Madras High Court
S.Sridha vs Kannupaiyan on 19 June, 2006
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19/06/2006
CORAM
THE HON'BLE MR.JUSTICE R.SUDHAKAR
C.M.A.No.3141 of 2005
and C.M.P.No.16243 of 2005
and C.M.P.No.4679 of 2006
1. S.Sridha
2. M/s.The New India Assurance
Company Limited, B.O.720203,
at 3/1/338, Annapoorna Buildings,
Ooty Main Road, Mettupalayam,
Coimbatore District. .. Appellants
-Vs-
1. Kannupaiyan
2. Ponnammal .. Respondents
Civil Miscellaneous Appeal against the award and decree dated
2.11.2000 in M.C.O.P.No.640 of 1999 on the file of the Motor Accidents Claims
Tribunal (Principal District Court), Salem.
For appellants : Mr.S.Manohar
For respondents : Mr.K.Selvaraj
:JUDGMENT
Though the miscellaneous petitions are listed for hearing, by consent of learned counsel appearing for both parties, the appeal itself is taken up for disposal.
2. The appeal is against the award and decree dated 2.11.2000 in M.C.O.P.No.640 of 1999 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Salem. The owner of the lorry and the Insurance Company are the appellants herein 3. This is a case of fatal injury. The claimants are the father and mother of the deceased. The age of the deceased at the time of the accident was 35 years. He was working as Coolie in a unit engaged in stone-cutting and sizing. According to th aim petition, he was earning Rs.5,000/- per month. The fatal accident happened on 9.5.1999 at 8.30 a.m. when the deceased was walking along Salem-Sankari Main Road from north to south on the left side. The deceased was hit by the lorry bearing Registrat ion No.TN-37-B-4145 and he died on the spot. A claim for compensation was made for Rs.5,00,000/-.
4. The claim was resisted by the Insurance Company.
5. On behalf of the claimants, P.W.1, the claimant-mother of the deceased and P.W.2, the eye-witness to the occurrence were examined and Ex.P-1, the certified copy of the F.I.R., Ex.P-2, the certified copy of the charge-sheet, Ex.P-3, the certified of the report of the Motor Vehicle Inspector regarding the accident, Ex.P-4, the certified copy of post-mortem report of the deceased Perumal and Ex.P-5, the certified copy of the judgment in C.C.No.250 of 2000 on the file of the Court of Judicial Magis trate No.1, Sankari, were marked. No oral and documentary evidence was tendered on behalf of the Insurance Company and the owner of the vehicle.
6. The Tribunal, based on the evidence of P.W.2, the eye-witness and other materials available on record, came to the conclusion that the liability should be fixed on the driver of the vehicle as he drove the vehicle in a rash and negligent manner consequently, the owner of the vehicle and the Insurance Company were held liable. There is no serious dispute on this score.
7. As regards the quantum, the Tribunal came to the conclusion that there was no proof or document to show that the deceased was earning Rs.5,000/- p.m. However, the Tribunal determined the income of the deceased at Rs.4,500/- p.m., which according the Insurance Company is not based on any rationale or logic. The total compensation awarded by the Tribunal is Rs.4,32,000/- based on the abovesaid income.
8. The only dispute now is relating to the determination of the income of the deceased. Learned counsel for the appellants would submit that as a Coolie, the deceased, at the most, would be earning only Rs.100/- per day in the year 1999. If the said ount is taken into consideration and also considering the daily earning capacity of similarly placed persons during the relevant time, the total monthly income of the deceased would be Rs.3,000/- only. Learned counsel for the respondents-claimants, while accepting the fact that there was no material before the Tribunal to determine the income at Rs.4,500/-, would fairly submit that he has no serious objection for such determination of the income at Rs.3,000/- per month.
9. On fixing the income of the deceased at Rs.3,000/- p.m., the total annual income of the deceased will be Rs.36,000/- and after deducting one-third towards his personal expenses, the annual income of the deceased will be Rs.24,000/-. Since the mul ier '12' adopted by the Tribunal is in consonance with the judgment of the Supreme Court reported in 2006 AIR SCW 1116 (Bijoy Kumar Dugar vs. Bidyadhar Dutta), the same is accepted. Thus, by adopting multiplier '12', the loss of income comes to Rs.2,88, 000/- (Rs.24,000/- x 12).
10. Further, no amount has been awarded by the Tribunal in respect of the claim made by the claimants under the other heads which are as follows:-
(i) loss of transport to hospital - Rs.3,000/-,
(ii) funeral expenses - Rs.7,000/- and
(iii) loss of estate at Rs.50,000/-.
Though the claim has been made under the above heads and since no amount has been awarded, this Court feels that appropriate amount should be awarded on these heads, following the decision of a Division Bench of this Court reported in 2004 ACJ 1086 (Pall avan Transport Corporation Ltd. vs. M.Anbumani), relevant portion of which reads as follows:
"6. It is unfortunate that the claimants have not filed cross-objections. But at the same time, it is not as if this Court is helpless and this Court can certainly invoke its powers conferred under Order 41, rule 33 of the Code of Civil Procedure s the court in deciding these matters, should remember that the compensation awarded should not be inadequate, neither should be unreasonable, excessive nor deficient. In this case, this Court is of the view that the compensation that has been fixed by t he Tribunal is on the lower side."
11. Considering the age of the deceased who was 35 years at the time of death and the age of the mother said to be 53 years and the age of the father at 55 years at the time of the accident, the possibility of the deceased contributing to the bene of the claimants should also be considered.
12. In the result, while modifying the compensation at Rs.2,88,000/- under the head "loss of income" as against Rs.4,32,000/- awarded by the Tribunal, this Court awards the following amounts under other heads:
(i) Loss of estate - Rs.25,000/-
(ii) Transport to hospital - Rs.3,000/-
(iii) Funeral expenses - Rs.7,000/-
(iv) Loss of love and affection - Rs.10,000/-
Thus, the total compensation awarded by the Tribunal is modified to Rs.3,33,000/- (Rupees three lakhs and thirty three thousand only). The interest at 9% granted by the Tribunal is confirmed.
13. Thus, the claimants are entitled to compensation at Rs.3,33,000/- with interest at 9% per annum from the date of claim petition till the date of deposit. The Insurance Company is entitled to withdraw the excess amount if any, after paying the c nsation to the claimants. The civil miscellaneous appeal is disposed of accordingly. No costs. C.M.Ps. are closed.
14. Learned counsel for the claimants would submit that in view of the order passed in the main appeal itself, the Registry may be directed to send the records back to the Tribunal, so that the claimants could withdraw the amount of compensation. R try is accordingly directed to send the Records to the Tribunal along with a copy of this judgment.
19.6.2006 Registry to note:
Registry shall comply with the last paragraph of this judgment cs