IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.03.2010 CORAM THE HONOURABLE MR.JUSTICE S. MANIKUMAR C.M.A.No.66 of 2006 The Oriental Insurance Company Limited, No.8, U.I.L. Buildings, Chennai-2. ..Appellant/2nd Respondent Vs. 1.Banumathi 2.Yuvakrishnan(Minor), S/o Late Jayakumar 3.Jayaprakash(Minor), S/o Late Jayakumar Minors rep. by their mother and Next Friend Banumathi 4.Dhanalakshmi 5.Dhamodaran 6.Miss. Radha ..Respondents/Petitioners & 1st Respondent Prayer : Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and decree made in M.A.C.T.O.P.No.2822 of 2001 on the file of the Motor Accidents Claims Tribunal (Additional District and Sessions Judge (Fast Track Court No.II)) at Chennai dated 21.7.2004. For Appellant :: Mr. M. Krishnamoorthy For Respondents :: Mr.V. Jegannathan 1 to 5 JUDGMENT In an accident, which occurred on 06.03.2001, the husband of the first respondent died. Legal representatives of the deceased, wife, two minor children, parents claimed compensation of Rs.13,00,000/-. The appellant/Insurance Company, with the leave of the Tribunal, disputed the manner of the accident, negligence on the part of the driver of the vehicle, insured with them, and liability to pay compensation, under different heads. 2. However, the Tribunal on evaluation of pleadings and evidence, found that the driver of the vehicle, insured with the appellant-Insurance company was responsible for the accident and quantified the compensation, at Rs.10,19,320/-, with interest at the rate of 9% p.a. Being aggrieved by the finding, regarding negligence, quantum of compensation and the rate of interest awarded on the quantum, the appellant-Insurance Company has preferred this appeal. 3. Assailing the correctness of the findings, regarding negligence, Mr. Krishnamoorthy, learned counsel for the appellant- Insurance Company submitted that the Tribunal has erred in concluding that the driver of the trailer lorry, owned by the sixth respondent herein and insured with the appellant-Insurance Company, as responsible for the accident. According to him, when the claimants have deposed that the driver of the bus, owned by the Metropolitan Transport Corporation Limited, Chennai, in which, the deceased was travelling, was negligent in driving the bus, the Tribunal ought to have fixed the entire responsibility on the driver of the Transport Corporation bus, or in the alternative, ought to have held that the driver of the Transport Corporation bus was equally responsible for the accident, in view of the head-on-collision of two heavy vehicles. 4. As regards the quantum of compensation, learned counsel for the appellant-Insurance Company submitted that the Tribunal has erred in fixing the monthly income of the deceased, at an excessive rate of Rs.7,120/-, on the basis of Ex.P9-Salary Slip issued only for six days for the month of March 2001. According to him, as per Ex.P8 Salary Slip for February 2001 the gross income of the deceased was Rs.6,915/- and therefore, fixing at Rs.7,120/- as monthly income of the deceased, is excessive and it is liable to be reduced. He further submitted that application of '17' multiplier, is highly excessive and it requires reduction. 5. Placing reliance on a decision of the Hon'ble Supreme Court in Dharampal and others v. U.P. State Road Transport Corporation reported in 2008 ACJ 2041, learned counsel for the appellant submitted that the Tribunal ought to have awarded interest only at the rate of 7.5% per annum, taking into account the prevailing the rate of interest, on the date of passing of the award and not with reference to the date of either accident or the claim petition. He also placed reliance on a decision rendered by the Hon'ble Supreme Court in Tamil Nadu State Transport Corporation Limited Vs. S. Rajapriya reported in 2005 ACJ 1441 (SC). 6. Justifying the determination of the monthly income Mr. V. Jegannathan, learned counsel for the respondents/claimants submitted that in February 2001, the deceased was working as Grade- III Fitter in Southern Railways and he earned Rs.6,915/- per month. Subsequently, he was promoted as Technician Grade-II, with a basic pay of Rs.4,000/-. According to him, the deceased earned a sum of Rs.1,654/- as salary for six days in the month of March, in the promotional post of Technician Grade-II. He further submitted that for the remaining 24 days, his salary would have been Rs.8,820/-per month. Therefore, he submitted that the Tribunal has rightly determined the monthly income of the deceased for computing the dependency compensation. 7. Learned counsel for the respondents/claimants further submitted that the award granted under other heads are also reasonable. Considering the loss of life, he prayed that the rate of interest, awarded on the quantum of compensation, be sustained. 8. Heard the learned counsel for the parties and perused the materials available on record. 9. Before the Tribunal, wife of the deceased, examined herself as PW-1 and reiterated the manner of accident. In support of her contention, she produced Ex.P1-First Information Report, Ex.P2-Rough sketch and Ex.P3-Charge sheet. The Tribunal, after noticing that a criminal case has been registered against the driver of the trailer lorry bearing Regn.No.TN21-1656 and the police, on investigation, has laid a charge against the driver of the trailer lorry, and in the absence of any oral and documentary evidence let in by the owner of the trailer lorry or the appellant-Insurance Company, found that the driver of the above said vehicle was responsible for the accident. It is well settled that preponderance of probability is the test in accident claims cases and applying the same, to the facts of this case, this court is unable to subscribe to the contentions of the appellant-Insurance Company. There is no perversity in the findings of the Tribunal regarding negligence and the same is confirmed. What is stated by the respondents/claimants is that there was a head on collision. If the driver of the Transport Corporation was negligent in causing the accident, the police would not have laid a charge against the driver of the trailer lorry. In any event, the statement of the claimants that there was a head on collision, does not necessarily mean that both the drivers were responsible. There is every possibility of one vehicle crossing over to the other side of the road in causing the accident. Apart from the oral testimony, the Tribunal has also considered the sketch drawn by the police, for deciding the issue of negligence. Therefore, the finding of negligence cannot be said to be arbitrary. 10. On the aspect of determination of monthly income, it could be seen from Ex.P8, Salary Certificate in February 2001, the deceased was working as Fitter Grade-III and earned Rs.6,950/-per month. As per Ex.P9, Salary Certificate for 6 days in March 2001, the deceased was promoted as Technician Grade II and unfortunately, within six days, he met with an accident and died. 11. Fixing the basic scale of pay at Rs.4,000/- in the post of Technician, Grade II, the Southern railways has paid him a sum of Rs.1,654/- for six days in March 2001 and that the same is supported by Ex.P9, Salary Certificate. As rightly contended by the learned counsel for respondents/claimants that for the remaining 24 days in the month of March' 2001, his salary would have been Rs.8,820/-. After deducting Rs.1500/- towards bonus, the Tribunal has fixed the monthly income of deceased at Rs.7,120/-, which cannot be said as arbitrary warranting interference. 12. Even before, the deceased could complete 35 years, the accident had occurred and therefore the Tribunal has applied '17' multiplier as per the Second Schedule 163-A of the Motor Vehicles Act, 1988 for computing the dependency compensation. For the age group of persons between 30 and 35 years, the appropriate multiplier is '17'. After deducting 1/3rd towards his personnel expenses, the dependency compensation was quantified at Rs.9,68,398/-. 13. A perusal of the judgement shows that though the accident had occurred on 6.3.2001. Prior to death, he was given treatment. But, he succumbed to the injuries only on 12.3.2001. Therefore, the Tribunal has awarded a sum of Rs.10,000/- towards pain and suffering, in addition to conventional damages, such as, loss of love and affection, loss of consortium, funeral expenses etc. Had the deceased continued in service, he would have had 24 years of remaining service and since the deceased was working on the Technical side, there is every possibility for better future prospects, such as promotion, increase in bonus and other benefits, which are normally given to technical staff periodically. Considering the remaining period of service and future prospects of the deceased the application of '17' multiplier for computation of dependency compensation, cannot be said to be on the higher side, warranting interference. In fact as per the recent decision of the Supreme Court in Smt.Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 (2) TNMAC 1, the Tribunal ought to have added 30% of his annual income towards future prospects, while determining the monthly income for the purpose of determining the loss of dependency. But the Tribunal has fixed a lesser income. Therefore, the determination of monthly income and the application of '17' multiplier cannot be found fault with, as arbitrary. Award under other heads are reasonable and therefore no interference is called for. 14. As regards, the rate of interest awarded by the Tribunal on the quantum of compensation, in Tamil Nadu State Transport Corporation Limited v. S. Rajapriya reported in 2005 ACJ 1441 (SC), the Supreme court, taking into account the then prevailing rate of interest and bank deposits, directed for lowering of the rate of interest fixed by the Tribunal at 9% per annum and altered the same to 7% per annum. 15. In a recent judgment of Hon'ble Supreme Court in Darampal and others v. U.P. State Road Transport Corporation reported in 2008 ACJ 2041, while dealing with a case, exclusively on the rate of interest, applicable to claims cases and following a Catena of judgments,at paragraph No.14,it has been held as follows: " 14. In the backdrop of the aforesaid legal position, we may now examine the facts of the present case. Accident in the present case had taken place on 1.9.2004 and the Tribunal has passed the award on 18.5.2005. Rate at which the interest is to be awarded would normally depend upon the bank rate prevailing at the relevant time. Since, in the case of Tamil Nadu State Transport Corporation Limited V. S. Rajapriya, 2005 ACJ 1441 (SC), was decided in the month of April 2005, the prevailing rate of interest on bank deposits was found and held to be 7.5% per annum, we consider it appropriate to award the same rate of interest, as the same was the prevailing rate of interest on the date of the passing of the award, i.e. 18.5.2005 in the present case. Consequently, we hold that the appellants would be entitled to be paid interest at the rate of 7.5% per annum from the date of application till the date of payment. " 16. In the case on hand, the accident had occurred on 6.3.2001. Hence, following the ratio decedenti of the decisions stated supra, the rate of interest awarded on the quantum of compensation is scaled down to 7.5% per annum. Excepting the above, the award is confirmed. It is represented by the learned counsel for the appellant-Insurance company that pursuant to an interim order granted in C.M.P.No.235/2006 dated 6.1.2001, the entire award amount with accrued interest at the rate of 9% per annum with costs has been deposited to the credit of M.A.C.T.O.P.No. 2822/2001 on the file of M.A.C.T. (Additional District and Sessions Judge, Fast Track Court No.II), Chennai and respondents 1,4 and 5 were already permitted to withdraw 50% of award amount with proportionate accrued interest and costs and the balance 50% share amount and the entire share amount of respondents 2 and 3 were directed to be invested in a Fixed Deposit, Indian Bank, High Court Extension. In view of confirmation of the quantum of award, the respondents/claimants shall be permitted to withdraw the balance amount, apportioned to them with accrued interest at the rate of 7.5% from the date of claim and the Tribunal is directed to refund the excess accrued interest to the appellant- Insurance Company, within the period of two months, from the date of receipt of copy of this order. The respondents/claimants are permitted to make necessary application before the Tribunal for disbursement of the remaining amount. 17. Hence, the Civil Miscellaneous Appeal is partly allowed with the above said directions. No costs. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar ari To The Motor Accidents Claims Tribunal, Additional District-cum-Sessions Judge, II Fast Track Court, Chennai. + 1 c.c. to Mr. M. Krishnamoorthy, Advocate. S.R.No.20233. + 1 c.c. to Mr. D. Sampath, Advocate. S.R.No.20343. CMA.No.66 of 2006 KA (CO) GSK 17.06.2010.