United India Insurance Co. Ltd. vs V. Geetha

V.M. Velumani, J.—Challenging the Award, dated 8.9.2004, made in M.C.O.P. No.490 of 2003, on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Thanjavur at Kumbakonam, the Appellant has filed the Civil Miscellaneous Appeal.

The Appellant is the Insurance Company. The Respondents 1 to 5 are the Claimants filed a Claim Petition, claiming Compensation of Rs.5,00,000, for the death of the husband of the First Respondent, father of the Respondents 2 to 4 and son of the Fifth Respondent. The Sixth Respondent is the Owner of the Vehicle, which was insured with the Appellant. The 7th Respondent is the Transport Corporation, Owner of the Bus, which was also involved in the accident.

Facts of the case:

On 13.6.2002 the deceased Vaithiyanathan was travelled from Kumbakonam to Chennai in the Bus belonging to the 7th Respondent, bearing Registration No.TN-01-N-6637. On 14.6.2002, at about 4.30 a.m., when the Bus belonging to 7th Respondent was crossing Maduranthagam Killiyur Bridge in a normal speed, a Lorry bearing Registration No.TN-23-B-2399 belonging to 6th Respondent, was driven by its Driver in a rash and negligent manner and dashed against the Bus belonging to the 7th Respondent. In the accident, the Lorry Driver and the said Vaithiyanathan died on the spot. The Conductor of the Bus lodged a Complaint to the Police wherein it has been stated that the accident took place due to rash and negligent driving of the Driver of the Lorry belonging to the 6th Respondent.

The Appellant denied all the allegations made in the Claim Petition and stated that the accident did not take place due to rash and negligent driving of the Driver of the Lorry, but it was only due to rash and negligent driving of the Driver of the Bus belonging to the 7th Respondent. The Appellant has stated that the Pension received by the deceased cannot be taken, as income of the deceased and further, stated that the Compensation claimed by the Respondents 1 to 5 is excessive.

The 7th Respondent filed Counter Statement stating that the 7th Respondent has been impleaded as a formal party. According to the 7th Respondent, the accident took place only due to rash and negligent driving of the Driver of the Lorry and FIR has been registered in Cr. No.509 of 2012 against the Driver of the Lorry in Maduranthagam Police Station. Therefore, prayed for dismissal of the Claim Petition as against the 7th Respondent.

The 6th Respondent, who is the Owner of the Lorry, remained ex parte before the Tribunal.

Before the Tribunal, the First Respondent was examined as PW1 and Conductor of the Bus was examined as PW2 and marked 6 Documents as Exs.A1 to A6. The Appellant examined one Ramanathan as DW1 and no Document was marked. PW2, the Conductor of the Bus, is the Eyewitness to the accident. Based on the pleadings and evidence the Tribunal held that the accident took place only due to rash and negligent driving by Driver of the Lorry and that the Appellant, who is the Insurer of the Lorry, is liable to pay Compensation to the Claimants.

The Tribunal fixed the Notional Income of the deceased at Rs.5,000 p.m. Age of the deceased was taken as 58 and applied Multiplier of 8 and awarded a total sum of Rs.4,55,000, as Compensation. Aggrieved against the said Order, dated 8.9.2004, the Appellant has preferred the present Appeal.

The learned Counsel for the Appellant contended that the accident took place involving two heavy Vehicles and the Tribunal ought to have apportioned the payment of Compensation in proportion to the negligence of the Drivers of both the Vehicles. The amount granted for Loss of Income is on higher side as the Tribunal fixed the monthly contribution of Rs.5,000 by the deceased to the family without any basis.

Similarly Multiplier of 8 applied by the Tribunal is contrary to the facts and evidence of First Respondent. The amount awarded towards Consortium and Loss of Love and Affection is excessive, therefore, prayed for allowing the Appeal.

Per contra, the learned Counsel for the Respondents 1 to 5 contended that the accident took place only due to rash and negligent driving by Driver of the Lorry. The First Respondent has proved the age of the deceased as 58 years at the time of accident. In any event, as per the Post-Mortem Report, age of the deceased was only 59 years at the time of accident. The correct Multiplier as per the Judgment of the Hon''ble Apex Court in Sarla Verma v. Delhi Transport Corporation, 2009 (2) TN MAC 1 (SC), is ''9''. The Tribunal is not is correct in applying Multiplier of 8 as per Second Schedule of the Motor Vehicles Act. The Compensation awarded toward Loss of Consortium and Loss of Love and Affection, is very meagre and it must be enhanced, invoking provisions of Order 41, Rule 33 of CPC.

The learned Counsel for the Respondents 1 to 5 relied on the following Judgments:

Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., 2014 (1) TN MAC 459 (SC):

''11. Further, regarding the use of Multiplier, it was held in the Sarla Verma v. Delhi Transport Corporation & another, 2009 (2) TN MAC 1 (SC): 2009 (6) SCC 121, which was upheld in Santhosh Devi case (supra), as under:

''42. We, therefore, hold that the Multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative Multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-15 for 66 to 70 years''.

Therefore, applying the principles of Sarla Verma in the present case, we hold that the High Court was correct in applying the Multiplier of 18 and we uphold the same for the purpose for calculating the amount of Compensation to which the Appellant/Claimant is entitled to.''

Heard the learned Counsel appearing for the Appellants and the Respondents 1 to 5. I have perused all the materials on record and the arguments advanced by the learned Counsel for the Appellants as well as the Respondents 1 to 5.

The points for consideration in this Appeal are:

(i) Whether the accident took place due to rash and negligent driving by the Driver of the Respondent 6 & 7.

(ii) Whether Compensation amount has to be apportioned between the Appellant and the 7th Respondent.

(iii) Whether the Compensation awarded is just and proper or excessive.

Points 1 & 2:

The Conductor of the Bus was examined as PW2, who is the Eyewitness to the occurrence. He lodged a Complaint to the Police Station, wherein it has been stated that the accident took place due to rash and negligent driving by the Driver of the Lorry, belonging to the 6th Respondent. The Appellant has not let in any contra evidence.

In view of this facts, I hold that accident took place only due to rash and negligent driving by the Driver of the Lorry belonging to the 6th Respondent and Appellant, who is the Insurer of the Lorry is liable to pay Compensation.

It is pertinent to note that the present appeal against the 6th & 7th Respondents has been dismissed for non-prosecution and the Appellant has not taken any steps to restore the Appeal against the Respondents 6 & 7.

Point No.3:

The deceased is a retired Head Master, he was drawing a sum of Rs.5,763 as Pension. Being a retired Headmaster, he would have taken private tuitions and earned additional income. The First Respondent is a house-wife. The Respondents 2 to 4 are students and Fifth Respondent is aged mother. They do not have any independent income. Therefore, Tribunal arriving at a Notional Income of Rs.40,000 per year and after deducting ? amount, towards Personal Expenses of the deceased is correct. This has to be taken in addition to the Family Pension, which the First Respondent is receiving. The reasons given by the Tribunal to arrive at annual contribution by the deceased as Rs.40,000 is proper. The Tribunal taken the age of the deceased as 58 years.

The learned Counsel for the Appellant contended that the First Respondent admitted the age of the deceased as 62 years. This contention is not correct. From the records, it is seen that there is no such admission. From the Post-Mortem Report, it is seen that the age of the deceased is 59 years. The learned Counsel for Respondents 1 to 5 relied on Paragraph 11 of the Judgment reported in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., 2014 (1) TN MAC 459 (SC), where Sarla Verma case has been referred to with approval. As per the Judgment of the Hon''ble Apex Court in Sarla Verma v. Delhi Transport Corporation, 2009 (2) TN MAC 1 (SC), correct Multiplier to be adopted is 9. The Tribunal has applied Multiplier as mentioned in the Second Schedule as 8, which is not correct. Applying Multiplier ''9'' as per Sarla Verma v. Delhi Transport Corporation, 2009 (2) TN MAC 1 (SC), the Compensation for Loss of Income is Rs.40,000 x 9 = 3,60,000.

The Tribunal has granted a sum of Rs.35,000 towards Loss of Consortium and Rs.25,000 each to the Respondents 2 to 4 and Rs.20,000 to the Fifth Respondent for Loss of Love and Affection. These amounts are very meagre. Therefore, the Compensation of Loss of Consortium is enhanced to Rs.1,00,000 from Rs.30,000. Loss of Love and Affection is enhanced to Rs.50,000 each to the Respondents 2 to 5. In all other aspects, the award of the Tribunal is confirmed.

The break-up details of the Award thus modified by this Court are as follows:

S. No.

Description

Amount awarded by Tribunal

Amount awarded by this Court

Award confirmed or enhanced or granted

1

Loss of Income

Rs.3,20,000

Rs.3,60,000

Enhanced by Rs.40,000

2

Loss of Consortium

Rs.30,000

Rs.1,00,000

Enhanced by Rs.70,000

3

Loss of Love and Affection

Rs.95,000

Rs.2,00,000

Enhanced by Rs.1,05,000

4

Transportation Charges

Rs.5,000

Rs.5,000

Confirmed

Total

4,55,000

6,70,000

Enhanced by Rs.2,15,000

In the result, the Civil Miscellaneous Appeal is disposed of. No costs. The amount awarded by the Tribunal is enhanced to Rs.6,70,000 (Rupees Six Lakhs and seventy thousand only), as total Compensation. The Appellant is directed to deposit the said amount with interest @ 9% p.a. From the date of Petition i.e. 2.9.2002, on Rs.4,55,000 and on the enhanced amount from the date of this Order till the date of deposit, less the amount already deposited, within a period of eight weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the First Respondent would be entitled to Rs.3,20,00 and the Second Respondent would be entitled to Rs.1,00,000 and the Third Respondent would be entitled to Rs.1,00,000 and the Fourth Respondent would be entitled to Rs.1,00,000 and the Fifth Respondent would be entitled to Rs.50,000 with respective proportionate accrued interest and costs, less the amount, if any, already withdrawn. The Tribunal shall deposit the share of the Fourth Respondent, who is minor Claimant, in a Fixed Deposit in any one of the Nationalised Banks, which shall be renewed periodically till he attains majority. The First Respondent-Mother of the minor is permitted to withdraw interest on the share of her Minor Child, viz., the Fourth Respondent herein, once in three months from the Bank directly.

C.M.A. disposed of enhancing Compensation - No costs.