IN THE HIGH COURT OF JUDICATUE AT MADRAS DATED 06.01.2010 CORAM THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN C.M.A. No.1842 of 2004 M/s. United India Insurance Company Limited, represented by its Branch Manager .. Appellant versus 1. Mrs. Chellammal 2. Mrs. Lakshmi 3. Mr. C. Chandrasekaran 4. Mr. C. Sivanesan 5. Mr. C. Karthikeyan 6. Mr. C. Sivakumar 7. Mrs. Indira .. Respondents Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and award of the learned Principal Sub Judge of Tindivanam in M.A.C.T.O.P. No.675 of 1999 dated 28.04.2003. For appellant : Mr. Jeyendrakrishnan For respondents: Mr. T. Dhanyakumar for R1 to R6 JUDGMENT The appeal has been preferred by the Insurance Company against the award of a sum of Rs.2,50,000/- granted for the death of one Chidambaram. 2. The case of the respondents/claimants is that on 30.04.1999 the deceased was walking towards his house and by that time a TVS Scooty driven rashed and negligently dashed against Chidambaram and got fatal injuries. It is the contention of the respondents that the deceased was working as Gold Smith and he was aged about 55 years and earning monthly income of Rs.3,500/-. Hence, they sought for a sum of Rs.2,50,000/- as compensation. 3. The appellant contested the claim petition by filing counter statement and additional counter statement. In the first counter statement, it is stated by the appellant that the vehicle was not https://hcservices.ecourts.gov.in/hcservices/ insured with them and the driver did not possess valid driving licence and that the accident occurred due to the negligent act of the deceased. However, in the additional counter statement, the appellant stated that the TVS Scooty was not involved in the accident as its number was not reflected in the FIR. In paragraph 4 and 5 of the additional counter statement, the appellant stated that with the help of the police, false records were fabricated and the vehicle's number was incorporated in the records. Further, it was alleged that no damage was caused to the TVS Scooty and that itself would prove that the vehicle was not involved in the accident and it is a bogus claim. 4. On appreciation of the pleadings and evidence, the Tribunal rejected the appellant's evidence and documents and found that the accident occurred due to the negligence of the rider of the two wheeler and awarded a sum of Rs.2,50,000/- along with interest at 9%. The said award is being challenged in this appeal. 5. The learned counsel for the appellant submitted that in the FIR, the TVS Scooty No. was not incorporated and the accident inspection report (Exhibit P2) reveals no damage caused to the vehicle. If really the vehicle was involved in the accident its number should be found place in the First Information Report Ex.P1. The learned counsel further submitted that the Tribunal without any reason rejected the appellant's evidence as well as the documents and that in the absence of any proof with regard to the involvement of the said vehicle, the liability cannot be fastened on the appellant. 6. On the other hand, the learned counsel for the respondents/claimants submitted that at the time of accident, nobody could note the number of the vehicle and subsequently it was found that a TVS Scooty was involved in the accident and that is the reason why its number could not find place in the First Information Report Ex.P.1. Therefore he submitted that the inspection was done after a month and by that time the vehicle got repaired and therefore damage caused to the vehicle could not be found in the vehicle. 7. A perusal of the award would show that the accident occurred on 30.04.1999 and a complaint was lodged and First Information Report was registered by the police. Subsequently, the motor vehicle's inspector inspected the vehicle and filed the Accident Inspection Report. Apart from that in paragraph 4 of the additional counter statement filed by the appellant speaks about the filing of the criminal case against the owner of the two wheeler and also filing of the charge sheet against him. Filing of the criminal case and the charge sheet against the owner of the vehicle would go to show that the vehicle was involved in the said accident and that is https://hcservices.ecourts.gov.in/hcservices/ the reason, why the criminal case has been filed against the owner of the said vehicle. 8. As far as the evidence produced by the appellant is concerned, the Tribunal rightly rejected the said document, on the ground that the persons examined by the investigator were not examined before the Tribunal. Moreover the investigation officer is a private person engaged by the Insurance Company and no authenticity would be given to the said report. If at all it could be termed as uncorroborated hearsay evidence. Based on that, the appellant cannot prove its defence. The claimants through PW1 and PW2 categorically proved their contentions. Hence, the finding of the Tribunal that the accident had occurred only due to the negligent act committed by the two wheeler driver and the same is hereby confirmed. 9. As far as the compensation is concerned, the Tribunal as per Ex.P3 fixed the age of the deceased at 55 and as per schedule II of the Motor Vehicle Act adopted the multiplier of 10. As per Schedule II of the Motor Vehicle Act, for the age between 50 and 55, the appropriate multiplier would be '11'. However, the Tribunal only took 10 as the multiplier. As far as the monthly income is concerned, the claimants claimed a sum of Rs.3,500/- per month. The Tribunal took Rs.3,000/- as monthly income and deducted 1/3 towards personal expenses and arrived at the loss of income at Rs.3000- 1/3x12x10 = 2,40,000/-. It is seen from the records that there is no evidence available to prove the monthly income of the deceased. The Hon'ble Supreme Court in New India Assurance Company Limited -vs- Kalpana (Smt.) and others reported in 2007 (3) SCC 538 held that in the absence of any definite material about the income of the deceased to the family, the monthly contribution, after deduction of 1/3 was fixed at Rs.3,000. In this case Rs.3,000/- was taken as monthly income and after deducting towards personal expenses, Rs.2,000/- was taken as loss of income to the family. Even applying the said ratio given by the Hon'ble Supreme Court in the aforesaid Kalpana case, the amount fixed by the Tribunal is very reasonable. In view of that, the amount awarded towards loss of income at Rs.2,40,000/- cannot be set aside and the same is confirmed. The Tribunal further awarded a sum of Rs.2,000/- towards funeral expenses and Rs.8,000/- towards solatium. There cannot be any solatium to the tune of Rs.8,000/- as there is no provision in the Motor Vehicles Act. However, the Tribunal did not award any amount towards loss of love and affection and therefore the said amount towards solatium is adjusted towards loss of love and affection. In fine, the award of the Tribunal is modified as follows: https://hcservices.ecourts.gov.in/hcservices/ Loss of income Rs.2,40,000 Loss of love and affection Rs. 8,000 Funeral expenses Rs. 2,000 -------------- Total Rs.2,50,000 -------------- The amount should be apportioned as per the ratio decided by the Tribunal. The Tribunal awarded 9% interest from the date of the petition till the realisation and the same is hereby confirmed. 10. Except the modification made above, the award of the Tribunal is confirmed and appeal is dismissed. However, there will be no order as to costs. The learned counsel for the respondents submitted that the appellant deposited the entire amount and 50% of the award amount was already withdrawn. Therefore, the Tribunal is directed to pay the balance amount to the claimants within two weeks from the date of receipt of a copy of this order or on production of a copy of this order whichever is earlier. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vga To The Principal Sub Judge, Tindivanam +1cc to Mr.J.Raja Kalifulla, Advocate Sr 1263 +1cc to MR.J.Dhanyakumar,Advocate Sr 971 TEJ(CO) km/9.2. C.M.A. No.1842 of 2004 https://hcservices.ecourts.gov.in/hcservices/