IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.07.2010 C O R A M THE HONOURABLE Mr.JUSTICE B.RAJENDRAN CMA NO.172 of 2007 and M.P.No.1 of 2007 New India Assurance Company Ltd., Gobi Chettipalayam. ... Appellant/Respondent-3 Vs 1.Dharanidevi 2.Amudhalakshmi 3.Kavitha 4.Prabhu 5.Vijayaraghavan ..Respondents 1 to 4/Claimants 6.K.S.Gopalakrishnan .. Respondents 5 & 6/Respondents 1 & 2 Prayer : Appeal filed under Section 173 of the Motor Vehicles Act 1988 against the Decree and Judgment dated 28.12.2005 made in MCOP No.308 of 2004 on the file of the Motor Accident Claims Tribunal (II Additional Sub Court), Gobichettipalayam. For Appellant : Mr.S.Manohar For Respondents : Mr.MA.P. Thangavel for R1 to R4 J U D G M E N T The appeal has been preferred by the Appellant/Insurance Company against the Decree and Judgment dated 28.12.2005 made in MCOP No.308 of 2004 on the file of the Motor Accident Claims Tribunal (II Additional Sub Court), Gobichettipalayam. Aggrieved against the award of the tribunal, the Insurance Company has preferred this appeal. 2. According to the Insurance Company, they deny both the liability as well as the quantum. The liability is denied on the ground that in the FIR, the vehicle number has not been mentioned and it is only mentioned as unidentified lorry dashed against the deceased and went away without stopping. But subsequently in the charge sheet, the vehicle number has been included for which there is https://hcservices.ecourts.gov.in/hcservices/ no evidence. Even though the driver of the lorry has accepted the offence and paid the fine, that by itself would not amount to the Insurance Company accepting the liability as the criminal court case judgment is not binding on the Civil Court and there is no independent evidence to show that the vehicle has been involved and failed to prove the involvement of the vehicle. As far as the quantum is concerned, there is no independent evidence to fix the the income of the deceased at Rs.5,000/- per month and there is no evidence or document produced to fix the same. Therefore, aggrieved against the quantum of compensation, the Insurance Company has come forward with this appeal. 3. The respondent/claimant would contend that the accident took place on 12.02.2002 at about 2.00 p.m. while the deceased was travelling as a pillion rider on Motor cycle bearing Regn.No.TN37 – 4727 which was driven by one Ramakrishnan. While the motor cycle was proceeding from Bannari to Sathiamangalam main road, from west to east on the extreme right of the road, the first respondent driver of the lorry came from east to west in a high speed driven in a rash and negligent manner without following the traffic rules and dashed against the motor cycle. Due to the accident, the deceased who was a pillion rider sustained head injury and he was taken to Government Hospital, Sathiamangalam where he succumbed to death. The deceased was aged 53 years old and a case was registered in Crime No.81 of 2002 under Section 304 of IPC and thereafter the driver was convicted for the offence for imprisonment till the raising of the Court as well a fine of Rs.3,500/- in default to undergo Simple Imprisonment. The Judgment of the Criminal Court is marked as Ex.A7, the Charge Sheet is marked as Ex.A6 and the FIR is marked as Ex.A1. These documents would prove that the accident has taken place. It is also the fact that he was running a Maligai Shop and Kerosene Shop and he was earning a sum of Rs.5,000/- per month and the respondents/claimants are the legal representatives. The deceased was aged about 53 years for which there is no dispute and the Postmortem Certificate also certifies the age as 53 years and by applying the theory of 1/3rd deduction towards the personal expenses of the deceased, the tribunal has rightly granted the compensation and hence the appeal has to be dismissed and in so far as the liability is concerned for the Ipse Dixit of RW1 that the accident has not been proved and that the vehicle involved has not been sufficiently proved, there is no independent evidence to show or prove that the vehicle was not involved in the accident and therefore the tribunal has rightly come to the conclusion and passed the award which has to be affirmed by this Court. 4. Heard both the learned counsel for the Appellant/Insurance Company as well as the respondents/claimants. 5. The points for consideration in this appeal are - https://hcservices.ecourts.gov.in/hcservices/ [a] Whether the Insurance Company is liable to pay the compensation as the liability is questioned ? [b] Whether the compensation awarded is correct ? 6. As far as the first contention raised by the learned counsel for the Appellant/Insurance Company is with respect to dispute in liability. He would only contend that in the FIR it is stated as follows - @milahsk; bjhpahj bek;gh; yhhpapd; Xl;Ldh;@ Therefore, at the time of recording of FIR, the vehicle was not identified and later on in the charge sheet the number has been included. PW2 has been examined who claims to be the owner of the house opposite to the occurrence spot of the accident and he has not been cited as a witness in the charge sheet which is marked as Ex.A6 and even though he stated in the chief examination and cross examination that he has noted down the vehicle number, yet it is not stated why the number has not been included at the time of FIR and coupled with the fact that he has neither been examined nor even cited as an evidence in the criminal case. His evidence cannot be construed as correct and therefore there is no evidence to show that the vehicle was involved in the accident. This is the main and only ground that they would contend that vehicle itself is not involved in the accident and therefore they are not liable to pay the compensation. But if we take into consideration RW1 evidence, the officer concerned from the Insurance Company, even in the chief examination, he would only contend as follows - @,e;j vjph;kDjhuh; nkw;fz;; ;l thfdk; ,we;Jnghd jz;lghdp vd;gthpd; kPJ nkhjpaJ vd;gjid kWf;fpwhh;@ @Fw;wg;gj;jphpf;ifapy; fhQqk; bghGJ ,we;Jnghd jz;lghdp vd;gth; o/vd;/37 a[ 4727 vd;w tz;oapd; Xl;o te;Js;sjhf fz;Ls;sJ@ @kDjhuh;fs; o/vk;;/vy;/ 2066 vd;w thfdk;; nkhjpajhf bgha;ahf Twp ,e;j kDtpid bjhlu;Js;sdh;/ nkYk; , uz;lhk; vjph;kDjhuh; ,e;j fhg;gPl;L fHfj;jpw;F ve;j xU jftYk; jutpy;iy@. 7. He has stated in the chief examination that in no way they have stated that they did any investigation to find out that really the vehicle involved in the accident was the vehicle which was https://hcservices.ecourts.gov.in/hcservices/ insured with them whereas in the cross examination, it has been very specifically held as follows - @,e;j kD rk;ge;jkhf fhg;gP;L epWtdj;jpd; K:yk; jdpahf , d;tp!;onfc&d; bra;J mwpf;if jhf;fy; bra;atpy;iy/ Kjy; jfty; mwpf;ifapnyna nkhl;lhh; thfd irf;fpspy; gpd;dhy; te;jjhf fz;Ls;sJ vd;why; rhpjhd;@ @nghyP!; rhpahd Kiwapy; ,d;tp!;onfc&d; bra;Jjhd; , e;jtHf;F nghl;Ls;shh;fs; vd;why; rhpahf bjhpahJ@/ 8. In the cross examination it has been specifically put forward that no evidence has been let in for the purpose of any enquiry conducted by the Insurance Company or the non-production of any report by the authority concerned. Even thereafter, the Insurance Company has not even chosen to examine or investigate or any report being filed in the Court. Coupled with the fact, in the cross examination of RW1, it is stated that the police has investigated properly and thereafter only laid the charge sheet for which the authority did not deny the same. Therefore it is very clear that the Insurance Company has not produced any record nor even chosen to plead or prove that any investigation was conducted or any report was sought for, recording the same had come to a conclusion that the vehicle was not involved in the accident. 9. Per contra, the claimant had satisfied the initial burden to prove before the Court, He has produced Ex.A1- FIR, Ex.A6 – Charge sheet and Ex.A7 – Judgment of Criminal Court. Though in Ex.A1 the driver of the vehicle who is the complainant has categorically stated that the lorry had dashed against him from behind, he has stated that he does not know the number of the lorry but on police investigation, the charge sheet was laid against the driver of the present vehicle and in the list of witnesses, more than 15 people have been cited. But in as much as the driver of the vehicle himself has admitted the offence and he was convicted, there is no doubt for the claimant to disbelieve the same. Hence, as far as the claimant is concerned, he has proved his initial burden for the involvement of the vehicle coupled with the fact that the admission of the driver no doubt the Civil Court will not be bound by the judgment of the Criminal Court. Yet the evidence let in by the claimant by producing Exs.A1, A6 and A7 has got good evidentiary value which Court can take into account especially when the Insurance Company has not chosen to let in any evidence to deny the involvement of the vehicle coupled with the fact the claimant has also let in evidence of PW2 an independent witness who is residing just opposite to the accident spot. Even in the cross examination of PW2, the Insurance Company has not established that he is not a correct witness whereas in the cross examination, https://hcservices.ecourts.gov.in/hcservices/ the witness had categorically stated as follows - "yhhp epw;fhky; cjtp bra;ahky; ngha;tpl;lJ/ nkhjpdJ vg;go vd;W bjhpahJ/ tz;o ek;giujhd; Kjypy; ghh;j;njd;/ nghyPrhh; tprhhpj;jnghJ tz;o ek;gh; brhd;ndd;/ In the chief examination, he has categorically stated as follows - "mg;nghJ mtUf;F gpd;dhy; mjpntfkhft[k;. m$hf;fpuijahft[k; te;j xU yhhp gjpt[ vz; o/vk;/vy;/ 2066 mth;fs; Xl;ote;j nkhl;lhh; irf;fps; kPJ nkhjpaJ/ Therefore, merely because PW2 was not mentioned as a witness in the charge sheet, that cannot be a ground for the Insurance company to state that the involvement of the lorry has not been properly investigated or proved. Per Contra, the Insurance company has not chosen to produce any report or prove that any investigation done by the Insurance company to say that the lorry was not involved and it is also stated why the Insurance company has not chosen to summon the investigation officer to establish the fact that the investigation was not done properly or that the vehicle number was not been properly incorporated. Under those circumstances, when the initial burden has been properly established by the claimants by producing Exs.P1, P6 and P7, coupled with the fact that the evidence of PW2, this Court feels that the claim made by the Insurance company in so far as the no liability as if the accident did not take place by the lorry cannot be accepted. The tribunal has rightly come to the conclusion that the evidence of PW2 is unassailable and therefore the plea of the Insurance company in so far as the vehicle has not been involved in the accident is rightly held by the tribunal and confirmed in this appeal. 10. When we come to the conclusion that the insurance company is liable and the vehicle involved is correctly mentioned in the charge sheet, the next question is whether the amount granted by the tribunal is correct. As far as the age of the deceased is concerned, there is no dispute. The pleadings as well as the postmortem report states that the deceased was aged 53 years and he is claimed to be a provision store owner and has Ex.A9 – licence fee paid to the Sathiamangalam Panchayat Union for running the grocery shop on Door No.141, Chikarasampalayam Village Panchayat has been marked. He has produced a series of challans namely payment for grocery shop and payment of licence under the Food Adulteration Act and one for kerosene storage and also for sale of rice. All these licence fee were paid on 28.01.2007 more than one year prior to the accident. Therefore we can safely conclude that the deceased person was running https://hcservices.ecourts.gov.in/hcservices/ a grocery shop. As far as the income of the deceased is concerned, the claimants themselves have admitted that the deceased was earning a sum of Rs.5,000/- per month which was rightly accepted by the tribunal. On such acceptance of income and after deducting 1/3rd towards personal expenses, the tribunal has rightly fixed the value of dependency at Rs.40,000/- per annum and applying the correct multiplier namely 11, the tribunal has fixed the loss of dependency at Rs.4,40,000/-. 11. The tribunal has awarded conventional damages under various heads as follows - [1] loss of consortium ... Rs.10,000/- [2] love and affection ... Rs. 5,000/- [3] funeral expenses ... Rs. 5,000/- ----------------- Total ... Rs.20,000/- ========= 12. In my considered view, this amount of Rs.20,000/- awarded by the tribunal under conventional damage is reasonable and correct and the same is confirmed. The Insurance Company could not place anything exorbitant on the quantum of compensation awarded by the tribunal. Therefore, in so far as the quantum is concerned, the compensation awarded by the tribunal is confirmed. 13. During the course of argument, it is represented by the learned counsel appearing for the Insurance company that the tribunal has awarded interest @ 9% per annum for the award pertaining to the year 2002 whereas as per the Supreme Court rulings, the interest ought to have granted interest only @ 7.5% and not 9% which is not in consonance to the Supreme Court ruling. As rightly pointed out by the learned counsel for the Insurance company, the interest alone is reduced from 9% to 7.5% from the date of petition till the date of deposit . 14. In the result, the appeal is allowed in part reducing the interest alone from 9% to 7.5% per annum from the date of petition till the date of deposit upholding the compensation at Rs.4,60,000/- as awarded by the tribunal. At the time of admission of this appeal, this Court has passed a conditional order of stay directing the Insurance company to deposit a amount of Rs.3,50,000/-. The Insurance company is directed to deposit the balance of the award amount alongwith interest @ 7.5% per annum from the date of petition https://hcservices.ecourts.gov.in/hcservices/ till the date of deposit within a period of eight weeks from the date of this order. On such deposit, the respondents/claimants are permitted to withdraw their respective shares alongwith proportionate interest on the basis of apportionment fixed by the tribunal. No costs. Consequently, the connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rgr To The Motor Accident Claims Tribunal (II Additional Sub Court), Gobichettipalayam. Copy to: The Section Officer, VR Section, High Court,Madras. +1cc to Mr.S.Manohar,Advocate Sr 53862 +1cc to Mr.Ma.P.Thangavel, Advocate Sr 54088 GR(CO) km/4.10. CMA NO.172 OF 2007 https://hcservices.ecourts.gov.in/hcservices/