IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.606 of 2006 and C.M.P.No.2494 of 2006 The Oriental Insurance Company Ltd., Tiruppur-641 601 .. Appellant/ 2nd Respondent Vs 1.Bangarusamy 2.Bhanumathi 3.N.Ramesh .. Respondents/ Petitioner and (R3 – ex-parte) I Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 26.05.2005, made in M.C.O.P.No.17 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur. For appellant : Mr.S.Manohar For respondents : Mr.R.Subramanian Mrs.R.Meenal for RR1 & 2 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 26.05.2005, made in M.C.O.P.No.17 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, awarding a compensation of Rs.7,88,000/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/second respondent, the Oriental Insurance Company Ltd., Tiruppur-641 601 has filed the above appeal praying to set aside the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: https://hcservices.ecourts.gov.in/hcservices/ On 14.02.2002, at about 06.00 p.m. while the deceased Anandamoorthy was driving Kinetic Honda Scooter bearing registration No.TN39 F0905 towards north on the extreme left side of the Mangalam to Palladam road near Auttaiyampalayam junction, a lorry bearing registration No.TN39 E2828 came in the same direction towards north in a rash and negligent manner and dashed against the motorcycle, due to which the deceased sustained severe injuries and died. The accident had happened due to the rash and negligent driving of the driver of the lorry. As such, the owner of the lorry and the insurer of the said lorry are jointly and severally liable to pay a compensation of Rs.10,00,000/- to the claimants. 4.The claimants are the parents of the deceased Anandamoorthi. They have submitted that at the time of the said accident their son was working as Manager in S.V.Traders, Parapalayam, Tiruppur Taluk. Further, he was aged about 23 years and earning a sum of Rs.6,000/- per month. Regarding the said accident, a case was registered by the Mangalam Police Station, in Crime No.37 of 2002, under Section 304(A) of I.P.C. The claimants further submitted that the deceased was the only son to them and he extended his co-operation to their family by way of contributing his earnings. 5.The second respondent has filed a detailed counter statement and opposed the claim petition on various grounds stating that the first respondent has not submitted the claim for before the second respondent. Therefore, the second respondent is not liable to pay any compensation on behalf of the first respondent. The second respondent does not admit that the lorry bearing registration No.TN39 E2828 was driven by its driver in a rash and negligent manner and dashed against the scooter, which was driven by the deceased. The second respondent further submitted that the said accident had happened due to the rash and negligent driving of the deceased while trying to overtake one lorry and that he had only dashed against the lorry bearing registration No.TN39 E2828. As such, the deceased was at fault and he had invited the accident by his rash and negligent driving. The second respondent further submitted that at the time of the said accident, the driver of the lorry was not having a valid and effective driving licence to drive the said lorry. The second respondent does not admit the age, occupation and income of the deceased also. Further, the second respondent submitted that the claim amount of Rs.10,00,000/- with interest is excessive. 6.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident? (ii) Whether the petitioners are entitled to get compensation? If so, what is the quantum of compensation, which the petitioners are entitled to get? https://hcservices.ecourts.gov.in/hcservices/ 7.On the petitioners' side three witnesses were examined as PW1, PW2 and PW3 and 12 documents were marked as Exs.P1 to P12. On the respondents' side no witnesses were examined and no documents were marked. 8.The first petitioner was examined as PW1. The PW1, in his evidence, stated that the Ex.P1-First Information Report was registered against the driver of the lorry. The said case was registered by Mangalam Police Station in Crime No.37/2002. Ex.P2- Charge Sheet was filed against the driver of the lorry. Ex.P3- Motor Vehicle Inspector's Report, which reveals that there is no mechanical failure in the said lorry, at the time of the accident. Considering the evidence of the Exs.P1, P2 and P3 and evidence of the PW1, the learned Tribunal has come to the conclusion that the accident had happened due to the rash and negligent driving of the said lorry. The PW1 further adduced evidence stating that at the time of accident, his son was aged about 23 years old. He has also marked Ex.P4-Post Mortem Certificate. Further he adduced evidence stating that his son was working in S.V.Traders at Tiruppur. Further, the PW1 has marked Exs.P8, P9 and P10 namely Registration Certificate of the Company, Renewal of Licence and Auditing Report respectively. The PW1 further submitted that his son was earning a sum of Rs.6,000/- per month. One Chandrasekaran, co-employee, was examined as PW3. The PW3 in his evidence stated that the deceased was working in S.V.Traders and had drawn a salary of Rs.6,000/- per month. 9.Considering the evidence of the PW1 and documentary evidence, the Tribunal has come to the conclusion to decide the compensation on the basis of income and age. The Tribunal has fixed the income of the deceased as Rs.72,000/- per annum. After deducting 1/3rd share from this for his personal expenses and adopting multiplier method of 16, the Tribunal awarded a sum of Rs.7,68,000/- under the head of loss of income, Rs.15,000/- under the head of loss of love and affection and Rs.5,000/- under the head of funeral expenses. In total, the Tribunal awarded a sum of Rs.7,88,000/- as compensation to the petitioners, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, and directed the respondent to deposit the award with accrued interest, into the credit of the M.C.O.P.No.17 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur. The Tribunal directed the second respondent that in the said compensation amount, sum of Rs.2,00,000/- each of the petitioners share of award was to be deposited in any one of a nationalised bank for a period of three years, under the fixed deposit scheme, in the name of the petitioners. The petitioners were permitted to withdraw the interest once in six months from the bank. The petitioners were https://hcservices.ecourts.gov.in/hcservices/ permitted to withdraw the balance amount of Rs.3,88,000/- of the award amount, which has to be shared equally, immediately, after the deposit was made. The Advocate fees was fixed at Rs.14,880/-. 10.Learned counsel appearing for the appellant argued that the claim petition was filed under Section 163(A) r/w 166 of the Motor Vehicles Act, 1988 and as such the multiplier method cannot be adopted. The learned counsel further pointed out that the Tribunal failed to appreciate that it had jurisdiction to assess the compensation only upto a maximum annual income of Rs.40,000/-. But, in this case, the deceased had drawn a sum of Rs.72,000/- per annum. As such, the claim petition is not maintainable. The learned counsel further pointed out that as there is no proper proof for the income of the deceased, the award amount of Rs.7,68,000/- under the head of loss of income is erroneous and the compensation amount of Rs.7,88,000/- granted by the Tribunal is excessive. Hence, the learned counsel has prayed before this Court to set aside the award and decree passed by the Tribunal. 11.Learned counsel appearing for the first and second respondents argued that at the time of the accident, the deceased was aged about 23 years. Further, academic qualification is not required, since he was working in a textile unit. The learned counsel submits that the deceased is the only son to his aged parents and they were depending upon his income. After considering the evidence of the claimants and the documents marked as exhibits, the Tribunal awarded a compensation to the claimants. Regarding the income of the deceased Ex.P7-Salary Certificate, Ex.P8- S.V.Traders Registration Certificate, Ex.P9-Renewal Certificate and Ex.P10-Auditing particulars were marked. These are all proper documents to establish that the deceased was working in S.V.Traders. The Co-employee had also adduced evidence. As such, the above Civil Miscellaneous Appeal is not maintainable. 12.Considering, the facts and circumstances of the case, arguments advanced by the learned counsel appearing on either side and on scrutiny of the findings of the Tribunal, this Court is of the view that there is no proof that the income of the deceased was Rs.6,000/- per month. Considering the work firm at Tiruppur, age of the deceased and the date of accident, this Court decides the income of the deceased as Rs.4,500/-. The multiplier method adopted by the Tribunal as 16 is proper. Therefore, this Court takes the multiplier as 16 and awards a sum of Rs.5,76,000/- under the head of loss of income. The Tribunal awarded a sum of Rs.15,000/- under the head of loss of love and affection. This Court enhances the said award amount to Rs.30,000/- under the same head and the Tribunal awarded a sum of Rs.5,000/- under the head of funeral expenses. This Court enhances the said award amount to Rs.10,000/-. In total, this Court grants a sum of Rs.6,16,000/- as compensation to the claimants. The Tribunal fixed the rate of https://hcservices.ecourts.gov.in/hcservices/ interest as 9% per annum. The award was granted in the year 2005. As per the Reserve Bank guideline, the rate of interest is 7.5%. Hence, this Court has fixed the interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. Therefore, this Court reduces the compensation amount from Rs.7,88,000/- to Rs.6,16,000/-, together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. 13.On 27.02.2006, this Court imposed a condition on the appellant to deposit the entire compensation amount, with accrued interest and costs, if any, to the credit of the M.C.O.P.No.17 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, within a period of eight weeks from the date of receipt a copy of its Order. 14.As the accident had happened in the year 2002, it is open to the claimants to withdraw the entire compensation amount with accrued interest as observed above, lying in the credit of the M.C.O.P.No.17 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, by making proper payment out application, in accordance with law, subject to deduction of withdrawal if any. 15.The appellant/Insurance Company is at liberty to withdraw the excess compensation amount, which has already been deposited into the credit of the M.C.O.P.No.17 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, by observing necessary formalities before the Court. 16.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 26.05.2005, in M.C.O.P.No.17 of 2003, passed by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, is modified. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.S. Manohar, Advocate, SR. 20220 1 cc to Mr.R. Subramanian, Advocate, SR. 20391 C.M.A.No.606 of 2006 KLT (CO) kk 31/5 https://hcservices.ecourts.gov.in/hcservices/