IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1813 of 2008 and M.P.Nos.1 of 2008 and 1 of 2009 The National Insurance Co., Ltd., Chennai .. Appellant Vs Thirumoorthy (Deceased) 1.Dhanalakshmi 2.Vijayalakshmi 3.Bhuvaneshwari 4.Minor.Rajathi 5.Minor.Manivel 6.N.Raju .. Respondents (R4 & R5 are rep.by their mother and natural guardian R3, R6 ex-parte) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 26.04.2007, made in M.C.O.P.No.133 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.III, Vridhachalam. For appellant : Mr.J.Chandran For respondents : Mr.S.Udayakumar for RR1 to 5 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 26.04.2007, made in M.C.O.P.No.133 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.III, Vridhachalam, awarding a compensation of Rs.3,80,000/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/second respondent, The National Insurance Co., Ltd., Chennai, has filed the above appeal praying to set aside the award and decree passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts of the case are as follows: On 28.02.2005, at 10.00 a.m. when the (deceased) Muthuvel was proceeding on his cycle carefully from east to west on the Kozhiyur bridge at the Thittakudi-Vriddhachalam main road, near Kozhiyur bus stop, the first respondent's lorry bearing registration No.TN46 C5184, coming from Tittakudi towards Vridhachalam and driven at a high speed and in a rash and negligent manner by its driver, dashed against the petitioner. As a result of the accident, the deceased Muthuvel fell down and the front tyre of the lorry ran over the body of the (deceased) Muthuvel crushing him and the deceased Muthuvel died on the spot. The deceased Muthuvel was aged about 50 years and was a rice merchant and as an agriculturist earning a sum of Rs.20,000/- per month. 4.As such, the first petitioner, Thirumurthi, the son of the deceased; the second and third petitioners, the daughters of the deceased had filed the claim petition seeking a compensation of Rs.5,00,000/- from the first and second respondents, who are the owner and insurer of the said lorry involved in the said accident, under Section 166(1) of the Motor Vehicles Act. While, the claim case was pending in Court, the first petitioner died on 05.02.2006. Hence, the fourth petitioner, the wife of the first petitioner and the fifth and sixth petitioners, who are the minor daughters and minor son of the deceased first petitioner have been added as necessary parties in the claim case. 5.Regarding the said accident, a criminal case has been registered at the Tittakudi Police Station in Crime No.28/2005. 6.The second respondent, in his counter has resisted the claim denying the averments in the claim regarding the manner of the accident. It has been stated that the (deceased) Muthuvel, without following the traffic rules and regulations had crossed the road and thereby invited the accident. The respondent has also denied the averments in the claim regarding the age, income and occupation of the deceased. It has also been submitted that the first respondent's lorry had not been covered under a policy of insurance with the second respondent and that the driver of the first respondent's lorry did not have a valid driving licence at the time of the accident. Further, the respondent has stated that the petitioners should prove that the first respondent's lorry had to prove that there was no violation of policy and permit conditions in respect of the vehicle. It has been submitted that the claim is excessive and has to be dismissed with costs. 7.The Motor Accident Claims Tribunal framed two issues for the consideration namely: https://hcservices.ecourts.gov.in/hcservices/ (i) Are the petitioners entitled to get compensation? If so, who is to be held liable to pay compensation? (ii) What is the quantum of compensation, which the petitioners are entitled to get? 8.On the petitioners' side the fourth petitioner was examined as PW1 and one Radha Baskar was examined as PW2 and 16 documents were marked as Exs.P1 to P16. On the second respondent's side one Damodaran was examined as RW1 and one document was marked as Ex.R1. 9.The compensation for the death of Muthuvel in the road accident, was initially claimed only by the first petitioner, the son of the deceased and the second and third petitioners, the daughters of the deceased. But during the pendency of the claim before the Court, as the first petitioner expired, the fourth petitioner, the wife of the deceased first petitioner and the fifth and sixth petitioners, the children of the deceased first petitioner were added as necessary parties in the claim case. The respondents had not objected to the inclusion of the legal heirs of the first petitioner in the instant case. 10.Though the PW1 in her evidence had stated that she had not witnessed the accident, the evidence given by the PW2, the eye witness of the accident clearly showed that the accident happened due to the fault of the lorry driver only and that it was not caused due to any negligence on the part of the deceased Muthuvel. The evidence of the PW2 was not refuted by the respondents' side. Though the RW1 had stated in his evidence that he had gone to the accident site and inspected the place, wherein the accident had taken place after the occurrence of the accident and also submitted an Investigation Report regarding the said accident, he has not adduced evidence that he is an eye witness of the accident and no documents were marked to establish the manner of the accident. As such, the Tribunal considered the evidence of the PW2 more reliable. Further, on scrutiny of the Ex.P1, the FIR, it is seen that the FIR has been registered on the date of the accident itself and that it has been registered under Section 304(A) of I.P.C. as against the driver of the first respondent's lorry stating that the accident had been caused only due to the negligence on the part of the driver of the respondent's lorry. It is seen on scrutiny of the Ex.P2, the Motor Vehicle Inspector's Report that the first respondent's lorry had been mechanically inspected on 01.03.2005 and that it had been insured with the second respondent and that its driver had a valid driving licence at the time of accident. On scrutiny of the Ex.P3, the Post- mortem Report, it is seen that the Post-mortem of the deceased Muthuvel had been done immediately after the accident. The Charge Sheet filed as against the driver of the lorry has been marked as Ex.P4. The Ex.P5 is the copy of the Registration Certificate of the first respondent's lorry; Ex.P6 is the copy of the Ownership Certificate for the lorry; Ex.P7 is the copy of the Insurance Policy https://hcservices.ecourts.gov.in/hcservices/ for the said lorry and the Ex.P9 is the copy of the Legal Heir Certificate. 11.The Tribunal, on scrutiny of the Exs.P1 to P9 held that the deceased Muthuvel had died only due to the injuries sustained in the said accident and that the accident had been caused only due to the fault of the lorry driver. The Tribunal also held that the first respondent's lorry had been covered under a valid policy of insurance with the second respondent. As such, the Tribunal held that the first and second respondents are jointly and severally liable to pay compensation to the petitioners. 12.The petitioners have stated in their claim petition that the deceased Muthuvel was aged about 60 years, but the respondents had countered that the deceased Muthuvel was aged about 70 years at the time of accident and in support of their contention, they had marked Ex.R1, the Family Ration Card of the deceased Muthuvel. It is seen on scrutiny of the Ex.R1, that the age of the deceased Muthuvel had been shown as Rs.70 years. On the petitioners' side, it has been stated that the age as mentioned in the Ration Card cannot be taken as accurate. Though the petitioners had not marked the birth certificate of the deceased Muthuvel, to establish their contention regarding age of the deceased, the Tribunal, on scrutiny of the Ex.P3, the Post-mortem report of the deceased Muthuvel, wherein the age of the deceased Muthuvel was shown as 60 years, held that the age of the deceased Muthuvel was 60 years at the time of accident. No documentary evidence had been let in by the petitioners' side to establish the income of the deceased Muthuvel. However, the petitioners had contended that the deceased Muthuvel was an agriculturist and was supplying Sugarcane to Ambika Sugar Mills and getting an income of Rs.1,00,000/- every year and that he had also executed Sale Deeds of his land for a sale of consideration of Rs.1,16,000/- and that on these two counts, the deceased Muthuvel was earning an income of over Rs.20,000/- every month. In support of their contention, they had marked Ex.P13, the bill for sending Sugarcane to the Mill, Ex.P16, the copy of the Certificate showing of issual of Sale Deed. On the second respondent's side, it has been contended that as the deceased Muthuvel was a old man aged about 60 years, he would not be capable of earning an income of Rs.20,000/- per month. It is however found that the respondents' side had not denied that the deceased Muthuvel was an agriculturist and cultivating sugarcane in his land and that he was also owned land. On scrutiny of Exs.P13 and P14, it is seen that the deceased Muthvel had been supplying Sugarcane from 1985 onwards. As such, the Tribunal held that the deceased Muthuvel's income through agriculture could be taken as Rs.7,500/- per month. Deducting 1/3rd share of this for his personal expenses, the Tribunal assessed the monthly contribution to the petitioners as Rs.5,000/-. The Tribunal, on considering that the multiplier to be adopted for a person aged 60 years was 8 and that the multiplier to be adopted for a person aged above 60 years was 5, adopted an intermediate multiplier of 6 as was relevant to the age of the petitioner and assessed the loss of income https://hcservices.ecourts.gov.in/hcservices/ of the petitioners as Rs.5,000/- X 12 X 6 = Rs.3,60,000/- and accordingly awarded this as compensation to the petitioners under the head of loss of income. The Tribunal further granted an award of Rs.5,000/- towards funeral expenses and Rs.5,000/- each to the first, second and third petitioners under the head of loss of love and affection. In total, the Tribunal awarded a compensation of Rs.3,80,000/- to the petitioners and directed the first and second respondents jointly and severally to deposit the above said award together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the dat of payment of compensation, into the credit of the M.C.O.P.No.133 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.III, Vridhachalam, within a period of one month from the date of its Order. 13.The Tribunal, on considering that the second and third petitioners are married and staying separately and considering that the fourth, fifth and sixth petitioners were staying along with the deceased Muthuvel, apportioned a sum of Rs.50,000/- each as compensation from and out of the award amount to the second and third petitioners with proportionate accrued interest; apportioned a sum of Rs.80,000/- to the fourth petitioner with proportionate interest with accrued interest and apportioned a sum of Rs.1,00,000/- each to the fifth and six petitioners with proportionate accrued interest. 14.The Tribunal further directed that after such deposit of award was made into Court, the apportioned share of award amount of the second, third and fourth petitioners was to be invested in a nationalised bank, as fixed deposit, for a period of three years and the petitioners were permitted to receive interest on such deposit once in six months, directly from the bank. The apportioned share of award of the fifth and sixth petitioners was to be invested in a nationalised bank, as fixed deposit until such time they attain the age of a major and the fourth petitioner, being the mother and natural guardian of the fifth and sixth petitioners was permitted to withdraw interest on the minors' apportioned share of award, once in six months from the bank. The excess Court fee of Rs.1,200/- paid by the petitioners was to be refunded to them. The Advocate fees was fixed at Rs.10,600/-. The first and second respondents were directed to pay the cost of Rs.13,811.50 to the petitioners. 15.Learned counsel appearing for the appellant has contended that the learned Tribunal ought to have held that the accident was caused solely due to the reckless driving of the bicycle by the deceased aged 70 years and awarded a compensation of only Rs.50,000/- towards no-fault liability under Section 140 of the Motor Vehicles Act. 16.It has also been pointed out that the learned Tribunal should have considered that the age of the deceased was 70 years as per the evidence of the RW1 and the Ex.R1, the family card of the deceased Muthuvel and ought to have held that he would not have earned any https://hcservices.ecourts.gov.in/hcservices/ amount and contributed to the respondents and should have held that the deceased Muthuvel would have been dependant upon others. 17.It has also been contended that the Tribunal, in the absence of any proof of income and just referring to Exs.P13 and P14 had erroneously held that the deceased was supplying sugarcane from agriculture and had wrongly fixed the income of the deceased as Rs.7,500/- per month and awarded a compensation of Rs.3,80,000/- to the claimants. As such, the learned counsel appearing for the appellant has contended that the award passed by the Tribunal is against the facts, evidence on record, unrealistic and against well laid principles of law and has prayed to set aside the award and decree passed by the Tribunal. 18.The learned counsel appearing for the appellant in support of his contentions has cited a Judgment made in 2007 ACJ 1279, Supreme Court of India at New Delhi, Manjuri Bera V. Oriental Insurance Co. Ltd. And another, the relevant head notes of which are as follows: "Motor Vehicles Act, 1988, sections 166 and 140 – Claim application – Legal representative – Daughter – Whether a married daughter not dependent on the deceased is entitled to file claim for the death of her father – Held: yes. 5.An appeal was filed before Calcutta high Court questioning the correctness of the Tribunal's view. The High Court by the impugned judgment held that the appeal was without merit and dismissed the same. It was held that though a married daughter can be covered by the expression 'legal representative' appearing in section 166 of the Act, she was not entitled to any compensation unless he or she was dependent on the deceased. The expression 'legal representative' has not been defined either in the Act or the West Bengal Motor Vehicles Rules, 1989 (in short 'the Rules'). The widest meaning, therefore, can be ascribed to it in terms of section 2(11) of the Code of Civil Procedure, 1908." 19.The learned counsel appearing for the appellant vehemently argued that the claimants are not the proper legal heirs of the deceased. The multiplier adopted by the Tribunal is also on the higher side. The learned counsel further pointed out that the deceased was aged above 60 years and that only a minimum compensation should have been awarded. But, in this case, without any valid documentary evidence, had come to a conclusion that the deceased was earning a sum of Rs.7,500/- per month, which is erroneous. The learned counsel further argued that it is not possible for any one doing agricultural operations to get an income of Rs.7,500/- per https://hcservices.ecourts.gov.in/hcservices/ month. As such, the learned counsel appearing for the appellant has prayed this Court to scale down the award. 20.Learned counsel appearing for the respondents 1st to 5th/claimants argued that the deceased was aged about 50 years at the time of accident, and that he was a commission agent doing Paddy business. At the time of accident, he was hale and healthy. For those, who are involved in agricultural operations, no retirement can be contemplated and it is possible for them to work as long as they maintain their health. The learned counsel appearing for the respondents further argued that the Tribunal fixed the income of the deceased as Rs.7,500/- and adopted a multiplier of 6 and these are fair in the circumstances of the case and hence, the award of the Tribunal is a well considered one. 21.Considering the facts and circumstances of the case, scrutiny of the findings of the Tribunal and arguments advanced by the learned counsel appearing on either side, this Court is of the view that the award has been granted by the Tribunal only after considering the legal heir certificate, Ex.P12 and Exs.P9, P10 and also considering Exs.P13 to P16. On scrutiny of the Exs.P13 to P16, it is seen that the deceased had own Patta cultivable wet land in which he had harvested sugar cane. Sugarcane cultivation is a profitable one and hence it cannot be contended that the Tribunal had fixed a high amount as income of the deceased. The Tribunal had perfectly come to the conclusion regarding the income at the deceased and adopted multiplier of 6, which is also reasonable and granted an award of Rs.3,60,000/- as compensation under the head of loss of income. Further, the Tribunal had awarded a sum of Rs.5,000/- and Rs.1,50,000/- under the head of funeral expenses and loss of love and affection respectively and these are found to be reasonable and equitable. Therefore, this Court confirms the award granted by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.III, Vridhachalam in M.C.O.P.No.133 of 2006. 22.This Court imposed a condition on the appellant to deposit a sum of Rs.1,00,000/- together with proportionate interest and entire cost into the credit of the M.C.O.P.No.133 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.III, Vridhachalam. 23.Now, this Court hereby directs the appellant/National Insurance Co., Ltd., to deposit the balance compensation amount of a sum of Rs.2,80,000/- together with interest thereon from the date of filing the claim petition till the date of payment of compensation at the rate of 7.5% per annum, into the credit of the M.C.O.P.No.133 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.III, Vridhachalam, within a period of four weeks from the date of receipt of this Order. 24.After such deposit is made, it is open to the claimants to withdraw their apportioned share amount, with accrued interest https://hcservices.ecourts.gov.in/hcservices/ thereon, lying in the credit of the M.C.O.P.No.133 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.III, Vridhachalam, after filing necessary payment out application in accordance with law. 25.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 26.04.2007, in M.C.O.P.No.133 of 2006, passed by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.III, Vridhachalam, is confirmed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1.The Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.III, Vridhachalam. 1 cc To Mr.S.Udayakumar, Advocate, SR.21877 1 cc To Mr.J.Chandran, Advocate, SR.21657 C.M.A.No.1813 of 2008 rsi(co) pmk.20.4.2010 https://hcservices.ecourts.gov.in/hcservices/