New India Assurance Co. Ltd. vs Anbu and Others

C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree 21.07.2009, made in M.C.O.P. No. 3904 of 2003, on the file of the Motor Accident Claims Tribunal, Chief Court, Small Causes Court, Chennai. The short facts of the case are as follows:-

The claimants, who are the wife and children of the deceased Sundar Singh, had filed a claim petition in M.C.O.P. No. 3904 of 2003, on the file of the Motor Accident Claims Tribunal, Chief Court, Small Causes Court, Chennai, claiming a compensation of Rs. 15,00,000/- from the respondents for the death of the said Sundarsingh in a motor vehicle accident.

That on 06.04.2002, at about 09.30 p.m., when the deceased was riding his motorcycle bearing registration No. TN22 E9573, at G.S.T. Road, Pallavaram, from south to north and when the vehicle was in front of Alstham Company, the first respondent''s lorry bearing registration No. TN59 F3737, which was coming from the same direction and driven in a rash and negligent manner, dashed against the motorcycle from behind. As a result, the deceased sustained severe injuries and succumbed to it in Balaji Hospital on 07.04.2002. At the time of accident, the deceased was aged 50 years and was running a provisional store and earning Rs. 15,000/- per month. Hence, the claimants had filed the claim petition against the first and second respondents, who were the owner and insurer of the lorry bearing registration No. TN59 F3737.

The second respondent Insurance Company in their counter statement had denied the averments of the claim regarding avocation and income of the deceased as well as the manner of accident. It was submitted that the claimants should prove that the driver of the first respondent''s lorry had a valid driving licence and that the lorry was covered under a valid policy of insurance. It was submitted that the claim was excessive.

On considering the averments of both sides, the Tribunal had framed three issues namely:

i. Whether the accident occurred due to the rash and negligent driving of the driver of the first respondent''s lorry bearing registration No. TN59 F3737?

ii. Whether the claimants are entitled to get compensation from the respondents? and

iii. To what other relief?

On the claimants'' side two witnesses were examined as P.Ws.1 and 2 and seventeen documents were marked as Exs. P1 to P17 namely FIR, sketch, M.V.I. report, photo with negatives, lab report, prescription, X''rays, scan with report, hospital and doctor bills, pharmacy bill, blood bank bill, coffin and hearse van booking receipt, cemetery bill, bank statement, death certificate, SSLC book of deceased and legal heir certificate. On the respondents'' side no witness was examined and no document was marked.

P.W.1, who is the son 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 his evidence he had marked Exs. P16 and P17. P.W.2 wife of the deceased had adduced evidence on the similar lines to that of P.W.1 and had marked Exs. P1 to P15.

The Tribunal, on scrutiny of the evidence of P.Ws.1 and 2 and on scrutiny of Exs. P1, P2, P13 and P14 held that the accident had been caused by the rash and negligent driving by the driver of the lorry bearing registration No. TN59 F3737 and hence held that the first and second respondents are liable to pay compensation to the claimants.

On scrutiny of the SSLC Book of the deceased Sundar Singh, it is seen that the deceased was aged about 51 years at the time of the accident. The Tribunal had observed that no documentary evidence namely licence from local body to run provisional store and income tax returns had been filed by the claimants to prove that the deceased was running a provisional store and earning Rs. 15,000/- per month. The Tribunal, on considering that the deceased had availed a loan of Rs. 2,50,000/- from Repco Bank, for his business, held that the notional income of the deceased could be fixed at Rs. 6,000/- per month.

The Tribunal, on adopting a multiplier of 11, awarded a sum of Rs. 5,28,000/- as compensation to the claimants under the head of loss of income (6000 X 2/3 X 12 X 11), Rs. 19,426/- was awarded for medical expenses as per Exs. P9 to P11, Rs. 15,000/- was awarded to the first claimant under the head of loss of consortium, Rs. 10,000/- was awarded to the claimants under the head of loss of love and affection, Rs. 5,000/- was awarded for funeral expenses. In total, the Tribunal had awarded a sum of Rs. 5,77,426/- as compensation to the claimants and directed the first and second respondents to pay the same jointly and severally, together with interest at the rate of 7.5% per annum from the date of numbering the petition till the date of deposit, excluding the period between 28.02.2007 and 13.10.2008, during which period the petition had remained dismissed for default, with costs, within a period of two months from the date of it''s Order.

Aggrieved by the Award passed by the Tribunal, the second respondent Insurance Company has preferred the present civil miscellaneous appeal.

The learned counsel for the appellant Insurance Company has contended in their appeal that the Tribunal had failed to consider the merits in the counter statement filed by the appellant before the Tribunal. It is contended that the Tribunal ought to have adopted the multiplier of 8 and it was also contended that the Tribunal erred in fixing the income of the deceased at Rs. 6,000/- per month, without proof of income. It was also contended that the Tribunal failed to note that if the deceased was running a business, it will continue after his death and there will not be any loss of business income. It is further contended that the award granted under the relevant heads were excessive. Hence, it is prayed to set aside the Award passed by the Tribunal.

The highly competent counsel for the claimants has submitted that FIR had been registered against the driver of the lorry since he had committed the said accident in a negligent manner. The deceased''s age was 50 years and he was running a provisional store and earning Rs. 15,000/- per month. The compensation amount had been assessed in an appropriate manner on the basis of age, income and dependants. Therefore, there is no lacuna in the impugned award regarding negligence, liability and quantum of compensation.

On verifying the factual position of the case and arguments advanced by the learned counsels on either side, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. This Court is of the further view that FIR had been registered against the driver of the lorry. Further, in order to prove the negligence, a rough sketch was marked to determine the tyre marks of the offending vehicle. As such, the Tribunal had decided all the relevant issues in an appropriate manner. Hence, the above appeal does not have enough force to allow it. Therefore, the Award passed by the Tribunal is liable to be confirmed.

This Court had already directed the appellant Insurance Company to deposit the entire compensation amount to the credit of M.C.O.P. No. 3904 of 2003, on the file of the Motor Accident Claims Tribunal, Chief Court, Small Causes Court, Chennai. Now, it is open to the claimants, to withdraw their share amount, apportioned by the Tribunal, with accrued interest, lying in the credit of M.C.O.P. No. 3904 of 2003, on the file of the Motor Accident Claims Tribunal, Chief Court, Small Causes Court, Chennai, after filing a memo along with a copy of this Order. In the result, this civil miscellaneous appeal is dismissed and the Judgment and decree dated 21.07.2009, made in M.C.O.P. No. 3904 of 2003, on the file of the Motor Accident Claims Tribunal, Chief Court, Small Causes Court, Chennai, is confirmed. Consequently, connected miscellaneous petitions are closed. There is no order as to costs.