IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.02.2011 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH Civil Miscellaneous Appeal No.1569 of 2008 The Branch Manager, New India Assurance Co., Ltd., 39-C, Bypass Road, Dharmapuri-636 701. .... Appellant/2nd Respondent vs. 1.Shanthi 2.Anbarasi 3.Minor Silambarasan 4.Minor Kaviyarasan rep. by their mother-next friend Shanthi. 5.M.Jaya .... Respondents/Petitioners 1 to 4 and Ist Respondent Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and decree dated 12.06.2006 made in M.C.O.P.No.267 of 2003 on the file of Motor Accident Claims Tribunal [Additional Special Judge], Krishnagiri. For Appellant : Mr.M.Krishnamoorthy For Respondents : Mr.V.Kumaravelan for R1 to R4 JUDGMENT (Judgment of the Court was made by R.BANUMATHI,J) Being aggrieved by the award of compensation of Rs.15,98,000/- in M.C.O.P.No.267 of 2003 dated 12.06.2006 on the file of Additional Special Judge, Krishnagiri for the death of Raghunathan in the road traffic accident on 31.10.2002, Appellant-Insurance Company has come forward with this Appeal. 2. Brief facts are that on 31.10.2002 at about 18.30 hours, deceased Raghunathan and his father were travelling in the Maruthi car bearing registration No.TN-27C 0567 from Dharmapuri to Krishnagiri and when the car nearing Nallampatti, the driver of the https://hcservices.ecourts.gov.in/hcservices/ car drove the same in a rash and negligent manner and dashed against the tamarind tree. Due to the accident, deceased and other occupant sustained injuries. Immediately, they were taken to Dharmapuri Government Hospital and deceased Raghunathan died on the way to the hospital. Regarding the accident, a criminal case in Crime No.592 of 2002 of Mathikonpalayam Police Station was registered against the driver of the car. Alleging that the accident was occurred due to rash and negligent driving of the car driver, wife, sons and daughter of deceased filed Claim Petition claiming compensation of Rs.40,00,000/-. 3. Resisting the Claim Petition, Appellant-Insurance Company filed counter contending that the 5th Respondent car insured with the Appellant-Insurance Company only to drive the vehicle with petrol for which it is registered with the concern RTO. Case of Appellant is that 5th Respondent vehicle is driven by using LPG gas and there was violation of registration conditions and therefore, the Appellant- Insurance Company is not liable to pay any compensation. Appellant- Insurance Company also denies age, occupation and monthly income of the deceased. 4. Before the Tribunal, 1st Claimant-Shanthi examined herself as PW1. One Rabel Reddy, eye-witness to the accident was examined as PW2. One Ramamurthy was examined as PW3. Exs.P1 to P6 were marked. On the side of Appellant, one Manickavasam was examined as RW1 and the licensed surveyor of Appellant Insurance Company viz., Kumaraguru was examined as RW2. Exs.R1 to R4 were marked. 5. Upon consideration of oral and documentary evidence, Tribunal held that there was no evidence to show that at the time of accident, the Car fitted with LPG gas kit and held that the accident was occurred due to rash and negligent driving of the car driver. Based upon Ex.P4-salary certificate and pointing out that in addition to the salary of Rs.12,565/-, deceased would get revised dearness allowance totalling into Rs.15,000/- as monthly salary. By calculating the annual income at Rs.1,80,000/- and adopting multiplier "8", Tribunal has calculated the loss of dependency at Rs.14,40,000/-. Again for another 10 years, Tribunal has taken the monthly income at Rs.1000/- per month and calculated the same for 10 years at Rs.1,20,000/-. Adding the loss of dependency along with Rs.1,20,000/- and also conventional damages i.e. Rs.10,000/- for funeral expenses; Rs.1000/- for damages to clothing and articles; Rs.2,000/- for transport charges; Rs.10,000/- for loss of consortium and Rs.15,000/- for loss of love and affection, Tribunal has awarded total compensation of Rs.15,98,000-. 6. Challenging the impugned award, Mr.M.Krishnamoorthy, learned counsel for Appellant submitted that since the insured had committed https://hcservices.ecourts.gov.in/hcservices/ breach and plied the Car with LPG, the Tribunal ought to have exonerated the Appellant-Insurance Company. It was further contended that the quantum of compensation of Rs.15,98,000/- awarded by the Tribunal is excessive and Tribunal has not chosen to make any deduction for personal expenses and the quantum of compensation awarded is exorbitant. Learned counsel for Appellant-Insurance Company also raised objection regarding excess multiplier and also multiplicand. 7. Mr.V.Kumaravelan, learned counsel appearing for Respondents 1 to 4 submitted that no evidence was adduced to show that at the time of accident the Car fitted with LPG gas kit and while so, Appellant- Insurance Company cannot contend that there was violation of conditions by the insured. Learned counsel for Respondents 1 to 4 would further contend that deceased Ragunathan was working as Forest Ranger and his future prospects was not properly taken into consideration and the quantum of compensation of Rs.15,98,000/- awarded by the Tribunal is just and reasonable warranting no interference. 8. Case of Appellant-Insurance Company is that the Maruthi Car bearing registration No.TN27-C 0567 involved in the accident was insured with the Appellant only to drive the vehicle with petrol for which it was registered with the concerned RTO. But without permission and registration from the concerned RTO, 5th Respondent had driven the vehicle by using LPG gas and therefore, Appellant- Insurance Company is not liable to indemnify the 5th Respondent. Before the Tribunal, eye-witness PW2-Rabel Reddy was examined who was spoken about the accident. On the side of Appellant-Insurance Company, RW2-Surveyor was examined who has examined the Maruthi car involved in the accident. In his evidence, RW2 has stated that he found that the Car fitted with LPG gas kit. However, when being questioned as to whether at the time of accident, vehicle operated with LPG gas, RW2 stated that he has no knowledge about the same. Appellant-Insurance Company relies upon the order passed by the Consumer Court in C.O.P.No.213/2001 dated 29.01.2003 preferred by the vehicle owner. In the Consumer Court, vehicle owner has preferred a complaint alleging that the car was repaired at the cost of Rs.29,513/- and that the Insurance Company is liable to reimburse the same. But the Insurance Company has rejected the same that the Car fitted with LPG gas without approval of RTO. Pointing out that the said Petition filed by the vehicle owner was dismissed by the Consumer Court holding that rejection of claim of vehicle owner is based on the insurance rules and there is no deficiency of service on the part of the Insurance Company. The issue before the Consumer Court was "deficiency in service"; whereas, the issue involved in the present case is whether there was violation of policy condition. Appellant-Insurance Company has not adduced substantive evidence to show that at the time of accident, the vehicle was operated with LPG gas kit. It is for the Appellant-Insurance Company to establish that https://hcservices.ecourts.gov.in/hcservices/ there was violation of policy conditions. In the absence of any evidence to show that the car operated with LPG gas kit, Tribunal has rightly held that the owner of the vehicle-5th Respondent and Appellant-Insurance Company are jointly and severally liable to pay the compensation. 9. Coming to the quantum of compensation, learned counsel for Appellant-Insurance Company submitted that though the salary of the deceased is Rs.12,500/- per month, Tribunal has taken the monthly income of the deceased at Rs.15,000/- and without even deducting any amount for personal expenses, Tribunal erred in awarding excessive sum of Rs.14,40,000/- by adopting multiplier "8" as compensation towards "loss of pecuniary benefits". Learned counsel would further contend that apart from the said sum of Rs.14,40,000/-, Tribunal has again calculated the loss of dependency for another 10 more years after superannuation and taken the monthly income at Rs.1000/- per month and calculated the loss of estate at Rs.1,20,000/- which is against the decided case laws and well settled principles. 10. Deceased was working as Forest Ranger. As per Ex.P4- salary certificate, he was getting the gross salary of Rs.12,565/- per month. Taking the future prospects into consideration, Tribunal has taken the salary at Rs.15,000/- per month and the same is maintained. As rightly contended by the learned counsel for Appellant-Insurance Company, Tribunal erred in calculating the loss of dependency by taking the income as Rs.15,000/- per month for 8 years and again calculated the loss of dependency by taking the income at Rs.1000/- per month for a further period of 10 years. Since, Tribunal has adopted erroneous approach in calculating the loss of dependency, the loss of dependency has to be reworked as per the settled principles. 11. At the time of accident, deceased was aged 49 years. He would have continues in service for another 9 years. Taking the monthly salary at Rs.15,000/- per month, his annual income is calculated at Rs.1,80,000/-. Deducting 1/3rd for personal expenses, the loss of dependency is calculated at Rs.1,20,000/- and loss of dependency for 9 years is calculated at Rs.10,80,000/-. 12. At the age of 58 years, deceased would have retired from service and he would have got pension. Pension is calculated at 40% of his last drawn salary i.e. Rs.15,000/- which is calculated at Rs.6000/- and annual income is Rs.72,000/-. Deducting 1/3rd for personal expenses, the loss of dependency is Rs.48,000/-. As per second schedule, multiplier to be adopted is "13". Therefore, for the remaining 4 years, loss of dependency is calculated at Rs.1,92,000/- [Rs.48,000 x 4 = Rs.1,92,000/-]. https://hcservices.ecourts.gov.in/hcservices/ 13. Insofar as conventional damages, Tribunal has awarded Rs.10,000/- for funeral expenses and the same is maintained. Compensation of Rs.2000/- awarded for transport charges is enhanced to Rs.7000/-. Tribunal has awarded Rs.1000/- for damages to clothing and articles and the same is maintained. First Claimant has lost the consortium of her husband at her young age and therefore Rs.10,000/- awarded by the Tribunal is enhanced to Rs.25,000/-. Claimants 2 to 4 have lost their father at their young age. Compensation of Rs.15,000/- awarded by the Tribunal for loss of love and affection is enhanced to Rs.75,000/- [Rs.25,000/- each]. Thus the total compensation of Rs.15,98,000/- awarded by the Tribunal is reduced to Rs.13,90,000/- as under:- Loss of dependency : Rs.12,72,000/- [Rs.10,80,000 + Rs.1,92,000] Funeral expenses : Rs. 10,000/- Transport charges : Rs. 7,000/- Damages to clothing and articles : Rs. 1,000/- Loss of consortium : Rs. 25,000/- Loss of love and affection : Rs. 75,000/- [Rs.25,000/- x 3] ---------------- Total Rs.13,90,000/- ---------------- The modified compensation of Rs.13,90,000/- is ordered to be apportioned among the Claimants equally with proportionate interest. The Tribunal has awarded interest at the rate of 7.5% p.a. and the same is maintained. 14. In the result, the compensation of Rs.15,98,000/- awarded by the Tribunal is reduced to Rs.13,90,000/- payable with interest at the rate of 7.5% p.a. from the date of Petition till the date of deposit and the Appeal is partly allowed. It was stated before us that Appellant-Insurance Company has already deposited the entire compensation amount along with interest awarded by the Tribunal. Claimants 1 and 2 are permitted to withdraw the compensation amount along with accrued interest apportioned to them as per the modified compensation. In so far as, Claimants 3 and 4, they are also permitted to withdraw the compensation amount along with accrued interest apportioned to them on obtaining necessary orders from the Tribunal declaring them as majors. Appellant-Insurance Company is https://hcservices.ecourts.gov.in/hcservices/ permitted to withdraw the excess amount along with interest accrued thereon already deposited. Consequently, connected M.Ps. are closed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar bbr To 1.The Motor Accident Claims Tribunal The Additional Special Judge, Krishnagiri. 2. The Section Officer, VR Section, High Court, Madras-104 1 cc To Mr.M.Krishnamoorthy, Advocate, SR.14232 Judgment in C.M.A.No.1569 of 2008 KSK (CO) RH (1.6.11) https://hcservices.ecourts.gov.in/hcservices/