS 50 vehicle by its rider and not due to the rash and negligent driving of the lorry bearing Regn. No.KA-05 AF-9496 by its driver. It was the further contention of the appellant that as per the provisions of the Hindu Succession Act, 1956, the respondents 1 to 3 herein were not the legal heirs of the deceased Jaishankar; that the age, occupation and income of the deceased, as furnished by the claimants were not correct; that the deceased was having no income at all; that the deceased was a native of Andhra Pradesh and his presence in the accident spot and the purpose of his visit had not been mentioned in the petition; that the alleged offending vehicle, namely lorry bearing Regn. No. KA-05 AF-9496 was not insured with the appellant herein/second respondent in the MCOP and the driver of the said vehicle did not hold a valid driving licence at the time of accident; that the amount claimed as compensation by the respondents 1 to 3/claimants was excessive and exorbitant and that hence the MCOP should be dismissed with cost.
4. Based on the above said pleadings, the parties went for enquiry in which, PWs1 and 2 were examined and Exs.P1 to P4 were marked on the side of the claimants (respondents 1 to 3 in the appeal). RWs1 and 2 were examined and Exs.R1 and R2 were marked on the side of the insurer, namely the appellant herein/2nd respondent in the MCOP. The Tribunal, after hearing the arguments advanced on both sides, considered the evidence on both sides and upon such appreciation of evidence, rendered a finding that the accident took place solely due to the rash and negligent driving of the lorry belonging to the fourth respondent herein bearing Regn. No.KA-05 AF-9496 by its driver and that hence the fourth respondent herein and the appellant herein were jointly and severally liable to pay compensation to the respondents 1 to 3 herein/petitioners in the claim petition, being the father and minor sisters of the deceased.
5. The Tribunal took the age and annual income of the deceased as 22 years and Rs.48,000/- respectively, deducted 1/3rd from the annual income towards personal and living expenses of the deceased, took the balance amount of Rs.32,800/- to be the pecuniary loss occasioned to the members of the family, selected 15 as the appropriate multiplier for computation of compensation for pecuniary loss and fixed Rs.4,80,000/- as the compensation for pecuniary loss suffered by the respondents 1 to 3 herein. Adding a further sum of Rs.5,000/- each to the respondents 1 to 3 herein towards loss of love and affection, Rs.5,000/- towards transport expenses and another sum of Rs.5,000/- towards funeral expenses, the Tribunal arrived at the final figure Rs.5,05,000/-, as the total amount of compensation recoverable by the respondents 1 to 3 herein from the owner and insurer of the offending vehicle, namely the 4th respondent herein and the appellant herein. Accordingly, the Tribunal passed an award on 22.12.2009 directing the 4th respondent and the appellant herein, to jointly and severally pay the above said amount to the respondents 1 to 3 herein together with an interest at the rate of 7.5% per annum from the date of filing of the MCOP till realisation and also proportionate cost.
6. The respondents 1 to 3 herein had filed an application in I.A.No.1135/2009 under Section 151 of the Code of Civil Procedure for initiating criminal proceedings against the appellant herein for allegedly giving false information to the Tribunal as if the vehicle was not insured with the appellant herein and the driver of the lorry did not possess a valid driving licence. The Tribunal held that for the wrong plea taken in the MCOP by way of defence to the claim made by the respondents 1 to 3, the appellant could not be prosecuted and no criminal proceedings could be initiated. Accordingly, the Tribunal dismissed the said interlocutory application and passed the award against the fourth respondent herein and the appellant herein as indicated supra. The said award of the Tribunal is challenged by the insurer, namely National Insurance Co. Limited, which figured as the second respondent in the MCOP, on various grounds set out in the Memorandum of Civil Miscellaneous Appeal.
7. The points that arise for consideration in this appeal are as below:
1) Whether the Tribunal committed an error in holding that the accident was due to the rash and negligent driving of the lorry bearing Regn. No.KA-05 AF-9496 by its driver?
2) Whether the amount awarded by the Tribunal as compensation is excessive and exorbitant requiring downward revision?
8. The arguments advanced by Ms.R.Sreevidhya, learned counsel for the appellant and by Mr.M.Selvam, learned counsel for the respondents 1 to 3 were heard. The materials available on record were also perused.
9. The respondents 1 to 3 herein are the father and unmarried minor sisters of the deceased Jaishankar, who met with an accident on 23.02.2005 at about 10.00 hours at Gudipatti diversion of Salem-Dharmapuri main road and later on died in the hospital due to the injuries sustained in the accident. There is no dispute regarding the fact that the first respondent is the father of the deceased and the respondents 2 and 3 are the unmarried sisters of the deceased. They claimed compensation against the fourth respondent herein and the appellant herein based on their contention that they were respectively the owner and insurer of the offending vehicle, namely lorry bearing Regn. No.KA-05 AF-9496. The fourth respondent herein did not resist the claim made by the respondents 1 to 3. On the other hand, the appellant alone resisted the claim making several contentions including the contention that the alleged offending vehicle, namely lorry bearing Regn. No.KA-05 AF-9496, was not covered by an insurance policy insured by the appellant herein and that the driver, who drove it at the time of accident, did not possess a valid driving licence. In view of such a stand taken by the appellant/insurer, the respondents 1 to 3/claimants chose to produce a xerox copy of the insurance policy bearing No.650403/31/04/6300834 issued by the appellant in respect of the lorry bearing Regn. No.New, a Leyland Tauras lorry with Engine No.VVH268637 and chassis No.VVH086129 for the period from 17.05.2004 to 16.05.2005, wherein the fourth respondent herein was shown as the insured (owner of the vehicle). It is not disputed that the lorry with the above Engine number and Chasis number is the one registered with the Regn. No.KA-05 AF-9496 and that the insurance certificate was issued prior to registration. They have also produced a xerox copy of the driving licence of V.Govindasamy, the driver of the said lorry at the time of accident. The said copy of the driving licence was admitted by RW1 during his cross examination and only based on his admission, it came to be marked as Ex.P4. Though Ex.P3 was marked through PW1 in his chief examination as the copy of the policy issued by the appellant in respect of the lorry bearing Regn. No.New, he was not cross examined suggesting that no such policy had been issued and the copy of the policy produced as Ex.P3 was not the one issued in respect of the lorry bearing Regn. No.KA-05 AF-9496. The same will show that though the appellant initially denied coverage of vehicle by a policy of insurance issued by the appellant, pursuant to the production of Ex.P3, it has given up the said plea of denial and admitted that it had issued an insurance certificate for the lorry bearing Regn. No.New in the name of the fourth respondent herein and that the said policy was in force as on the date of accident.
10. Similarly, in the claim petition, one Govindasamy s/o.Varadhan has been named as the driver, who drove the above said offending vehicle, namely lorry bearing Regn. No.KA-05 AF-9496 at the time of accident. His address has been furnished as follows:
" Govindasamy V s/o Varadhan Vinnvanoor Vill Pachal PO Chengam Tk. "
It is also an admitted fact that in respect of the accident concerned in this appeal, a case was registered by police against the driver of the lorry bearing Regn. No.KA-05 AF-9496 for offences under Sections 279 and 304-A of Indian Penal Code in Crime No.91/2005 on the file of Adhiyamankottai Police station. A copy of the First Information Report has been produced and marked as Ex.P1. The said Govindasamy has been examined on the side of the appellant as RW1. He did admit that he was the driver of the lorry bearing Regn. No.KA-05 AF-9496 on the date of accident, namely 23.02.2005. During cross examination he had asserted that the averments made in the counter statement of the appellant/2nd respondent in the MCOP that he did not possess a valid driving licence was wrong. In fact, he admitted Ex.P4 to be the copy of his driving licence and based on his admission alone Ex.P4 came to be marked.
11. From the evidence of PW1, RW1 and Exs.P3 and P4, it has been clearly established that the vehicle, namely lorry bearing Regn. No.KA-05 AF-9496, was covered by an insurance certificate issued by the appellant herein under the original of Ex.P3; that the said lorry was driven by RW1 at the time of accident and that RW1 did possess a valid driving licence to drive the said vehicle. The Tribunal, on a proper appreciation of evidence, came to a correct conclusion that the defence pleas taken by the appellant that the said vehicle was not covered by an insurance policy and that the driver of the said vehicle did not possess a valid driving licence were not substantiated and that on the other hand, the said pleas were disproved by the claimants. Perhaps, the same may be the reason why the appellant has not raised the said issue in the appeal. The finding of the Tribunal that the vehicle belonging to the fourth respondent stood insured with the appellant and it was driven by a person holding a valid driving licence at the time of accident, has attained finality, as it remains unchallenged.
12. The learned counsel for the appellant argued that the fact that the lorry was proceeding in the main road, namely NH-7, whereas the TVS 50, in which the deceased was proceeding as a pillion rider, came from the branch road and entered the NH and the further fact that the place of impact was near the mid-line on the left half of the main road, would indicate that the rider of the TVS 50 was negligent and that only due to his fault, the accident occurred. It is her further contention that the driver of the vehicle entering the NH from the branch road should be more cautious to ensure that the entry of the vehilce into the main road shall not cause any impact on the vehicle coming along the main road. The learned counsel for the appellant contended that the Tribunal, without properly appreciating the evidence regarding the manner in which the accident took place and without properly appreciating the documentary evidence produced by the appellant in the form of Ex.R2, gave an erroneous finding that the accident took place solely due to the rash and negligent driving of the lorry bearing Regn. No.KA-05 AF-9496 driven by its driver (RW1). It is her further contention that the Tribunal ought to have, at least, held that the rider of the TVS 50 also contributed towards the accident by his own negligence. On the other hand, the learned counsel for the respondents 1 to 3 has contended that, on a proper appreciation of evidence, the Tribunal arrived at a correct conclusion regarding the question of negligence and that hence the same does not deserve any interference in this appeal.
13. This court paid its anxious considerations to the said contentions made by the learned counsel appearing on either side.
14. The respondents 1 to 3 herein/claimants have made a clear averment in the claim petition that the accident took place solely due to the rash and negligent driving of the lorry belonging to the fourth respondent herein, namely the lorry bearing Regn. No.KA-05 AF-9496. The respondents 1 to 3 herein/claimants have made a clear and unambiguous statement in the claim petition to the effect that the deceased Jaishankar was riding the TVS-50 vehicle bearing Regn. No.TN-29 A-3109 at the time of accident and that while he was thus proceeding in the said vehicle, the same was hit by the lorry bearing Regn. No.KA-05 AF-9496. On the other hand, the appellant herein/2nd respondent in the MCOP (insurer) had taken a stand that the deceased was not the rider of the two wheeler and on the other hand, he was only a pillion rider; that one Manoharan was the rider of the TVS 50 and he drove it at a high speed from Gudipatti branch road towards the main road; that at that point of time, a town bus with Route No.2A came from National Highways towards Gudipatti branch road; that while so, the rider of the TVS 50, namely Manoharan, entered the main road, moved his vehicle sidelining the town bus, came to the edge of the road, lost his balance and fell down; that on account of the same, the pillion rider Jaishankar also fell down and the backside of his head received injuries leading to his death and that thus the accident occurred due to the negligent driving of the TVS 50 vehicle by its rider and not due to the rash and negligent driving of the lorry bearing Regn. No.KA-05 AF-9496 by its driver.
15. It is obvious from the contents of the FIR that the said Manoharan gave a statement to the police that he was proceeding in a TVS Super XL bearing Regn. No.TN-29 D-9374, while the deceased Jaishankar was proceeding in another two wheeler, namely TVS 50 XL bearing Regn. No.TN-29 A-3109. It was also his clear statement that, while the deceased Jaishankar was proceeding ahead of him, he was following him in his two wheeler. The said Manoharan has been examined as PW2. He has re-stated and reiterated in his evidence what he had stated before the police for the registration of the criminal case. The driver of the lorry, who was examined as RW1, in his evidence, has simply stated that the deceased was a pillion rider in the TVS 50 motorcycle. However he corroborates and confirms the evidence of PW2, which is to the effect that the deceased alone was proceeding in the TVS 50 motorcycle bearing Regn. No.TN-20 A-3109. PW1 has specifically denied the suggestion that the deceased Jaishankar was travelling as a pillion rider in the two wheeler bearing Regn. No.TN-29 A-3109. The eye witness, namely PW2, who was also the complainant, did make a clear statement that the deceased Jaishankar was proceeding ahead of him (PW2) in a TVS 50 XL bearing Regn. No.TN-20 A-3109, whereas he was following him in his own two wheeler TVS XL Super bearing Registration No.TN-29 D-9374. It is also his clear assertion that after completing their work at Gudipatti, they were proceeding towards Nallampalli on the Salem-Dharmapuri NH and that, while they were thus proceeding, the lorry bearing Regn. No.KA-05 AF-9496 that came in the opposite direction (from Salem towards DharmapurI), was driven by its driver at a high speed in a rash and negligent manner, as a result of which it dashed against the TVS 50 XL in which the deceased Jaishankar was proceeding. The very same particulars are found in Ex.P1. From the particulars found in Ex.P1 and from the evidence of PW2, it is obvious that the deceased was proceeding in his two wheeler, namely TVS 50 XL bearing Regn. No.TN-29 A-3109 from north to south on the Dharmapuri Salem sector of NH-7 and the lorry bearing Regn. No.KA-05 AF-9496 came in the opposite direction, namely from south to north.
16. The driver of the lorry, who was examined as RW1 has made an attempt to propound a different story regarding the accident. In his evidence in chief examination, he has stated that, while he was driving the lorry from Bellary to Pottanery, there was a traffic congestion at Adhiyamankottai Railway gate; that due to the traffic snarl he had stopped his vehicle, namely the lorry bearing Regn. No.KA-05 AF-9496; that at that point of time, a Government bus that had been stationed before the lorry proceeded at a high speed in Nallampalli road; that the two wheeler which came in the opposite direction from Nallampalli junction overtook the government bus on its left side and in such an attempt, the rider of the TVS 50 vehicle caused his vehicle dash against the lorry, which was stationary, as a result of which he fell down. Though RW1 would have given such a different story in his chief examination, there is a clear admission on his part that he was arrested by the police in connection with the accident and was produced before the court for remand. It has also been admitted by him that a charge-sheet was filed against him in the case registered in Athiyamankottai police station in respect of the accident in question.
17. In an attempt to show that there was no negligence on the part of the driver of the lorry bearing Regn. No.KA-05 AF-9496 and on the other hand, the two wheeler in which the deceased was proceeding had gone to the wrong side of the road and invited the accident, RW2 was examined and Exs.R1 and R2 were produced. Ex.R1 is the xerox copy of the observation mahazar prepared by the Investigating Officer, whereas Ex.R2 has been produced as a xerox copy of the rough sketch prepared by the Investigating Officer. The said documents have not been authenticated to be true copies either by the court or by the Station House Officer. One P.Krishnasamy, Sub Inspector of Police, has been examined as RW2. He was neither the Investigating Officer, nor the author of the observation mahazar and the rough sketch. In the copy of the observation mahazar produced as Ex.R1, the following particulars are found noted: "The width of National Highways was 22 Feet. There were mud roads to a width of 4' on either side of the road. The occurrence took place at about a distance of 1' on the west of the centre of the road. " In the copy of the rough sketch also, the occurrence place is noted on the west of the centreline of the road. But, it is not known as to how the place of impact had been fixed by the Investigating Officer, as it has been stated in the observation mahazar that the TVS 50 XL bearing Regn. No.TN-29 A-3109 was found lying on the border of the road near the place of occurrence and it is not stated whether on the eastern border or western border. In this regard, RW2 has admitted that even beyond the place marked as the place of impact, there was sufficient space for the vehicles coming from Salem side to pass on. He has also admitted that the Investigating Officer found the driver of the lorry to have acted with rashness and negligence and that hence a charge-sheet was filed against him. The evidence of RW2 will not render any help to the appellant to show that the deceased acted with negligence and invited the accident and there was no negligence on the part of the driver of the lorry bearing Regn. No.KA-05 AF-9496. Since the driver of the lorry, who deposed as RW1, gave an entirely different story as if the deceased came and dashed against the lorry, which was stationary, his evidence becomes unbelievable and unreliable. In view of the conflicting stand taken by the appellant in the counter which was falsified by the respondents 1 to 3, the evidence of PW2 should be disbelieved. PW2 has given a cogent account of the occurrence not only in the complaint given to the police, but also in the evidence adduced by him before the Tribunal. On a re-appreciation of evidence, this court comes to the conclusion that the finding of the Tribunal that the accident took place solely due to the rash and negligent driving of the lorry bearing Regn. No.KA-05 AF-9496 by its driver does not suffer from any defect or infirmity and hence the same deserves confirmation. Question No.1 is answered accordingly against the appellant and in favour of the respondents 1 to 3/claimants.
18. According to the respondents 1 to 3/claimants, the deceased was aged about 22 years and was having an income of Rs.10,000/- per month in his employment as a Head Cook making sweets and other items for sweet stalls and for marriage and other functions. In order to prove the age of the deceased, the respondents 1 to 3/claimants have not produced either the birth certificate or the school certificate. No other document containing the date of birth of the deceased has been produced. Neither PW1 nor PW2 spoke about the date of birth or the age of the deceased at the time of his death. The only document available for the proof of the age of the deceased is copy of the postmortem certificate marked as Ex.P2. In Ex.P2, the age of the deceased is noted as "about twenty two years". In the absence of any other evidence, reliance can be made on the postmortem report for fixing the age of the deceased, even though the age mentioned in the postmortem certificate shall be only approximate. The age of the first respondent, namely the father of the deceased, has been given as 45 years. At the time of filing of the MCOP, the age of the first petitioner therein was given as 40 years and the second and the third petitioners therein (sisters of the deceased) had been stated to be 13 years old and 10 years old respectively on the date of filing of the petition. If at all the age of the deceased is taken as 22 years, then it will give an inference that the first respondent had become a father at the age of 18 years. Considering the age gap between the second and third respondents, we can reasonably fix the age of the deceased to be somewhere between 16 to 18. In any event, definitely he will be in the age group of 15 to 25 years. For the death of a person in the age groups of 15 to 20 and 21 to 25 years, the maximum multiplier '18' shall be applied as per the guidelines issued by the Hon'ble Supreme Court in U.P.S.R.T.C. v. Trilok Chandra's case [(1996) 4 SCC 362], which has been clarified in Reshma Kumari's case [2013 (2) CTC 680]. Hence the appropriate multiplier to have been applied shall be '18' and not '15' as held by the Tribunal.
19. According to the petition averments, the deceased Jaishankar was employed as a Head Cook making sweets and other items for Sweet Stalls and also for functions like marriages. Though PW1 has chosen to depose in line with what has been stated in the petition, there is an indirect admission during cross examination that the deceased was employed in a Sweet Stall called "Mano Sweet Stall". When a suggestion was made to him that the fact that the deceased was employed in the above said Sweet Stall had not been mentioned in the petition, PW1 denied it. The same will amount to a tacit admission that the deceased was employed in a Sweet Stall. PW2 has also chosen to state that he and the deceased Jaishankar were jointly doing the business of preparing and selling sweets to the Sweet stalls and were preparing sweets on orders for the functions and that from the income thus derived from the said business, PW2 was making payment of a sum of Rs.10,000/- to PW1 for family expenses. It is his statement that since both of them were jointly doing the business and the business was under the management of PW2, he was making such payment to the father of the deceased. Though the said evidence of PW2 is in conformity with the statement of PW1 in his chief examination, the same is in conflict with the statement of PW2 found in the FIR, copy of which has been marked as Ex.P1. It has not been stated in the petition that the deceased was jointly doing the business with PW2. On the other hand, it was simply stated that he was a Head Cook and was also making sweets and other eatables. The following are the averments made in the petition:
"The deceased was hale and healthy and very active in nature at the time of death. He was aged only 22 years at the time of accident. He was a head cook and also making sweets and other eatable items for sweet stalls, and bakeries, and also going for marriage and other functions for cooking. Thus he was earning not less than Rs.10,000/- per month and contribute entire (sic) income to the welfare and maintenance of his family."
Nowhere in the petition it was stated that he was jointly doing business with PW2. It was also not stated in the petition that PW2 was in management of the business jointly run by the deceased and PW2 and it was PW2, who used to give a sum of Rs.10,000/- per month to PW1 for the maintenance of the family.
20. However an interesting twist has occurred in the stand of the claimants while adducing evidence. Both PW1 and PW2 have stated that the deceased and PW2 were doing the business jointly; that PW2 was in management of the business jointly run by them and that it was PW-2, who was giving Rs.10,000/- per month to PW1 for the maintenance of the family, out of the share of the income of the deceased from the business. The evidence of PW1 is to the effect that both PW2 and the deceased were jointly doing the business of preparing sweets, savories and other bakery items in wholesale and were supplying the same to a bakery in Nallampalli by name "Mano Bakery" and also to other bakers and other shops in the villages around Nallampalli. It was also his statement that they were preparing sweets and savouries in large scale on orders for the marriage functions and other functions. It is not the evidence of PW1 that either "Mano Bakery" was run jointly by the deceased and PW2 or PW2 was the proprietor of "Mano Bakery", in which the deceased was employed. PW2 in his evidence in chief examination in the form of proof affidavit has not stated anything about the nature of the alleged joint business run by himself and the deceased Jaishankar. On the other hand, he has given a bald statement that they were jointly doing business and the said business was in his management and that from out of the share of the deceased in the income derived from the business, he paid a sum of Rs.10,000/- per month to PW1 for maintenance of the family. However during cross examination, he has stated that he is running a shop in Nallampalli. At the same time, he has admitted that he did not get any licence for running a sweet stall. The claim of PW2 that they were jointly doing a business is quite contrary to what is found in Ex.P1. In his complaint to the police, PW1 stated that he himself was running a sweet stall at Nallampalli Bus stop in the name of "Mano Sweet Stall" and that the deceased Jaishankar was employed under him for about 1= years. The said statement that the deceased was under the employment of PW2 was sought to be given a goby while adducing evidence in the MCOP by leading evidence through PWs1 and 2 to the effect that both PW2 and deceased Jaishankar jointly did the business and that Jaishankar was a partner of PW2 and not an employee under PW2. The Tribunal has rightly held that the petition averment regarding the avocation and income of the deceased had not been substantiated by reliable oral and documentary evidence. On the other hand, the Tribunal has chosen to fix the monthly income of the deceased at Rs.4,000/- taking his age to be 22 years. Therefore, there cannot be any grievance over the said amount fixed as the notional income of the deceased, as it is not on the higher side. Accordingly, fixation of his income by the Tribunal at Rs.48,000/- per annum has got to be sustained.
21. It is the contention of the learned counsel for the appellant that since the deceased was a bachelor, in the normal circumstances, the father could not be taken as a person dependent on the income of the son, especially when there is no evidence that he was under any disability; that the sisters also can be taken as the persons depending on the income of the father and not on the income of the brother, when the father is alive and that hence deduction towards personal and living expenses should have been made at 50% as against 1/3rd made by the Tribunal. It is the further contention of the learned counsel for the appellant that even if respondents 2 and 3, being the minor sisters, could have been dependent on the deceased to some extent as the mother of the deceased had pre-deceased him, the period of dependency could be minimum and only a minimum contribution would have been made by the deceased had he been alive and that the same would have got reduced further once he got married and that hence the deduction towards personal and living expenses ought to have been made at 50% and not 1/3rd as done by the Tribunal.
22. In Sarla Verma and others vs. Delhi Transport Corporation and Others reported in (2009) 2 TNMAC 1 (SC), the following observations have been made in paragraphs 30 to 32:
30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contention to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
After referring to the same, a Larger Bench of the Supreme Court in Reshma Kumari and others Vs. Madan Mohan and another reported in 2013(2) CTC 680 has made the following observations:
" 38. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependents."
23. If the above principles are applied to the case on hand, in the light of the fact that the father was aged about 40 years at the time of filing the MCOP and that he was not proved to be suffering from any disability, he could not be considered to be a dependent on the deceased. Similarly, though the unmarried siblings of the deceased might have been dependent on the income of the deceased to some extent, as their father was very much alive, this court has to apply the principle of deducting 50% in case of bachelor towards personal and living expenses. If 50% of the annual income of the deceased as assessed above is deducted, then the contribution that would have flown from his income to his family shall be Rs.24,000/- per annum. This should be multiplied by an appropriate multiplier selected based on the age of the deceased to fix the amount representing the compensation for the pecuniary loss suffered by the family members. If the annual pecuniary loss suffered by the family members, which has been fixed at Rs.24,000/- is multiplied by the selected multiplier '18', we shall get the product Rs.4,32,000/-. The same shall be the amount of compensation for the pecuniary loss suffered by the family members of the deceased due to the death of the deceased in the accident.
24. To the above said amount, reasonable amounts towards conventional damages should be added. The Tribunal has awarded a sum of Rs.5,000/- towards transport expenses. But there is no evidence showing any expenditure incurred by the respondents 1 to 3/claimants towards transportation. Hence the said amount has got to be disallowed.
25. The Tribunal has allowed only a sum of Rs.5,000/- towards Funeral Expenses. In Rajesh & others vs. Rajbir Singh & others reported in 2013 (3) CTC 883, a Larger Bench of the Suprme Court has made the following observations:
"We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-"
In this case also, there is no evidence to show that the respondents 1 to 3/claimants would have incurred more than 25,000/- rupees towards funeral expenses. As the Supreme Court has directed award of at least a sum of Rs.25,000/- towards funeral expenses, the amount awarded by the Tribunal under the head of funeral expenses shall have to be enhanced to Rs.25,000/- from Rs.5,000/-.
26. For loss of love and affection, the Tribunal has awarded a sum of Rs.5,000/- each to the respondents 1 to 3. The first respondent/first claimant, who had lost his wife prior to the death of his son, has also lost his only son and is now left with two daughters alone. The respondents 2 and 3 have also lost the love and affection of their elder brother to some extent. Hence this court is of the considered view that the compensation under the head of loss of love and affection shall be enhanced to Rs.10,000/- each from Rs.5,000/-. If such alterations and adjustments are made, then the total amount of compensation to which the respondents 1 to 3/claimants are entitled shall be reasonably arrived at Rs.4,87,000/-. At the cost of repetition, the split up particulars are furnished here under:
Compensation for pecuniary loss (loss of dependency) : Rs.4,32,000/-
Funeral Expenses : Rs. 25,000/- Loss of love and affection 3 x 10,000 : Rs. 30,000/- ------------------------------ Total : Rs.4,87,000/- ------------------------------
Hence this court comes to the conclusion that the amount awarded by the Tribunal as compensation is slightly on the higher side and the same deserves to be reduced to Rs.4,87,000/- from Rs.5,05,000/-. The interest awarded by the Tribunal is only reasonable and no interference is needed.
27. In view of the reduction in total amount of compensation, the apportionment of the compensation among the respondents 1 to 3/claimants shall also be altered. Accordingly, the share of the respondents 1 to 3/claimants in the compensation shall be as follows:
1st respondent/1st claimant (father) : Rs.2,16,000/-
2nd respondent/2nd claimant (sister) : Rs.1,35,500/-
3rd respondent/3rd claimant (sister) : Rs.1,35,500/-
along with corresponding portion of interest.
In the result, the appeal is allowed in part and the award of the Tribunal is modified by reducing the quantum of compensation from Rs.5,05,000/- to Rs.4,87,000/-. The amount shall be apportioned among the respondents 1 to 3/claimants in the ratio of Rs.2,16,000/-, Rs.1,35,500/- and Rs.1,35,500/- respectively with corresponding accrued interest. Subject to the above said modification, the award of the Tribunal, in all other respects including the rate of interest, shall stand confirmed. There shall be no order as to cost in this appeal. In case any excess amount has been deposited by the appellant, the appellant shall be permitted to withdraw the same. In case any amount is due from the appellant as per the award amended by this judgment, the same shall be deposited by the appellant within four weeks.
23.04.2014 Index :Yes Internet :Yes asr To The Motor Accident Claims Tribunal (Principal District Judge) at Dharmapuri P.R.SHIVAKUMAR, J (asr) Pre-Delivery Judgment in C.M.A.No.84 of 2011 23.04.2014