B. Arjunan and Malika vs A.V.S. Naresh Kumar and Branch Manager, National Insurance Company Limited

C.S. Karnan, J.—The above civil miscellaneous appeal has been filed by the appellants/claimants against the award and decree passed by the Motor Accidents Claims Tribunal (II Additional District Judge), Tirunelveli, in M.C.O.P. No. 550 of 2006, dated 26.03.2007, awarding compensation of a sum of Rs. 1,51,000/- together with interest at the rate of 6% per annum from the date of filing the claim petition till the payment of compensation.

Having not satisfied with the award and decree passed by the Motor Accidents Claims Tribunal (II Additional District Judge), Tirunelveli, the claimants filed the above appeal for enhancement of compensation of a sum of Rs. 4,00,000/- with interest.

The brief facts of the case are as follows:

3.1. The petitioners are the parents of the deceased. The deceased was aged about 26 years and was earning Rs. 7,000/- per month as a Goldsmith and Appraiser. On 06.01.2006, at about 3.00 p.m. the deceased was riding in his motor cycle bearing Registration No. TN-69-D-3364 from his house and from west to east on the West Great Cotton road at Tuticorin and when he was proceeding near the Mosque, a lorry bearing Registration No. AP-16-TT-9147 driven by its driver in a rash and negligent manner and at a high speed and in the same direction and dashed on the motor cycle of the deceased from behind and the deceased sustained severe multiple injuries and on the way to the hospital he died. The Tuticorin Central Police Station registered a case in F.I.R. No. 12 of 2006 u/s 304(A) IPC. The first respondent as the owner and the second respondent as the insurer, are jointly and severally liable to pay compensation to the petitioners.

The counter statement filed by the second respondent and resisting claim petition as follows:

4.1. The petition is not maintainable in law or on facts. The petitioners are put to strict proof of the age, income and occupation of the deceased and the manner of accident stated in the petition and that they are the dependents on the deceased. The accident occurred only due to rash and negligent driving of the deceased. The deceased had no valid driving licence and was not having any experience in driving the motor cycle and the motor cycle had no insurance policy and the deceased contributed to the accident by contributory negligence. The various claims in the petition are excessive and this respondent is not liable to pay compensation to the petitioners. Hence, the respondent prays for the dismissal of the petition with costs.

The learned Tribunal framed three issues for consideration, namely.

(i) Who is responsible for the accident?

(ii) Whether the respondents are liable to pay compensation?

(iii) Whether the petitioners are entitled to receive compensation, if so, what is the quantum of compensation?

On the side of the petitioners P.W.1 to P.W.5 were examined and Exs.P1 to P.8 were marked. No oral or documentary evidence has been adduced on the side of the respondent. The first respondent, the owner of the lorry being called absent and set ex parte, the second respondent insurance company has taken all defence available with them u/s 170 of the Motor Vehicles Act.

P.W.2 is the brother of the deceased and he is an eye witness of the accident. In his proof affidavit, he stated that on 06.01.2006, at 3.00 p.m. for the family function at house, P.W. 2 was going to purchase things in his own two wheeler bearing Registration No. TN-69-T-3364 and the deceased was proceeding about 50 feet in front of him and they were proceeding from west to east on W.G.C. road and when the deceased was nearing the "Parrys shoe mart" near Masque, the lorry bearing Registration No. AP-16-TT-9147 was driven by its driver in a rash and negligent manner and dashed on the motorcycle of the deceased from behind and he took the deceased to the Tuticorin Government Hospital but the deceased died on the way to the hospital. Ex.P1 is the certified copy of the First Information Report registered on the basis of the statement of P.W.2 immediately after the accident and the same corroborates with the evidence of P.W.2. Ex.P2 is the certified copy of the postmortem certificate and the same corroborates with the statement of the P.W.2 in Ex.P1 with regard to the nature of injuries sustained by the deceased. In the above circumstances, and in the absence in contradictory evidence with regard to the contributory negligence by the deceased, it is held that the driver of the lorry of the first respondent alone responsible for the accident causing fatal injuries to the deceased. Thus, the point is answered accordingly. In view of the decision arrived at for point No. 1, the respondents are jointly and severally liable to pay compensation to the petitioners.

P.W.1 is the father of the deceased and the first petitioner and his proof affidavit he stated that the deceased was aged 26 years and was earning Rs. 7,000/- per month as Goldsmith and Appraiser. As per Ex.P2 Postmortem Certificate age of the deceased is 26 years. But, the deceased was a bachelor. Hence, the age of the mother which is 53 years is taken into consideration and the appropriate multiplier is 11. So far as the income of the deceased is concerned, P.W.3 to P.W.5 are examined and Exs.P4 to P7 are marked. P.W.3 is the President of the Tuticorin Goldsmith Association and he issued Ex.P7 certificate as the income of the deceased was Rs. 7000/- per month as a Goldsmith.

On perusal of Ex.P7, it is seen that the certificate is given on an assumption and not on the basis of any record. P.W.4 is the Manager of the Tuticorin Central Cooperative Bank and he deposed that the deceased was earning Rs. 4000/- per month on the basis of the commission and Ex.P5 certificate was issued by them. Ex.P6 is the savings bank account pass book of the deceased in the above bank and a perusal of the same reveals that the average receipt of the deceased was recorded from Rs. 1600/- to Rs. 1800/- once in a month and some of the pages in Ex.P6 are also found missing. P.W.5 is also a Goldsmith working with the deceased and he deposed that the deceased was giving a salary of Rs. 3000/- per month to him for two years. From the evidence of P.W.3 to P.W.5 and above documents, the income of the deceased cannot be said to have been proved. So far as the Ex.P6 alone is considered, the income of the deceased was in the average of Rs. 1500/- per month as an appraiser. There were no documentary evidence with regard to his income as a Goldsmith. Admittedly, the deceased was not an income tax assessee. In the above circumstances, the income of the deceased could be safely fixed at Rs. 3000/- per month. The deceased was aged 26 years at the time of the accident and he was in the age of getting married and hence he would have spent one third amount of his income for the family. He would have set apart from one third amount for his personal expenses. Hence, the petitioners are entitled to only one third of his income of the deceased. Hence, after deducting two third of the income of Rs. 3000/-, Rs. 1000 x 12 x 11 = Rs. 1,32,000/- is fixed as compensation towards dependency of the petitioners on the deceased. Towards damage to Motorcycle, petitioners claimed Rs. 15,000/-. But, no documentary evidence is produced with regard to the damages for the motorcycle. Hence, the claim is rejected. Towards loss of love and affection to the petitioners, a sum of Rs. 10,000/- at the rate of Rs. 5,000/- per head is fixed. Towards funeral expenses, a sum of Rs. 4,000/- is fixed. Thus, in total a sum of Rs. 1,51,000/- is fixed as compensation payable by the respondents to the petitioners and out of which the first petitioner is entitled to Rs. 50,000/- and the second petitioner is entitled to Rs. 1,01,000/-.

Finally, the Tribunal has partly allowed the petition, awarding a sum of Rs. 1,51,000/- (Rupees one lakh fifty one thousand only) as compensation to the petitioners and the first petitioner is entitled to Rs. 50,000/- and the second petitioner is entitled with proportionate costs and interest at the rate of 6% per annum from the date of petition till the date of deposit into court and directing the respondents to pay the above amount to the petitioners within two months from the date of award. The award amount of the petitioners are ordered to be deposited into any one of the nationalised banks for a period of three years and the petitioners are permitted to withdraw the accrued interest once in three months directly from the bank. Petitioners are directed to pay the entire court fee already exempted.

The learned Counsel for the appellants argued that the deceased was 26 years old at the time of accident and he was a bachelor. The deceased was employed as a Goldsmith and Appraiser. As such, he was earning a sum of Rs. 7,000/- per month. The learned Counsel further argued that the maximum contribution was given to the parents of the deceased. But, the learned Motor Accident Claims Tribunal had not properly assessed the income of the deceased and the age of the deceased and it has come to an erroneous conclusion stating that the income of the deceased was Rs. 3,000/- per month. After deducting one third of the income towards his personal expenses, the Tribunal awarded Rs. 1,32,000/- under the head of loss of income. Further, the Tribunal awarded a sum of Rs. 10,000/- each for love and affection to the parents of the deceased and Rs. 4,000/- was also awarded for funeral expenses. In total, a sum of Rs. 1,46,000/- with interest at the rate of 6%. But, the Tribunal had wrongly calculated the compensation as Rs. 1,51,000/-.

The learned Counsel appearing for the appellants further argued that the claimant studied upto S.S.L.C. and he was an Appraiser in the cooperative bank as Goldsmith. Proving his occupation, he is also one of the members in the Thoothukudi Goldsmith Association. He also argued that the Tribunal ought to have enhanced the compensation to the claimants considering the age, income and occupation of the deceased.

The learned Counsel appearing for the Insurance Company/second respondent argued that the deceased was a Goldsmith and as such, he was earning Rs. 7,000/- per month. But, there was no income certificate. Further, the deceased was an Appraiser in the cooperative banks and was getting only a meagre income which was not a standard one. In the absence of the income proof, the award of Rs. 1,32,000/- under the head of loss of income by the Tribunal is proper. Further, Rs. 10,000/- was awarded under the head of loss of love and affection to the parents of the deceased. The tribunal also awarded a sum of Rs. 4,000/- under the head of funeral expenses. As such, the Tribunal considered all the heads and awarded the compensation which is fair and equitable. Under these circumstances, the above Civil Miscellaneous Appeal is not maintainable for giving additional amount. Hence, the second respondent prays to dismiss the appeal with cost.

Considering the facts and circumstances of the case and arguments of the learned Counsel appearing for both sides, this Court is of the considered view that the award passed by the learned Motor Accidents Claims Tribunal (II Additional Sessions Judge), Tirunelveli in M.C.O.P. No. 550 of 2006 fixing a compensation of a sum of Rs. 1,46,000/- with interest at the rate of 6% per month from the date of claim petition is on lower side.

Hence, considering the age and occupation of the deceased, this Court fixes the income of the deceased as Rs. 4,500/- per month. After deducting one third as his personal expenses, this Court awards the compensation as Rs. 3,96,000/- (Rs. 3000 x 12 months x 11 multiplier). A sum of Rs. 20,000/- is awarded under the head of loss of love and affection (Rs. 10,000/- each to the claimants) and Rs. 10,000/- under the head of funeral expenses. In total, this Court awards Rs. 4,26,000/- with interest at the rate of 6% per annum from the date of claim petition till the date of payment of compensation.

The Tribunal awarded a sum of Rs. 1,46,000/- to the claimants. This Court awards Rs. 2,80,000/- as additional compensation to the claimants with interest at the rate of 6% per annum from the date of filing of claim petition till the date of payment of compensation, which is equitable and fair.

This Court hereby directs the second respondent insurance company to deposit the additional compensation amount of Rs. 2,80,000/- with interest at the rate of 6% per annum from the date of filing of the claim petition till the date of payment of compensation within a period of four weeks from the date of receipt of a copy of this judgment. After such deposit is made, the first claimant is entitled to get Rs. 1,30,000/- with accrued interest thereof and the second claimant is entitled to get Rs. 1,50,000/- with accrued interest thereof.

As the accident had occurred in the year 2006, it is open to the claimants to withdraw their apportioned compensation amount with accrued interest thereof lying in the credit of M.C.O.P. No. 550 of 2006, on the file of the Motor Accidents Claims Tribunal (II Additional District Judge), Tirunelveli, after filing necessary application in accordance with law.

In the result, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the award and decree passed by the Motor Accidents Claims Tribunal (II Additional District Judge), Tirunelveli, in M.C.O.P. No. 550 of 2006, on 26.03.2007 is modified as mentioned above. No costs.