Narayanasamy and Rukmani vs Thangaraju and Others

C.S. Karnan, J.—The appellants/1st and 2nd claimants have preferred the present appeal against the judgment and decree dated

04.07.2007, made in M.C.O.P. No. 151 of 2006, on the file of the Motor Accident Claims Tribunal, Sub-Court, Udumalpet. The short facts of

the case are as follows:-

The claimants, who are the parents and sister of the deceased Jayaprakash, had filed a claim petition in M.C.O.P. No. 151 of 2006, on the file of

the Motor Accident Claims Tribunal, Sub-Court, Udumalpet, claiming a sum of Rs. 30,00,000/- as compensation from the respondents for the

death of the said Jayaprakash in a motor vehicle accident.

It was submitted that on 26.03.2006, at about 07.30 p.m., when the deceased Jayaprakash was driving a car bearing registration No. TN39

C8899, along with his friends, on the extreme left of Bhavani-Salem Bye-Pass Road and when the vehicle was near Vattamalai Vaikkalkarai

Bridge, the first respondent drove a lorry bearing registration No. KA01 AD3566, in a rash and negligent manner and dashed against the car and

subsequently dashed it against a Tamil Nadu State Transport Corporation bus. As a result, the car was crushed and the deceased Jayaprakash

sustained grievous injuries and died on the spot. At the time of accident, the deceased was aged 38 years and was working as a Textile Advisor

and Manager of Balaji Textile Mill and earning Rs. 18,000/- per month. Hence, the claimants had filed the claim petition against the respondents.

The respondents 1 to 3 are the driver, owner and insurer of the lorry bearing registration No. KA01 AD3566 and the fourth respondent is the

insurer of the car bearing registration No. TN39 C8899.

The third respondent Insurance Company, in their counter affidavit, had submitted that the deceased Jayaprakash did not have a valid licence to

drive the car at the time of accident. It was submitted that the first respondent had not been rash and negligent in his driving of the lorry, as alleged

and that the accident was caused only due to the rash and negligent driving of the car by the deceased Jayaprakash. The averments made in the

claim petition regarding income of the deceased was also not admitted. It was submitted that the claim was excessive.

The fourth respondent Insurance Company, in their counter affidavit, had submitted that as the accident had been caused by the rash and

negligent driving of the lorry by the first respondent, the fourth respondent is not a necessary party in the claim. It was submitted that the claimants

have to prove that the deceased Jayaprakash and the first respondent had valid licence to drive their vehicles at the time of accident. 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 lorry by the first respondent? and

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

On the claimants'' side three witnesses were examined as P.Ws. 1 to 3 and eight documents were marked as Exs. P1 to P8 namely FIR,

M.V.I''s report, postmortem report, death certificate, legal heir certificate, copy of policy, copy of family card, experience certificate. On the

respondents'' side no evidence was let in and no document was marked.

P.W. 1 mother of the deceased had adduced evidence, which is corroborative of the statements made in the claim petition regarding manner of

accident and in support of her evidence, he had marked Exs. P1 to P8. On scrutiny of Ex. P2, it is seen that inspection had been carried out on the

lorry and bus involved in the accident by the Motor Vehicles Inspector. However, the Tribunal observed that the car had not been subjected to

inspection. On scrutiny of Ex. P1, it is seen that FIR had been registered based on the complaint given by one Ravichandran. On scrutiny of Ex.

P5, it is seen that only the first and second claimants are the legal heirs of the deceased Jayaprakash.

P.W. 2 Arunshankar had adduced evidence that he had travelled in the car and that the deceased Jayaprakash had driven the car and that the

accident was caused by the rash and negligent driving of the lorry by the first respondent that the lorry had dashed against the car.

P.W. 3 Shanmugam had adduced evidence that the deceased was working as a Manager in his firm run in the name and style of Sri Balaji

Textile Mills and was paid a monthly salary of Rs. 8,000/- per month and in support of his evidence he had marked Ex. P8. However, the Tribunal

observed that Ex. P8 was an experience certificate and not a salary certificate. However, the Tribunal on observing that P.W. 3 was only running

the said Mill on lease and on observing that lot of corrections had been made in Ex. P8, was not inclined to accept evidence of P.W. 3 as well as

Ex. P8 as valuable evidence. The Tribunal, on observing that the claimants had not marked the driving licence of the deceased Jayaprakash, held

that the deceased Jayaprakash had driven the car without a valid licence and without following the traffic rules and regulations and hence held that

the deceased had also contributed 50% negligence for the occurrence of accident.

The Tribunal, on observing that the FIR and charge sheet had been filed against the first respondent, held that the first respondent had also

contributed 50% negligence for the occurrence of accident. The Tribunal, on observing that the car driven by the deceased Jayaprakash was

insured with the fourth respondent, held that the fourth respondent is not liable to pay any compensation and hence dismissed the claim as against

the fourth respondent.

The Tribunal, on scrutiny of postmortem report, observed that the deceased was aged 43 years. The Tribunal, on observing that the name of

the third claimant had not been mentioned in the legal heir certificate, held that only the first and second claimants are entitled to get compensation.

The Tribunal, on taking the notional income of the deceased as Rs. 3,000/- per month and on adopting a multiplier of 15, assessed the

compensation payable to the claimants as Rs. 3,60,000/- (3,000 X 2/3 X 12 X 15), Rs. 5,000/- was awarded for loss of love and affection and

Rs. 2,000/- was awarded for funeral expenses. In total, the Tribunal assessed the compensation as Rs. 3,67,000/-. However, the Tribunal, on

considering that the deceased had contributed 50% negligence for the occurrence of accident, held that the claimants are entitled to get

compensation of only Rs. 1,83,500/-. The Tribunal directed the respondents 1 to 3 to pay the said compensation amount of Rs. 1,83,500/- to the

first and second claimants, along with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of

compensation with costs, within a period of thirty days from date of it''s order. The Tribunal dismissed the claim against the fourth respondent.

Not being satisfied with the award passed by the Tribunal the claimants have preferred the present civil miscellaneous appeal.

The learned counsel appearing for the appellants has contended in the appeal that the Tribunal failed to appreciate the evidence of P.W. 3 and

Ex. P8 in it''s proper perspective. It is contended that the notional income of the deceased, as fixed by the Tribunal, was very meagre and is not

sustainable. It is contended that the Tribunal erred in holding that the deceased had also contributed negligence for the occurrence of the accident

without observing the documentary exhibits marked. It is contended further that the Tribunal ought to have fixed the entire liability on the

respondents 3 and 4 herein and ought to have passed a just and fair compensation. It is also contended that the respondents have not proved

beyond doubt that the deceased was not in possession of a valid licence to drive the car. Further, it is pointed out that the Tribunal erred in

adopting a wrong multiplier. Hence, it is prayed for grant of additional compensation of Rs. 28,16,500/- and to direct the third respondent

Insurance Company to pay the compensation.

The very competent counsel for the third respondent has vehemently argued that the accident had happened due to negligent driving of the

deceased. Therefore, contributory negligence had been attributed in the instant case and as such the third respondent had paid 50% of the award

amount as per the directions of the Tribunal. Hence, the appeal is not maintainable. The highly competent counsel further submits that in order to

prove the income of the deceased, no document had been marked. However, adequate compensation had been granted by the Tribunal. Further,

the claimants are not depending upon the income of the deceased.

Per contra, the learned counsel for the claimants has submitted that the deceased was maintaining his own car for his own use. It clearly proves

that he is getting sufficient income through his avocation as factory manager and advisor and as such he was earning Rs. 18,000/- per month.

Therefore, the income of the deceased taken as Rs. 3,000/- per month by the Tribunal is on the lower side as it had been fixed in an arbitrary

manner.

On verifying the factual position 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 Tribunal had fastened 50% negligence on the side of the deceased, which is not

appropriate, since the FIR and charge sheet had been levelled against the first respondent, who is the driver of the offending vehicle, which had

been insured with the third respondent herein. Therefore, this Court holds that the third respondent is liable to pay the entire compensation.

Further, on the side of the respondents neither oral nor documentary evidence had been let in before the Tribunal. The Tribunal had fixed the

income of the deceased at Rs. 3,000/-, which is on the lower side, since it is evident that the deceased is maintaining his own car for his personal

use. Therefore, this Court holds the notional income of the deceased as Rs. 6,000/- per month. After, deducting 50% for personal expenses of the

deceased and on adopting a multiplier of 15, this Court awards Rs. 5,40,000/- (6,000 X 1/2 X 12 X 15) as compensation under the head of loss

of income. Rs. 10,000/- is awarded for funeral expenses, Rs. 20,000/- is awarded for loss of love and affection to the first and second claimants.

In total, this Court awards a sum of Rs. 5,70,000/- as compensation. After subtracting the initial compensation of a sum of Rs. 1,83,500/-

awarded, this Court awards Rs. 3,86,500/- as additional compensation to the claimants, as it is found to be appropriate in the instant case. 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.

This Court directs the third respondent Insurance Company to execute this Court''s Judgment, by way of depositing the award amount, with

interest, to the credit of M.C.O.P. No. 151 of 2006, on the file of the Motor Accident Claims Tribunal, Sub-Court, Udumalpet, within a period of

four weeks from the date of receipt of a copy of this Judgment.

After such a deposit having been made, it is open to the claimants to withdraw the said amount, equally, among themselves, with proportionate

interest thereon, lying in the credit of M.C.O.P. No. 151 of 2006, on the file of the Motor Accident Claims Tribunal, Sub-Court, Udumalpet, after

filing a memo along with a copy of this Judgment. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated

04.07.2007, made in M.C.O.P. No. 151 of 2006, on the file of the Motor Accident Claims Tribunal, Sub-Court, Udumalpet, is modified. No

costs.