Branch Manager, Reliance General Insurance Co. Ltd. vs S. Sudha

Mr. S. Manikumar, J.—Aggrieved by the Award of the learned Motor Accident Claims Tribunal (Sub-Judge), Kulithalai, dated 08.07.2015, made in MCOP No. 96 of 2009, M/s.Reliance General Insurance Co.Ltd., the 2nd respondent in the Claim Petition, has come up with this appeal.

Heard the learned counsel for the appellant and perused the materials on record.

About 01.30 p.m. on 30.10.2008, one Mr. Srikanth, son of respondents 4 and 5, husband of the 1st respondent and father of minor respondent No. 2, herein, was proceeding on Tiruchy-Karur High Road, in a two wheeler, bearing Regn. No. TN47 C 4435, at a normal speed and keeping left. While so, A tanker lorry, bearing Regn. No. TN 28 T 5257, owned by the 3rd respondent and insured with the appellant Insurance Company, driven by its driver, in a rash and negligent manner in the same direction, dashed against the two wheeler, from behind, in which Srikanth sustained grievous injuries and died on the spot. In respect of the said accident, a case in Crime No. 1045 of 2008, on the file of Kulithalai Police Station, came to be registered against the driver of the tanker lorry.

Contending that the accident occurred due to the rash and negligent driving of the driver of the tanker lorry; that the deceased was 33 years at the time of accident; and that he was earning a sum of Rs. 3,60,000/- per year, by doing own business, under the name and style of "Thilagam Agencies", the respondents 1 and 2, wife and daughter of the deceased and respondents 4 and 5/parents of the deceased, filed a claim petition before the Motor Accident Claims Tribunal, Kulithalai, claiming a compensation of Rs. 40,00,000/-, against the owner of the tanker lorry and the insurer, arraying them as respondents 1 and 2, respectively. Thereafter, by the order of the Tribunal, dated 22.08.2012, made in I.A.No.1 of 2012, the parents of the deceased, who were petitioners 3 and 4 in the claim petition, have been transposed as respondents 3 and 4.

The appellant has filed a counter affidavit denying the averments made in the claim petition, as to the manner of accident as well as the income of the deceased.

The parents of the deceased, who are respondents 4 and 5, have filed a separate counter affidavit stating that the respondents 1 and 2/claimants have no connection whatsoever with the firm "Thilagam Enterprises", run by their son. Since they were the dependants of their son, they have lost income due to the death of their son and therefore stated that they are also entitled for compensation.

Before the Tribunal, wife of the deceased has been examined as P.W.1. One Gunasekaran has been examined as P.W.2. P.W.3 is one Rajamurgan, an employee of M/s. Airtel. Exs.P-1 to P-10 have been marked on the side of the claimants. The appellant/insurance company has examined one Suresh, as R.W.1, driver of the tanker lorry. Motor Vehicle Inspector''s Report in respect of the Tanker Lorry, insured with the appellant insurance company, has been marked as Ex.R-1.

The Tribunal, after considering the oral and documentary evidence adduced, came to the conclusion that the accident occurred only due to the rash and negligent driving of the driver of the vehicle owned by the 3rd respondent and insured with the appellant insurance company and, accordingly, fixed the entire liability on the appellant and the 3rd respondent herein, owner of the vehicle. After fixing the liability on the appellant, as well as the 3rd respondent, the Tribunal has awarded a sum of Rs. 29,70,000/-, as total compensation, payable with interest at the rate of 7.5% per annum, from the date of claim petition till payment. Details of the total compensation, is as follows:

Heads

Amount Awarded

Loss of Income

Rs. 28,80,000/-

Loss of consortium & love and affection to wife

Rs. 25,000/-

Loss of love and affection to daughter

Rs. 20,000/-

Loss of love and affection to mother & father

Rs. 20,000/-

Funeral expenses

Rs. 25,000/-

Total

Rs. 29,70,000/-

The Tribunal has also apportioned the amount awarded as compensation to wife, daughter and parents of the deceased. Aggrieved by the same, the appellant/Insurance Company has filed the present appeal.

Learned counsel for the appellant contended that the Tribunal has wrongly fixed the negligence on the driver of the tanker lorry, insured with the appellant. According to the learned counsel, as per the evidence of R.W.1, driver of the tanker lorry, the accident occurred only when the deceased tried to overtake the tanker lorry on the wrong side, that is left side and this fact has not been considered by the tribunal and therefore the appellant is not liable to pay compensation.

We are not inclined to accept the above submission of the learned counsel for the appellant. P.W.2 is an independent witness. According to him, at the time of accident, he was proceeding in a cycle behind the deceased Srikanth, who was riding a motor cycle and the tanker lorry, which was driven in a rash and negligent manner, dashed against the deceased from behind and thus caused the accident. Further, Ex.R-1, Motor Vehicle Inspector''s Report, shows that damages were found on the left side front portion of the tanker lorry. Taking into account, both the evidence of P.W.2 and the Motor Vehicle Inspector''s Report, the Tribunal has come to the conclusion that the accident occurred only due to the dashing of the tanker lorry, from behind, against the two wheeler driven by the deceased and it could not have occurred as stated by R.W.1. Further, R.W.1 has not lodged any complaint alleging that the accident occurred when the deceased tried to overtake the tanker lorry on the wrong side. Therefore, we are of the view that the Tribunal is right in fixing the liability on the appellant.

Now coming to the quantum of compensation, the only submission made by the learned counsel for the appellant is that the amount of Rs. 28,80,000/-, awarded under the head ''loss of income'' is on the higher side. According to P.W.1, wife of the deceased, the deceased was aged about 33 years, at the time of accident and was earning Rs. 3,60,000/- per annum, from his own business. Ex.P-3 is Certificate to show "Thilagam Agencies" was registered in the name of the deceased. P.W.3 is the Area Manager of M/s. Airtel Cellphone Company. According to him, an agreement was entered into between Thilagam Agencies and M/s. Airtel Company, and as per the terms and conditions of the agreement, Thilagam Agencies is entitled to 3% of the total turnover amount in a year, as commission and for the period 02.04.2008 to 27.02.2009, M/s. Airtel Company has paid Rs. 3,70,000/- as commission, to Thilagam Agencies. Ex.P-7 is the document to show the business transaction during the above said period, between M/s. Aritel Company and Thilagam Agencies. However, no proof has been filed before the Tribunal to show that a sum of Rs. 3,70,000/- has been paid to M/s. Thilagam Agencies. Further, the Tribunal was of the view that no Income Tax Return, filed by the deceased, was produced to prove the said income, during the above said period. Even then, considering the evidence of P.W.3 that M/s.Thilagam Agencies had a turnover of more than Rs. 1 crore during the above period, as per Ex.P-7, the Tribunal was of the view that the deceased would have earned a minimum of Rs. 20,000/-. Accordingly, the Tribunal fixed the monthly income of the deceased at Rs. 20,000/-. Since there were four dependants, after deduction �th of the monthly income towards the personal living expenses, the Tribunal fixed net monthly income at Rs. 15,000/-. Since the deceased was 33 years, at the time of accident, 16 multiplier has been applied by the Tribunal. Therefore, we are of the view that a sum of Rs. 28,80,000/- (Rs.15,000/- x 12 x 16) awarded by the Tribunal towards loss of income has been computed properly, representing just compensation.

In fact, the amounts awarded by the Tribunal under the heads of conventional damages are on the lesser side. At the time of accident, the deceased was 33 years. The first respondent/wife was 30 years. The minor 2nd respondent/daughter was 5 years. Considering the fact that the first respondent/wife has lost her husband at a very young age and also of the fact that five years old daughter has lost her father at her tender age, the Tribunal could have awarded more amount under the heads of loss of consortium to 1st respondent/wife and loss of love and affection to the daughter. The Tribunal could have also awarded 30% of income under the head of future prospects. In view of all the above, we find no ground to interfere with the award of the Tribunal and we see no merit in the appeal.

In fine, the civil miscellaneous appeal stands dismissed. No order as to costs. Connected miscellaneous petition is also dismissed. The appellant/insurance company is directed to deposit the entire award amount, with accrued interest and costs, less the amount already deposited, if any, to the credit of MCOP No. 96 of 2009, on the file of Motor Accident Claims Tribunal, Kulithalai, within eight weeks from the date of receipt of a copy of this order. On such deposit, the 1st respondent/wife, respondents 4 & 5/parents are entitled to withdraw their respective shares, with proportionate interest and costs. The share of the minor respondent-2/daughter is directed to be invested in an interest bearing account, in any one of the nationalised bank, proximate to the residence of the 1st respondent, till she attains majority and the first respondent/mother is permitted to withdraw interest, quarterly, directly from the bank, which shall be utilised for the welfare of the minor 2nd respondent.