IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.01.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.43 of 2007 1.Mallika 2.Radhika 3.R.Priya ... Appellants Vs. 1.Rangaswamy 2.P.Sampath 3.The New India Assurance Co. Ltd., Divisional Officer 490-A, 1st Floor Avanasi Road Near Nava India Peelamedu, Coimbatore ... Respondents (1st Respondent Given up) Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 02.04.2004 made in M.C.O.P.No.88 of 2003 on the file of the Motor Accident Claims Tribunal (Court of First Additional District Judge), Erode. For Appellants : Mr.N.Manokaran For 3rd Respondent : Mr.K.Padmanabhan For R2 : No App. J U D G M E N T The claimants before the Tribunal are the appellants herein. They had made a claim before the Motor Accident Claims Tribunal (Court of I Additional District Judge), Erode in M.C.O.P.No.88/2003 against the respondents herein for a sum of Rs.20,00,000/- as compensation for the death of Rasappan, the husband of the first appellant and the father of the other appellants in a road accident that allegedly took place on 05.10.2002. 2. According to the case of the appellants, while the deceased Rasappan was proceeding in his moped bearing Regn. No.TN- 36 Z-1572 on Palladam - Coimbatore main road, he met with an accident at about 12.00 p.m on 05.10.2002 when the lorry bearing Regn. No.TN-38 M-5305 belonging to the second respondent and insured with the third respondent dashed against the above said moped and the same resulted in fatal injuries leading to the instantaneous death of Rasappan. Contending that the first respondent, who was the driver of the offending vehicle, namely the lorry bearing Regn.No.TN-38 M-5305, was at fault and that the deceased was deriving a monthly income of Rs.25,000/- per month https://hcservices.ecourts.gov.in/hcservices/ from his business as a partner in C.S.Chockalinga Mudaliar Oil Mill and Priyalakshmi Oil Mills and also by operating a lorry bearing Regn.No.TN-33 E-1881 and that the appellants herein/petitioners suffered loss of support from his income besides loss of love and affection due to the sudden death of Rasappan, the appellants/claimants had quantified the damages at Rs.20,00,000/- and prayed for an award directing the respondents 1 to 3 to pay the said amount jointly and severally together with future interest on the said amount claimed as compensation. They had also prayed for award of cost. 3. The claim was resisted by the third respondent herein/insurer alone. The other two respondents, namely respondents 1 and 2 did not choose to contest the claim and they remained ex-parte. The third respondent/insurer resisted the claim denying the petition averment that the accident took place due to the rash and negligent act on the part of the first respondent, namely the driver of the alleged offending lorry and contended that the accident was the result of the negligence on the part of the deceased who alone acted with negligence in riding the moped negligently. The third respondent had also contended before the Tribunal that the deceased had been incurring heavy loss and in fact he was not having any income, much less the income as projected in the petition. Based on the said contentions, the third respondent had prayed for the dismissal of the petition made by the appellants before the Tribunal. 4. After recording the evidence adduced on both sides, the Tribunal considered the evidence in the light of the submissions made on either side and upon such a consideration came to the conclusion that the appellants/claimants proved that the accident was the result of rash and negligent driving on the part of the first respondent, namely the driver of the lorry bearing Regn. No.TN-38 M-5305 which belonged to the second respondent and was insured with the third respondent at the relevant point of time. In line with the said finding, the Tribunal also found that the respondents 1 to 3 were jointly and severally liable to pay compensation to the appellants/claimants (the wife and daughters of the deceased Rasappan). However, the Tribunal came to the conclusion that the appellants/claimants had not proved the income of the deceased as projected in the claim petition. The Tribunal took the age of the deceased as 52 years and the income of the deceased at Rs.2,400/- per month. A sum of Rs.900/- was deducted from the said amount as the amount that could have been spent on himself and the balance Rs.1,500/- alone was taken as the loss of monetary benefit (loss of dependency) caused to the appellants due to the death of Rasappan. Applying multiplier 11, the Tribunal assessed the damages for loss of dependency and benefits at Rs.1,98,000/-. Adding a sum of Rs.5,000/- towards loss of love and avocation and a sum of Rs.2,000/- for funeral expenses, the Tribunal fixed Rs.2,05,000/- as the total amount of compensation to which the appellants/claimants were entitled. https://hcservices.ecourts.gov.in/hcservices/ 5. Aggrieved by the award of the Tribunal so far as the disallowed portion of the claim is concerned, the appellants have come forward with the civil miscellaneous appeal claiming enhancement of compensation on various grounds set out in the memorandum of appeal. 6. Though the respondents were served with notice in the appeal, none of the respondents has chosen to enter appearance either in person or through advocate to contest the appeal. However, the appellants have chosen to give up their claim against the first respondent being the driver of the offending vehicle. Of course the appellants were successful in getting an award against all the three respondents on the file of the Tribunal. Since the appeal is nothing but the continuation of the proceedings, it is open to the appellants/claimants to give up their claim as against any of the respondents. In this case, exoneration of the first respondent will not affect the claim made by the appellants against the respondents 2 and 3, who are the owner and insurer of the offending vehicle. In order to make it more clear without any ambiguity, the learned counsel for the appellants has also made an endorsement to the effect that the appellants exonerate the first respondent altogether and that the decree that may be passed in the appeal either enhancing the compensation or otherwise may incorporate a clause to that effect. 7. The point that arises for consideration in the appeal is, "whether the compensation awarded by the Tribunal is too low requiring enhancement?" 8. Mr.N.Manokaran, learned counsel for the appellants during the course of his arguments submitted that though the Tribunal arrived at a correct conclusion that the accident took place due to the rash and negligent act of the driver of the lorry bearing Regn. No.TN-38 M-5305 belonging to the second respondent and insured with the third respondent and that hence the second and third respondents were jointly and severally liable to pay compensation to the appellants/claimants, the Tribunal committed an error in awarding a sum of Rs.2,05,000/- alone as compensation in a fatal case, which according to the learned counsel for the appellants, shall be a pittance and never be stated to be a reasonable compensation. It is the contention of the learned counsel for the appellants that the volume of evidence adduced on the side of the appellants to prove the occupation of the deceased and the income of the deceased had not been properly appreciated by the Tribunal and that a proper appreciation of evidence, that too in the absence of any contra evidence, would have resulted in awarding a higher amount as compensation than what was awarded by the Tribunal. 9. This court paid its anxious consideration to the entire evidence available on record in the light of the above said submissions made by the learned counsel for the appellants. https://hcservices.ecourts.gov.in/hcservices/ 10. As there is no challenge to the finding of the Tribunal that the accident was the result of the rash and negligent act on the part of the driver of the lorry belonging to the second respondent and insured with the third respondent and hence respondents 2 and 3 are jointly and severally liable to pay compensation to the appellants, who are the wife and daughters of the deceased, no interference is warranted with the said finding of the Tribunal. 11. The deceased Rasappan was aged about 52 years even as per the averments made in the petition. However, no clinching document like education certificate or birth certificate has been produced to prove the age of the deceased. The only available material in this regard is the oral evidence of P.W.1 and the certified copy of the postmortem report. When no other document is available, there won't be any impediment in relying on the age noted in the postmortem report, which is corroborated by the evidence of P.W.1. The Tribunal has rightly fixed the age of the deceased to be 52 years at the time of death. 12. So far as the income of the deceased is concerned, though the appellants would have claimed that the deceased was a partner in two oil mills, namely C.S.Chockalinga Mudaliar Mill and Priyalakshmi oil mill, except Ex.A8, there is no other document to prove that the deceased was a partner of Priyalakshmi Oil Mill. Even Ex.A8 does not contain any material to show that the deceased was a partner in the said mill. However, there are documents in the form of Exs.A9 to A14 that the deceased Rasappan was a partner in Chockalinga Mudaliar Oil Mill. An attempt was made on the part of the appellants to show that the deceased was deriving a huge profit from the said business by showing the figures of turn over to the Commercial Tax department, but the said attempt miserably failed because of the admission made by P.W.3, the auditor, examined on behalf of the appellants has categorically admitted that the said business was continuously running at a loss. Though an attempt was made through P.W.2 that periodical payment was made as a salary to the deceased for the investments made by him in the partnership business as it was the usual practice in the area, P.W.2 has admitted that a specific recital has been made in the partnership deed to the effect that no divident in the form of salary will be paid to any of the partners when the business is running at a loss. Therefore, this court is of the considered view that the Tribunal has rightly held that the appellants have not proved their claim that the deceased was deriving a sum of Rs.20,000/- per month as income from the said business. 13. Evidence has also been adduced through P.W.1 that the deceased was having a lorry of his own and using the same, he was deriving a sum of Rs.5,000/- as income per month. However, P.W.1 herself admitted during cross-examination that the lorry was sold by her husband one year prior to his death. Therefore, it is quite obvious that the deceased was not deriving any income using such a lorry. https://hcservices.ecourts.gov.in/hcservices/ 14. Though some documents have been produced to show that there were some immovable properties in the name of Chockalinga Mudaliar, the father-in-law of the first appellant and he passed away in the year 1990 and that two of the sisters of Rasappan released their shares in the said property in favour of their brothers, there is no evidence to show what kind of cultivation was being done in the said properties and what income was derived from the said properties. Even then, admittedly, those properties are still available with the appellants. If at all any income was derived from the properties during life time of Rasappan, the very income can be derived by utilising their own physical labour or hiring coolies. Therefore, this court is of the considered view that the appellants have not lost entire income from the agricultural lands also. 15. A person may have so many business or a vast extent of land yielding a huge income. But it does not mean that on his death entire income from the business or the property will be lost. If the business was carried on only based on the personal skill of the person, then it can be stated that the entire income is lost. Likewise in case of income derived from agricultural properties, the physical labour that could have been put in by the deceased and the personal attention made by him in the cultivation and the special skill if any possessed by him should alone be taken into consideration to assess what could be the actual loss caused by the death of the person. In this case, in the absence of such materials, this court does not find any defect or infirmity in the finding of the Tribunal that the appellants have not proved any loss of income from agriculture also. 16. However, this court finds substance in the contention of the learned counsel for the appellants that a sum of Rs.2,400/- assessed as monthly income of a grown up male aged about 52 years is very low and that the income of such grown up male should be assessed not below Rs.3,000/- per month. It is also the contention of the learned counsel for the appellants that in all fatal cases, the amount to be deducted for expenditure that would have been incurred on oneself should not be more than 1/3. This court accepts the above said contention and decides to allow deduction of 1/3rd from the above said amount fixed as monthly income of the deceased towards the expenses that could have been incurred by the deceased on himself. Thus a sum of Rs.2,000/- is fixed as loss of dependency caused to the appellants per month. The annual loss of dependency shall be Rs.24,000/-. 17. For a person aged about 52 years, the appropriate multiplier shall be 11 and the total amount of compensation for the loss of dependency shall be Rs.2,64,000/-. For loss of consortium to the first appellant and loss of love and affection to all the appellants, a sum of Rs.5,000/- awarded by the Tribunal is a meagre one. The same can be enhanced to Rs.20,000/-. For funeral expenses a sum of Rs.5,000/- as against 2,000/- shall be reasonable. In all a total sum of Rs,2,89,000/- shall be the reasonable amount that can be awarded as compensation to the https://hcservices.ecourts.gov.in/hcservices/ appellants. At the cost of repetition, the split up particulars are given below: (1) Loss of dependency = Rs.2,64,000/- (2) Loss of consortium to the appellant and loss of love and affection to all the appellants = Rs. 20,000/- (3) Funeral expenses = Rs. 5,000/- --------------- Total compensation = Rs.2,89,000/- --------------- Out of the said amount, the first appellant shall be paid Rs.1,19,000/-, second appellant Rs.80,000/- and the third appellant Rs.90,000/-. The said amount is to be paid by the second and third respondents jointly and severally to the appellants as compensation together with interest from the date of petition till realisation. The Tribunal has allowed 9% interest per annum. No grievance is aired by either of the parties regarding the rate of interest. No interference is made in the rate of interest awarded by the Tribunal. 18. In the result, the appeal is allowed in part and the award of Tribunal dated 02.04.2004 made in M.C.O.P.No.88 of 2003 on the file of the Motor Accident Claims Tribunal (Court of First Additional District Judge), Erode is modified by directing the second and third respondents alone to jointly and severally pay a sum of Rs.2,89,000/- along with interest found in the award of the Tribunal and proportionate costs. The claim against the first respondent is dismissed as the appellants have exonerated him. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr To The Motor Accident Claims Tribunal (Court of First Additional District Judge), Erode. 1 cc To Mr.N.Manokaran, Advocate, SR.5352 1 cc To Mr.K.Padmanabhan, Advocate, SR.5533 JUDGMENT IN C.M.A.No.43/2007 KS(CO) sra 07/05/2010 https://hcservices.ecourts.gov.in/hcservices/