IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.04.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.583 of 2006 1.Kuppusamy 2.Chandran 3.Anjalai .. Appellants/Claimants Vs 1. The Divisional Manager United India Insurance Co., Ltd., Cuddalore-1 2. M.Poovan .. Respondents/Respondents (R2 unnecessary party and hence given up) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 23.09.2005, made in M.C.O.P.No.497 of 2005, on the file of the Motor Accident Claims Tribunal, Principal District Court, Cuddalore. For appellants : Mrs.M.Shakkira Banu For respondents : No appearance J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellants/petitioners against the Award and Decree, dated 23.09.2005, made in M.C.O.P.No.497 of 2005, on the file of the Motor Accident Claims Tribunal, Principal District Court, Cuddalore, awarding a compensation of Rs.30,000/- 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 appellants/petitioners have filed the above appeal for additional compensation amount of Rs.2,00,000/- with interest and costs. 3.The short facts of the case are as follows: On 11.01.2005, at about 09.00 a.m. when the deceased was standing in the mud portion of the road, near the bus stop Karaikadu, on Cuddalore to Vridhachalam road, a mini lorry bearing registration No.TN31 C8484 came from Kullanchavadi to Cuddalore at a great speed, https://hcservices.ecourts.gov.in/hcservices/ in a rash and negligent manner, without sounding horn and dashed against the deceased. Resultantly, the deceased sustained multiple grievous injuries. Immediately, he was taken to Government Hospital at Cuddalore, wherein, he was given first aid and thereafter he was referred to the Government Hospital at Chennai. But, in spite of best treatment, the deceased died on 23.01.2005. Regarding the said accident, a case was registered against the driver of the vehicle by the SHO, Cuddalore OT Police Station, in Crime No.37/2005 under sections 279 and 337 of I.P.C. Subsequent to death, altered to 304 (A) of I.P.C. 4.The claimants stated in their claim petition that the deceased was a mason helper and involved in agriculture. As such, the deceased was earning a sum of Rs.4,000/- per month. The first and second claimants are the sons and the third claimant is the daughter of the deceased. The claimants further stated that the accident had happened due to the rash and negligent driving of the driver of the vehicle. The vehicle was insured with the second respondent. As such, the owner of the vehicle and Insurance Company are jointly and severally liable to pay compensation. Hence, the claimants claiming a sum of Rs.8,00,000/- against the respondents with interest and costs. 5.The second respondent has filed a counter statement and denied the allegations stating that the deceased was standing in the mud portion of the road, near the bus stop Karaikadu, on Cuddalore to Virudhachalam road, the mini bus bearing registration No.TN31 C8484 came from Kullanchavadi to Cuddalore at a great speed in a rash and negligent manner. Without horn and dashed against the deceased and the deceased was fatally injured and that she was admitted in the Government Hospital, Cuddalore and then she was referred to Chennai and that she died on 23.01.2005 in Government Hospital, Chennai due to the injuries sustained in the accident. Further, the second respondent denied the age, and the income and occupation of the deceased. The driver of the vehicle had driven his vehicle at a moderate speed observing all the traffic rules and regulations at the time of the said accident. The deceased suddenly crossed the road without minding the on-coming vehicle and invited the accident. The accident occurred only due to the carelessness and negligent act of the deceased. Hence, the second respondent is not liable to pay any compensation to the petitioner as claimed by them and the claim amount is also excessive. 6.The Motor Accident Claims Tribunal framed three issues for consideration namely: (i) Whether the accident occurred due to the rash and negligent driving of the mini lorry belonging to the first respondent by its driver or due to the negligence of the deceased in crossing the road? https://hcservices.ecourts.gov.in/hcservices/ (ii) Whether the driver of the first respondent's mini lorry was having proper driving licence to drive such vehicle and whether it was covered by proper documents, including the insurance coverage? (iii)Whether the petitioners are the legal heirs/dependants of the deceased Ramaye and if so, what should be the quantum of the compensation? 7.On the petitioners' side the first petitioner was examined as PW1 and seven documents were marked as Exs.P1 to P7. On the respondents' side no witnesses were examined and no documents were marked. 8.To narrate the incident quintessentially as stood exposited from the averments in the petitioner, as stood exposited from the deposition of PW1, the first petitioner and the copy of the FIR lodged by PW1 would all reveal that the deceased Ramaye was standing on the mud portion of the road leading to Vridhachalam to Cuddalore and at that time the mini lorry bearing registration No.TN31 C8484 was proceeding from Kullanchavadi towards Cuddalore and dashed against Ramaye and thereby caused her death ultimately. The Motor Vehicle Inspector's Report was marked as Ex.P2. It reveals that the accident was not due to any mechanical defect. The driver of the vehicle was not examined as a witness so as torpedo the evidence adduced on the side of the petitioners. The driver of the mini lorry was expected to drive the vehicle cautiously and carefully without causing any peril to the other road users. There is nothing on record to show that the deceased was rash and negligent in crossing the road. Hence, this point is decided in favour of the petitioners and as against the respondents. 9.It is a trite proposition of law that the onus of proof is on the Insurance Company to show that the motorcycle was not covered by proper insurance policy and that it was not covered by proper documents as contemplated under the Motor Vehicles Act. But, no such evidence was adduced by the Insurance Company. However, on the petitioners' side Ex.P4, copy of the insurance premium payment receipt was filed and it shows that the first respondent's lorry was insured with the second respondent and the insurance coverage was in force at the time of accident. The Motor Vehicle Inspector also verified and got satisfied that the vehicle was covered by the documents as contemplated under the Motor Vehicles Act. Ex.P5, copy of the driving licence of the lorry driver would show that he has got valid driving licence at the relevant time. Hence, this point is decided in favour of the petitioners and as against the respondents. 10.Ex.P3 is the copy of the post-mortem certificate relating to the deceased Ramaye, who died due to multiple injuries sustained in a https://hcservices.ecourts.gov.in/hcservices/ road accident at her age of 55. Ex.P6 is the copy of the legal heirship certificate, which reveals that the petitioners are the children born to Ramaye and their respective ages are 35, 30 and 28 respectively. It is also clear that the third petitioner is the married daughter of Ramaye and the petitioners 1 and 2 are well grown up adult males and as such normally they are not entitled to any compensation substantially. But at the most they could claim compensation for loss of love and affection and for social support. As such, considering the social status of the deceased that she was only a cooly worker, the petitioners are entitled to a limited extent of compensation only. Accordingly, an award of Rs.10,000/- to each of the petitioners would meet the ends of justice. No separate compensation towards funeral expenses and loss of estate is awarded as the compensation awarded included those expenses incurred. 11.Finally, the Tribunal awarded a sum of Rs.30,000/- as compensation to the petitioners together with 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the respondents to deposit the respective shares of the petitioners in a nationalised bank for a period of three years and the petitioners were permitted to withdraw the accrued interest on their respective shares once in six months directly from the bank. The Advocate fees was fixed as per rules. Excess Court fees paid by the petitioners were ordered to be refunded to them. 12.Aggrieved by the said Award and Decree, the appellants/petitioners have filed the above appeal for additional compensation amount of Rs.2,00,000/- with interest and costs. 13.Learned counsel appearing for the appellants argued that the learned Tribunal failed to consider the quantum of compensation as claimed by the claimants. Further, the learned Tribunal has not considered the facts of the case and also not considered the oral and documentary evidence. Further, the learned counsel contended that the negligence on the part of the second respondent as such, the claimants are entitled to get compensation. The learned counsel further contended in his appeal that initially the deceased was admitted in the Government Hospital at Cuddalore and then she was taken to Government Hospital at Chennai for further treatment, wherein she died, due to the said accident. The learned Tribunal has not considered the compensation under the head of love and affection and consortium. The learned counsel further contended that in the present case, transport expenses was also incurred, which was also not considered by the Tribunal. Further, the first claimant had adduced evidence stating that the deceased was aged about 54 years at the time of the said accident. She was a mason helper and involved in the agricultural operation. In the present case, multiplier method has to be adopted. But, the learned Tribunal failed to consider the multiplier method. Hence, the learned counsel prays before this Court for additional compensation. https://hcservices.ecourts.gov.in/hcservices/ 14.Considering the facts and circumstances of the case, scrutiny of findings of the Tribunal and the arguments advanced by the learned counsel appearing for the appellants, this Court is of the view that the award granted by the Tribunal is on the lower side. Hence, this Court decides to award further more compensation to the claimants as follows: 1.In the absence of the income proof, this Court decides the income of the deceased as Rs.3,000/- per month. After deducting 1/3rd share of the personal expenses of the deceased, the contribution to her family a sum of Rs.2,000/-. The age of the deceased was 54 years. Therefore, the multiplier method 11 is adopted. As such, this Court grants a sum of Rs.2,64,000/- as compensation under the head of loss of income, 2.Rs.15,000/- under the head of loss of love and affection (each Rs.5,000/-), 3.Rs.10,000/- under the head of funeral expenses, 4.Rs.5,000/- under the head of transport expenses, In total, this Court awards a sum of Rs.2,94,000/- as compensation to the claimants, together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, which is found to be fair and equitable. 15.The learned Tribunal had granted a compensation of Rs.30,000/- with interest. After deducting the original compensation amount of Rs.30,000/-, this Court awards a sum of Rs.2,64,000/- 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, into the credit of the M.C.O.P.No.497 of 2005, on the file of the Motor Accident Claims Tribunal, Principal District Court, Cuddalore. 16.The claimants filed this above appeal for additional compensation of Rs.2,00,000/-. Hence, this Court awards the said amount ie.Rs.2,00,000/-. The said compensation amount is apportioned as follows: i.The first claimant is entitled to get a sum of Rs.70,000/- with accrued interest thereon, ii.The second claimant is entitled to get a sum of Rs.70,000/- with accrued interest thereon, and iii.The third claimant is entitled to get a sum of Rs.60,000/- with accrued interest thereon, https://hcservices.ecourts.gov.in/hcservices/ 17.Therefore, this Court directs the first respondent to deposit the additional compensation amount of Rs.2,00,000/- together with interest as observed above, into the credit of the M.C.O.P.No.497 of 2005, on the file of the Motor Accident Claims Tribunal, Principal District Court, Cuddalore, within a period of four weeks from the date of receipt of a copy of this Order. 18.After such deposit has been made by the first respondent, into the credit of the M.C.O.P.No.497 of 2005, on the file of the Motor Accident Claims Tribunal, Principal District Court, Cuddalore, the claimants are at liberty to withdraw the entire compensation amount with accrued interest thereon as mentioned above, by making proper payment out application in accordance with law. 19.In the result, the above Civil Miscellaneous Appeal is allowed and the Award and Decree, dated 23.09.2005, made in M.C.O.P.No.497 of 2005, on the file of the Motor Accident Claims Tribunal, Principal District Court, Cuddalore, is modified. There shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. krk To 1.The Motor Accident Claims Tribunal, Principal District Court, Cuddalore, 2. The Section Officer, VR Section, High Court, Madras. + 1 CC TO Mrs.M.Shakkira Banu, Advocate Sr 28717 C.M.A.No.583 of 2006 VSV (CO) RH (17.6.10) https://hcservices.ecourts.gov.in/hcservices/