The District Collector vs Ponnammal and Others

T. Mathivanan, J.—Challenge is made in this appeal to the award of Rs. 3,22,000/-, dated 17.12.2007 and made in M.C.O.P. No. 88 of

2007 on the file of Motor Accident Claims Tribunal (Principal District Judge), Theni, by the Appellant, who is the Respondent in the claim petition.

The facts, which is absolutely necessary for the disposal of the Civil Miscellaneous Appeal are as under:

That on 12.05.2006 at 04.00 p.m, the deceased Naduppan @ Kuruvan was hit from behind by the car of the Appellant/Respondent bearing

registration No. TN-58-G-5555, when he was proceeding by walk on Kailasapatti to Periyakulam main road near Muthiah temple, which resulted

in his death at hospital. Hence, the Respondents being the wife, children and mother had filed a claim petition before the Motor Accident Claims

Tribunal (Principal District Court), Theni District in M.C.O.P. No. 88 of 2007, claiming a sum of Rs. 15,45,000/.

The Appellant/Respondent had contested the claim petition on the ground that the deceased himself was at fault. Both parties to the claim

petition went for trial. Including the first Respondent/first claimant two witnesses were examined on behalf of the claimants. During the course of

their examination Ex.P.1 to Ex.P.5 were marked. On the other hand, neither oral nor documentary evidence was adduced on behalf of the

Appellant/Respondent.

On appraising the evidence, both oral and documentary, the Claims Tribunal had proceeded to award a sum of Rs. 3,22,000/-as against the

claim of Rs. 15,45,000/-. Being aggrieved by the award the Respondent stands before this Court with this appeal.

Heard both sides.

The learned Counsel for the Appellant had resisted the claim on two grounds.

(1) Negligence and

(2) Quantum

The Appellant/Respondent has not disputed the accident, but it was contended that while walking on the road the deceased had slipped, lost the

balance and ultimately fallen down in front of the vehicle and thereby he himself had invited the accident.

The learned Counsel for the Appellant/Respondent contrary to the counter filed on behalf of the Appellant/Respondent has contended that the

accident was taken place due to the sudden cross of the deceased. The Appellant/Respondent has however not produced any legal evidence in

support of his contention. The Tribunal has also discussed this fact in paragraph No. 6 of the award.

On the other hand, the learned Counsel for the Respondents/claimants has submitted that while the deceased was walking on the left side of the

road, the car of the Appellant/Respondent came behind and hit against the deceased, which resulted in his death. In this connection, Ex.P.1-First

Information Report and the evidence of P.W.2 are very much relevant to deal with the issue of negligence.

Ex-facie, it appears from Ex.P.1 that one Kuruvan, S/o Anumapoyen had lodged a complaint in respect of the accident, in which he has stated

that when the deceased Naduppan @ Kuruvan was proceeding on the mud portion of the road in front of Muthiah temple, a white colour Scorpio

car bearing registration No. TN-58-G-5555 came in a hectic speed and dashed against Kuruvan and as a result of which, he was thrown out and

sustained injuries over his left fore arm neck, left thigh etc.,. He has also stated that after hitting the deceased Naduppan @ Kuruvan, the car went

further and rammed against a drumstick tree and thereafter sped away. Unfortunately, the complainant to the police has not been examined in this

case. P.W.2 has stated in his evidence that he had witnessed the occurrence directly. He has stated that at about 04.00 p.m on 12.05.2006, when

Naduppan @ Kuruvan was proceeding on the eastern side of the road, a white colour car which came from Theni towards Periyakulam had hit

against the deceased and caused his death. The evidence of P.W.2 has not been discredited by the cross-examination of the

Appellant/Respondent. Even the First Information Report-Ex.P.1 was also not disproved.

Keeping in view of this position and other circumstances, this Court is of view that the negligence for the occurrence is on the part of the driver

of the car and not on the part of the deceased.

Secondly, it is established that the deceased was aged about 45 years at the time of the occurrence. It is the case of the Respondents/claimants

that the deceased was a Mason by profession and he was also doing Real estate business on house sites and thereby he was earning a sum of Rs.

700/-per day. However, the Tribunal had determined the monthly income of the deceased at Rs. 3,000/-.

Keeping in view of the prevailing wage rates, this Court has considered that fixing up of Rs. 3,000/-towards monthly income of the deceased is

not much more. The first Respondent/claimant is the wife of the deceased and other Respondents 2 to 4 are the children, whereas the 5th

Respondent is the mother. At the time of occurrence, the age of the deceased was 45 years. The Tribunal has also determined that the age of the

deceased was 45 years at the time of the occurrence. As per II Schedule to Section 163(A) of the Motor Vehicles Act 1988, the appropriate

multiplier would be ''15'' for the age group of 42 to 45 years, but the Tribunal has wrongly adopted the multiplier ''13'' even after determining the

age of deceased was 45 years at the time of occurrence.

Keeping in view of the monthly income of the deceased at Rs. 3,000/-,the annual income would be Rs. 36,000/-,deducting 1/3rd towards the

personal and living expenses of the deceased, the 2/3 remainder would be Rs. 24,000/-. On application of multiplier of ''15'' the loss of income of

the family would be Rs. 3,60,000/-. The Tribunal has awarded a sum of Rs. 8,000/-towards consortium for the first Respondent/ first claimant.

Another sum of Rs. 2,000/-awarded to the funeral expenses. But the learned Counsel for the Respondents/claimants has contended that the

consortium awarded by the Tribunal is very much lesser than the real loss and that the other Respondents/claimants have not been awarded with

any compensation towards loss of love and affection.

On considering the submission made on behalf of the Respondents/claimants, this Court is of the view that a sum of Rs. 10,000/-can be

awarded to the first Respondent/first claimant towards loss of consortium. Apart from this, the Respondents 2 to 4 can also be awarded with a

sum of Rs. 5,000/-each towards loss of love and affection. It is apparent that the Tribunal had awarded a sum of Rs. 2,000/-towards funeral

expenses, but, it may be enhanced at Rs. 5,000/-considering the prevailing circumstances. Accordingly, the award of the Tribunal viz., Rs.

3,22,000/-has been enhanced in the following manner.

Annual income Rs.3000 x 12 = Rs. 36,000/-

After deducting 1/3, 2/3 = Rs. 24,000/-

remainder

appropriate multiplier would be = Rs. 10,000/-

''15'' loss of income of family

Rs.24,000/- x 15

loss of consortium for the 1st = Rs. 10,000/-

respondent has been enhanced

from Rs.8000/- to Rs.10,000/-

loss of love and affection for = Rs. 15,000/-

respondents 2 to 4

funeral expenses Rs.2,000/- is = enhanced to

enhanced to

Total = Rs.3,90,000/-

Accordingly, this Court has decided that the Respondents/claimants are entitled to a sum of Rs. 3,90,000/-. The Appellant / Respondent is

liable to pay this amount to the Respondents with interest at the rate of 7.5% p.a. from the date of petition till the date of realization.

In the result, the appeal is dismissed. The award of the Tribunal of Rs. 3,22,000/-has been enhanced Rs. 3,90,000/-. The Respondents/claimants

are directed to pay the excess court fee for the enhanced amount of compensation. The Appellant/Respondent is directed to deposit the remaining

balance, burring the amount already deposited, within a period of eight weeks from the date of receipt of a copy of this order. Consequently,

connected miscellaneous petition is also dismissed. There is no order as to costs.