1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.06.2011 CORAM: THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A (MD) Nos.162 and 163 of 2011 and M.P (MD) Nos.1, 1 and 2, 2 of 2011 C.M.A (MD) No.162 of 2011: M/s.Oriental Insurance Co. Ltd., Shoba T.S.M. Complex, R.S.Road, Palakkadu - 678 001. : Appellant/2nd Respondent Vs. 1.P.Govindan 2.G.Pushpam 3.G.Purushothaman 4.Mohanambal : Respondents 1 to 4/ Petitioners 1 to 4 5.Ferozkhan : 5th Respondent/1st Respondent 6.The Managing Director, Tamil Nadu State Transport Corporation, Milaguparai, Trichy-1. : 6th Respondent/3rd Respondent (5th respondent remained ex-parte before the lower Court) PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the award dated 10.07.2008 made in M.C.O.P.No.142 of 2007 on the file of the Motor Accident Claims Tribunal cum Sub-Court, Kulithalai. For Appellant : Mr.K.Bhaskaran For R1 to R4 : Mr.B.Prasanna Vinoth For R5 : Mr.A.Siva Ayyappan For R6 : No Appearance C.M.A(MD)No.163 of 2011 M/s.Oriental Insurance Co. Ltd., Shoba T.S.M. Complex, R.S.Road, Palakkadu - 678 001 : Appellant/2nd Respondent https://hcservices.ecourts.gov.in/hcservices/ 2 Vs. 1.Pitchai 2.Vijaya 3.Rajkamal : Respondents 1 to 3/ Petitioners 1 to 3 4.Ferozkhan : 4th Respondent/1st Respondent 5.The Managing Director, Tamil Nadu State Transport Corporation, Milaguparai, Trichy-1. (4th Respondent remained ex-parte before the lower Court) : 5th Respondent/3rd Respondent PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the award dated 10.07.2008 made in M.C.O.P.No.143 of 2007 on the file of the Motor Accident Claims Tribunal cum Sub-Court, Kulithalai. For Appellant : Mr.K.Bhaskaran For R1 to R3 : Mr.B.Prasana Vinoth For R4 : Mr.A.Siva Ayyappan For R5 : No Appearance C O M M O N J U D G M E N T Both the appeals are filed by the second respondent/insurer against the award made in the claim petitions filed by the Legal Representatives of the victims of the same fatal accident occurred at 9.15 a.m on 23.12.2006. 2. The date, time and place of the accident and involvement of two vehicles (i.e) Tata Sumo Load Auto owned and insured by the respondents 1 and 2 respectively and bus belonging to the third respondent State Transport Corporation resulting in the death of one Boopathi and Sivakumar, age and avocation of the deceased, relationship between the deceased and the claimants and the dependency of the claimants upon the deceased are not so seriously denied. 3. In these appeals, the insurer has questioned the correctness of the award by disputing the manner of the accident and by disputing the quantum of compensation on the ground that fixation of monthly income of the deceased and the multiplicand and multiplier adopted are on higher side. 4. Regarding the manner of the accident, according to the claimants Tata four wheeler load auto was driven rashly and https://hcservices.ecourts.gov.in/hcservices/ 3 negligently by the driver and the same hit against the two wheeler and due to impact, the rider and pillion rider were thrown away and fell on the Transport Corporation bus which came behind two wheeler and thus way the Tata four wheeler load auto is solely responsible for the accident. 5. The claims are not contested by the first respondent/insured, but is seriously contested by the second respondent/insurer. Though the second respondent/insurer has denied the manner of the accident as stated in the claim petition, the insurer has not put forth any version about the actual manner of the accident. The manner of the accident is also on the side of the claimants sought to be established through oral evidence of P.W.3, who is purported to be the eyewitness of the accident and Ex.P.1-F.I.R registered on the basis of the complaint given by P.W.3 regarding the accident. In addition to the same, the claimants have also produced Ex.P.4-rough sketch prepared by the Investigation Officer in the course of investigation upon Ex.P.1-F.I.R. On the side of the respondents, the drivers of both the vehicles (i.e) Tata four wheeler auto and State Transport Corporation Bus are examined as R.W.1 and R.W.2. The evidence of R.W.1 is not accepted on the ground that the same runs contra to what is disclose through Ex.P.4-rough sketch. Thus the Tribunal has on the basis of available records found that neither the two wheeler rider nor the State Transport Corporation bus driver was in any manner responsible for the accident and the accident is caused solely due to rash and negligent driving of R.W.1/driver of Tata four wheeler load auto and no ground is made out before this Court to disagree with the finding rendered by the Tribunal in this regard as such the respondents 1-2 who are the owner and insurer of Tata four wheeler load auto are jointly and severally liable to pay compensation to the claimants and the second respondent/insurer is liable to indemnify the insured to satisfy the award in respect of third party risks. 6. Regarding the quantum of compensation the claimants in M.C.O.P.No.142 of 2007 are the parents and younger brother and sister of the deceased Boopathi and the Tribunal has on the basis of the available records fixed minimum income of the deceased at Rs.150/- per day and reasonable yearly income at Rs.40,000/-. The Tribunal has deducted 1/3rd of the same for his personal expenses, having regard to the number of family members depending upon his income and the age of the deceased and claimants taken Rs.28,000/- as multiplicand and 17 as multiplier and assessed loss of dependency at Rs.4,76,000/-. 7. The learned counsel for the appellant herein has seriously questioned the multiplier of "17" adopted on the ground that the age of the mother is only between 40 to 45 years and the Tribunal has failed to adopt appropriate multiplier applicable to the age group of 40 to 45 years and has also failed to consider the possibility of reduction in family contribution had the deceased been alive and married. https://hcservices.ecourts.gov.in/hcservices/ 4 8. This Court finds much force in the contention raised on the side of the appellant. In my considered view, considering the factors as stated above, the correct multiplier to be adopted is '12' and loss of dependency is assessed at Rs.28000 X 12 = 3,36,000/- with which is to be added Rs.9,000/- towards transport and funeral expenses and Rs.10,000/- each to the claimants 1 and 2 and Rs.5,000/- each to the claimants 3 and 4 for loss of love and affection. The total compensation thus comes to Rs.3,75,000/- payable with interest at 7.5% per annum. 9. The claimants in M.C.O.P.No.143 of 2007 are the parents and younger sister of the deceased. Here again the quantum of compensation is questioned by disputing the multiplicand of Rs.6,000/- and multiplier of "17" as excessive and exorbitant. The fact that the deceased was employed in abroad is substantiated through Ex.P.8-Passport and Ex.P.9-Agreement for employment as per which the deceased was earning Rs.10,000/-per month. Considering the place of his employment and the number of family members, the family contribution can be reasonably fixed at Rs.5,000/- per month considering the age of the deceased and age of the mother and the possibility of reduction in the family contribution had be been married, multiplier of "12" can be adopted for assessing the loss of dependency and thus the loss of dependency is fixed at Rs.Rs.7,20,000/-(Rs.60,000 X 12) with which is to be added Rs.10,000/- towards transport charges and funeral expenses and Rs.10,000/-each and Rs.5,000 to the claimants 1, 2 and 3 for loss of love affection. Thus the total compensation comes to Rs.7,55,000/- and the same is payable with interest at 7.5% per annum from the date of petition till the date of payment. 10. In the result, the award dated 10.07.2008 made in M.C.O.P.No.142 of 2007 on the file of the Motor Accident Claims Tribunal cum Sub-Court, Kulithalai, is modified by awarding Rs.3,75,000/-(Rupees Three Lakhs and Seventy Five Thousand Only) payable with costs and interest at 7.5% per annum from the date of petition till date of payment within two months from the date of receipt of the copy of this order by the second respondent/Insurer on behalf of the first respondent. Out of the total compensation amount, the claimants 1 to 4 are entitled to get Rs.1,00,000/-, Rs.2,00,000/- Rs.35,000/- and Rs.40,000/- respectively. On deposit of the amount into Court the claimants 1 and 2 are permitted to withdraw Rs.50,000/- and Rs.50,000/- with proportionate costs and interest. The balance sum due to the claimants 1 and 2 and the entire compensation due to the claimants 3 and 4 are directed to be invested in any one of the nationalised banks for three years. The claimants are permitted to withdraw future interest accrued on the same once in three months directly from the bank. Excess amount if any shall be refunded to the appellant/insurer. 11. In the result, the award dated 10.07.2008 made in M.C.O.P.No.143 of 2007 on the file of the Motor Accident Claims Tribunal cum Sub-Court, Kulithalai, is modified by awarding a sum of https://hcservices.ecourts.gov.in/hcservices/ 5 Rs.7,55,000/-with costs and interest at 7.5% per annum from the date of petition till date of payment within two months from the date of receipt of the copy of this order by the second respondent/Insurer on behalf of the first respondent. Out of the total compensation amount, the claimants are entitled to get Rs.2,50,000/-, Rs.4,50,000/- and Rs.55,000/- respectively. On deposit of the amount into Court, the claimants 1 and 2 are permitted to withdraw Rs.50,000/- and Rs.1,00,000/- respectively with proportionate interest and costs and the balance due to the claimants 1 and 2 and the entire compensation due to the third claimant shall be invested in any one of the nationalised banks for three years. The claimants are permitted to withdraw the future interest accrued on the same once in three months directly from the bank. Excess Court fee if any shall be refunded to the appellant/insurer. 12. Both the Civil Miscellaneous Petitions are accordingly disposed of. No Costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar To The Motor Accident Claims Tribunal cum Sub Judge, Kulithalai. +2 CCs to Mr.B.Prasanna Vinoth, Advocate (SR.No.19740 & 19741) C.M.A(MD)Nos.162 and 163 of 2011 22.06.2011 pm NSV/29.10.11/5P/4C https://hcservices.ecourts.gov.in/hcservices/