IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1853 of 2007 and C.M.P.No.2606 of 2007 The Oriental Insurance Co., Ltd., Neyveli-1 .. Appellant/ 2nd Respondent Vs 1.Pachaiammal 2.Anandaraj 3.Minor Anbazhagan 4.Minor Arivazhagan 5.J.Pushparaj .. Respondents/ Claimants and I Respondent (R3 & R4 minors rep.by their mother and guardian R1, R5 ex-parte before Lower Court) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 08.01.2003, made in M.C.O.P.No.425 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Virudhachalam. For appellant : Mr.N.Vijayaraghavan For respondents : Mr.K.S.Ganesh Babu for RR1 to 4 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 08.01.2003, made in M.C.O.P.No.425 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Virudhachalam, awarding a compensation of Rs.11,00,000/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. https://hcservices.ecourts.gov.in/hcservices/ 2.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to set aside the said award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 30.10.1999, at about 14.00 hrs, the (deceased) Viswanathan, accompanied by one Nagesh as the pillion rider, rode his Hero Honda motorcycle bearing registration No.TN31 S3065, on the Cuddalore road and when he was nearing Iyyanarkoil, the first respondent's tractor bearing registration No.TN31 T2802, coming in the opposite direction and driven in a rash and negligent manner by its driver, dashed against the said motorcycle. Due to that, the (deceased) Viswanathan, who is the husband of the first petitioner and the father of the other minor petitioners, died on the spot. 4.The (deceased) Viswanathan was aged about 47 years and was the owner of a Saw Mill and was earning a sum of Rs.45,000/- per month. In addition to this, he was also earning an income of Rs.5,000/- per month through sale of country wood. Due to the death of the said Viswanathan, the petitioners have sustained a monthly loss of Rs.20,000/- in their monthly income. 5.As the first respondent is the owner of the tractor and the second respondent is its insurer, both are liable to pay compensation to the petitioners. 6.As such, the petitioners have claimed a compensation of Rs.20,45,000/- from the respondents with interest and costs under Section 166(1) of the Motor Vehicles Act. Regarding the said accident, the Station House Officer, Vriddhachalam Police Station has registered a criminal case in Crime No.665/1999 under Sections 279 and 304(A) of I.P.C. 7.The second respondent, in his counter, has resisted the claim denying the averments contained in the claim regarding the manner of the accident. It was submitted by the second respondent that the driver of the tractor drove the tractor in a careful and diligent manner, on the left side of the road, in a normal speed and that while the tractor was going near Iyyanarkoil at Pudhukoorapattai, the rider of the motorcycle bearing registration No.TN31 S3065, rode his vehicle in a rash and negligent manner and dashed it against the tractor. It has also been pointed out that the petition is bad for non-joinder of necessary parties ie.the owner and insurer of the motorcycle, in the claim case. 8.The second respondent has also denied the averments in the claim regarding the age, income and occupation of the (deceased) Viswanathan and has submitted that all these should be proved through positive documentary evidence. It was also contended that https://hcservices.ecourts.gov.in/hcservices/ the claim was excessive and it has been prayed that the claim petition should be dismissed with costs. 9.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Was the accident caused due to the rash and negligent driving by the driver of the first respondent's tractor? (ii) Are the petitioners entitled to receive compensation of Rs.20,45,000/- as claimed in their petition? 10.On the petitioners' side, two witnesses were examined as PW1 and PW2 and 14 documents were marked as Exs.P1 to P14. On the respondents' side, no witnesses were examined and no documents were marked. 11.The first petitioner is the wife of the (deceased) Viswanathan and the second petitioner is the son of the (deceased) Viswanathan and the third and fourth petitioners are the other minor sons of the (deceased) Viswanathan. The first petitioner was examined as PW1. The PW1, in her evidence, has stated that due to the death of her husband in the accident, her family has sustained a loss of monthly income of Rs.20,000/- and an yearly loss of Rs.2,40,000/-. Deducting 1/3rd share of this for the personal expenses of deceased ie.Rs.80,000/-, the loss of income suffered by their family was Rs.1,60,000/-. Taking a multiplier of 13, as was relevant to the age of the (deceased) Viswanathan ie.47 years as per the Motor Vehicles Act, the future loss sustained by them was Rs.1,60,000/- X 13 = Rs.20,80,000/-. As such, the first petitioner has stated that she had claimed a round sum of Rs.20,00,000/- from the respondents and an additional sum of Rs.45,000/- as compensation under the heads of loss of love and affection. In support of her case, the first petitioner has marked 14 documents as Exs.P1 to P14. Ex.P1 is the FIR; Ex.P2 is the copy of Motor Vehicle Inspector's Report of the Tractor; Ex.P3 is the Post-mortem Certificate of (deceased) Viswanathan; Ex.P4 is the Registration Certificate regarding saw mill owned by (deceased) Viswanathan; Ex.P5 is the permission Order given by the Electricity Department enhancing the power already availed for the saw mill owned by the (deceased) Viswanathan; Ex.P6 is the series of bills paid towards commercial tax from the year 1997 to 1999; Ex.P7 is the receipt for a sum of Rs.38,776/- of the motorcycle of the (deceased) Viswanathan; Ex.P8 is the copy of Insurance for the motorcycle; Ex.P9 is the Motor Vehicle Inspector's Report for the motorcycle; Ex.P10 is the expenses statement showing the service bill of Rs.24,500/- paid for regard the damaged motorcycle; Ex.P11 is the letter sent by the respondent; Ex.P12 is the final year school certificate of the (deceased) Viswanathan; Ex.P13 is the document https://hcservices.ecourts.gov.in/hcservices/ showing renewal of driving licence of the (deceased) Viswanathan in the year 1983 and the year 1990 and the Ex.P14 is the current driving licence of the (deceased) Viswanathan. The Tribunal was of the opinion that as PW1 had not been the eye witness of the accident, the issue of finding whether the accident happened due to the negligence and rash driving by the driver of the first respondent's tractor had to be decided only on the basis of documentary exhibits marked as well as on the basis of the Motor Vehicle Inspector's Report of the said tractor marked as Ex.P2. 12.From a scrutiny of Ex.P1, the copy of the FIR it is seen that a criminal case has been registered, regarding the accident by the Vridhachalam Police Station in Crime No.665/1999, dated 30.10.1999 under Sections 279, 337 and 304(a) of I.P.C. It is seen that the said accident had occurred at 14.00 hrs near Iyyanar Temple at Pudukaraipettai on the Vridhachalam-Cuddalore national highway and that the complaint had been given by one Chandramohan as against the driver of the said 'J.P.R.Pushparaj' tractor. The said Chandramohan in his complaint petition has stated that on 30.10.1999, at about 2.00 p.m. in the afternoon his relative Viswanathan, while he was riding the motorcycle bearing registration No.TN31 S3065, accompanied by the pillion rider Thiagarajan, from Neyveli and when they were nearing Iyyanarkovil at Pudukaraipettai, the tractor bearing the name of the 'JPR Pushparaj' had collided with the motorcycle. The said Chandramohan, on coming to know that his relative Viswanathan had died on the spot, as a result of the collision had immediately gone to the accident spot and saw that his relative Viswanathan had died and that the pillion rider Thiagarajan had also sustained serious injuries and had been taken to the hospital. Therefore, the Tribunal on consideration of Exs.P1 were of the view that the accident had been caused only because of the said tractor being driven at a high speed and in a rash and negligent manner by its driver. 13.On scrutiny of Ex.P2, the copy of the Motor Vehicle Inspector's Report regarding the accident it is seen that the said tractor involved in the accident 'Mahindra' tractor bearing registration No.TN31 T2802 and owned by one J.Pushparaj and that it had been driven by A.Lucas. It is also seen that the driver had a valid licence to drive the tractor till 29.09.2002 and that the said tractor had been covered with a policy of insurance valid till 22.03.2000 and that the accident had not occurred due to any mechanical defects in the said tractor. 14.On scrutiny of Ex.P3, the copy of the Post-mortem report of the (deceased) Viswanathan, it is seen that the (deceased) Viswanathan had died because of shock and loss of blood due to his body being crushed in the accident. https://hcservices.ecourts.gov.in/hcservices/ 15.On scrutiny of Ex.P14, it is seen that the (deceased) Viswanathan had a valid driving licence to ride the motorcycle from 29.07.1999 upto 28.01.2000. As such, the Tribunal was of the opinion that the (deceased) Viswanathan had a valid driving licence at the time of accident. 16.Ex.P11 is the copy of the Policy of insurance, issued by the second respondent. The second respondent, in his counter, had stated that only the (deceased) Viswanathan had a valid driving licence at the time of accident but the pillion rider, Thyagarajan, did not have a valid driving licence at the time of accident and that this is in violation of rules laid down under Section 3 of the Motor Vehicles Act, 1989. But, the Tribunal were of the opinion that an account of this breach of rule, the second respondent cannot refuse to admit the compensation assessed by the Tribunal. 17.One Venugopal, who was an eye witness of the accident was examined as PW2. The PW2, in his evidence, had deposed that he was a resident of Pudamur in Vridhachalam taluk and that he had seen the accident happened at 2.00 p.m on 30.10.1999 near the Iyyanar temple on the Cuddalore high road, while he was coming in his cycle from Pudukaraipettai. He had further stated that the tractor bearing registration No.TN31 T2802, which had been coming in the opposite direction had dashed against the motorcycle and as a result of this, the rider of the motorcycle, Viswanathan had died on the spot. He had further deposed that he had informed about the accident at the saw mill. 18.As such, the Tribunal on scrutiny of Exs.P1, P2, P3, P11 and P14 as well as the evidence of PW2 held that the accident had been caused only by the rash and negligent manner of driving and the high speed at which the tractor had been driven by the driver of the first respondent's tractor. 19.From Ex.P4, it is seen that the (deceased) Viswanathan was running a small scale industry in the name and style of Swami Saw Mills, engaged in wood cutting work and that it has been approved by the Government and that it is a registered Small Scale Industry. It is seen from Ex.P4, that the (deceased) Viswanathan had been running this Swami Wood Cutting Saw Mills from 11.10.1993 onwards. Ex.P5 is the Certificate issued by the Tamil Nadu Electricity Board showing that additional power has been allotted. The said Order given on 30.04.1997 by the Tamil Nadu Electricity Board. From the scrutiny of Ex.P5, it is evident that the (deceased) Viswanathan has been allotted an additional power of 39 Hp. to run his saw mill. 20.Ex.P6 are the receipts showing that the (deceased) Viswanathan had paid the commercial taxes for his saw mill for the year 1997-1998 and 1998-1999. Ex.P7 is the bill showing that the https://hcservices.ecourts.gov.in/hcservices/ (deceased) Viswanathan had purchased the motorcycle for a sum of Rs.38,776/-. Ex.P8 is the copy of the Insurance Policy for the motorcycle of the (deceased) Viswanathan. Ex.P9 is the Motor Vehicle Inspector's Report of the said motorcycle of the (deceased) Viswanathan. 21.Though the petitioners had claimed that the (deceased) Viswanathan had been earning a daily income of Rs.1,500/- and a monthly income of Rs.45,000/- by running his saw mill, no documentary evidence had been produced to establish the claim. But, the Tribunal, on scrutiny of Exs.P4 to P7, held that the (deceased) Viswanathan was earning atleast a sum of Rs.10,000/- per month through his saw mill business. As no documentary evidence was furnished in support of the petitioner's claim that the deceased Viswanathan was also getting an additional income of Rs.5,000/- per month through selling of wood, the Tribunal did not consider the said claim of the petitioners for assessment of compensation. As such, the Tribunal held that the (deceased) Viswanathan's annual income was Rs.1,20,000/-. The Tribunal, on considering that the age of the (deceased) Viswanathan was 47 years at the time of accident, adopted a multiplier of 13, as per Section 163(A) of the Motor Vehicles Act, 1994, to assess the compensation to the petitioners. Deducting 1/3rd share of the income for the personal expenses of the deceased, the Tribunal assessed the loss of income for the petitioners as Rs.80,000/- per year and computed the total loss of income to the petitioners as Rs.80,000/- x 13 = Rs.10,40,000/- and accordingly award the sum of Rs.10,40,000/- to the petitioners under the head of loss of income. The Tribunal further awarded a sum of Rs.60,000/- to the petitioners under the head of loss of love and affection. In total, the Tribunal awarded a compensation of Rs.11,00,000/- as compensation to the petitioners. 22.On scrutiny of Ex.P10 it is seen that a service charge of Rs.23,683.65 has been paid for repair of the damaged motorcycle by the petitioners. But, the Tribunal did not award any compensation as it was found that Ex.P10 was not filed through the concerned mechanical shed ie.Babu Motors, which had repaired the said vehicle. 23.Further, the Tribunal apportioned the award equally amongst the four petitioners along with accrued proportionate interest and directed the second respondent to deposit the award together 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.425 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Virudhachalam, within a period of three months from the date of its Order. Further, after such deposit was made, the apportioned share of the award amount of the first and second petitioners was to be deposited in a https://hcservices.ecourts.gov.in/hcservices/ nationalised bank, as fixed deposit for a period of three years and the third and fourth petitioners' apportioned share of award was to be invested in a nationalised bank until such time they attain the age of a major. The first petitioner being the mother and natural guardian of the third and fourth petitioners was permitted to receive the interest on the deposit of the third and fourth petitioners, once in six months for the welfare and medical expenses of the minor children. The excess Court fee paid by the petitioners was to be refunded to them. The Advocate fees was fixed at Rs.18,000/-. 24.The learned counsel appearing for the appellant has contended in his appeal that the Lower Court ought to have seen that there was not credible income tax assessment or any other documentary proof for the employment and earnings of the deceased to justify the amount awarded. It was contended that the Lower Court had grossly erred in fixing the earnings of (deceased) Viswanathan at Rs.1,20,000/- per annum, dependency thereon at Rs.80,000/- per annum and multiplier of 13, as this was not in consonance with the oral and documentary evidence produced. As such, it has been contended that the award of Rs.10,40,000/- granted by the Lower Court under the head of pecuniary loss and the award of Rs.60,000/- granted under the head of loss of love and affection are erroneous and has been done without any acceptable oral or documentary evidence. Hence, the learned counsel appearing for the appellant has prayed to set aside the award and decree passed by the Lower Court. The learned counsel appearing for the appellant further pointed out that he is not an income tax assessee and as such, the notional income fixed by the Tribunal as income of the deceased is erroneous. 25.The learned counsel appearing for the respondents argued that the Tribunal has not considered Ex.P10, which was the motorcycle repair charges receipt of a sum of Rs.23,683/-. Further, he has argued that as the claimants are 4 in number the Tribunal should have taken the personal expenses of deceased as ¼ of his income instead of 1/3 which it had taken, to assess compensation. In any event, the Tribunal had come to a conclusion, that the income of the deceased was Rs.10,000/- per month. Further, the business run by the deceased was a profitable one and to prove the same the petitioners had marked Ex.P6, the commercial tax paid by the deceased. For running the saw mill, the Registration Certificate was issued by the Government and this had been marked as Ex.P4. At the time of accident, the age of the deceased was only 47 years and he was the only breadwinner of the family. The claimants 2 to 4 were depending on the deceased in the pursuit of their education. Due to the accident, the entire normal life of the family has been affected and the prospects of the claimants future education has been affected. Considering all the https://hcservices.ecourts.gov.in/hcservices/ facts, the Tribunal had awarded the above said compensation and as such it is a well considered one. 26.Considering the facts and circumstances of the case and arguments advanced by the learned counsels for their respective parties, the Court is of the view that the income fixed by the Tribunal ie. a sum of Rs.10,000/- as income of the deceased has been done after scrutiny of Exs.P4 to P7 namely Registration Certificate of Saw Mill, electricity connection for saw mill, commercial tax for running the saw mill and motorcycle purchase bill. This Court is of the view that the above documents marked as Exs.P4 to P7 cannot be totally relied upon to assess on the income of the deceased. Hence, the Court scales down the compensation, which was awarded by the Tribunal as under: 1.This Court fixes the notional income of the deceased as Rs.6,000/- only based on the evidence on record and considering that the petitioner was running a saw mill. As such, this Court assesses the loss of income of the deceased as Rs.6,000/- X 12 X 13 = Rs.9,36,000/-. Deducting 1/3rd share of this for his personal expenses, this Court computes the contribution to his family as Rs.9,36,000/- - Rs.3,12,000/- = Rs.6,24,000/- and accordingly grants a sum of Rs.6,24,000/- to the claimants under the head of loss of income. 2.The Tribunal had awarded a sum of Rs.60,000/- under the head of loss of love and affection. This Court awards a sum of Rs.30,000/- to the claimants 2, 3 and 4 as compensation under the head of loss of love and affection and awards a sum of Rs.10,000/- to the first claimant under the head of loss of consortium. 3.This Court awards a sum of Rs.10,000/- to the claimants for funeral expenses. 4.This Court awards a sum of Rs.10,000/- as compensation for damages caused to the motorcycle, after considering Ex.P10. In total, this Court awards a sum of Rs.6,84,000/- to the claimants as compensation as it is found to be fair and equitable in the circumstances of the case. As such, the Tribunal's award of Rs.11,00,000/- has been scaled down by this Court to Rs.6,84,000/-. Therefore, the Tribunal's award granted in M.C.O.P.No.425 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Virudhachalam, has been modified to Rs.6,84,000/- and the claimants are apportioned a sum of Rs.1,71,000/- each from the award amount. This amount will carry an interest of 9% per https://hcservices.ecourts.gov.in/hcservices/ annum from the date of filing the petition till the date of payment of compensation. 27.On 14.08.2007, this Court imposed a condition on the appellant/the Oriental Insurance Co., Ltd., to deposit a sum of Rs.7,00,000/- together with proportionate interest and entire costs. 28.As the accident happened in the year 1999, it is open to the claimants to withdraw their apportioned compensation amount together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, lying in the credit of the M.C.O.P.No.425 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Virudhachalam, after filing necessary application in accordance with law, subject to deduction of earlier withdrawals, if any. 29.The appellant is at liberty to withdraw the excess amount paid by them, into the credit of the M.C.O.P.No.425 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Virudhachalam, after observing necessary formalities before the Court concerned. 30.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 08.01.2003, in M.C.O.P.No.425 of 2002, passed by the Motor Accident Claims Tribunal, Additional District Court, Virudhachalam, is modified. Consequently, connected civil miscellaneous petition is closed. There is no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To 1.Motor Vehicles Accident Claims Tribunal, Additional District Judge, Virudhachalam. 2. The Section Officer, VR Section, High Court, Madras. C.M.A.No.1853 of 2007 GM (CO) kk 5/4 https://hcservices.ecourts.gov.in/hcservices/