M/s. National Insurance Co. Ltd. vs Rajammal, Sivaramakannan, Gayathri rep. by her mother and M/s. Kandan Rugs Exports <BR>Rajammal, Sivaramakannan and Gayathri rep. by her mother Vs M/s. National Insurance Co. Ltd. and M/s. Kandan Rugs Exports Bhavani Post

C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree dated 29.04.2009, made in M.C.O.P. No. 307 of 2008, on the file of the Motor Accident Claims Tribunal, Sub-Court/Fast Track Court, Namakkal and the claimants have preferred the cross objection against the civil miscellaneous appeal.

The short facts of the case are as follows:-

The claimants, who are the mother, son and minor daughter of the deceased Palanisamy, had filed a claim petition in M.C.O.P. No. 307 of 2008, on the file of the Motor Accident Claims Tribunal, Sub-Court/Fast Track Court, Namakkal, claiming a compensation of Rs. 20,00,000/-, from the respondents for the death of the said Palanisamy in a motor vehicle accident.

It was submitted that on 13.08.2007, at about 03.30 p.m., when the deceased Palanisamy was riding his Hero Honda Motorcycle bearing registration No. TN36 L0304, from west to east, on Kavundapadi-K.R. Palayam Main Road and when the vehicle was near Muvendar Nagar Division, the first respondent''s Tata 407 van bearing registration No. TN36 2300 coming in the opposite direction and driven at a high speed and in a rash and negligent manner, dashed against the deceased Palanisamy. As a result, the deceased Palanisamy sustained grievous injuries and succumbed to his injuries while being taken to Bhavani Government Hospital. At the time of accident, the deceased was aged 50 years and was working in the Registration Department at R.M.S. Enterprises, Salem Road, Namakkal and also working as an Agriculturist and earning more than Rs. 25,000/- per month. Hence, the claimants had filed the claim petition against the respondents, who are the owner and insurer of the Tata 407 van bearing registration No. TN36 2300.

The second respondent Insurance Company, in their counter affidavit, had submitted that the accident was not caused due to any rash and negligent driving of the first respondent''s van driver, but was caused only due to the negligence of the motorcyclist, who had ridden it at a high speed and in a rash and negligent manner and then suddenly stopped it on the road. The averments made in the claim petition regarding age, income and occupation of the deceased were also not admitted. It was submitted further that the claimants should prove that they are the legal heirs of the deceased and also prove that the driver of the first respondent''s van had a valid driving licence at the time of accident through documentary evidence. It was submitted that the claim was bad for non-joinder of the insurer of the motorcycle involved in the accident as necessary party. Further, it was submitted that the claim was excessive.

On considering the averments of both sides, the Tribunal had framed two issues for consideration namely:

i. Was the accident caused by the rash and negligent driving by the driver of the first respondent''s van? and

ii. Whether the claimants are entitled to get compensation? If so, what is the quantum of compensation?

On the claimants'' side two witnesses were examined as P.Ws. 1 and 2 and 16 documents were marked as Exs. P1 to P16 namely copy of FIR, postmortem report, charge sheet, inquest report, M.V.I''s report of the van, M.V.I''s report of the motorcycle, rough sketch, salary certificate, copy of partnership deed of R.M.S. Enterprises, death certificate, legal heir certificate, copy of death certificate of father of the deceased Palanisamy, copy of death certificate of mother of the deceased Palanisamy, sale deed in favour of father of deceased Palanisamy, copy of chitta and copy of adangal. On the respondents'' side no witness was let in and no document was marked.

P.W. 1, wife of the deceased Palanisamy, had adduced evidence, which is corroborative of the statements made in the claim regarding manner of accident and in support of her claim, she had marked Exs. P1, P3, P5 to P7.

P.W. 2 Loganathan, eye-witness of the accident, had also adduced evidence that the accident had been caused by the rash and negligent driving of the first respondent''s van driver. The Tribunal, on scrutiny of evidence of P.Ws. 1 and 2 and on scrutiny of Exs. P1, P3, P5 to P7 and on observing that no evidence had been let in on the respondents'' side to rebut the claim of P.Ws. 1 and 2 regarding manner of accident, held that the accident had been caused by the rash and negligent driving by the driver of the first respondent''s van.

P.W. 1 had further adduced evidence that at the time of accident, her husband was aged 50 years and that he was working in the Registration Department of R.M.S. Enterprises, Salem Road, Namakkal Town and that he was an Agriculturist and earning Rs. 25,000/- per month. She deposed that she had a son and daughter, who were studying and that she was a homemaker and dependent on the income of her husband. She deposed that her deceased husband was managing the affairs of his father''s agricultural lands at Kollimalai and that the parents of her husband had already expired. She deposed that after the death of her husband, there is no one to look after the agricultural operations at Kollimalai and that she and her children had been put into hardship and in support of her evidence, she had marked Exs. P2, P4, P8 to P16.

On scrutiny of Ex. P2, it is seen that the deceased was aged 50 years at the time of accident. The Tribunal, on scrutiny of Ex. P8, P14 to P16, held that the deceased could have been earning a sum of Rs. 10,000/- per month. The Tribunal, on adopting a multiplier of 13, awarded a sum of Rs. 10,40,000/- as compensation to the claimants under the head of loss of income (10,000 X 2/3 X 12 X 13), Rs. 25,000/- was awarded to the first claimant under the head of loss of consortium and Rs. 25,000/- was awarded to the other claimants under the head of loss of love and affection, Rs. 10,000/- was awarded for transport expenses and Rs. 10,000/- was awarded for funeral expenses. In total, the Tribunal awarded a sum of Rs. 11,10,000/- as compensation to the claimants and directed the respondents to jointly and severally deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till the date of payment of compensation, with costs, within a period of three months from the date of it''s order.

Aggrieved by the award passed by the Tribunal, the second respondent Insurance Company has preferred the above civil miscellaneous appeal and being not satisfied with the award passed by the Tribunal, claimants have preferred the above cross objection seeking additional compensation of Rs. 2,00,000/-.

The learned counsel appearing for the appellant Insurance Company has contended in the appeal that the Tribunal failed to note that there was no acceptable evidence regarding alleged earnings of the deceased and that the Tribunal failed to note that mere production of alleged salary certificate is not sufficient to arrive at a conclusion regarding alleged occupation and salary said to have been earned by the deceased. It is contended further that the Tribunal failed to note that the deceased would have attained superannuation in another nine years and few months and hence adopting the same multiplicand even after retirement is factually unsustainable. Further, it is contended that the Tribunal failed to note that it is unbelievable that the lands were left uncultivated after the occurrence of accident and in any event, there was no clear evidence to prove the alleged income from the agricultural lands. Hence, it is prayed to scale down the compensation awarded by the Tribunal.

The learned counsel appearing for the claimants has argued that the Tribunal failed to consider that the deceased was working in the Registration Department at R.M.S. Enterprises and also having agricultural land as per Exs. P13 to P16 and was earning Rs. 25,000/- per month. Further, he has argued that the Tribunal ought to have considered that the deceased has own agricultural land in Kollimalai as per Exs. P15 and P16 and was cultivating plants viz., Tobacco, Pineapple and Mango etc., and was earning Rs. 25,000/- per month. Due to the death of the deceased, the lands are left uncultivated. He has argued further that the award granted under transport expenses, funeral expenses and loss of love and affection and loss of consortium are on the lower side. Further, he has argued that the Tribunal failed to grant award under the head of loss of estate.

Further, the learned counsel for the claimants has argued that the deceased was the only earning member of the family and that he was working in Registration Department at R.M.S. Enterprises and earning Rs. 6,000/- per month. Besides this, he was earning considerable income through cultivation of land. In order to prove that the deceased was involved in agricultural operations, the documents relating to the lands had been marked as exhibits. The Tribunal had not granted adequate compensation and therefore the cross appeal had been filed for grant of additional compensation of Rs. 2,00,000/-. The Tribunal, without assigning any reason, had taken the income of the deceased as Rs. 10,000/- instead of Rs. 25,000/-. Regarding income proof, the claimants had marked Ex. P15 and P16 and it discloses that the deceased had possessed own lands and is cultivating Tobacco, Pineapple and Mango, which fetch high returns in terms of money.

On verifying the factual position of the case and arguments advanced by the very competent counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy regarding negligence and liability, which are decided in an appropriate manner after considering the FIR, rough sketch and charge sheet. However, the quantum of compensation is on the higher side as the Tribunal had fixed the income of the deceased at Rs. 10,000/- which is not appropriate, since the income from agricultural operations had not been clearly shown. Further, the claimants can derive income from agricultural lands in spite of the death of the first claimant''s husband. Hence, this Court holds the income of the deceased at Rs. 9,000/- per month and reassess the compensation as follows:

i. Rs. 9,36,000/- (9,000 X 2/3 X 12 X 13) awarded under the head of loss of income,

ii. Rs. 15,000/- is awarded to the first claimant under the head of loss of consortium,

iii. Rs. 15,000/- is awarded to each of the second and third claimants under the head of loss of love and affection,

iv. Rs. 10,000/- is awarded for funeral expenses, and

v. Rs. 10,000/- is awarded for transport expenses.

In total, this Court awards a sum of Rs. 10,01,000/- as compensation to the claimants as it is found to be appropriate in the instant case. The rate of interest remains unaltered.

This Court has already directed the appellant Insurance Company to deposit the entire award amount with interest, to the credit of M.C.O.P. No. 307 of 2008, on the file of the Motor Accident Claims Tribunal, Sub-Court/Fast Track Court, Namakkal. Subsequently, the claimants were permitted to withdraw a portion of the deposited amount.

Now, it is open to the claimants to withdraw their apportioned share amount, with proportionate interest thereon, as per this Court''s findings, as per the ratio fixed by the Tribunal, lying in the credit of M.C.O.P. No. 307 of 2008, on the file of the Motor Accident Claims Tribunal, Sub-Court/Fast Track Court, Namakkal, after filing a memo along with a copy of this Judgment, subject to deduction of earlier withdrawals made by them, as per this Court''s earlier order.

Likewise, the Insurance Company is at liberty to withdraw the excess compensation amount, with proportionate interest thereon, after filing a memo along with a copy of this Judgment.

In the result, the civil miscellaneous appeal No. 3172 of 2009 filed by the Insurance Company is partly allowed and the cross objection No. 38 of 2012 filed by the claimants is dismissed and the Judgment and decree dated 29.04.2009, made in M.C.O.P. No. 307 of 2008, on the file of the Motor Accident Claims Tribunal, Sub-Court/Fast Track Court, Namakkal, is modified. Consequently, connected miscellaneous petitions are closed. No costs.