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Judgment
M. Venugopal, J.—Challenge in the Civil Miscellaneous Appeal is against the award passed in M.A.C.T.O.P. No. 563 of 1998 dated 27.11.2001 by the Motor Accident Claims Tribunal viz., the Chief Judge, Court of Small Causes, Chennai.
The appellants/claimants being the wife and minor children of the deceased Pattu Durai have preferred a claim petition M.A.C.T.O.P. No. 563 of 1998 on the file of Motor Accident Claims Tribunal viz., the Chief Judge, Court of Small Causes, Chennai, praying for an award of Rs. 16 lakhs against the 1 and 2 respondents with interest and costs.
The Claims Tribunal viz., the Chief Judge, Court of Small Causes Court, Chennai has passed an award of Rs. 3,93,000/-, directing the respondents to pay the same with interest at 9% per annum from the date of filing of the petition till date of payment etc.
Dissatisfied with the award passed by the Tribunal in M.A.C.T.O.P. No. 563 of 1998 dated 27.11.2001, the claimants as appellants have preferred this Civil Miscellaneous Appeal, praying for enhanced compensation.
The factual scenario resulting in, filing of the present appeal are summarised in brief:
The deceased Pattu Durai was riding his cycle from west to east in Arcot Road and when he was proceeding opposite to Door No. 31, Swaraj Mazda Lorry TN-22-W-9594 came from the opposite direction in a very high speed, rash and negligent manner dashed against two cyclists, due to which the deceased sustained multiple injuries and succumbed later in the hospital. The driver of the lorry is solely responsible for the accident. The first respondent, being the owner of the Swaraj Mazda lorry involved in the accident and the second respondent, being the Insurance Company are jointly and severely liable to pay the compensation.
The Tribunal has examined two witnesses P.W.1 and P.W.2 on the side of claimants and marked Exs.P.1 and P.10. On the side of respondents, no witness was examined and no documents were marked.
After contest, considering the oral and documentary material evidence on record, the Tribunal viz., the Chief Judge, Court of Small Causes, Chennai has passed an award granting a compensation of Rs. 3,93,000/- (Rupees three lakhs and ninety three thousand only) with interest at 9% per annum from the date of petition till the date of payment, determining the Advocate''s fee at Rs. 4,000/-.
The learned Counsel for the appellants urges that the Claims Tribunal erred in determining the income of the deceased at Rs. 2,500/-, not withstanding the evidence that the deceased Pattu Durai was earning around Rs. 4,500/- per month + allowances and this has resulted in awarding a low sum of Rs. 3,56,400/- towards pecuniary loss and in any event, the award of Rs. 3,93,000/- passed by the Tribunal as total compensation to the claimants was not correct and therefore, prays for enhancing the compensation awarded from Rs. 3,93,000/- to Rs. 16,00,000/-.
It is also the grievance of the learned Counsel for the appellants that only a meagre sum of Rs. 15,000/- was awarded under the caption ''Loss Of Expectation Of Life'', as against a claim of Rs. 47,000/-. The other contention is that only a sum of Rs. 20,000/- has been awarded towards loss of consortium, companionship and funeral expenses, as against a claim of Rs. 40,000/-.
The pleas of the second respondent, Insurance Company are that the accident occurred only due to the reckless act of the deceased and in any event, the deceased was guilty of contributory negligence and that it is not true that the accident happened due to rash and negligent driving of the vehicle TN-22-W-9594. As a matter of fact, the second respondent has not admitted the place, date and time of accident. It has also not admitted that the death of the deceased was due to alleged injuries.
Ex.P.6 is the certified copy of the FIR. In Ex.P.6-FIR the informants name is mentioned as D.Rajendran. The accused name is mentioned as driver of vehicle TN-22-W-9594. A perusal of Ex.P.6-FIR shows that in Cr. No. 934 of 1997, the Valasaravakkam Police have registered the case u/s 279, 338 and 304A of I.P.C. Ex.P.8 is the Charge Sheet filed by the Inspector of Police, Valasaravakkam Police Station, Chennai-87 against O.Babu, driver of Swaraj Mazda Van TN-22-W-9594 u/s 279 and 304A I.P.C., before the Judicial Magistrate No. 1, Poonamallee. Ex.P.7 is the Rough Sketch of scene of accident. Ex.P.9 is the certified copy of Judgment of Judicial Magistrate No. 1, Poonamallee dated 26.12.1997 in criminal case viz., C.C. No. 345 of 1997. As seen from Ex.P.9-Judgment, it is quite evident that the driver Babu of vehicle TN-22-W-9594 has been found guilty u/s 279 and 304(A)(2 counts), on his admission. A total fine of Rs. 4,300/- has been imposed. Admittedly, the person who gave information about the occurrence viz., Mr.Rajendran has not been examined before the Tribunal. However, before the Tribunal P.W.2-Vairam has been examined. In his evidence, he has deposed that on 09.12.1997 at about 8.30 p.m. he was proceeding from Porur to Vadapalani, (from west to east) and near Valasarvakkam Panchayat Shop he was doing repairs to the Cycle and at that time, Swaraj Mazda Van came from east to west and at that time from west to east two persons came in separate cycles and the Swaraj Mazda Van, which came from east to west, overtook the lorry which was proceeding in its front and while so doing it dashed against the cyclists, who came in the opposite direction, as a result of which one person died on the spot and the other injured person was sent to the Hospital and that the accident happened due to the negligence of the Van driver.
It is the further evidence of P.W.2-Vairam that he has not given the complaint and that he has not given any statement before the Police. Even though P.W.2-Vairam has not given the complaint to the Police and not withstanding the fact that the complainant-Rajendran has not been examined in this case, yet the oral testimony of P.W.2-Vairam assumes significance in this case, in the considered opinion of this Court. His evidence has to the manner of happening of accident is quite natural, convincing, cogent and therefore, it is accepted by this Court. One cannot ignore the fact that driver of the Swaraj Mazda Van Babu has been found guilty by the Criminal Court and indeed a total fine of Rs. 4,300/- has been imposed. The Criminal Court Judgment has a binding force and the same is in favour of the appellants/claimants. From Ex.P.10-Postmortem Certificate, it is clear that the deceased has sustained lacerated and other abrasion injuries. The doctor who conducted postmortem has opined in Ex.P.10 that ''the deceased would appear to have died due to extensive cranial injuries suffered''.
Suffice it to point out that the cause of the death of the deceased has been established by the medical evidence. In short, in view of the unassailable evidence of P.W.2-Vairam in regard to the happening of the accident that the driver of the Swaraj Mazda Van overtook the lorry proceeding in front and while so doing he dashed against the cyclists coming in the opposite direction and coupled with the fact that the driver of the lorry has been found guilty by the Criminal Court and taking note of the facts and circumstances of the case, this Court comes to the conclusion that the driver of the Swaraj Mazda, Babu drove the Van in a negligent manner resulting in an accident and resultantly, this Court agrees with the finding arrived at by the Tribunal that the accident took place on account of the rash and negligent acts of the driver and that the driver of the Van was solely responsible for causing the accident.
In regard to the claim of enhanced compensation, it is to be mentioned that the Tribunal has adopted a multiplier of 18 and has determined the monthly income of deceased Pattu Durai at Rs. 2,500/-. After deducting 1/3rd towards personal expenses of the deceased, the Tribunal has arrived at a figure of Rs. 3,56,400/-. The deceased Pattu Durai at the time of his death was aged 29, as per averment made in the petition.
In Ex.P.10, Postmortem Certificate, the age of the deceased was mentioned as 31. In Ex.P.3-Higher Secondary Course Certificate, the date of birth of the deceased is mentioned as 07.09.1968. Considering the fact that the deceased Pattu Durai''s age is 29 years and three months at the time of his death, on 09.12.1997 (accident date). The determination of age of deceased at the time of accident as 30 by the Tribunal cannot be found fault with, in the considered opinion of this Court. P.W.1-Umarani, wife of the deceased has deposed that her husband was employed as Supervisor in an Export concern, getting a monthly salary of Rs. 4,800/- and that she has not filed a document to prove that her husband was employed in an Export concern and that her husband took treatment in the Ramachandra Hospital and that the medical bill is Ex.P.2 and that her husband''s Higher Secondary Course Certificate is Ex.P.3 and that her husband''s Graduate Certificate is Ex.P.4 and that her husband''s Inter Collegiate Tournament Certificate in Kabadi is Ex.P.5.
In Kalli and Others Vs. Indra Raj Baira and Others, , for the death of 28 years S.I. of Police, a multiplier of 18 has been adopted. In Chaya Rani Baidya and Others Vs. National Insurance Co. Ltd. and Others, , in respect of a deceased Tailor aged 30 years, a multiplier of 18 has been adopted. Therefore, the multiplier of 18 adopted by the Tribunal in regard to the death of Pattu Durai fixing his age at 30 is fair and proper, in the considered opinion of this Court.
The appellants/claimants were depending on the sole income of the deceased Pattu Durai. Even though there is no proof that the deceased Pattu Durai was working as supervisor in an Export Company, the Tribunal has fixed the monthly contribution of Rs. 1,650/- to the family, taking note that the deceased would have earned a sum of Rs. 2,500/- per month. Obviously, the Tribunal has deducted 1/3rd towards personal expenses of the deceased and has arrived at a sum of Rs. 1,650/- as monthly dependency. This sum of Rs. 1,650/- as monthly dependency is not an adequate one and appears to be on the lower side. However, bearing in mind an important fact that the deceased has to maintain the claimants as his wife and daughters, including himself this Court fixes a fair and prudent sum of Rs. 1,850/- as monthly dependency. In assessing the damages, the calculation remains in the realm of hypothesis and in this perspective, arithmetic is a good servant but a bad master, inasmuch as one has to take into consideration many imponderables. However, it cannot be lost sight of that a Tribunal/Court has to assess as best as it can, the loss so suffered. Therefore, at the rate of Rs. 1,850/- per month, for a year it works out to Rs. 22,200/-. By adopting a proper multiplier of 18 then Rs. 22,200 x 18 it comes to Rs. 3,99,600/- as compensation. As per Ex.P.2-Medical Bill dated 30.08.2001, for a sum of Rs. 1,563/- the Tribunal has granted a sum of Rs. 1,600/- and this is left untouched by this Court. Equally, this Court is not disturbing a sum of Rs. 20,000/- granted towards loss of consortium, loss of love and affection and for funeral expenses. This Court is also not altering a sum of Rs. 15,000/- awarded for loss of estate. Thus, the appellants/claimants in all are awarded the total compensation of Rs. 4,36,200/- (Rs. 3,99,600 + Rs. 20,000 + 15,000 + 1,600). Accordingly, this Court awards a sum of Rs. 4,36,200/- (Rupees four lakhs thirty six thousand and two hundred only) as compensation for the death of the deceased Pattu Durai and consequently, this Court comes to the conclusion that a sum of Rs. 3,93,000/- granted by the Tribunal as compensation to the appellants/claimants is inadequate. The lawyer''s fee fixed at Rs. 4,000/- by the Tribunal is not interfered with.
In fine, on an overall assessment of the facts and circumstances of the case and on examination of available materials on record and viewing it from any angle, this Court is of the considered opinion that an award of Rs. 3,93,000/- passed by the Motor Accident Claims Tribunal viz., the Chief Judge, Court of Small Causes, Chennai is inadequate and instead this Court awards a total compensation of Rs. 4,36,200/- (Rupees four lakhs thirty six thousand and two hundred only) as just and proper, payable by the respondents, in the facts and circumstances of the case.
Already a sum of Rs. 3,93,000/- with interest at 9% per annum from the date of petition till date of deposit etc., has been awarded by the Tribunal in its award and the same has been deposited. Therefore, a sum of Rs. 43,200/- (Rupees forty three thousand and two hundred only) with interest at 9% per annum being the difference (as enhanced compensation) is directed to be paid by the second respondent Insurance Company by means of deposit into the Motor Accident Claims Tribunal viz., the Chief Judge, Court of Small Causes, Chennai to the credit of M.A.C.T.O.P. No. 563 of 1998 within a period of two months from the date of receipt of the copy of this order. On such deposit, the appellants/claimants are entitled to receive the same by means of filing necessary payment out application as per Civil Rules of Practice in the manner known to law.
In the result, the Civil Miscellaneous Appeal is allowed in above terms. Considering the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal.