IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.06.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.856 OF 2010 & M.P.No.1 of 2010 & Cross Objection No.137 of 2010 National Insurance Co. Ltd., 751, Anna Salai, Chennai – 600 002. ... Appellant/ 2nd Respondent in CMA 1st Respondent in cross objection/ Appellant vs. 1.Dhanabaggiam ...1st Respondent/ Petitioner in CMA Appellant/ 1st Respondent in Cross Objection 2.A.Munuswami ...2nd Respondent/1st Respondent in CMA 2nd Respondent/ 2nd Respondent in cross objection Prayer : This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the the judgment and decree dated 30.09.2009 made in M.C.O.P.No.753 of 2007, on the file of the Motor Accidents Claims Tribunal, Fast Track Court-II, Poonamalle. Prayer : This petition is filed under Order 41 Rule 22 of C.P.C against the judgment and decree dated 30.09.2009 made in M.C.O.P.No.753 of 2007, on the file of the Motor Accidents Claims Tribunal, Fast Track Court-II, Poonamalle. For 1st Respondent in CMA Appellant in Cross Objection : M/s.M.Malar For Appellant in CMA. For 1st Respondent in cross objection : Mr.K.S.Narasimhan (R-1) https://hcservices.ecourts.gov.in/hcservices/ C O M M O N J U D GM E N T The Civil Miscellaneous Appeal has been filed by the appellant/ National Insurance Company Limited against the judgment and decree dated 30.09.2009 made in M.C.O.P.No.753 of 2007, on the file of the Motor Accidents Claims Tribunal, Fast Track Court-II, Poonamalle. 2.Not being satisfied with the award and decree passed by the Tribunal, the respondent/claimant has filed the Cross Objection No.137 of 2010 for enhancement of a sum of Rs.1,00,000/-. 3.The short facts of the case are as follows: On 26.02.2007, the deceased S.Suresh was travelling as a rider along with a pillion rider in the motorcycle bearing Registration No.TN-02-P-6054, from Veppampattu to Mogappair on the C.T.H. Road. At about 3.10 p.m., when the motorcycle was near Royal Timber Depot at Thirumullaivoyal, the first respondent's Mahindra Van bearing Registration No.TN-02-P-0280, driven by its driver in a rash and negligent manner, dashed against the motorcycle. The (deceased) Suresh sustained multiple grievous injuries and died on the spot. Hence, the petitioner, who is the mother of the deceased has filed a claim for Rs.8,00,000/- against the respondents. The first respondent is the owner of the Mahindra van and the second respondent is its insurer. 4.The second respondent, in his counter has resisted the claim and denied the averments in the claim regarding the age, income and occupation of the deceased as well as the manner of accident. It was stated that the rider of the motorcycle viz, Suresh, under the influence of alcohol and without having a valid driving licence to drive the motorcycle was proceeding on the C.T.H. Road and when the vehicle was near Thirumullaivoyal, the rider had suddenly overtaken the vehicle in a rash and negligent manner, unmindful of the traffic and as a result, the deceased Suresh had lost his balance, fell down and died. As such, the first respondent's vehicle is not at all involved in the accident. The delayed filing of F.I.R., against the respondent's vehicle is a fabricated one with the collusion of police. There is no criminal prosecution against the first respondent's driver. Further, as the owner of the motorcycle bearing Registration No.TN-02-P-6054 has not been included as a necessary party in the claim, it renders the claim not maintainable. It was also stated that the claim was excessive. 5.Another claim petition was filed in M.C.O.P.No.746 of 2007 by other persons claiming a compensation, for the death of their son, Ravi, who had travelled as a pillion rider of the motorcycle bearing Registration No.TN-02-P-6054, against the same respondents https://hcservices.ecourts.gov.in/hcservices/ as in the instant case. Based on a Memo filed by the claimants for a joint trial, the Tribunal took both the cases jointly, collected common evidence and delivered a common order. 6.On considering the averments in the petition and the counter of the second respondent, the Tribunal had framed three issues for consideration in this case, namely; “(i)Whether the accident occurred due to the rash and negligent driving of the first respondent's driver? (ii)Whether the claimant is entitled to get compensation from the second respondent? If so, what is the quantum of compensation. (ii)To what relief is the claimant entitled to get?” 7.On the petitioners side, four witnesses were examined and eight documents were marked as Exs.P1 to P8, viz., First Information Report, Post-mortem Certificate, Legal-heir Certificate, Medical bills, Salary Certificate and etc., On the respondents side, one witness was examined and two documents were marked viz., Motor Vehicle Reports marked as Exs.R1 and R2. 8.PW2, the mother of the deceased Suresh adduced evidence which was in consonance with the averments made in the claim regarding manner of accident. PW3, the eyewitness of the accident had also adduced evidence which was in consonance with evidence of PW1 regarding manner of accident. Hence, the Tribunal, after scrutiny of documentary evidence viz., F.I.R., as well as the evidence given by PW2 and PW3, held that the accident had been caused by the rash and negligent driving of the first respondent's driver. 9.On scrutiny of Ex.P5, post mortem report, it is seen that the age of deceased was 24. The owner of the shop, where the deceased had worked was examined as PW4. He had adduced evidence stating that the deceased was an employee under him and earning a sum of Rs.13,000/- per month and had marked Ex.P8, Salary Certificate. But, the tribunal on holding that no documentary evidence had been submitted by the claimant with regard to experience of the deceased and considering that the deceased had only studied upto 8th standard, held that his salary could be taken as Rs.5,000/- per month and adopted a multiplier of “17” and awarded compensation a sum of Rs.5,10,000/- (Rs.5,000 x ½ x 12 x 17) under the head of loss of income. (Contribution by deceased to his mother every month was taken as https://hcservices.ecourts.gov.in/hcservices/ 50% of his monthly income). Further the Tribunal awarded a sum of Rs.10,000/- under the head of funeral expenses and Rs.10,000/- towards loss of love and affection. In total, the Tribunal had awarded a sum of Rs.5,30,000/- together with interest at the rate of 7.5% per annum, from the date of filing the petition till the date of deposit and directed the Insurance Company to deposit the award with interest within a period of one month from the date of its order. 10.Aggrieved by the said award passed by the Tribunal, the appellant /National Insurance Company Ltd., has filed the present appeal to scale down the compensation. 11.The learned counsel for the appellant has argued that the Tribunal had failed to note that PW3 had admitted in his cross examination that the accident had occurred on the middle of the road, and the evidence of RW1, corroborated by the Motor Vehicle Inspector's report marked as Exs.R1 and R2, reveal the respective damages caused to the two-wheeler and the van which belie the case of the claimant. As such, the learned Tribunal ought to have apportioned the liability equally, if not rejecting the claim altogether. It was also argued that the Tribunal should have taken the age of the mother of deceased and adopted multiplier and should not have taken the age of deceased for choosing multiplier and in the instant case, the multiplier of “12” should have been adopted as the age of the deceased's mother was 45 years. Further, it was argued that the notional income of Rs.5,000/- taken by the Tribunal as the income of the deceased has been done without any evidence and hence only a notional income of Rs.3,000/- should have been taken by the Tribunal to assess compensation. As such, the learned counsel for the appellant has prayed this Court to at least scale down award of the Tribunal. 12.The learned counsel for the claimant argued that the deceased was 24 years old and he was an employee in a private concern and was earning a sum of Rs.13,000/- per month. In order to prove the same, salary certificate was marked. The deceased was the only son to the claimant. The Tribunal, after considering the age of the deceased and the income of the deceased had assessed the compensation and granted the award to the claimant. Actually, the compensation amount granted is not satisfactory. Hence, the claimant had filed a Cross Objection 137 of 2010 for additional compensation of a sum of Rs.1,00,000/-. The learned Tribunal had fixed the income of the deceased as Rs.5,000/-. Actually, his earning was Rs.13,000/- per month. As such, the claimant should be awarded additional / adequate compensation. https://hcservices.ecourts.gov.in/hcservices/ 13.On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the learned Tribunal had fixed the income of the deceased as Rs.5,000/- per month, adopted a multiplier of “17” and awarded compensation a sum of Rs.5,10,000/- under the head of loss of income. Further the Tribunal awarded a sum of Rs.10,000/- under the head of funeral expenses and Rs.10,000/- towards loss of love and affection. In total, the Tribunal had awarded a sum of Rs.5,30,000/- together with interest at the rate of 7.5% per annum, which is found to be fair and equitable. Even though the claimant had marked salary certificate and the employer was examined in order to prove that the income of the deceased was Rs.13,000/-, this evidence is not sufficient as the said owner's firm was not a registered one. Besides, no attendance and pay acquittance had been marked to prove the employment of the deceased. Therefore, this Court confirms the said award. 14.On 23.04.2010, this Court imposed a condition on the appellant / Insurance Company to deposit the entire compensation amount with proportionate accrued interest to the credit of M.C.O.P.No.753 of 2007, on the file of the Motor Accidents Claims Tribunal, Fast Track Court-II, Poonamalle. Further, this Court permitted the claimant to withdraw the 50% of the award amount with proportionate accrued interest lying in the credit of M.C.O.P.No. 753 of 2007, on the file of the Motor Accidents Claims Tribunal, Fast Track Court-II, Poonamalle. Now, it is open to the claimant to withdraw the balance compensation amount with proportionate accrued interest lying in the credit of M.C.O.P.No. 753 of 2007, on the file of the Motor Accidents Claims Tribunal, Fast Track Court-II, Poonamalle, after filing a Memo along with this order. Subject to withdrawals, if any, made already. 15.Resultantly, the Civil Miscellaneous Appeal filed by the appellant / National Insurance Company in C.M.A.No.856 of 2010 is dismissed and the Cross Appeal filed by the claimant in Cross Objection No.137 of 2010 is also dismissed. Consequently, the award and decree passed by the learned Motor Accident Claims Tribunal, Fast Track Court-II, Poonamalle made in M.C.O.P.No. 753 of 2007, dated 30.09.2009 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed. Sd/- Deputy.Registrar. /true copy/ Sub Asst.Registrar. r n s https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accidents Claims Tribunal, (Fast Track Court-II), Poonamalle. 1 cc to Ms. M. Malar, Advocate, Sr. 34407 C.M.A.No.856 OF 2010 & Cross Objection No.137 of 2010 SGL (CO) kk 1/8 https://hcservices.ecourts.gov.in/hcservices/