IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 23/06/2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.3150 of 2008 The Divisional Manager, National Insurance Co. Ltd., Pondicherry. ... Appellant Versus 1.Anduvan 2.Loordu Mary 3.Govindakrishnan ... Respondents Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 09.04.2007, made in M.A.C.T.O.P.No.485 of 2005 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Gingee. For Appellant : Mr.S.Vadivel For Respondents: Mr.M.R.Sivakumar (R1 and R2) J U D G M E N T The above appeal has been filed by the appellant / National Insurance Company Limited against the award and decree dated 09.04.2007, made in M.A.C.T.O.P.No.485 of 2005 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Gingee. 2.The short facts of the case are as follows:- On 29.07.2004, at about 07.30 p.m., when the (deceased) Rajakannu @ Anthoni Raj was walking from Vellanthangal Koot Road towards Vellanthangal and when he was near Chinnamedu, the tractor bearing Registration No.TDF-8263, driven by its driver at a high speed and in a rash and negligent manner, dashed against the (deceased) Rajakannu @ Anthoni Raj. The (deceased) Rajakannu @ Anthoni Raj sustained multiple injuries and died on the spot. Hence, the petitioners, who are the legal-heirs of the deceased, have filed a claim for Rs.10,00,000/- against the respondents. The first respondent is the owner of the vehicle and the second respondent is the insurer of the vehicle. https://hcservices.ecourts.gov.in/hcservices/ 3.The second respondent, in his counter has resisted the claim and denied the averments in the claim regarding manner of accident, age and occupation of the deceased Rajakannu @ Anthoni Raj. It was also stated that the first respondent's vehilce i.e., tractor & trailer was not insured with them at the time of accident and that the driver did not have a valid driving licence to drive the vehicle at the time of accident. It was also stated that the petitioners should prove that the vehicle was covered under valid R.C. and F.C at the time of accident. It was also stated that the deceased died only because of his negligence and that there was no negligence on the part of the first respondent's vehicle driver. It was stated that the claim was excessive. 4.On the averments of both parties, the Tribunal had framed two issues for consideration in this case, namely; “(i)Did the accident occur due to the rash and negligent driving of the first respondent's driver? (ii)Are the petitioners entitled to get compensation? If so, what is the quantum of compensation?” 5.On the petitioners side, two witnesses were examined and three documents were marked as Exs.P1, P2 and P3 viz., FIR, Motor Vehicle Inspector's Report, Post-mortem certificate. On the respondents side, two witnesses were examined and no documents were marked. 6.PW1, the father of the deceased, had adduced evidence which was in consonance with the averments in the claim regarding manner of accident. PW2, the eyewitness of the accident, adduced evidence that on 29.07.2004, at about 07.30 p.m., when the (deceased) Rajakannu was walking on the left side of the road, near Chinnamedu, the tractor coming in the opposite direction, had been driven in the wrong side of the road and dashed against the (deceased) Rajakannu. As a result of which, the (deceased) Rajakannu had died on the spot. The complaint regarding the said accident had been given by one Moyees. From scrutiny of the F.I.R., it is seen that when the said Moyees and the (deceased) Rajakannu were on their way to Vellanthangal, and when they were near Chinnamedu near Pudur, the tractor bearing Registration No.TDF 8263, which was coming in the opposite direction, carrying a sugarcane load, and driven by its driver at a high speed and in a rash and negligent manner had dashed against the (deceased) Rajakannu and the tyre of the tractor had run over the left head of the (deceased) Rajakannu. His brain had been smashed and he had died on the spot. RW1, the Assistant Inspector in the second respondent's firm had adduced evidence that only the first trailer attached to the front portion of the tractor bearing Registration No.TN45-H-9899 had https://hcservices.ecourts.gov.in/hcservices/ been covered under a policy of Insurance with them and that the second trailer, attached to it, bearing Registration No.TN47-T-9717 had not been insured with them. Hence, it was stated that the second respondent cannot be held liable to pay compensation. RW2, the Motor Vehicle Inspector, Dindivanam had also adduced evidence that only first trailer can be attached to a tractor and that attaching two trailers to a tractor was in violation of the Rules laid down under the Motor Vehicles Act. Hence, the Tribunal held that as the deceased had sustained injuries due to the tyre of the tractor running over his head and as the said tractor had been insured with the second respondent, the second respondent is liable to pay compensation and can recover it from the first respondent. As such, the Tribunal held that the accident had been caused by the rash and negligent driving of the first respondent's tractor driver. 7.The Tribunal on considering that the deceased was a 10th standard student, aged about 16 years (as per postmortem report) were of the opinion that he could have earned a sum of Rs.5,000/- per month after completion of his studies. Adopting a multiplier of “16”, the Tribunal awarded a compensation of Rs.6,40,000/- (Rs.5,000 x 1/3 x 12 x 16) to the petitioners under the head of 'loss of income to the petitioners'. The Tribunal further awarded Rs.10,000/- for funeral expenses and Rs.20,000/- for the loss of love and affection and Rs.20,000/- for loss of expectation of life. In total, the Tribunal awarded a compensation of Rs.6,90,000/- to the petitioners together with interest at the rate of 7.5% per annum and directed the second respondent to deposit the award with interest within a period of 60 days from the date of its order. 8.Aggrieved by the award passed by the Tribunal, the appellant / National Insurance Company has filed the present appeal to set-aside the award passed. 9.The learned counsel for the appellant has argued in his appeal that the Tribunal ought to have dismissed the claim petition on the ground that the trailers bearing Registration Nos.TN45-H-9899, TN47- T-9717 attached with the tractor bearing Registration No.TDF-8263 were not insured with the appellant and admittedly the deceased died due to the tyres of the second trailer running over the head of the deceased. It was also stated that the claims Tribunal failed to consider the oral evidence of RW1 regarding the violation of Motor Vehicles Act, as the first respondent had wantonly and deliberately allowed two trailers to be attached to the tractor which was in contravention of the Motor Vehicles Act. The Tribunal had also erred in fixing the notional income of a 16 year old student as Rs.5,000/- based on presumptions. It was also stated that the relevant multiplier of the age of 16 was “10” and not “16” as adopted by the Tribunal. As such, it was pointed out that the award granted was excessive. The learned counsel for the appellant further argued that a non-earning members notional income was Rs.15,000/- but, the https://hcservices.ecourts.gov.in/hcservices/ Tribunal had fixed the income of the deceased as Rs.60,000/- per year, which is erroneous view. 10.The learned counsel for the claimants argued that even though the deceased was a student and aged about 16 years, he had extended his co-operation to his parents, by way of helping them in agricultural field. He was also the only son to his parents. He was a brilliant student and had also participated in sports and games. In the rural areas, normally students are involved in assisting their parents by way of doing some agricultural work. The deceased had also extended his help to his parents in a similar way and contributed income to the family. 11.Considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the deceased was a student and the only son to his parents and he had extended his co-operation for supporting the claimants, monetarily, by way of doing agricultural work. Therefore, this Court fixes the income of the deceased as Rs.3,000/- per month after deducting personal expenses of deceased. As such, this Court assessed the compensation as follows:- For loss of income to claimants .. Rs.3,12,000/- (Rs.3,000 x 1/3 x 2 x 12 x 13) For funeral expenses .. Rs.10,000/- For loss of love and affection .. Rs.20,000/- For loss of estate .. Rs.90,000/- In total, this Court awards a sum of Rs.4,32,000/- as compensation to the claimants. Therefore, this Court scales down the compensation awarded by the Tribunal from Rs.6,90,000/- to Rs.4,32,000/- as it is found to be fair and justifiable in the instant case. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. 12.On 18.11.2009, this Court imposed a condition on the appellant /National Insurance Company to deposit 50% of the award amount with accrued interest and costs to the credit of M.A.C.T.O.P.No.485 of 2005 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Gingee. Further, on 02.07.2010, this Court permitted the claimants to withdraw the 50% of the deposited amount with accrued interest and costs lying in the credit of M.A.C.T.O.P.No.485 of 2005 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Gingee. Now, this Court directs the appellant / National Insurance Company to deposit the balance compensation amount, as fixed by this Court to the credit of M.A.C.T.O.P.No.485 of 2005 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Gingee within a period of six weeks from the date of receipt of this order. After such a deposit being made, it is open to the claimants to withdraw the their modified https://hcservices.ecourts.gov.in/hcservices/ compensation amount as fixed by this Court and as apportioned the ratio by the Tribunal lying in the credit of M.A.C.T.O.P.No.485 of 2005 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Gingee, after filing a Memo along with this order. 13.Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.A.C.T.O.P.No.485 of 2005, dated 09.04.2007, on the file of Subordinate Court, Gingee is modified. There is no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar r n s To 1. The Motor Accidents Claims Tribunal, Subordinate Judge, Gingee. 2. The Section Officer, VR Section, High Court, Madras 1 cc To M/s.S.Vadivel, Advocate, SR.86145 1 cc To M/s.M.R.Sivakumar, Advocate, SR.34968 ORDER MADE IN C.M.A.No.3150 of 2008 TAM (CO) RH (5.8.11) https://hcservices.ecourts.gov.in/hcservices/