IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.02.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1478 of 2001 1.G.K.Parvathi 2.G.K.Shanthi 3.G.K.Premkumar .. Appellants / Claimants (2nd & 3rd appellants are rep.by their mother 1st appellant) Vs 1.Krishnamurthy 2.Sri Damayanthi 3.The New India Assurance Co., Ltd., Chennai-1 .. Respondents /Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 25.04.2001, made in M.C.O.P.No.1758 of 1996, on the file of the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai. For appellant : Mr.K.Palanivel For respondents : No appearance J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellants/claimants against the Award and Decree, dated 25.04.2001, made in M.C.O.P.No.1758 of 1996, on the file of the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai, awarding a compensation of Rs.3,12,000/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellants/claimants have filed the above appeal praying for enhanced compensation. 3.The short facts of the case are as follows: The first petitioner, G.K.Parvathi, aged about 32 years is the wife of Late.Gopalakrishnan; the second petitioner G.K.Shanthi, aged about 11 years is the daughter of Late.Gopalakrishnan, the third petitioner, G.K.Prem Kumar, aged about 8 years is the son of Late.Gopalakrishnan and the fourth petitioner, Ponnammal, aged about https://hcservices.ecourts.gov.in/hcservices/ 55 years is the mother of the Late.Gopalakrishnan. They have applied for the grant of compensation in respect of death of Mr.Gopalakrishnan, who died in the motor vehicle accident on 24.12.1995 at about 4.30 hrs. 4.On 24.12.1995, at about 4.30 hrs, when the (deceased) Gopalakrishnan was driving his lorry bearing registration No.AP16 U8224, from Nellore to Madras and when it was opposite to Ifco Plantation near Rochalapadu Village, Kodavalur Mandalam, Nellore District, the lorry bearing registration No.AP16 U3348, driven by its driver in a rash and negligent manner, hit the lorry driven by the (deceased) Gopalakrishnan, as a result of which the (deceased) Gopalakrishnan sustained injuries and died on the spot. 5.Hence, the first and second respondents, the owners of the lorry bearing registration No.AP16 U3348 and the third respondent as its insurer are vicariously liable to pay compensation to the petitioners. The petitioners have claimed a compensation of Rs.5,00,000/- with costs from the respondents under Section 166 of Motor Vehicles Act and Rule 3 of M.A.C.T.Rules. 6.At the time of accident, the deceased was aged about 34 years and was working as a driver and earning a sum of Rs.3,000/- per month. 7.The Kodavalur Police Station, Nellore District, has registered a criminal case, regarding the accident in Crime No.108/1995. 8.The first and second respondents, after filing of a restoration petition by them (M.P.No.2156 of 1998, dated 15.02.1999) were made as necessary parties and they have indicated that they do not want to make any counter in this case. 9.The third respondent, in its Counter has resisted the claim stating that the age, occupation, income, date of accident, has to be proved by the petitioners. The third respondent has also not admitted that the lorry bearing registration No.AP16 U3348 was covered under a policy of Insurance with them, at the time of accident. It was further stated that the lorry driver did not have a valid driving licence at the time of accident. It was also submitted that the accident happened due to negligence of the (deceased) driver of the lorry bearing registration No.AP16 U8224. It was also stated that the petitioners have to prove that they are the legal heirs of the deceased. The third respondent has also stated that the claim is excessive and has prayed for dismissal of claim. 10.On the petitioners side, the first petitioner, the wife of the deceased was examined as PW1; the fourth petitioner, the mother of the deceased was examined as PW2; one Mr.Prasad, owner of the lorry driven by the deceased, was examined as PW3; one R.Chandrasekar was examined as PW4 and the police witness was examined as PW5 and ten documents were marked as Exs.P1 to P10. On the third https://hcservices.ecourts.gov.in/hcservices/ respondent's side, no witnesses were examined and no documents were marked. 11.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whose fault had resulted in the accident to take place? (ii) What is the quantum of compensation, which the petitioners are entitled to get? 12.The PW1, in her evidence had deposed that the (deceased) Gopalakrishnan was her husband and that the second and third petitioners are her son and daughter and the fourth petitioner was her mother-in-law; that on 24.12.1995, while her husband was driving the lorry, on the road near Kodavalur – Sathsalapedu Village, the lorry bearing registration No.AP16 U3348 had dashed against the lorry driven by her husband and that he had died in the said accident. In support of her evidence, she had marked Ex.P1, the Post-mortem Report and Ex.P2, the Death Certificate. To prove that the petitioners are the legal heirs of the deceased, she had marked Ex.P5, the Legal Heir Certificate. 13.It has been contended by the third respondent, in his Counter that the lorry bearing registration No.AP16 U3348 was not insured with them at the time of accident and that there was contributory negligence on the part of the drivers of both the lorries involved in the accident. It had also been contended that the driver of the lorry bearing registration No.AP16 U3348 did not have a valid driving licence at the time of accident. But, the Tribunal, on scrutiny of Ex.P9, FIR, found that a criminal case has been filed by the Kodavalur Police Station against the driver of the above said lorry under Section 304(A), 338 and 337 of I.P.C. and that further action has been taken on this case. On a scrutiny of Ex.P10, the copy of the Charge Sheet,it is seen that the driver of the above said lorry has been charged citing that his negligence has been the cause for the accident. Further, on scrutiny of the amended claim petition filed by the petitioners, it is seen in Column 16 of the claim that the Insurance Policy number and address of the insurer has been given. Further, the Tribunal was of the opinion that as no claim Inspector was appointed by the third respondent to go into the details and manner of accident and determine, who is responsible for the accident and hold that a counter given by them cannot be treated as absolute proof were not inclined to accept their version of accident, especially considering that no witnesses were examined on the respondent's side. As such, the Tribunal on considering the evidence of the five witnesses ie.PW1 to PW5 and examination of Exs.P9 and P10 held that the accident was caused solely due to the fault of the driver of the lorry bearing registration No.AP16 U3348. As this vehicle was insured with the third respondent on the date of https://hcservices.ecourts.gov.in/hcservices/ accident, the Tribunal held that the third respondent is liable to pay compensation to the petitioners. 14.The PW1, in her evidence had submitted that her deceased husband was a driver of a lorry and was earning a sum of Rs.3,600/- per month and in support of her claim had marked Ex.P8, the Salary Certificate of deceased. Though, the salary of the deceased has been given as Rs.3,600/- per month in the Salary Certificate, the author of the said salary certificate had not been examined as a witness by the petitioners side. As such, the Tribunal did not take Ex.P8, the Salary Certificate as acceptable evidence, to determine the quantum of compensation, in this case. As such, the Tribunal on considering the age of the deceased as 34 years at the date of accident held that the deceased could have earned a sum of Rs.50/- per day and accordingly fixed the notional income of the deceased as Rs.1,500/- per month. Deducting 1/3rd share of this for his personal expenses, the Tribunal held that the deceased could have contributed a sum of Rs.1,000/- to his family every month and Rs.12,000/- as the yearly contribution to his family. 15.The Tribunal, also considered that the driving licence of the (deceased) husband of the first petitioner was not filed as proof to show that he was a driver. The Tribunal were of the opinion that the claim of Rs.1,00,000/- made by the petitioners under the head of loss of happiness was on the higher side. In spite of this, the Tribunal on considering that it was possible that the petitioners had lost their happiness due to death of deceased, awarded a compensation of Rs.18,000/- under the head of loss of happiness. The Tribunal further awarded a sum of Rs.72,000/- to the petitioners under the head of loss of love and affection. The Tribunal granted on award of Rs.30,000/- to the first petitioner under the head of loss of consortium. 16.The Tribunal, adopting a multiplier of 16, as was relevant to the age of deceased and holding the annual contribution to his family as Rs.12,000/-, assessed the loss of income to the petitioners as Rs.12,000/- X 16 = Rs.1,92,000/- and accordingly awarded the said amount under the head of loss of estate and dependancy. In total, the Tribunal awarded a compensation of Rs.3,12,000/- to the petitioners, the award inclusive of interim relief paid to the petitioners, if any and directed the third respondent to deposit the above said award with interest at the rate of 9% per annum, from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.1758 of 1996, on the file of the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai, within a period of eight weeks from the date of its Order. The Tribunal, further apportioned a share of Rs.1,12,000/- to the first petitioner; Rs.75,000/- each to the second and third minor petitioners and Rs.50,000/- to the fourth petitioner and directed that the apportioned share of the first and fourth petitioners was to be deposited in a nationalised bank as fixed deposit for a period of https://hcservices.ecourts.gov.in/hcservices/ three years. The second and third minor petitioners' apportioned share of award amount was to be deposited as fixed deposit in a nationalised bank until, they attained the age of a major. Further, the first petitioner, being the natural mother of the second and third petitioners was permitted to withdraw the interest on the apportioned share of award granted to the second and third minor petitioners, once in three months. The Advocate fees was fixed at Rs.9,240/-. 17.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal, after having found that the accident had been solely caused due to the rash and negligent driving of the respondent lorry, erred in reducing the quantum of compensation claimed. It was also contended that the Tribunal erred in fixing the monthly income of the deceased at Rs.1,500/- after having found that he was a driver possessing a heavy vehicle licence and hence a minimum daily pay of Rs.150/- should have been fixed. The learned counsel appearing for the appellants had also contended that the Tribunal should have concluded that the deceased had been a driver and he had obtained a salary of Rs.3,600/- per month based on document marked as Ex.P8. It was also pointed out that the finding of the Tribunal that the deceased was only earning a sum of Rs.50/- per day was not sustainable. It was also pointed out that the Tribunal had failed to adopt a proper multiplier and had failed to consider Exs.P6 and P7. As such, the learned counsel appearing for the appellant had prayed for enhanced compensation. 18.Considering the facts and circumstances of the case, and arguments advanced by the learned counsels on both sides, and findings of the Tribunal, this court is of the view that the award granted by the Tribunal, is on the lower side and also there is some discrepancy in the quantum of award granted under the various heads. As such, this Court totally restructures the compensation granted by the Tribunal and also enhances the quantum of award as below: 1.The deceased was a driver, aged about 34 years and his income in the relevant period at the time of accident was shown as Rs.3,600/- as per Ex.P8. This Court accordingly fixes the income of deceased, at the time of accident as Rs.3,000/-. After deducting 1/3 for his personal expenses, the nett contribution to his family will workout Rs.24,000/- per year. Adopting a multiplier of 16, the loss of income is assessed as Rs.24,000/- X 16 = Rs.3,84,000/- and accordingly awards a sum of Rs.3,82,000/- to the claimants under the head of loss of income. 2.For loss of love and affection, this Court awards a sum of Rs.10,000/- each to the second, third and fourth claimants ie. a total of Rs.30,000/- is awarded as compensation to the second, third and fourth claimants. https://hcservices.ecourts.gov.in/hcservices/ 3.This Court awards a sum of Rs.10,000/- to the first claimant under the head of loss of consortium. 4.This Court awards a sum of Rs.10,000/- to the claimants as compensation under the head of funeral expenses. In total, this Court awards a compensation of Rs.4,34,000/- to the claimants. The original award granted by the Tribunal carried an interest of 9% per annum from the date of filing the petition till the date of payment of compensation. The additional compensation amount granted by this Court ie. a sum of Rs.1,22,000/- will carry an interest of 7.5% per annum from the date of filing the petition till the date of payment. This Court does not want to interfere in the apportionment of compensation awarded by the Tribunal to the claims as it is found to be in order. 19.The additional compensation amount awarded by this Court is apportioned equally amongst the four claimants, ie. a sum of Rs.30,500/- is awarded as compensation to each of the claimants. 20.This Court hereby directs the third respondent/New India Insurance Company to deposit the additional compensation amount ie. a sum of Rs.1,22,000/- 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, within a period of four weeks, into the credit of the M.C.O.P.No.1758 of 1996, on the file of the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai. 21.As the accident happened in the year 1995, it is open to the claimants to withdraw their apportioned compensation amount ie.Rs.30,500/- each, with accrued interest, lying in the credit of the M.C.O.P.No.1758 of 1996, on the file of the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai, after filing necessary payment out application in accordance with law. 22.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 25.04.2001, in M.C.O.P.No.1758 of 1996, by the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai, is modified. Consequently, connected miscellaneous petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ krk To 1.Motor Vehicles Accident Claims Tribunal, IV Small Causes Court, Chennai. 2.The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.P.Senthilkumar, Advocate, SR.6397 1 cc To Mr.D.Venugopal, Advocate, SR.5595 C.M.A.No.1478 of 2001 PUR(CO) sra 24.02.2010 https://hcservices.ecourts.gov.in/hcservices/