IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.7.2010 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN C.M.A.No.92 of 2007 & M.P.No.1 of 2007 National Insurance Co. Ltd., Motor Third Party Cell, No.751, Anna Salai, Chennai-2. .. Appellant/Second Respondent Vs. 1. M.Jayalakshmi @ Jaya 2. S.Shanthi 3. S.Tamil Selvi 4. M.Murugan 5. J.Deepak .. Respondents/Petitioner/1to4 and 5th Respondent. Civil Miscellaneous Appeal against the Award and decree dated 24.8.2006 in M.C.O.P.No.2014 of 2004 on the file of the Motor Accidents Claims Tribunal (Chief Judge, Small Causes Court), Chennai. For appellant : Mr.S.Vadivel For respondents: No appearance JUDGMENT Aggrieved by the Award of the Tribunal in the case of a fatal accident that took place on 15.02.2004, granting compensation of Rs.4,70,000/- to the respondents 1 to 4/claimants for the death of the deceased, as total compensation with interest @ 7.5% p.a. , as against the claim of Rs.10,00,000/-, the Insurance Company has come forward with this appeal. 2. The main ground of attack by the appellant-Insurance Company is that even though the accident took place as stated by the claimants, in the FIR Ex.P-1, the vehicle number was not noted and in the charge sheet (copy) Ex.P-7, the vehicle number has been included, and therefore, the appellant-Insurance Company is not liable to pay the compensation and it is further contended that the quantum of compensation awarded by the Tribunal is also on the higher side. https://hcservices.ecourts.gov.in/hcservices/ 3(a). Before the Tribunal, it was contended on behalf of the respondents 1 to 4 (claimants) that the accident is properly proved by the evidence of P.W.3, an independent eye witness and P.W.4 Head Constable and the involvement of the vehicle has also been proved by Ex.P-7 charge sheet (copy), and the driver of the vehicle has been clearly charged and that in the charge sheet, P.W.3 is also shown as an eye witness, who has been examined in this case, coupled with the fact that P.W.4 Head Constable having been examined in this case, the accident and the involvement of the vehicle have been clearly proved. (b) Per contra, it is seen from the Award of the Tribunal that the appellant-Insurance Company has not chosen to produce any records or evidence to show that the vehicle was not involved in the accident, nor any investigation report has been filed by them, nor any independent evidence/witness has been examined to disprove the claim of the respondents 1 to 4-claimants in respect of the accident or the involvement of the vehicle. 4. Heard the learned counsel for the appellant-Insurance Company and perused the records. On a careful consideration of the evidence let in by the claimants and the documents produced, the point for consideration in this appeal is as to whether the appellant-Insurance Company is liable to pay the compensation, in view of their denial of the vehicle involved in the accident and also as to whether the compensation awarded by the Tribunal is justified and correct? 5. As far as the first question is concerned, the only ground of attack by the learned counsel for the appellant-Insurance Company is that in the FIR Ex.P-1, it was shown in Column No.7 regarding the details of known/suspected/unknown accused with full particulars, as, @gjpt[ vz; bjhpahj fhh; Xl;Ldh;@ and merely because in the FIR, the vehicle number or the driver's name is not mentioned, that cannot be construed that the vehicle was not at all involved, whereas, the respondents 1 to 4-claimants have clearly proved the initial burden by producing Ex.P-7 charge sheet (copy), in which, it has been categorically stated that the vehicle was driven by one B.Srinivasa Rao, son of D.V.Rao and he drove the vehicle No.TN-04-K.2334 S.Koda actavia Car, by mentioning @15/2/2004e; njjp fhiy 07/15 kzp mstpy; brd;id T.efh; bjw;F nghf; nuhL fjt[ vz; 64-30.A Kd;ghf khh;b$dpy; fz;l vjphp jpU/B.rPdpthr uht; M/ t/25 S/o D.V.uht; vd;gth; TN 04 K 2334 vz;qs;s S.Koda actavia car ia nkw;go bjw;F nghf; nuhl;oy; bjw;fpypUe;J tlf;F jpiria nehf;fp /////@/ In the charge sheet, it is further stated that P.W.3 in the case, namely M.Subramaniam, is the eye witness who is cited as P.W.1 in the criminal case as an eye witness who has seen the occurrence. When we read P.W.3's evidence (M.Subramaniam), who is also the author of the FIR, he has categorically stated that he has seen the occurrence and was available at the time of accident and only thing was that he could not register the number at that point of time. P.W.4 was examined as Head Constable from the Record Room, who has stated in his cross examination that the case was https://hcservices.ecourts.gov.in/hcservices/ investigated by the Inspector Selvaraj and even though the FIR did not mention the number of the vehicle, 12 witnesses have been examined and as per the evidence and examination of one Sundararajan, the vehicle has been identified and number given and it is also very categorically stated in his cross examination that the said Sundararajan came to the Police Station and gave the number of the vehicle only after three days after the occurrence of the accident and therefore, it is the case of the claimants that the number was not mentioned in the FIR and it was correctly mentioned only when the charge sheet was laid and therefore, the evidence of P.W.3 Subramaniam, the eye witness and P.W.4 Sivaraman, HC, would categorically and clearly prove the number of the vehicle and the accident, coupled with the fact that Ex.P-7 charge sheet (copy) would establish the case of the claimants that the vehicle in question is involved in the accident, the number of the vehicle was incorporated and the appellant-Insurance Company is liable to pay the compensation. 6. Per contra, the appellant-Insurance Company did not let in any evidence, both oral and documentary, to show that they have done any investigation or obtained any report to show that the vehicle was not involved in the accident. 7. Under those circumstances, when the initial burden of involvement of the vehicle in the accident has been rightly proved by the claimants by examining the witnesses and producing the documents, mere ipse-dixit of the appellant-Insurance Company that the vehicle is not involved in the accident, cannot be accepted. Therefore, the Tribunal has rightly held that the appellant-Insurance Company is liable to pay compensation. The first question is answered against the Insurance Company and in favour of the claimants. 8. Insofar as the second question is concerned, it is stated that the deceased was working as Mosaic-cum-Centering Contractor and the claimants have produced document Ex.P-5, the Income Certificate issued by the Civil Contractor to show that the deceased was working as a Mosaic-cum-Centering Contractor, but the claimants have not produced any evidence to show that the deceased was actually a Contractor and the claimants have not examined the author of the said Income Certificate Ex.P-5. Therefore, without the evidence of the executor of the document Ex.P-5 Income Certificate, the same cannot be accepted in toto. As per the evidence of P.W.1, the wife of the deceased, he was working as Civil Contractor and doing Mosaic-cum- Centering work and he was earning from Rs.10,000/- to Rs.12,000/- p.m. In the normal circumstances, even though there is no other independent evidence, it is reasonable to accept the evidence of P.W.1 with regard to the earning of the deceased and also Ex.P-5 Income Certificate and ultimately, the Tribunal fixed the income of the deceased at Rs.5,000/- p.m. Even the Supreme Court has categorically stated that when there is no evidence, minimum of Rs.3,000/- p.m. (Rs.100/- per day x 30 days) has to be accepted as https://hcservices.ecourts.gov.in/hcservices/ earnings of the deceased. In this case, since at least there is Ex.P-5 Income Certificate, though the author of the same has not been examined and Ex.P-5 not being proved in accordance with law, yet, inference could be drawn from the said Income Certificate Ex.P-5 while considering the fact that the deceased was working as a Contractor and the Tribunal rightly fixed Rs.5,000/- p.m. as his monthly income, which is reasonable and correct. Hence, I do not want to interfere with the findings of the Tribunal with regard to the income of the deceased being fixed at Rs.5,000/- and based on the same, the Tribunal fixed the loss of earnings/income of the deceased, at Rs.20,000/- p.a., after deducting 1/3 from his total income of Rs.60,000/- and ultimately arrived at the value by adopting multiplier "11", considering the age of the deceased at the time of the accident being 52 years, and awarded Rs.4,40,000/- under the head "loss of dependency and pecuniary benefits". I find the same to be reasonable and correct and there is no rhyme or reason to interfere with the findings of the Tribunal on this aspect. 9. The Tribunal has awarded the compensation under the other heads as follows: Rs.5,000/- for funeral expenses, Rs.15,000/- for loss of consortium and love and affection and Rs.10,000/- for loss of expectancy of life. Thus the Tribunal has awarded a sum of Rs.10,000/- towards loss of expectancy of life. In case of death and especially, when the award has been given under the multiplier method, the award of compensation under the head "loss of expectancy of life" is not in accordance with the Supreme Court ruling. 10. Hence, the appeal is partly allowed, reducing the amount of Rs.10,000/- awarded towards loss of expectancy of life and confirming the Award of the Tribunal under the other heads and also in other respects. Thus, the Award of the Tribunal is reduced from Rs.4,70,000/- to Rs.4,60,000/- with interest @ 7.5% as awarded by the Tribunal from the date of claim petition till the date of deposit. There are no costs in this appeal. The Miscellaneous Petition is closed. 11. Learned counsel for the appellant-Insurance Company fairly submitted that the appellant-Insurance Company has already deposited 50% of the award as per the orders of this Court at the time of admission of the appeal and that the balance amount as awarded now by this Court, with accrued interest, will be deposited by the appellant-Insurance Company within a period of eight weeks from the date of receipt of a copy of this judgment. The said submission is recorded. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar cs https://hcservices.ecourts.gov.in/hcservices/ To 1. Motor Accidents Claims Tribunal (Chief Judge, Small Causes Court), Chennai. 2. The Section Officer, V.R. Section, High Court, Madras. + 1 cc t0 Mr. N. M. Muthurajan, Advocate SR.53924 + 1 cc to Mr.S. Vadivel, Advocate, SR. 53859 C.M.A.No.92 of 2007 SGL(CO) EU 7.09.2010. https://hcservices.ecourts.gov.in/hcservices/