IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30 / 06 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.3034 of 2008 1.Uthami 2.Minor Krithika 3.Subbayal 4.Periya Gounder ... Appellants Versus 1.C.Devaraju 2.C.A.M.Manjula 3.The Branch Manager, The New India Assurance Co. Ltd., New Hospital Road, Gobichettipalaym, Erode ... Respondents (R1 Driver or Lorry Exparte before tribunal R1 Notice Dispensed with) Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award of the Sub Court, Erode in M.C.O.P.No.91 of 2007, dated 24.06.2008. For Appellants : Mr.S.Kaithamalai Kumaran For Respondents : Mr.R.Sivakumar (R3) J U D G M E N T The above appeal has been filed by the appellants / claimants against the award and decree made in M.C.O.P.No.91 of 2007, dated 24.06.2008, on the file of Motor Accidents Claims Tribunal, Sub Court, Erode. 2.The short facts of the case are as follows:- On 06.08.2005, at about 3.30 p.m., when the (deceased) was riding the motorcycle bearing Registration No.TN39-AC-4131, at a slow speed and at the left extremity of Kunnathur to Gobi Main Road, proceeding from North towards South and when he was nearing Vannamparai, the first respondent's lorry bearing Registration No.TN- N-4248, coming in the opposite direction and driven by its driver at a high speed and in a rash and negligent manner, dashed against the https://hcservices.ecourts.gov.in/hcservices/ said motorcycle. The (deceased) was thrown out of his vehicle and sustained head injuries. He was rushed to the Gobi Government Hospital, but succumbed to his injuries. The deceased was aged 37 years and was working as an auto driver under Viswanathan of Sokkanoor and was drawing an income of Rs.5,000/- per month. Hence, the petitioners, who are the legal-heirs of the deceased, have filed the claim for Rs.10,00,000/- against the respondents, who are the driver, owner and insurer of the lorry bearing Registration No.TN-N- 4248. 3.The third respondent, in his counter has resisted the claim and denied the averments in the claim regarding the manner of accident and had stated that the first respondent had driven the lorry bearing Registration No.TN-N4248 on the extreme left of the road, at a moderate speed and in a cautious manner and that the deceased had suddenly and unexpedly dashed the motorcycle against his vehicle. It was also stated that the petitioners should prove that the first respondent had a valid driving licence to drive the lorry and that the lorry was covered under a valid insurance policy at the time of accident. The third respondent has also denied the averments in the claim regarding age, income and occupation of deceased. It was also stated that the claim was excessive. 4.On the averments of both parties, the Tribunal had framed two issues for consideration, namely; “(i)Was the accident casued by the rash and negligent driving of the first respondent? (ii)Are the petitioners entitled to get compensation? If so, what is the quantum of compensation?” 5.On the petitioners side, two witnesses were examined and ten documents were marked as Exs.P1 to P10 viz., First Information Report, rough sketch, accident register, post-mortem report, motor vehicle inspector's report of the motorcycle and lorry, charge sheet, legal-heir certificate, driving licence and salary certificate. On the respondents side, no witness, no documents. 6.PW1, the wife of the deceased adduced evidence that on 06.08.2005, at about 3.30 p.m., the deceased had been proceeding on his motorcycle bearing Registration No.TN39-AC4131 on the Kunnathur to Gobi Main Road and when he was near Vannamparai, the second respondent's lorry bearing Registration No.TN-N-4248, coming in the opposite direction and driven by its driver at a high speed and in a rash and negligent manner had dashed against the motorcycle of the deceased. From a scrutiny of the First Information Report, marked as Ex.P1, it is seen that the complaint to the police regarding the accident had been given by one Viswanathan. It was stated that on 06.08.2005, at 3.30 p.m., when he was proceeding on his motorcycle https://hcservices.ecourts.gov.in/hcservices/ from Gobi towards Kunnathur, he had seen the deceased going ahead of him in his motorcycle bearing Registration No.TN39-AC-4131, on the Kunnathur-Gopi main road, on the left side of the road and when the motorcycle was near Vannamparai, the second respondent's lorry bearing Registration No.TN-N-4248 coming in the opposite direction and driven by its driver at a high speed and in a rash and negligent manner, dashed against the motorcycle ridden by the (deceased) Kandaswamy and as a result, the deceased had been thrown out of his vehicle and sustained head injuries. While he was being taken to Gobi Medical Hospital, the deceased had succumbed to his injuries. But the said Viswanathan, who had given the complaint to the Police had not been examined, as an eyewitness, by the petitioners. Further, the first respondent had also not come forward to adduce evidence to refute the averments regarding accident in the evidence of PW1 and the First Information Report. On scrutiny of Ex.P12, rough sketch and Ex.P3, accident register, it is seen that the accident had occurred in the middle of the road. Further, the Tribunal, on considering that the accident had happened at 3.30 p.m., in the afternoon were of the opinion that both the rider of the motorcycle and driver of the lorry would have been able to see at least ½ a km of the road ahead of them in such sunlight and hence held that the accident had been caused by the contributory negligence of the rider of the motorcycle and the driver of the lorry. The Tribunal held that the contributory negligence of deceased was 20% and that of the first respondent was 80%. 7.PW2, the employer of the deceased had adduced evidence that the deceased was working as a driver under him and was earning a sum of Rs.5,000/- per month. In support of his evidence, he had marked Ex.P10, salary certificate. But as the salary certificate issued did not contain the requisite particulars. The Tribunal were not inclined to accept that the income of deceased was Rs.5,000/- per month. The Tribunal taking the notional income of deceased as Rs.2,500/- and the age of deceased as 38 years and adopting a multiplier of 16 and deducting 1/3rd from the income of deceased for his personal expenses, assessed a compensation of Rs.3,20,000/- (Rs.2,500 x 1/3 x 2 x 12 x 16). Taking into account that the contributory negligence of the deceased was 20%, the Tribunal awarded a sum of Rs.2,56,000/- as compensation to the first, second and third petitioners. The Tribunal held that the fourth petitioner was not entitled to get compensation as he was not considered as legal-heir of the deceased. The respondents were directed to deposit the above said award with interest at the rate of 7.5% per annum from the date of filing the petition till the date of order of the Tribunal and that for deposits made after this date, the rate of interest on the award granted will be 6% per annum from the date of order to date of deposit. 8.Not being satisfied with the said award passed by the Tribunal, the appellants / petitioners have filed the present appeal to enhance the compensation to Rs.5,06,000/-. https://hcservices.ecourts.gov.in/hcservices/ 9.The learned counsel for the appellant has argued in his appeal that the learned Tribunal had erred in fixing contributory negligence at 80:20 in favour of the deceased, without considering the fact that the lorry driver was not examined to prove the negligence of deceased and that Exs.P1 and P2 (First Information Report and Rough Sketch) combined with evidence of PW2 (eyewitness) would prove that the accident took place only due to the rash and negligent driving of the first respondent. It was further argued that the learned Judge had erred in rejecting the salary certificate marked as Ex.P10, which would categorically prove the occupation and income of the deceased and as such the income of the deceased should have been fixed at Rs.5,000/- per month instead of Rs.2,500/- per month. It was also pointed out that no award had been granted as compensation for loss of consortium, loss of love and affection, transport to hospital, funeral expenses and other conventional damages. As such, the learned counsel for the appellant has prayed for enhanced compensation of Rs.5,06,000/-. The learned counsel further argued that PW2 had adduced evidence and issued salary certificate stating that the deceased was an auto driver and was paid a sum of Rs.5,000/- per month. The deceased was maintaining a two wheeler and also maintaining his entire family consisting of four members viz., wife, children and parents. He was the only bread winner of the family. The age of the deceased was 37 years. His occupation was a driver of Auto. The accident took place in 2005. Considering these aspects, the income of deceased should be fixed at Rs.5,000/-. The Tribunal had fastened the liability of 20% on the deceased. This is not pertinent in this case as F.I.R. was registered against the driver of the offending lorry. 10.The learned counsel for the insurance company argued that the accident took place on the middle of the road and both the vehicles had collided against each other. As such contributory negligence had been contributed in the said accident. Therefore, the Tribunal had fastened a liability of 20% on the deceased, who had ridden the motorcycle. The rest of the 80% of liability had been fastened on the driver of the lorry. Therefore, the liability has been fixed on the basis of rough sketch, which was marked as Ex.P2. Considering all aspects, the Tribunal had awarded an adequate compensation to the claimants. As such, the appeal is not maintainable. 11.In view of 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 Tribunal had fixed the income of the deceased as Rs.2,500/- per month, which is on the lower side. Regarding negligence, the traffic investigation officer who had drawn the rough sketch was not examined to prove that the accident had happened in the middle of the road. Therefore, a lacuna arises regarding liability of 20% fastened on the deceased. The age of the https://hcservices.ecourts.gov.in/hcservices/ deceased was 37 years and he was a driver by profession. In order to prove the same, driving licence was marked as Ex.P9. Therefore, this Court is inclined to grant adequate compensation to the claimants. Further, the fourth claimant, the father of the deceased, is also a legal-heir as per Hindu Succession Act. Therefore, he is entitled to get compensation. Hence, this Court awards the compensation as follows:- Rs.3,84,000/- (Rs.3,000 x 12 x 1/3 x 2 x 16) for loss of income; Rs.10,000/- towards consortium to the first claimant, Rs.30,000/- towards love and affection and Rs.10,000/- for funeral expenses. In total, this Court awards Rs.4,34,000/-. After deducting original compensation of a sum of Rs.2,56,000/- this Court grants a sum of Rs.1,78,000/- as additional compensation to the claimants. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. This Court directs the New India Assurance Company Limited to deposit the additional compensation amount, as mentioned above to the credit of M.C.O.P.No.91 of 2007, on the file of Motor Accidents Claims Tribunal, Sub Court, Erode within a period of six weeks from the date of receipt of this order. After such deposit being made, the first appellant / claimant is permitted to withdraw a sum of Rs.50,000/- with accrued interest thereon lying in the credit of M.C.O.P.No.91 of 2007, on the file of Motor Accidents Claims Tribunal, Sub Court, Erode, after filing a Memo along with this order. The third and fourth claimants are permitted to withdraw Rs.39,000/- each with accrued interest thereon lying in the credit of M.C.O.P.No.91 of 2007, on the file of Motor Accidents Claims Tribunal, Sub Court, Erode, after filing a Memo along with this order. If the second claimant has not become a major, the apportioned share of second claimant has to be deposited in a nationalized bank under the cumulative deposit scheme until she attains the age of a major. The fixed deposit certificate shall be handed over to the first claimant, being the mother of the minor. 12.Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.91 of 2007, dated 24.06.2008 on the file of Motor Vehicles Accidents Claims Tribunal, Sub Court, Erode is modified. There is no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar r n s https://hcservices.ecourts.gov.in/hcservices/ To The Subordinate Court, Motor Accidents Claims Tribunal, Erode. 1 cc To Mr.A.K.Kumarasamy, Advocate, SR.38798 1 cc To Mr.R.Sivakumar, Advocate, SR.37973 ORDER MADE IN C.M.A.No.3034 of 2008 SJ (CO) RH (11.8.11) https://hcservices.ecourts.gov.in/hcservices/