M. Mohanan and Another vs R. Srinivasan and Others

S. Vimala, J.—These Civil Miscellaneous Appeals have been filed as against the common order passed in M. A.C.T.O.P. Nos. 359 of

1999, 360 of 1999, 367 of 1999 and 12 of 2000 respectively, on the file of the Motor Accident Claims Tribunal (Subordinate Judge) at Sivakasi,

dated 15.3.2002. As common question of law and fact arises for consideration, a common judgment is pronounced.

On 26.1.1999, the deceased-Rajalakshmi along with three others, viz. her mother Dhanammal, brother-in-law Srinivasan and younger brother,

Gajendrakumar, travelled in a Fiat Car bearing Registration No. TN-67-E-1998, from Muthalnaickenpatti to Madurai. At that time, a lorry

bearing Registration No. KL-13/B-2264 came from the opposite direction in a rash and negligent manner and dashed against the fiat car. As there

was a head-on collision, the claimant Gajendrakumar sustained grievous injuries and the said Rajalakshmi and her brother-in-law Srinivasan died

on the spot. The deceased-Dhanammal died on the way to the hospital. The accident took place only on account of the rash and negligent driving

on the part of the driver-cum-owner of the lorry, the first appellant herein. The police registered a case against the first appellant and the driver

admitted the rash and negligent driving and paid the fine amount. The injured and the legal representatives of the deceased, filed respective claim

petitions in MCOP Nos. 359 of 1999, 360 of 1999, 361 of 1999, 367 of 1999 and 12 of 2000 before the Tribunal. The present Civil

Miscellaneous Appeals in CMA Nos. 672 to 675 relates to MCOP Nos. 359 of 1999,360 of 1999,367 of 1999 and 12 of 2000, respectively.

MCOP No. 359 of 1999 has been filed by the husband and minor daughter of the deceased-Rajalakshmi. They claimed a sum of Rs.

40,00,000 as compensation before the Tribunal. The Tribunal awarded a compensation of Rs. 17,15,000 with interest at 9% p.a., from the date of

petition. Against the award of the Tribunal, CMA No. 672 of 2003 has been filed jointly by the driver and the Insurance Company.

MCOP No. 360 of 1999 has been filed by the wife and minor daughter of the deceased-Srinivasan. They claimed a sum of Rs. 60,00,000 as

compensation before the Tribunal. The Tribunal awarded a compensation of Rs. 25,70,000 with interest at 9% p.a., from the date of petition.

Against the award of the Tribunal, CMA No. 673 of 2003 has been filed jointly by the driver and the Insurance Company.

MCOP No. 367 of 1999 has been filed by the husband and two daughters of the deceased-Dhanammal. They claimed a sum of Rs. 20,00,000

as compensation before the Tribunal. The Tribunal awarded a compensation of Rs. 7,65,000 with interest at 9% p.a., from the date of petition.

Against the award of the Tribunal, CMA No. 674 of 2003 has been filed jointly by the driver and the Insurance Company.

MCOP No. 12 of 2000 has been filed by the owner of the car-R. Srinivasan, in respect of damages to the Fiat-Car. He claimed a sum of Rs.

3,30,000 as compensation before the Tribunal. The Tribunal awarded a compensation of Rs. 2,73,791 with interest at 9% p.a., from the date of

petition. Against the award of the Tribunal, CMA No. 675 of 2003 has been filed jointly by the driver and the Insurance Company.

The following table would clearly show the details:

The contention of the appellants in all these cases is that the Claims Tribunal ought not to have made the appellants responsible for the accident

and that the award made is disproportionate. It is the specific contention that the accident took place only on account of the deceased-driver of the

Fiat Car and the lorry driver was not in any way responsible for the accident.

The contention raised by the appellants that the negligence was only on the part of the driver of the car did not appear to be correct. Admittedly,

there was a collision between the car in which the deceased and the injured have been travelling, and the lorry. The best person to speak about the

mode of the accident is only the driver of the lorry and the driver of the car. Admittedly, the driver of the car died in the accident. Therefore, the

only person left out to speak about the accident is the lorry driver. A perusal of the order passed by the Tribunal would go to show that the driver

of the lorry has been examined as R.W. 1. It is pertinent to note that the driver of the lorry has admitted the rash and negligent driving and had paid

the fine amount before the Criminal Court. The Tribunal has weighed the evidence of P.W. 1 and R.W. 1 and has also taken note of the conduct of

the lorry driver in admitting the rash and negligent driving before the Criminal Court and has come to a right conclusion that the accident took place

only on account of the rash and negligent driving on the part of the lorry driver. The lorry driver has given an explanation before the Tribunal that as

he was assured that the fine amount would be repaid to him and therefore, he paid the fine amount in the Criminal Court. This explanation can be

described only as an imagination intended to escape from the liability to pay the compensation. Rightly the conduct of the lorry driver has been

taken note of by the Tribunal while ascertaining the negligence on the part of the driver of the lorry. Therefore, this Court confirms the finding of the

Tribunal that the accident took place only on account of the rash and negligent driving on the part of the driver of the lorry.

MCOP No. 359 of 1999 (CMA No. 672 of 2003):

Insofar as the claim made in MCOP No. 359 of 1999 (CMA No. 672 of 2003) is concerned, it is the case of the claimants that the deceased

Rajalakshmi who was aged 35 years at the time of accident, was a partner in a construction firm having 20% of the share and also partner in M/s.

Ganga Mills having 1/9th share. The documents showing the income including the income tax returns have been filed to show the extent of income.

But the learned Counsel for the appellants contended that no reliance could be placed upon the documents placed pertaining to income as the

income tax returns which are relied upon have been filed only after the death of the deceased-Rajalakshmi. Taking note of the documents showing

the existence of the partnership along with the role of the deceased as partner, even though the income tax returns happened to be filed after the

death of the deceased, the Tribunal held that there is no ground to reject the income tax returns. The Tribunal has awarded a total compensation of

Rs. 17,15,000 as per the following break-up details:

But at the same time, one of the fact to be taken into consideration while considering the rest of the documents, is that the cumulative effect of all

the documents filed on the side of the claimants has to be considered to arrive at the conclusion as to whether the deceased could have been

earning or not, as disclosed by the income tax return.

Taking note of the absence of the accounts of the share from M/s. E. Ramasamy Firm and that the return in the case of M/s. Ganga Mills was

filed subsequent to the death of the deceased, in fairness to the claim of the claimants, this Court feels that as against the income of the deceased

fixed by the Tribunal at Rs. 1,00,000 per annum, the same can be fixed at Rs. 70,000 per annum. Applying the multiplier of 17, the loss of

dependency works out to Rs. 11,90,000. As regards the payment made under the heads loss of consortium and loss of love and affection at Rs.

5,000 and Rs. 10,000 respectively, this Court feels that the same merits to be enhanced to Rs. 25,000 and Rs. 50,000 respectively. Rs. 5,000

shall be awarded towards funeral expenses and Rs. 30,000 shall be awarded towards loss of estate. Accordingly the modified compensation

works out to Rs. 13,00,000 as under:

Accordingly, the claimants are entitled to the modified compensation of Rs. 13,00,000. The interest rate fixed by the Tribunal at 9% p.a., from the

date of petition is confirmed.

MCOP No. 360 of 1999 (CMA No. 673 of 2003):

In MCOP No. 360 of 1999 (CMA No. 673 of 2003), the claimants are the wife and daughter of the deceased-Srinivasan. The deceased was

aged 32 years at the time of accident as per Ex. P4-Post Mortem Certificate. The claimants claim that the deceased was a partner in E. Ramasamy

Firm, M/s. Ganga Mills, Shakthi Constructions and Srinivasa Constructions. The income tax returns are relied upon to show the income. As a

partner in partnership firms, the deceased would have had only a share of the income as per the share held by the partners. The Tribunal has taken

note of the relevant aspects in each of the concerns and has arrived at the possible income from each of the partnership firms and accordingly,

arrived at the loss of dependency at Rs. 1,50,000 per annum, after giving deduction for personal expenses of the deceased. The Tribunal has taken

note of the income as per the income tax return of the year 1997-98 as that was the only return that was filed prior to the death of the deceased.

The Tribunal has awarded a total compensation of Rs. 25,70,000 as per the following breakup details:

Considering the fact that there will be always fluctuations in the business income and also considering the fact that some of the income tax returns

relate to the period subsequent to the accident, the loss of dependency shall be fixed at Rs. 1,00,000 per annum.

Taking the contribution of the deceased to the family as Rs. 1,00,000 per annum and applying 17 multiplier, the loss of dependency works out

to Rs. 17,00,000. Loss of consortium, loss of love and affection, funeral expenses and loss of estate shall be fixed at Rs. 25,000, Rs. 25,000, Rs.

5,000 and Rs. 2,00,000 respectively. Accordingly the modified compensation works out to Rs. 19,55,000 as under:

Accordingly, the claimants are entitled to the modified compensation of Rs. 19,55,000. The interest rate fixed by the Tribunal at 9% p.a., from the

date of petition is confirmed.

MCOP No. 367 0/2003 (CMA No. 674 of 2003):

In respect of MCOP No. 367 of 2003 (CMA No. 674 of 2003), the deceased is one Dhanammal. She was aged 60 years at the time of

accident. Documents have been filed to show that the deceased was the owner of lands as per the sale deed filed under Exs. P30 and P31. The

contention is that the lands could not be looked after as effectively as before when the deceased had been living and, therefore, there is loss of

income. The Tribunal has pointed out that in order to show the loss of income no documents have been filed and, therefore, in the absence of any

evidence relating the existence of income from the agricultural sources, it is not possible to award any amount towards loss of income based upon

Exs. P30 and P31. However, the contention of the claimants is that the deceased was also a partner in several partnership firms and she was one

among seven partners having 20% share and therefore the loss of income should be calculated based upon the income derived from the

partnership firms. The Lower Court has fixed the loss of dependency at Rs. 1,50,000 per annum, and awarded the total compensation at Rs.

7,65,000. The break-up details are as under:

The learned Counsel for the appellants contended that the fixation of annual dependency at Rs. 1,50,000 is excessive and the deceased having

been aged 60 years would have been only a sleeping partner and she would not have contributed anything. The fact also remains that the daughters

of the deceased are also married and they are separately living. In such circumstances, the dependency would have been less as contended by the

learned Counsel for the appellants. Considering all these facts, the dependency of the deceased is fixed at Rs. 1,00,000 and by adopting 5

multiplier, it works out to Rs. 5,00,000. Loss of consortium, loss of love and affection to the two daughters and funeral expenses shall be fixed as

Rs. 20,000, Rs. 40,000 (Rs. 20,000 each) and Rs. 5,000 respectively. Accordingly the modified compensation works out to Rs. 5,65,000 as

under:

Accordingly, the claimants are entitled to the modified compensation of Rs. 5,65,000. The interest rate fixed by the Tribunal at 9% p.a., from the

date of petition is confirmed.

MCOP No. 11 of 2000 (CMA No. 675 of 2003):

In respect of MCOP No. 12 of 2000 (CMA No. 675 of 2003), it relates to damages to the Fiat Car in which the deceased person and the

injured were travelling. The car had been purchased as per Ex. P43 dated 21.11.1998 and the price of the car is Rs. 3,26,434. It is the case of the

claimant that the car has been totally damaged on account of the accident and the same has been sold for a sum of Rs. 20,000 and, therefore, the

purchase money should be given as compensation. Taking note of the fact that the Insurance Company calculates 5% depreciation for each year,

considering the sale of the car at Rs. 20,000 and calculating 10% depreciation, the Tribunal has arrived at a sum of Rs. 2,73,791 as compensation.

Nothing had been pointed out to show that the amount calculated is low. Therefore, this Court feels that the same needs to be confirmed and,

accordingly, the compensation awarded by the Tribunal at Rs. 2,73,791 is confirmed. In the result, C.M.A. Nos. 672 to 674 of 2003 are partly

allowed and C.M.A. No. 675 of 2003 is dismissed. No costs.