IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.12.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2057 of 2007 and M.P.No.1 of 2007 The New India Assurance Company Ltd., Thiruchengode .. Appellant/IInd Respondent Vs 1.Vijaya 2.Minor.Pradeep 3.Minor.Priyanga 4.Rasammal 5.Murugesan 6.Poonkodi ... Respondents/Petitioners & (Minors 2nd and 3rd respondents 1st Respondent rep.by their next friend and mother Vijaya) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree Order dated 05.02.2007, made in M.C.O.P.No.263 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Sangagiri. For appellant : No appearance For respondents : Mr.Pannerselvam for Mr.N.Manokaran 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 Order dated 05.02.2007, made in M.C.O.P.No.263 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Sangagiri, awarding a compensation of Rs.8,01,000/-, with 7.5% interest per annum, from the date of filing petition to till the date of payment of compensation. 2.Aggrieved by the said award and decree, the appellant/second respondent, The New India Assurance Company Ltd., has filed the above appeal praying to set aside the award passed by the Tribunal. 3.The short facts of the case are as follows: On 23.05.2005, at about 4.15 p.m. the deceased Dhanapal along with his friend was going towards Tiruchengode from Salem in a Maruthi Car bearing registration No.TN33 AA8532 and when the car was https://hcservices.ecourts.gov.in/hcservices/ nearing Kallukadai bus stop at Tiruchengode to Salem road, the driver of the said Maruthi Car drove the vehicle in a rash and negligent manner and hit against the Tamarind Tree and in the result, the deceased Dhanabal sustained injuries on the head and fact and he was taken to Tiruchengode Government Hospital for first aid and then he was taken to LKM Hospital, Erode and Nallusamy Hospital, Erode and succumbed to the injuries later in the hospital and post-mortem was conducted by duty Doctor of Government Hospital, Erode. 4.The accident occurred only due to the rash and negligent driving of the driver of the car bearing registration No.TN33 AA8532. The above accident was reported to the Mallasamudram Police Station and a case in Crime No.146/2005, under Sections 279 and 337 I.P.C. was registered initially and the same was altered subsequently under Section 304(A) IPC and the same is pending before the Tiruchengode Judicial Magistrate Court. 5.The deceased was aged only 36 years at the time of the accident and he was hale and healthy. He was a hard worker. He was working as Carpenter and was earning a sum of Rs.10,000/- per month, by doing Carpenter work. Due to this accident, the petitioners have lost not only the entire income of the deceased but, also the head of their family. Only out of his income, he was maintaining his entire family. But for the accident, the deceased would have lived and earned for the family for at least another 34 years. 6.Due to the sudden death of the said Dhanabal, the first petitioner lost her loving husband. The second and third petitioner have not only lost their loving father but also lost their support in their young age and the fourth and fifth petitioners have lost the support of their son in their old age. As such, the petitioners have claimed a compensation of Rs.10,00,000/- from the respondents. 7.The first respondent is the owner of the vehicle bearing registration No.TN33 AA8532, which caused the accident. The second respondent is the Insurance Company, under which the above vehicle was insured. 8.As such, both the respondents are jointly and severally liable to pay compensation of Rs.10,00,000/- to the petitioners with interest and cost, under Section 166 of the Motor Vehicles Act. 9.The second respondent, the New India Assurance Company Ltd., Tiruchengode, in his Counter has resisted the claim stating that the deceased Dhanabal was an unauthorised passenger in the car at the time of the accident and so the first respondent has violated the policy conditions and as such the second respondent cannot be held liable to pay any compensation to the petitioners. Further, it was submitted that the driver of the Maruthi Car, bearing registration No.TN33 AA8532 was not having valid licence to drive the Car at the time of the accident. 10.Further, the age, income and occupation of the deceased, the legal heirship of the petitioners were not admitted. The manner of https://hcservices.ecourts.gov.in/hcservices/ the accident as alleged in the claim petition was also not admitted. Further, the claim of the petitioners under various heads were excessive and had been calculated without any basis. As such, the second respondent has prayed for dismissal of the claim against the second respondent. 11.The Motor Accident Claims Tribunal framed two issues for consideration namely: (i) Was the accident caused due to the rash and negligent driving of the first respondent, the driver of the Maruti Car bearing registration No.TN33 AA8532 ? (ii) If so, what is the quantum of compensation that the petitioners are entitled to receive? 12.At the time of trial before the Tribunal, on the petitioners side two witness were examined as PW1 and PW2 and 12 documents were marked as Exs.P1 to P12. On the respondent's side, two witnesses were examined as RW1 and RW2 and two documents were marked as Exs.R1 and R2. 13.As the first petitioner in the claim, PW1, before the Tribunal, was not an eye witness of the accident, the Tribunal decided not to take into account evidence adduced by her on this aspect. Further, the Tribunal considered the FIR registered by the deceased Danabal ie.PW1's husband. In the FIR lodged by him, he had stated that he has working as a carpenter; that one Senthil, son of Venkatachalam had come to his place to pick him up, for doing some house hold work in Venkatachalam's house; that he had gone a long with the said Senthil in his Maruti Car bearing registration No.TN33 AA8532 , at about 1.30 a.m. on 23.05.2005 from Tiruchengode to Salem; that after receiving quotations from shops in Salem were coming back in the car towards Tiruchengode; that at 4.15 p.m. in the evening, when the car was nearing Sengodakounderkadu, near Kallukadai bus stop, as the driver Senthil felt that a vehicle was coming directly in front of him from the opposite side, he swerved the car to the left and because the car was driven at a high speed by the driver Senthil, he lost control and dashed against a tamarind tree and so caused the accident. The eye witness to the accident, PW2, one Mr.Suresh has confirmed the above version of the accident given by the husband of PW1. 14.The learned counsel appearing for the first respondent had argued that the accident did not happen due to rash driving of the driver Senthil. The owner of the car, first respondent herein in his evidence had marked the driving licence of the driver of car, Senthil. Further, he had also adduced evidence that his son ie.the driver of the car, Senthil had also died in the accident due to injuries sustained by him in the accident. From an examination of Ex.P3, the Motor Vehicle Inspector's Report, it is evident that the accident had not occurred due to any mechanical defects in the said car. The Tribunal, on scrutiny of Ex.P4, the Rough Sketch of the https://hcservices.ecourts.gov.in/hcservices/ accident, was of the view that the accident could have happened as per the version stated in the claim petition. 15.Considering the oral and documentary evidence on record, the Tribunal came to a conclusion that the accident had happened only due to the negligence, of the deceased driver of the car and the high speed at which he had driven the car. 16.PW1, in her evidence had stated that in the accident, her husband had sustained severe head injuries and injuries in his right knee, right fore arm, left knee and in right eyebrow and that he was immediately admitted in Tiruchengode Government Hospital and first aid was given here. For further treatment, he was admitted in LKM Hospital at Erode and Nallusami Hospital,Erode, wherein he was given treatment but in spite of the medical treatment given, her husband died on 21.06.2005, at the hospital, due to the injuries sustained by him in the accident. Further, she had stated in her evidence that the medical expenses incurred by her on this count was Rs.3,50,000/-. Further, she had stated that at the time of accident, her husband was aged about 36 years and that he was working as a carpenter and earned a sum of Rs.10,000/- per month; that due to the sudden demise of her husband in the accident, her family had lost their source of income and as such she had claimed a compensation of Rs.10,00,000/- from the first and second respondents. To prove the above, she had marked Ex.P2, the Post-mortem Report; Ex.P5, the Medical Bills; Ex.P6, the copy of the Insurance Policy, for the Maruti Car involved in the accident; Ex.P7, the series of 19 X'rays of the deceased; Ex.P8, the four numbers of C.T.Scans of the deceased; Ex.P9, the report about the CT Scans; Ex.P10, the Transfer Certificate issued by the School, in which the deceased had studied; Ex.P11, the Death Certificate of the deceased and the Ex.P12, the Legal heirship Certificate. 17.The learned counsel appearing for the second respondent/Insurance Company has contended that at the time of the accident, the deceased had travelled as an unauthorised passenger in the said Maruti Car bearing registration No.TN33 AA8532 ; that the driver of the said Maruti Car, Senthilkumar did not have valid driving licence at the time of the accident and as such the first respondent had violated the policy conditions as laid out in the insurance policy taken for the said maruti car and in support of this contention, the Officer of the Insurance Company was examined as RW2 and through him Ex.R2, the copy of the Insurance Policy for the said Maruti Car, was marked. But, the learned counsel appearing for the petitioner has contended that the deceased Danapal had travelled in the car only for the purpose of carrying out the first respondent's work and as such had not violated the policy conditions of insurance. RW2, during cross-examination, before Tribunal had accepted that the conditions of Insurance have not been breached by the first respondent and has also admitted that the said Maruti Car had been insured with the second respondent at the time of the accident. As such, the Tribunal held that the second respondent was held liable to pay the compensation to the petitioners. 18.Though, it has been stated by the petitioners that the https://hcservices.ecourts.gov.in/hcservices/ deceased had been earning a sum of Rs.10,000/- per month through carpentry work at the time of accident, as there was no documentary evidence furnished in support of this, the Tribunal held that a salary of Rs.3,000/- per month could have been earned by the deceased. Deducting 1/3rd share of this for personal expenses, the Tribunal held that the deceased could have contributed a sum of Rs.2,000/- per month to his family. Taking this figure, the yearly contribution to his family was worked at Rs.24,000/-. From a scrutiny of Ex.P10, School Transfer Certificate of the deceased, it was established that the date of birth of deceased was 25.05.1968. From an examination of Ex.P2-Post Mortem Report, the age of the deceased was seen to be 37 years. So, the Tribunal on taking a multiplier of 16, as relevant to the above said age of the deceased, computed the loss of income to the petitioners as Rs.24,000/- X 16 = Rs.3,84,000/-. 19.From an examination of Ex.P5-Medical Bills and receipts, Exs.P7 to P9, it is evident that the deceased had been given intensive care treatment for injuries sustained in the accident from 23.05.2005 to 21.06.2005. The Tribunal, on scrutiny of Ex.P5, Medical Bills, granted an award of Rs.2,88,000/- towards the expenses listed in the said bills. For transport expenses incurred for taking the deceased to Hospital and then to funeral ground, the Tribunal granted a sum of Rs.2,000/-. For funeral expenses, the Tribunal granted a sum of Rs.2,000/-. The Tribunal granted a sum of Rs.25,000/- to the first petitioner for loss of consortium; the Tribunal also awarded a sum of Rs.20,000/- each to the 1st, 2nd, 3rd, 4th and 5th petitioners ie. in total Rs.1,00,000/- to the five petitioners for loss of love and affection and as such the Tribunal awarded a total compensation of Rs.8,01,000/- to the petitioners. 20.Further, the Tribunal directed the first and second respondents, either jointly and severally, to deposit the said compensation to the petitioners together with interest at the rate of 7.5% per annum from the date of filing the petition to till the date of payment of compensation, into the credit of the M.C.O.P.No.263 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Sangagiri, within a period of a month. Further, the Tribunal apportioned Rs.5,26,000/- with accrued interest to the first petitioner; a sum of Rs.1,00,000/- each, with accrued interest, to the second and third petitioners; a sum of Rs.50,000/- with accrued interest to the fourth petitioner and a sum of Rs.25,000/- with accrued interest to the fifth petitioner. 21.Further, the Tribunal permitted the first petitioner to receive a sum of Rs.3,76,000/- of her apportioned award with interest and the fourth and fifth petitioners were also permitted to receive their total apportioned share of award, immediately, after the deposit was made by the second respondent. Further, the balance of the apportioned share of award of the first petitioner and the apportioned share of award of the second and third petitioners has to be invested in a Nationalised Bank, for a period of three years and the first petitioner was permitted to receive the interest on these deposits, once in three months, directly from the Bank. Further, the https://hcservices.ecourts.gov.in/hcservices/ Tribunal directed the petitioners to pay the Court fees on the award granted within a period of one month from the date of its Order. The Advocate fees was fixed at Rs.15,010/-. The respondents were directed to pay a sum of Rs.22,497.50 to the petitioners as costs. 22.The learned counsel appearing for the appellant has raised the points in his appeal that the Tribunal had erred in coming to the conclusion that the accident had occurred due to rash and negligent driving of the driver of the Maruti Car bearing registration No.TN33 AA8532. Further, the Tribunal had erred in fixing the monthly income of the deceased at Rs.3,000/- without any basis. Even the multiplier of 16 adopted by the Tribunal, considering the age of the deceased, as 37 years is on the higher side and the Tribunal should have adopted a lesser multiplier as per the Supreme Court Judgement reported in 2007(1) CTC Page 523 and 2007 (2) TLNJ 361 (Civil). Further, the awards granted under various heads are without any basis and is excessive. 23.The learned counsel appearing for the respondent argued that the accident had happened due to the rash and negligent driving of the driver of the car. The same was established before the Tribunal. Regarding quantum of compensation, medical expenses alone amounted to a sum of Rs.2,88,000/-. The rest of the amount awarded by the Tribunal are pertinent considering the age and income of the deceased and dependancy. 24.For the foregoing reasons, facts and circumstances of the case, grounds of the appeal, arguments for the learned counsel appearing for the respondents, this Court is of the view that the negligence point has been confirmed by the Tribunal on the basis of FIR, which had been registered by the Police Officer on the basis of the statement given by the deceased. As such, this Court confirms the finding of negligence of the Tribunal on this count. Regarding compensation, medical expenses alone amounted Rs.2,88,000/-. For loss of earning a sum of Rs.3,84,000/- was awarded by the Tribunal on the basis of monthly contribution to family as Rs.2,000/- only after deducting 1/3rd share as personal expenses of deceased and considering the age of the deceased as 37 years. For consortium a sum of Rs.25,000/- was awarded to the first claimant. For love and affection, a sum of Rs.20,000/- each was awarded to all the five claimants including the first claimant, but the Court is of the view that the first claimant is not entitled to head an award of Rs.20,000/- under the head of love and affection. The Tribunal awarded a sum of Rs.2,000/- for funeral expenses. This Court enhances the amount granted under this head to Rs.12,000/-. For transport, the Tribunal awarded a sum of Rs.2,000/-. This Court enhances the amount granted under this head to Rs.12,000/-, since the deceased was in hospital for a period of one month and so necessarily the claimants would have incurred transport and attender charges as well. In total, the Tribunal awarded a sum of Rs.8,01,000/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition to till the date of payment of compensation and this Court is of the view that the award granted is fair and equitable and payable by the appellant/New India Assurance Company https://hcservices.ecourts.gov.in/hcservices/ Ltd., 25.This Court imposed condition on the appellant on 13.08.2007 to deposit a sum of Rs.6,00,000/- to the credit of the M.C.O.P.No.263 of 2005, on the file of the Motor Accident Claims Tribunal, Sub- Court, Sangagiri, within a period of six weeks. Thereafter, the claimants 1st, 4th and 5th were permitted to withdraw 50% of their apportioned share from the said amount deposited with the Tribunal. 26.Now, this Court directs the appellant/New India Assurance Company Ltd., to deposit the balance award amount with interest at the rate of 7.5% per annum from the date of filing the petition to till the date of payment of compensation into the credit of the M.C.O.P.No.263 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Sangagiri, within a period of six weeks, from the date of receipt of this Order. 27.It is open to the 1st, 4th and 5th claimants to withdraw their balance compensation, with accrued interest, lying into the credit of the M.C.O.P.No.263 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Sangagiri, for their respective share amounts as per the Tribunal Order, by filing necessary payment out application, in accordance with law. The minor's share of apportioned amount shall be deposited in any one of the Nationalised Bank in re- investment scheme till they become major. After becoming major, the minor's are permitted to withdraw their apportioned share with interest by filing necessary application, before the Tribunal, in accordance with law. 28.In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree dated 05.02.2007, made in M.C.O.P.No.263 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Sangagiri, is confirmed. Consequently, connected miscellaneous petition is also closed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar krk To 1.Motor Accidents Claims Tribunal, Sub-Court, Sangagiri. 2.The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.N.Manokaran, Advocate, Sr.No.68370 1 cc to Mr.R.Sivakumar, Advocate, Sr.No.67988 Order in C.M.A.No.2057 of 2007 GV {CO} TP/31.12.2009. https://hcservices.ecourts.gov.in/hcservices/