Madras High Court
The New India Assurance Company Limited vs Mrs.C.Saraswathi on 5 February, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/02/2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.1031 of 2005 & Cross.Obj.(MD)No.46 of 2010 C.M.A.(MD)No.1031 of 2005 The New India Assurance Company Limited, Rep. by its Branch Manager, S.N.High Road, Tirunelveli Junction - 627 001. ... Appellant Vs. 1.Mrs.C.Saraswathi 2.P.Vijay 3.P.Geetha 4.Mrs.Suyambukani ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 24.11.2004, on the file of the Motor Accidents Claims Tribunal, Ist Additional District Court, Tirunelveli in M.C.O.P.No.1195 of 2003 and praying to set-aside the same. !For Appellant ... Mr.A.K.Baskarapandian ^For Respondents ... Mr.T.Selvakumaran - - - Cross.Obj.(MD)No.46 of 2010 1.Mrs.C.Saraswathi 2.P.Vijay 3.P.Geetha 4.Mrs.Suyambukani ... Cross Objectors Vs. The New India Assurance Company Limited, Rep. by its Branch Manager, S.N.High Road, Tirunelveli Junction - 627 001. ... Respondent PRAYER This petition is filed under Order 41 Rule 22 of C.P.C against the the judgment and decree of the learned Motor Accident Claims Tribunal (1st Additional District Judge), Tirunelveli, dated 24.11.2004 made in M.C.O.P.No.1195 of 2003. !For Cross Objectors ... Mr.T.Selvakumaran ^For Respondent ... Mr.A.K.Baskarapandian *** :COMMON JUDGMENT
The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.1195 of 2003, on the file of the Motor Accidents Claims Tribunal, Ist Additional District Court, Tirunelveli.
2. The short facts of the case are as follows:-
The petitioners, who are the wife and children of the (deceased) Ponnusamy have filed the claim in M.C.O.P.No.1195 of 2003, claiming compensation of a sum of Rs.10,00,000/- from the respondents for the death of the said Ponnusamy in a motor vehicle accident. It was submitted that on 03.05.2003, at about 05.30 p.m., when the deceased was pushing his bajaj sprite two wheeler bearing Registration No.TN-72-P-7580, manually, in front of Dinamalar Office at Vannarapettai, Tirunelveli, from south to north, carely and slowly, the first respondent's bus bearing Registration No.TN-I-4794, coming from west to east and driven by its driver in a rash and negligent manner, dashed against the deceased and caused the accident. In the impact, the (deceased) Ponnusamy sustained grievous injuries all over his body and immediately thereafter, the deceased was taken to Tirunelveli Medical College Hospital, Tirunelveli for first aid in the same bus and thereafter admitted in the Shifa Hospitals, Tirunelveli Junction, on 03.05.2003. However, in spite of medical treatment, the (deceased) Ponnusamy succumbed to his injuries on 09.05.2003. The deceased waged aged 54 years at the time of accident and was working as the Deputy Manager, Quality Control, in the Tamil Nadu Civil Supplies Corporation Limited, Thoothukudi and drawing a monthly salary of Rs.13,523/-. Hence, the petitioners have filed the claim against the first and second respondents, who are the owner and insurer of the bus bearing Registration No.TN-I-4794.
3. The second respondent, in his counter has submitted that the vehicle bearing Registration No.TN-I-4794, had been insured with them. The averments made in the claim regarding age, income and occupation of the (deceased) Ponnusamy and the manner of accident was not admitted. It was submitted that the deceased had also contributed to the cause of accident by his negligence and as such, the claim of the petitioners against this respondent alone is not maintainable. It was submitted that as the second and third petitioners were aged 21 and 20 years respectively are majors and not dependent on the income of the deceased as they had their own avocation. It was submitted that as the deceased was employed in the Tamil Nadu Civil Supplies Corporation, the death benefits of the deceased would have been received by the petitioners. It was submitted that the claim was excessive.
4. The Motor Accidents Claims Tribunal framed three issues for consideration in the case, viz., "(i) Was the accident caused by the rash and negligent driving by the driver of the first respondent's bus?
(ii) Are the petitioners entitled to get compensation from the respondents? If so, what is the quantum of and
(iii) To what other relief is the petitioner entitled to get?"
5. On the petitioners side, three witnesses were examined and seven documents were marked as Exs.P1 to P7, viz., Ex.P1-copy of F.I.R., Ex.P2-copy of postmortem report, Ex.P3-copy of Motor Vehicle Inspector's report, Ex.P4-copy of charge sheet, Ex.P5-copy of observation mahazar, Ex.P6-copy of criminal Court judgment, Ex.P7-salary certificate of (deceased) Ponnusamy dated 06.08.2003. On the respondent's side, no witness, no documents.
6. P.W.1, Saraswathi had adduced evidence that she is the wife of the (deceased) Ponnusamy and that her husband had sustained injuries in the accident that occurred on 03.05.2003, at about 5.30 p.m., in front of the Dinamalar Office at Washermanpet, Tirunelveli. She deposed that her husband was initially admitted at High Ground Hospital for treatment and that he was subsequently admitted at Shifa Hospital, and that in spite of medical treatment, her husband had succumbed to his injuries on 09.05.2003. In support of her evidence, she had marked the exhibits listed as Exs.P1 toP7. On cross- examination, she had deposed that her husband had been driving two wheeler for a period of two years prior to the accident. P.W.2, Thillaiarasu, eye-witness of accident had adduced evidence that the (deceased) Ponusamy was the husband of her uncle's daughter and that on 03.05.2003, at about 05.30 pm., the first respondent bus driver had driven the bus in a rash and negligent manner and dashed the bus against the (deceased) Ponnusamy. She deposed that the (deceased) Ponnusamy had sustained injuries all over his body. She further deposed that the accident had been caused only by the rash and negligent driving of the driver of the first respondent's bus and that the (deceased) Ponnusamy was in no way responsible for the cause of the accident.
7. On scrutiny of Ex.P1, F.I.R., it is seen that the complaint had been registered as against the driver of the first respondent bus. On scrutiny of Ex.P3, it is seen that the accident had not been caused due to any mechanism failure of the vehicles involved in the accident. On scrutiny of Ex.P5, Observation Mahazar, it is seen that the accident had been caused on the south of Dinamalar Office at Washermanpet on the Tiruvananthapuram-Tirunelveli Road, situated at a distance of three K.M. North of the Palai Police Station. It is seen on scrutiny of Ex.P6, criminal Court judgment, that the driver of the first respondent bus had voluntarily admitted his guilty and paid the fine. Hence, the Tribunal on scrutiny of evidence of P.W.1 and P.W.2 and on scrutiny of Exs.P1, P3, P4, P5 and P6, held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's bus.
8. P.W.3, Joseph Suresh, the Assistant Manager of Tamil Nadu Civil Supplies Corporation had adduced evidence that he was working under the (deceased) Ponnusamy and that the basic pay of the deceased was Rs.8,700/- and dearness allowance was Rs.4,263/- and that the house rent allowance was Rs.560/- and in support of his evidence, he had marked Ex.P7-salary certificate. The Tribunal on holding that the age of the deceased was 54 years, as per evidence of P.W.1, adopted a multiplier of '11', to assess compensation payable to the petitioners. The Tribunal on observing that the (deceased) Ponnusamy still had four years service before his retirement observed that he could have earned a sum of Rs.6,35,581/-. The Tribunal, on deducting 1/3rd of this amount for personal expenses of the (deceased) awarded a compensation of Rs.4,23,720/- under the head of loss of income for 47 months to the petitioners. The Tribunal, on observing that the pension payable to the (deceased), Ponnusamy, if he had been alive, after his retirement as approximately Rs.4,200/- per month and deducting 1/3rd from this for his personal expenses, and after adopting a multiplier of '7', awarded a compensation of Rs.2,35,200/- under the head of 'loss of income to the petitioners. In total, the Tribunal awarded a sum of Rs.6,58,920/- to the petitioners under the head of loss of income; Rs.10,000/- was awarded under the head of loss of love and affection and Rs.2,000/- for funeral expenses. In total, the Tribunal awarded a sum of Rs.6,70,920/- to the petitioners and directed the first and second respondents to jointly or severally deposit the said sum together with interest at the rate of 9% per annum from the date of petition till the date of payment of compensation within two months from the date of its order.
9. Aggrieved by the award passed by the Tribunal, the second respondent / the New India Assurance Company Limited has preferred the present appeal.
10. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in taking the gross salary of deceased i.e., Rs.13,523/- as the multiplicand in assessing compensation. It was contended that the Tribunal ought to have taken the nett salary for fixing the multiplicand as per the judgment of the High Court. It was also pointed out that the Tribunal erred in fixing Rs.2,800/- as monthly loss of pension to the claimants as the claimants would get the monthly pension even after the death of the deceased. It was also pointed out that the multiplier of '11' adopted by the Tribunal was not correct. It was contended that the award passed by the Tribunal was excessive and hence, it was prayed to set-aside the award passed by the Tribunal.
11. Not being satisfied with the award passed by the Tribunal, the claimants have preferred a cross appeal in Cross.Obj.(MD)No.46 of 2010 in C.M.A.(MD)No.1031 of 2005. The learned counsel for the Cross Objectos has contended in his appeal that the Tribunal, should have held that the deceased could have lived for another 20 years as per the judgment reported in 2004(2) TNMAC 110(DB), and assessed the pension loss at Rs.6,72,000/- (Rs.2,800 x 12 x
20). It was also contended that the Tribunal failed to award compensation under the head of future prospects, i.e., promotion and increase of salary. It was also pointed out that the Tribunal ought to have seen that P.W.3. was not cross- examined to prove whether the monthly salary of the deceased mentioned in the salary certificate was nett income or gross income. Hence, it was prayed for grant of additional compensation of Rs.2,00,000/-.
12. Per contra, the learned counsel for the Insurance Company argued that the first claimant is the wife of the deceased. As such, she is entitled to get full pension as family pension. Therefore, the Tribunal had calculated pension benefits also which is an erroneous view. The Tribunal had taken the gross salary of the deceased, but the Tribunal ought to have calculated the loss of income of the deceased only after deducting statutory deductions, this aspect had not been discussed by Tribunal. However, the quantum of compensation awarded is on the higher side.
13. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the view that the compensation assessed by the Tribunal is not appropriate as the statutory deductions had not been taken into consideration while assessment of compensation. Therefore, this Court reassesses the compensation as follows:-
It is stated that the basic pay of the deceased is Rs.8,700/-. Hence, this court awards a sum of Rs.7,65,600/- as compensation to the petitioners (Rs.8,700 x 1/3 x 2 x 12 x 11); Rs.10,000/- is awarded towards consortium; Rs.10,000/- each is awarded to the second and third claimants under the head of 'love and affection' and Rs.10,000/- is awarded towards funeral expenses. In total, this Court awards Rs.8,05,600/- as compensation, as it is found to be appropriate in the instant case. After deducting initial compensation of a sum of Rs.6,70,900/-, this Court awards Rs.1,34,700/- as additional compensation. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. As per the Court records, it is seen that the initial compensation amount with interest has already been deposited and the claimants were permitted to withdraw 50% of the deposited amount. Now, this Court directs the Insurance Company to deposit the additional compensation amount with interest, within a period of four weeks from the date of receipt of a copy of this order.
14. After such deposit being made, it is open to the claimants to withdraw their balance compensation amount as fixed by the Tribunal and additional compensation amount as per this Court's order, with accrued interest thereon, as per the ratio fixed by the Tribunal lying in the credit of M.C.O.P.No.1195 of 2003, on the file of the Motor Accidents Claims Tribunal, Ist Additional District Court, Tirunelveli, after filing a Memo along with a copy of this order, subject to deduction of withdrawals, if any, already made, as per this Court's earlier order.
15. In the result, the above appeal in C.M.A.(MD)No.1031 of 2005 filed by the Insurance Company is dismissed. The Cross Objection in Cross.Obj.(MD)No.46 of 2010, filed by the claimant is partly allowed. Consequently, the award and decree passed in M.C.O.P.No.1195 of 2003, on the file of the Motor Accidents Claims Tribunal, Ist Additional District Court, Tirunelveli, dated 24.11.2004 is modified. There is no order as to costs.
r n s To The Ist Additional District Court, Motor Accidents Claims Tribunal, Tirunelveli.