IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.04.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.676 of 2010 & M.P.No.1 of 2010 ICICI Lombard General Insurance Company Ltd., Regd. Office, ICICI Towers, Bandra Kurta Complex, Bandra East, Mumbai – 400 051. ... Appellant /II Respondent Versus 1.Chinnavel 2.Minor Manivasagam 3.Minor Mahalakshmi 4.Minor Krishnamurthy 5.Kannamal 6.Kanmani ... Respondents/Petitioner (minors 2 to 4 rep.by their mother and guardian Chinnavel) Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 18.06.2009 made in M.C.O.P.No.658 of 2008 on the file of the Motor Accident Claims Tribunal, (Principal District Judge), Dharmapuri. For Appellant : Mr.K.S.Narasimhan For Respondents: Mr.M.Selvam (R1 to R5) (R6 set exparte in Lower Court) - - - J U D G M E N T The above appeal has been filed by the appellant / ICICI Lombard General Insurance Company Limited against the judgment and decree dated 18.06.2009 made in M.C.O.P.No.658 of 2008 on the file of the Motor Accident Claims Tribunal, Principal District Judge, Dharmapuri. 2.The short facts of the case are as follows:- https://hcservices.ecourts.gov.in/hcservices/ On 01.01.2007, when the (deceased) Ramachandran was riding the two wheeler bearing Registration No.TN29-D-9734, from Pennagaram to Nathahalli, slowly and carefully, keeping to the extreme left of the road and when the vehicle was near B.Agraharam Village, the mini door vehicle bearing Registration No.TN29-F-4696, coming from the opposite direction and driven by its driver at a high speed and in a rash and negligent manner, dashed against the said two wheeler, due to which the (deceased) Ramachandran was knocked down. He sustained multiple fatal 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 mini door vehicle and the second respondent is its insurer. 3.The second respondent, the ICICI Lombard General Insurance Company Limited, in his counter has resisted the claim stating that the rider of the Hero Honda motorcycle bearing Registration No.TN29-D-9734, along with two pillion riders, drove his vehicle in a rash and negligent manner, lost control due to the high speed and had resultantly lost his balance and fell down. It was stated that the driver of the mini door auto, noticed the zig zag, rash and negligent driving of the motorcycle and in order to avoid any accident had immediately stopped the auto. It was also submitted that the driver of the mini door auto did not have a valid driving licence to drive the same, at the time of accident. It was also submitted that the (deceased) rider of the motorcycle bearing Registration No.TN29-D-9734, did not have a valid driving licence. As the owner and insurer of the motorcycle had not been impleaded as necessary parties in the claim, it renders the claim not maintainable. The respondent has also denied the averments in the claim regarding the age, income and occupation of the deceased. It was also stated that the claim was excessive. 4.On the averments of the parties, the Tribunal had framed four issues for consideration, namely; “(i)Whether this accident had happened due to rash and negligent driving of the first respondent's vehicle which is insured with the second respondent at the time of accident? (ii)Is it true to say that the second respondent is not liable to pay the compensation to the petitioners? (iii)Whether the petitioners are entitled to claim compensation as claimed in the petition from the respondents No.1 and 2? (iv)To what other relief is entitled to?” 5.On the side of the petitioners, wife of the deceased was examined as PW1 and one Murthy and Srinivasan was examined as PW2 and PW3 and eleven documents were marked as Exs.P1 to P11. On the side of the respondents two witnesses were examined as RW1 and RW2 and two documents https://hcservices.ecourts.gov.in/hcservices/ were marked as Exs.R1 and R2. 6.PW2, Mr.Murthy, the eyewitness of the accident had adduced evidence that was in consonance with the averments made in the claim regarding manner of accident. Further on scrutiny of First Information Report marked as Ex.P1 and on scrutiny of the documentary evidence marked as Exs.P4, P5, P7 and P8, the Tribunal held that the accident had been caused by the rash and negligent driving of the first respondent's vehicle driver. Though RW1 and RW2 had adduced evidence stating that the first respondent's driver only had a light motor vehicle licence and did not have the necessary licence to drive the mini door auto, for commercial purpose, the Tribunal on holding that the mini door auto was only a light motor vehicle and that no evidence had been let in by the second respondent to prove that it had been used for commercial or transport purpose, held that the first and second respondents are jointly and severally liable to pay compensation to the petitioners. 7.Though it had been stated in the claim that the (deceased) was a registered contractor (Ex.P11) and was earning a sum of Rs.7,500/- per month, no documentary evidence has been let in to prove the income of the deceased. Hence, the Tribunal on considering that the age of the deceased was 35 years, as per Ex.P2, post mortem report and holding that the notional income of the deceased was Rs.3,000/- per month, adopted a multiplier of “17” and awarded a sum of Rs.4,08,000/- as compensation to the petitioners under the head of 'loss of income' (Rs.3,000 x 1/3 x 2 x 12 x 17). Further, a sum of Rs.20,000/- was awarded to the first petitioner for loss of consortium and Rs.10,000/- each was awarded to the second, third and fourth petitioners for loss of love and affection and the fifth petitioner was awarded a sum of Rs.5,000/- for loss of her son. Besides this, the Tribunal awarded a sum of Rs.5,000/- for transport expenses and Rs.5,000/- for funeral expenses. In total, the Tribunal awarded a sum of Rs.4,63,000/- as compensation to the petitioners. The Tribunal directed the first and second respondents to deposit the above said award with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, within two months from the date of their order. 8.Aggrieved by the said award passed by the Tribunal, the appellant / ICICI Lombard General Insurance Company Limited, Mumbai has filed the present appeal to set aside the award passed. 9.The learned counsel for the appellant has argued that the Tribunal failed to note that classification of a vehicle as light motor vehicle or heavy motor vehicle was on the basis of unladen weight and on the basis of the usage, the character of the vehicle such as private car or public vehicle is determined and once such classification is made irrespective of its use at a particular point of time, it is to be counted as a transport vehicle authorised to be used for commercial purpose. The learned counsel has further argued that the claimant had established the https://hcservices.ecourts.gov.in/hcservices/ character of the vehicle by adducing oral evidence thrown RW1 and RW2 and also marking documentary evidence i.e., Ex.R1-driving licence particulars and Ex.P4, R.C.Book. It was also stated that the multiplier of “17” adopted by the Tribunal was erroneous and as such the compensation awarded was excessive. The learned counsel has therefore prayed to set- aside the award or in the alternative to suitably modify the award, in accordance with law. 10.The learned counsel for the claimants argued that the deceased's age was 35 years, the claimants are the young widow, three minor children and aged mother. The deceased was earning a sum of Rs.7,500/- per month as Supervisor in construction work. The Tribunal had not awarded adequate compensation under the head of 'love and affection' and 'funeral expenses'. The Tribunal had fixed the income of the deceased as Rs.3,500/- which is on the lower side. The claimants are five in numbers. As such only ¼ of the income has to be deducted as personal expenses of deceased as per Hon'ble Apex Court Judgment. 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 quantum of compensation of a sum of Rs.4,63,000/- is not on the higher side, since the age of the deceased was 35 years and the claimants were five in numbers. The deceased was only the earning member engaged as Supervisor in construction work. Considering this aspect, this Court confirmed the impugned award of the learned Tribunal as it is found to be fair and justifiable. The driver of the mini door auto did not possess a valid effective driving licence. Therefore, the Insurance Company is at liberty to recover the compensation amount from the owner of the vehicle. 12.On 18.03.2010, this Court imposed a condition on the appellant / ICICI Lombard General Insurance Company Limited to deposit the entire compensation amount to the credit of M.C.O.P.No.658 of 2008 on the file of the Motor Accident Claims Tribunal, Principal District Judge, Dharmapuri. Now, it is open to the first and fifth claimants to withdraw their apportioned share amount with accrued interest thereon lying in the credit of M.C.O.P.No.658 of 2008 on the file of the Motor Accident Claims Tribunal, Principal District Judge, Dharmapuri. The minors 2, 3 and 4 apportioned share amount with accrued interest thereon shall be deposited in a nationalized bank in the cumulative deposit scheme until such time they attain the age of a major. The fixed deposit certificates shall be handed over to the first claimant, being the mother of the minors. https://hcservices.ecourts.gov.in/hcservices/ 13.Resultantly, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.658 of 2008, dated 18.06.2009 on the file of Principal District Judge, Dharmapuri is confirmed . There is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar r n s To The Motor Accidents Claims Tribunal, Principal District Judge, Dharmapuri. Copy to: The Section Officer, VR Section, High Court,Madras. +1cc to Mr.M.Selvam, Advocate Sr 27501 VS(CO) km/27.7. C.M.A.No.676 of 2010 https://hcservices.ecourts.gov.in/hcservices/