IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.9.2008 CORAM:- Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No.1602 of 2008 and M.P. No. 1 of 2008 Royal Sundaram Alliance Insurance Company Limited, Thirumalai Tower, 723 Avinashi Road, Coimbatore – 18. .. Appellant/ 3 rd respondent Vs. 1. Ayyamperumal 2. Kuzhandayi 3. Pachiammal 4. P. Sithayan 5. Somasundaram .. Respondents/Petitioner 1 to 3 & (R4 & 5 exparte in lower Court respondents 1 & 2 notice may be dispensed with Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the award and decree dated 26.2.2008 in MCOP No. 243 of 2006, on the file of the Motor Accidents Claims Tribunal, (subordinate Court), Bhavani, Erode District. For Appellant : Mr. N. Vijaya Raghavan For Respondents : Mr. MAP. Thangavel JUDGMENT The Insurance Company has filed this appeal challenging the award dated 26.2.2008 in MCOP No. 243 of 2006, on the file of the Motor Accidents Claims Tribunal, (Subordinate Court), Bhavani, Erode District. https://hcservices.ecourts.gov.in/hcservices/ 2. It is a case of fatal accident. The accident, in this case, happened on 10.7.2006. The deceased Chellavel, aged 24 years, a bachelor, was riding a moped, when he was hit by a Tractor – cum- Trailor loaded with sand. In that accident, the said Chellavel died. Father aged 70 years, mother aged 61 years and sister aged 20 years have filed the claim petition claiming a sum of Rs.6,00,000/- as compensation stating that the deceased was working as an agricultural coolie engaged in cutting of sugar cane and earning Rs.8,000/- per month. 3. In support of the claim petition, the father of the deceased was examined as P.W. 1. One Sathishkumar, the eye witness, was examined as P.W.2. Documents Exs. A1 to A7 were marked . On behalf of the appellant/ 3rd respondent before the Tribunal, one Mr.M. Vaideeswaran, an official of the insurance company, was examined as R.W.1. Marrappan, Investigator was examined as R.W.2. One Annapoorani, representative of the Tahsildar office was examined as R.W.3. On behalf of the Appellant/ 3rd respondent before the Tribunal documents Exs. R1 to R5 were marked. 4. As far as the negligence is concerned, based on the oral evidence of the eye witness, the Tribunal held that the death of the deceased was due to rash and negligent driving of the driver of the tractor -cum- trailor, which was carrying sand. This fact is not disputed. The appellant contested before the Tribunal stating that the owner of the vehicle committed an illegal act of carrying sand not meant for agricultural purposes and therefore, the insurance company is under no obligation to compensate the claimants for the wrong committed by the driver and owner of the vehicle. In support of this contention, the officials R.Ws. 1 to 3 were examined and documents were marked. The Tribunal rejected the appellant's contention and plea that the owner of the vehicle committed an illegality by carrying sand for other than agricultural purposes. The Tribunal held that there was no material to come to the conclusion that the sand carried by the tractor-cum-trailor was not intended for agricultural purposes. It held that there is no bar in carrying sand in a tractor-cum-trailor for agricultural purposes. The evidence of the officials is that sand was carried in the tractor-cum-trailor at the time of accident and it is nobody's evidence that the vehicle cannot carry sand. If sand is carried without the permission of the Revenue Authorities, it is for them to take action against the owner or other concerned persons as per relevant laws. In the absence of specific material to disclaim the liability as alleged by the appellant, the finding of the Tribunal insofar as the liability of the appellant insurance company to compensate the claimant stands confirmed. https://hcservices.ecourts.gov.in/hcservices/ 5. It is an admitted fact that the deceased is a bachelor. He was aged 24 years and the same is supported by the postmortem certificate Ex.P3. The Claimants are aged parents and sister. The Tribunal decided the compensation in paragraph 11 of the award. The Tribunal fixed the income of the deceased at Rs.3,000/- p.m. After deducting 1/3rd towards personal expenses, the Tribunal fixed the loss of contribution to the family of the deceased at Rs.2,000/- per month and Rs.24,000/- per annum. Adopting 5 multiplier, the Tribunal determined the pecuniary loss to the family of the deceased at Rs.1,20,000/-. In addition, the Tribunal granted compensation under conventional heads. In all, the Tribunal granted the following amount as compensation with interest at 6% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of pecuniary benefits Rs.1,20,000/- 2 Transport expenses Rs. 5,000/- 3 Funeral expenses Rs. 5,000/- 4 Loss of love and affection to the parents Rs.25,000/- each and Rs.20,000/- to the sister . Totally 70,000/- Rs. 70,000/- Total Rs.2,00,000/- 6. Learned counsel for the appellant pleaded that the quantum of compensation granted for loss of love and affection to the claimants is on the higher side and further, they are not wholly dependents on the deceased. 7. Considering the fact that substantial compensation has been granted for loss of pecuniary benefits, the compensation for loss of love affection has to be suitably modified and reduced as it cannot be a bonanza. Accordingly, the award of the Tribunal stands modified as follows:- Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of pecuniary benefits Rs.1,20,000/- Rs.1,20,000/- 2 Transport expenses Rs. 5,000/- Rs. 5,000/- 3 Funeral expenses Rs. 5,000/- Rs. 5,000/- 4 Loss of love and affection to the father and mother (Rs.15,000/- each) --- Rs. 30,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 5 Loss of love and affection to the sister --- Rs. 15,000/- 4 Loss of love and affection to the parents Rs.25,000/- each and Rs.20,000/- to the sister . Totally 75,000/- Rs. 70,000/- --- Total Rs.2,00,000/- Rs.1,75,000/- 8. Since the accident happened in the year 2006 and the award was passed in the year 2008, the interest granted by the Tribunal at 7.5% stands confirmed. 9. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the Tribunal is reduced to Rs.1,75,000/- from Rs.2,00,000/-. (ii) The award amount shall carry interest at 7.5% per annum as awarded by the Tribunal. (iii) It is stated that entire award amount has already been deposited. The Claimants are entitled to withdraw the same as per the order of this Court as apportioned below:- (i) Mother - Rs. 75,000/- (ii) Father - Rs. 65,000/- (iii) Sister - Rs. 35,000/- (iv) Out of the award amount, the first claimant/mother is entitled to withdraw Rs.75,000/-together with interest and costs. Second claimant/ Father is entitled to withdraw Rs.65,000/- together with interest. (v) The third claimants / sister is entitled to withdraw Rs.35,000/- together with interest. (vi) Consequently, M.P.No. 1 of 2008 is closed. https://hcservices.ecourts.gov.in/hcservices/ (vii) There shall be no orders as to costs. Sd/- Deputy Registrar. /true copy/ Sub Asst. Registrar. To The Motor Accidents Claims Tribunal, (Subordinate Judge), Bhavani, Erode District. 1 cc to Mr.N. Vijayaraghavan, Advocate, SR. 55223 1 cc t Mr.Ma.P. thangavel, Advocate, SR. 55732 CMA No. 1602 of 2008 CK (CO) kk 4/11 https://hcservices.ecourts.gov.in/hcservices/