National Insurance Company Limited vs Pichammal and Others

R. Karuppiah, J.—Aggrieved over the Award and Decree passed by the Motor Accident Claims Tribunal (Sub Court), Tenkasi in M.A.C.O.P. No. 353 of 2004, dated 30.11.2005, the appellant herein/2nd respondent in the above said O.P., filed this Civil Miscellaneous Appeal. The respondents 1 to 5, who are claimants 1 to 5 in the above said O.P., have filed a claim petition, claiming compensation of Rs. 15,00,000/- for the death of one Velusamy and in the claim petition it is stated that on 01.07.2004 at about 2.00 a.m., the deceased was riding his bullock cart along with Vegetables from East to West in extreme left side of the Road from Shencottah to Kazhuthurutty Main Road and at that time, the Mini Lorry, bearing Registration No. TN-69-B-6069 belonged to the 6th respondent herein/first respondent in the O.P., was driven by its driver in a great terrific speed and not observing the traffic rules from East to West and hit the deceased''s bullock cart and in the above said accident, the above said deceased Veluchamy was died on the spot and one bullock was died and another bullock got injured. Further the vegetables and market items also fully damaged. It is further stated in the claim petition that the age of the deceased was 40 at the time of accident. But in the postmortem, the age of the deceased is wrongly mentioned as 46 and the deceased was doing business of Chekku Attal, Bullock Cart business and dairy form and earned Rs. 15,000/- per month. The claimants are wife, children and mother of the deceased and they have claimed compensation of Rs. 15,00,000/- from the appellant/2nd respondent in the O.P., and the 6th respondent herein/1st respondent in the O.P., as owner and insurer of the vehicle.

The 6th respondent herein/first respondent in the O.P., was remained ex-parte before the Tribunal.

The appellant/2nd respondent in the above said O.P. filed a counter in which denied the allegation in the claim petition regarding the manner of the accident alleged in the claim petition and further contended that the claimants should prove the age, income particulars of the deceased. Further stated that the claim of compensation on various heads are highly excessive and the rate of interest at the relevant period is only 5.5% per annum and therefore, prayed for dismissal of the above said O.P.

Before the Tribunal on the side of the claimants examined four witnesses as P.Ws. 1 to 4 and marked 11 documents as Exs. P1 to P11. On the side of the appellant/2nd respondent in the O.P. has not examined any witnesses and not marked any documents.

Considering the above said oral and documentary evidence adduced on the side of the claimants, the Tribunal has held that the accident was occurred only due to rash and negligent driving of the 6th respondent herein/first respondent in the O.P., vehicle driver. The Tribunal has fixed the age of the deceased as 46 years and fixed the monthly income as Rs. 6000/- per month and taken the multiplier as 13 and calculated the loss of income, after deducting 1/3 for personal and living expenses of the deceased, as Rs. 6,24,000/-. Apart from that, the Tribunal has also awarded a sum of Rs. 25,000/- for consortium to the first claimant; Rs. 5,000/- towards transportation charges for carrying the dead body to hospital; Rs. 5000/- towards funeral expenses; Rs. 26,000/- towards loss of articles; Rs. 10,000/- towards damage of bullock cart; Rs. 6000/- towards loss of bullock; Rs. 3000/- towards the injured bullock and Rs. 2,50,000/- for loss of love and affection and totally the Tribunal has awarded a sum of Rs. 9,54,000/- as compensation. Aggrieved over the said findings of the Tribunal, the appellant/2nd respondent Insurance Company filed this Civil Miscellaneous Appeal.

Since the appellant has not questioned the findings regarding the negligence, the same need not be discussed in detail. Further, the claimants examined P.W. 2 eye-witness to the accident and also marked Ex. P1, copy of FIR. Ex. P4, copy of M.V. report, Ex. P5 copy of rough sketch; Ex. P6 observation Mahazar; Ex. P7 copy of charge sheet and Ex. P8 Photos. On the side of the respondents, no witnesses were examined. Therefore, the accident had occurred only due to rash and negligent driving of the Mini lorry, as rightly held by the Tribunal.

The learned counsel appearing for the appellant Insurance Company mainly challenged the quantum of compensation awarded by the Tribunal, as excessive. The Tribunal has fixed the age of the deceased as 46 years on the basis of oral evidence of P.W. 1 and also postmortem certificate and other documents. On the side of the appellant Insurance Company has not seriously objected the above said findings. Therefore, the Tribunal has correctly fixed the age of the deceased as 46 years. Considering the age of the deceased, the Tribunal has correctly adopted the multiplier as ''13''. It is also not seriously objected to by the appellant Insurance Company.

The learned counsel appearing for the appellant Insurance Company submitted that the monthly income of the deceased fixed by the Tribunal as Rs. 6,000/- is highly excessive, since no reliable, oral and documentary evidence adduced to prove the monthly income of the deceased. Per contra the learned counsel appearing for the respondents 1 to 5/claimants 1 to 5 would submit that the first petitioner herself deposed as P.W. 1 and also examined P.Ws. 3 and 4 to prove the income of the deceased and the Tribunal has rightly fixed the monthly income of the deceased as Rs. 6000/- and no interference needs in the above said findings.

The claimants have filed Exs. P. 10 and P11 alone as documentary evidence to prove the income of the deceased. A careful perusal of Exs. P. 10 reveals that P.W. 3 has issued a list of vegetables alleged to have purchased by the deceased on 30.06.2009 and Exs. P. 11, quotation issued by one Gurusamy Asari (P.W. 4) for new Bullock Cart after accident. Except these two documents, no other documents adduced to prove the income of the deceased. The learned counsel appearing for the appellant Insurance Company submitted that without considering the above facts, the Tribunal has wrongly fixed the income of the deceased as Rs. 6000/- per month, which is highly excessive. Further contended that in the proof affidavit of P.W. 1 itself it is stated that only the vegetables of others taken in the bullock cart belonging to the deceased, and the above said fact is not properly considered by the Tribunal and therefore the monthly income fixed by the Tribunal is highly excessive.

Even though the claimants have stated in the claim petition as if the deceased was doing the business of Chekku Attal, Bullock Cart business and dairy form and earned Rs. 15,000/- per month, but the Tribunal has discussed in detail and held that the claimants have not proved that the deceased was doing the business of Chekku Attal, Bullock Cart business and dairy form, since no reliable oral and documentary evidence to prove the same. The learned counsel appearing for the appellant submitted that the Tribunal has failed to consider the fact admitted by P.W. 1 as the deceased was taken the vegetables of others in his bullock cart and also in the claim petition itself it is not stated that the deceased was doing vegetables business and in the above said circumstances, the monthly income fixed by the Tribunal as Rs. 6000/- per month is excessive. As rightly pointed out by the learned counsel for the appellant Insurance Company no reliable oral and documentary evidence to prove that the deceased was vegetables vendors or doing vegetables business. Ex. P10 produced on the side of the claimants is not reliable documentary evidence to prove that he was doing vegetables business. Therefore, the Tribunal has fixed the monthly income of the deceased as Rs. 6000/-, which is highly excessive, as rightly contended by the learned counsel for the appellant Insurance Company. Considering the age, family circumstances, period of accident etc., the monthly income of the deceased is fixed as Rs. 4500/- per month instead of Rs. 6000/- per month fixed by the Tribunal.

With regard to deduction for personal and living expenses of the deceased, the Tribunal has deducted 1/3rd of the income of the deceased. But the learned counsel appearing for the claimants submitted that since the claimants are 5 in numbers, the deduction for personal and living expenses of the deceased is to be deducted only 1/4 of the income of the deceased. The above said contention of the claimants is correct and therefore, 1/4th of the income to be deducted for personal and living expenses of the deceased and 3/4 to be taken for fixation of loss of income. Therefore, the loss of income is calculated as Rs. 4500 x 12 x 13/3/4 = Rs. 5,26,500/-.

The learned counsel appearing for the appellant Insurance Company has also submitted that the Tribunal has awarded a sum of Rs. 2,50,000/- for loss of love and affection to the claimants and it is highly excessive. As rightly contended by the learned counsel for the appellant, the award amount fixed for loss of love and affection to the claimants are highly excessive and therefore, considering the facts and circumstances of the case, the above said amount is to be reduced as Rs. 15,000/- to each claimants and totally Rs. 75,000/- is awarded for loss of love and affection to the claimants.

With regard to the award passed by the Tribunal in other heads viz., Rs. 5000/- towards transportation; Rs. 5000/- towards funeral expenses; Rs. 20,000/- towards loss of articles; Rs. 10,000/- towards damage to the bullock cart; Rs. 9000/- to the bullock, are not seriously objected to by the appellant and further from the oral and documentary evidence, the claimants are entitled to the above said amount and therefore, no interference needs in the fixation of the award amount by the Tribunal, in the above said heads. Therefore, the award passed by the Tribunal is to be modified and reduced as follows:-

In the result, the Civil Miscellaneous Appeal is partly allowed and the award passed by the Tribunal is reduced from Rs. 9,54,000/- to Rs. 6,81,000/- with interest at the rate of 9% per annum with proportionate costs. No costs. Consequently, connected miscellaneous petition is closed.