1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.08.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.A (MD) No.376 of 2011 and MP(MD)No.3 of 2011 The Divisional Manager National Insurance co.Ltd 40, Perira Street Tuticorin. .. Appellant/2nd Respondent Vs. 1.Mourine 2.Hermina 3.Hervin 4.Pertonila .. Respondents/Petitioners 5.Lenin V.George .. Respondent/1st Respondent Civil Miscellaneous Appeal filed under section 173 of the Motor Vehicles Act, 1988 against the award dated 22.01.2010 passed in MCOP No.301 of 2008 by the Motor Accidents Claims Tribunal/Additional District Court/Fast Track Court No.I, Tuticorin. For Appellant : Mr.S.Srinivasa Raghavan For RR – 1 to 5 : Mr.P.Pethu Rajesh JUDGMENT This Civil Miscellaneous Appeal has been directed against the award dated 22.01.2010 passed in MCOP No.301 of 2008 by the Motor Accidents Claims Tribunal/Additional District Court/Fast Track Court No.I, Tuticorin. 2. The respondents 1 to 4 as petitioners have filed MCOP No.301 of 2008 on the file of the Motor Accidents Claims Tribunal praying to pass an award of Rs.40,00,000/-, wherein the present respondent has been shown as second respondent. 3. It is stated in the petition that on 20.08.2008 at about 15.15 hours the deceased has travelled in Maruthi Swift Car bearing Registration No.K.A.04-ME-4432 and the same has been driven by the driver of the first respondent. The driver of the first respondent has driven the same in rash and negligent manner and dashed against a lorry bearing Registration No.TN-69-K-5180. Due to accident, the deceased has sustained fatal injuries and on the way to hospital he passed away. The deceased has earned Rs.90,000/- per month. Under the said circumstances the present petition has been filed for getting the relief sought for therein. 4. In the counter filed on the side of the first respondent it is averred that the accident has not happened due to rash and negligent driving of the driver of the first respondent. Since the driver of the lorry without giving signal has suddenly stopped the same, the accident has happened and therefore, the present petition deserves to be dismissed. 5. In the counter filed on the side of the second respondent it is https://hcservices.ecourts.gov.in/hcservices/ 2 stated that the driver of the first respondent is not responsible for the accident. The entire accident has happened only due to negligence on the part of the driver of the lorry which involved in the accident. The petitioners have claimed excessive compensation and there is no merit in the petition and the same deserves to be dismissed. 6. On the basis of the available evidence on record, the Motor Accidents Claims Tribunal has awarded Rs.6,90,000/- by way of compensation. Against the quantum as well as liability, the present Civil Miscellaneous Appeal has been preferred at the instance of the second respondent as appellant. 7. The learned counsel appearing for the appellant/second respondent has challenged the award in question on the following grounds: (a) The driver of the first respondent has not caused the accident and only due to negligence on the part of the driver of the lorry which involved in the accident, the accident has happened and therefore, the respondents 1 and 2 cannot be mulcted with liability. (b) Even though on the side of the petitioners no document has been filed so as to prove the alleged partnership business of the deceased and others, the Motor Accidents Claims Tribunal has erroneously fixed Rs.5,000/- per mensem and further no deduction has been given. Under the said circumstances the award passed by the Motor Accidents Claims Tribunal is liable to be modified. 8. The learned counsel appearing for the respondents 1 to 4/petitioners has contended that the deceased has run a partnership business and further he has held the post of Vice Chairman of Panchayat Union and thereby he earned Rs.90,000/- per mensem and the Motor Accidents Claims Tribunal after considering the business of the deceased as well as his status has rightly awarded compensation of Rs.6,90,000/- and the same cannot be modified. 9. It is an admitted fact that the age of the deceased is 54. The consistent case of the petitioners is that the deceased has run a partnership business and thereby earned huge amounts. In order to prove the above aspect, on the side of the petitioners Ex.P7 has been marked. In Ex.P7 it is mentioned as VST Jeyaraj Nadar and Sons. In fact this Court has scanned the entire evidence adduced on the side of the petitioners. No where it is stated that the deceased has had connection with the said business. If really the deceased has had a partnership business as alleged in the petition, definitely some documents would have emerged in the name of the deceased. But except Ex.P7 on the side of the petitioners, no document has been filed so as to prove that the deceased has run a partnership business. 10. The Motor Accidents Claims Tribunal has fixed monthly income of the deceased at Rs.10,000/-. Further the Motor Accidents Claims Tribunal has come to the conclusion that even though the deceased has passed away, the petitioners can get Rs.5,000/- per mensem. As rightly pointed out on the side of the appellant no deduction has been given by the Motor Accidents Claims Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 3 11. Considering the age of the deceased and also considering the family members of the deceased, this Court is of the view to fix Rs.6,000/- per mensem. After deducting 1/3rd, it comes to Rs.4,000/- and yearly it comes to Rs.48,000/-. The Motor Accidents Claims Tribunal has adopted '11' multiplier and in that way it comes to Rs.5,28,000/-. 12. The Motor Accidents Claims Tribunal has awarded Rs.10,000/- towards consortium, Rs.10,000/- towards love and affection and Rs.5,000/- towards funeral expenses. With regard to the amounts awarded on the basis of the heads mentioned supra, this Court is of the view that no change need be made. The Motor Accidents Claims Tribunal has awarded Rs.5,000/- towards loss of estate and the same has been given without any legal basis and therefore the amount awarded towards loss of estate cannot be accepted and in aggregation the petitioners are entitled to get Rs.5,53,000/-. Further no contra evidence is available on the side of the second respondent with regard to manner of accident and therefore, the Court can come to a conclusion that the accident has taken place due to rash and negligent driving of the driver of the first respondent. 13. Since the petitioners are entitled to get Rs.5,53,000/-, the award in question is liable to be modified as follows: 14. In fine, this Civil Miscellaneous Appeal is allowed in part without cost. Connected Miscellaneous Petition is closed and the award passed in MCOP No.301 of 2008 by the Motor Accidents Claims Tribunal/Additional District Court/Fast Track Court No.I, Tuticorin is modified as follows: The respondents 1 to 4/petitioners are entitled to get Rs.5,53,000/- by way of compensation. In other aspects, the award in question is confirmed. If the appellant/second respondent has deposited excessive amount, the appellant/second respondent is entitled to withdraw the same. Sd/- Assistant Registrar (Writs) /True copy/ Sub Assistant Registrar To The Motor Accidents Claims Tribunal/ Additional District Court/ Fast Track Court No.I, Tuticorin. +1CC TO MR.T.THIRUVANDI, ADVOCATE SR.25424 +1CC TO MR.S.SRINIVASA RAGHAVAN, ADVOCATE SR.25433 Mj SR : 19.08.2011 : 3p/4c CMA (MD) No.376 of 2011 01.08.2011 https://hcservices.ecourts.gov.in/hcservices/