S. Sridha and Another vs Kannupaiyan and Another

R. Sudhakar, J.—Though the miscellaneous petitions are listed for hearing, by consent of learned Counsel appearing for both parties, the appeal itself is taken up for disposal.

The appeal is against the award and decree dated 2.11.2000 in M.C.O.P. No. 640 of 1999 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Salem. The owner of the lorry and the insurance company are the appellants therein.

This is a case of fatal injury. The claimants are the father and mother of the deceased. The age of the deceased at the time of the accident was 35 years. He was working as a coolie in a unit engaged in stone-cutting and sizing. According to the claim petition, he was earning Rs. 5,000 per month. The fatal accident happened on 9.5.1999 at 8.30 a.m. when the deceased was walking along Salem-Sankari Main Road from north to south on the left side. The deceased was hit by the lorry bearing registration No. TN 37-B 4145 and he died on the spot. A claim for compensation was made for Rs. 5,00,000.

The claim was resisted by the insurance company.

On behalf of the claimants, PW 1, the claimant-mother of the deceased and PW 2, the eyewitness to the occurrence were examined and the certified copy of the F.I.R., Exh. P1; the certified copy of the charge-sheet, Exh. P2; the certified copy of the report of the Motor Vehicles Inspector regarding the accident, Exh. P3; the certified copy of post-mortem report of the deceased Perumal, Exh. P4 and the certified copy of the judgment in C.C. No. 250 of 2000 on the file of the court of Judicial Magistrate No. 1, Sankari, Exh. P5, were marked. No oral and documentary evidence was tendered on behalf of the insurance company and the owner of the vehicle.

The Tribunal, based on the evidence of PW 2, the eyewitness and other materials available on record, came to the conclusion that the liability should be fixed on the driver of the vehicle as he drove the vehicle in a rash and negligent manner consequently, the owner of the vehicle and the insurance company were held liable. There is no serious dispute on this score.

As regards the quantum, the Tribunal came to the conclusion that there was no proof or document to show that deceased was earning Rs. 5,000 p.m. However, the Tribunal determined the income of the deceased at Rs. 4,500 p.m., which according to the insurance company is not based on any rationale or logic. Total compensation awarded by the Tribunal is Rs. 4,32,000 based on the above said income.

The only dispute now is relating to the determination of the income of the deceased. Learned Counsel for the appellants would submit that as a coolie, the deceased, at the most, would be earning only Rs. 100 per day in the year 1999. If the said amount is taken into consideration and also considering the daily earning capacity of similarly placed persons during the relevant time, the total monthly income of the deceased would be Rs. 3,000 only. Learned Counsel for the respondents-claimants, while accepting the fact that there was no material before the Claims Tribunal to determine the income at Rs. 4,500, would fairly submit that he has no serious objection for such determination of the income at Rs. 3,000 per month.

On fixing the income of the deceased at Rs. 3,000 p.m., the total annual income of the deceased will be Rs. 36,000 and after deducting 1/3rd for his personal expenses, the annual income of the deceased will be Rs. 24,000. Since the multiplier ''12'' adopted by the Tribunal is in consonance with the judgment of the Apex Court in Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others, , the same is accepted. Thus, by adopting multiplier ''12'', the loss of income comes to Rs. 2,88,000 (Rs. 24,000 x 12).

Further, no amount has been awarded by the Tribunal in respect of the claim made by the claimants under other heads which are as follows:

(i) Transport to hospital Rs. 3,000 (ii) Funeral expenses Rs. 7,000 (iii) Loss to estate Rs. 50,000

Though the claim has been made under the above heads and since no amount has been awarded, this court feels that appropriate amount should be awarded on these heads, following the decision of a Division Bench of this court in Pallavan Transport Corporation Ltd. Vs. M. Anbumani and Others, , relevant portion of which reads as follows:

(6) It is unfortunate that the claimants have not filed cross-objections. But at the same time, it is not as if this court is helpless and this court can certainly invoke its powers conferred under Order 41, Rule 33 of the CPC since the court in deciding these matters, should remember that the compensation awarded should not be inadequate, neither should be unreasonable, excessive nor deficient. In this case, this court is of the view that the compensation that has been fixed by the Tribunal is on the lower side.

Considering the age of the deceased who was 35 years at the time of death and the age of the mother said to be 53 years and the age of the father at 55 years at the time of the accident, the possibility of the deceased contributing to the benefit of the claimants should also be considered.

In the result, while modifying the compensation at Rs. 2,88,000 under the head ''loss of income'' as against Rs. 4,32,000 awarded by the Tribunal, this court awards the following amounts under other heads:

(i) Loss to estate Rs. 25,000 (ii) Transport to hospital Rs. 3,000 (iii) Funeral expenses Rs. 7,000 (iv) Loss of love and affection Rs. 10,000

Thus, the total compensation awarded by the Tribunal is modified to Rs. 3,33,000 (rupees three lakh and thirty-three thousand). The interest at 9 per cent granted by the Tribunal is confirmed.

Thus, the claimants are entitled to compensation at Rs. 3,33,000 with interest at 9 per cent per annum from the date of claim petition till the date of deposit. The insurance company is entitled to withdraw the excess amount, if any, after paying the compensation to the claimants. The civil miscellaneous appeal is disposed of accordingly. No costs. C.M.Ps. are closed.

Learned Counsel for the claimants would submit that in view of the order passed in the main appeal itself, the Registry may be directed to send the records back to the Tribunal, so that claimants could withdraw the amount of compensation. Registry is accordingly directed to send the records to the Tribunal along with a copy of this judgment.