IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.06.2011 CORAM: THE HONOURABLE MR. JUSTICE C.S.KARNAN C.M.A.No.934 of 2010 M.P.Nos.1 of 2010 and 1 of 2011 M/s.National Insurance Company Limited, Near Over Bridge, 7, Pudukottai, Thiruchirapalli – D.O., At Saradha College Road, Alagapuram, Salem – 16. Police No.630004/31/05/6200021600 Dated 10.08.2005 to 09.08.2006, Vehicle No.TN29-L-9348, TVS Victor Motorcycle ... Appellant/2nd Respondent Vs. 1.Smt.Vellachiammal 2.Raja 3.Rathinam 4.Dharmalingam ..Respondents/Petitioner 5.A.Subramani ... Respondents/1st Respondent PRAYER: The above appeal is filed under Section 173 of the Motor Vehicle Act against the award and decree dated 30.01.2009 made in M.C.O.P.No.789 of 2006 on the file of Motor Accidents Claims Tribunal, First Additional District Judge, Salem. For Appellant : M/s.S.Arun Kumar For Respondents : Mr.M.S.Palaniswamy (R-1 to R-4) R-5 Exparte J U D G M E N T The above appeal has been filed by the appellant / National Insurance Company Limited, against the judgment and decree dated 30.01.2009 made in M.C.O.P.No.789 of 2006 on the file of Motor Accidents Claims Tribunal, First Additional District Judge, Salem. 2.The short facts of the case are as follows:- On 20.04.2006, the (deceased) Chinnayyan was riding the TVS 50 moped bearing Registration No.TN30-B-4315, on the extreme left of the https://hcservices.ecourts.gov.in/hcservices/ Salem to Dharmapuri Road. When he was proceeding near Naripallam, a TVS Victor motorcycle bearing Registration No.TN29-L-9348, coming from Dharmapuri to Salem, driven by its rider in a rash and negligent manner and at a high speed, dashed against the (deceased) Chinnayyan and caused the accident. Due to the grievous injuries sustained by the (deceased) Chinnayyan, he died on the spot itself. After the accident, he was taken to the Government Hospital, Omalur, where the doctors conducted post-mortem. Hence, the petitioners, who are the wife and sons of the deceased Chinnayyan, have filed a claim for Rs.24,00,000/- against the respondents. The first respondent is the rider-cum-owner of the said TVS Motorcycle bearing Registration No.TN29-L-9348 and the second respondent is its insurer. 3.The second respondent, the National Insurance Company Limited, has resisted the claim denying the averments in the claim regarding age, income and occupation of the deceased and dependency of petitioners on the deceased's income. It was also stated that the accident occurred only due to negligence of the (deceased) and not due to any negligence on the part of the first respondent motorcyclist. It was further stated that the deceased did not possess a valid driving licence on the date of accident. It was stated that the claim was excessive and without any basis. 4.On the petitioners side three witnesses were examined and eight documents were marked as Exs.P1 to P8 viz., FIR, Post-mortem report, death certificate of deceased Chinnayyan, Legal-heir certificate, release deed, saral form, partnership deed and Railway contract agreements. On the respondents side, no witness, no documents. 5.On the averments of both parties, the Tribunal had framed two issues for consideration, namely; “(i)Did the accident occur due to the rash and negligent riding of the first respondent's motorcycle bearing Registration No.TN29-L-9348? (ii)Are the petitioners entitled to get compensation? If so, what is the quantum of compensation?” 6.PW2, Raja Gounder, the eyewitness of the accident, adduced evidence that on 20.04.2006, at about 06.00 p.m., in the evening, when he was standing at the Naripallam bus stop, waiting for a bus, he had seen the motorcycle bearing Registration No.TN29-L-9348, driven in a rash and negligent manner by its rider and at a high speed, dashed behind the TVS 50 moped, which was proceeding in front of it towards Omanur. In the impact, the TVS 50 motorcyclist, Chinnayyan was thrown out of his vehicle and sustained grievous injuries. He had further adduced evidence that he had admitted the said Chinnayyan at Gokulam Hospital, where he was declared dead. Hence, the Tribunal, on https://hcservices.ecourts.gov.in/hcservices/ considering the F.I.R., filed as Ex.P1 and the evidence of PW2 and further considering that no witness had been examined and no documentary evidence was produced on the respondents side to rebut the averments in F.I.R., and the evidence given by PW2 held that the accident had been caused by the rash and negligent riding of the first respondent motorcyclist. 7.PW3, Rathinam, the son of the deceased Chinnayyan adduced evidence that his father was running a partnership firm in the name and style of Sri Ayyanarappan and Company and through this firm, was engaged in Executing Railway Contract jobs and in support of this he had marked Exs.P5, P6, P7 and P8. PW1, the wife of the deceased, adduced evidence that her husband was earning a sum of Rs.15,000/- per month through the said Railway Contract jobs. From a scrutiny of Ex.P7, the partnership deed, it is seen that the deceased Chinnayyan and his son Rathinam were partners in the said Company. On cross- examination of PW3, it is seen that the said Rathinam is still carrying on the work of getting Railway Contracts and was earning income through this work. Hence, the Tribunal held that the income earned by the deceased's son should be deducted from the income contributed by the (deceased) Chinnayyan to his family to arrive at the net loss of income to petitioners. From the I.T. Return Forms filed for the year 2005-2006 and for the year 2006-2007, it is seen that the income earned by (deceased) Chinnayyan was Rs.1,81,130/- in the year 2005-2006 and the income earned by his son Rathinam for the year 2006-2007 was Rs.28,270/- As such, the Tribunal held that the loss of income to the petitioners, per year, due to the death of said Chinnayyan was Rs.1,52,860/-. Deducting 1/3rd from this for the personal expenses of the deceased, the Tribunal held that the deceased could have contributed Rs.1,01,907/- to his family. Adopting a multiplier of “8”, the Tribunal awarded a sum of Rs.8,15,256/- (Rs.1,01,907/- x 8) as compensation to the petitioners under the head of 'loss of income due to death of the said Chinnayyyan'. Further, the tribunal awarded a sum of Rs.2,500/- for funeral expenses. Rs.10,000/- to the first petitioner for loss of consortium and Rs.20,000/- under the head of loss of love and affection. In total, the Tribunal awarded a sum of Rs.8,47,756/- as compensation to the petitioners, together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation and directed the first and second respondents to deposit the award with interest, either severally or jointly, within two months from the date of its order. 8.Aggrieved by the said award passed by the Tribunal, the appellant / National Insurance Company Limited has filed the present appeal to set-aside the award. 9.The learned counsel for the appellant has argued that the tribunal ought not to have assumed the loss by deducting the amount https://hcservices.ecourts.gov.in/hcservices/ now earned by PW3, when the alleged business is continued by the family. It was also stated that the respondents / claimants 1 to 4 have willfully suppressed the statements of accounts of the deceased for the preceding three years. The claims Tribunal erred in assuming Rs.1,01,907/- per annum as contribution and applying 8 years multiplier by relying on the interested testimony of PW3 to presume that there is loss of dependency to an extent of Rs.8,15,256/-. It was also stated that the compensation awarded was excessive and without any basis. 10.The learned counsel for the claimant argued that the (deceased)Chinnayyan was a very experienced railway contractor. Even though, the wife of deceased and son of deceased are partners, they lack efficiency to run the partnership firm. The son of the deceased had borrowed Rs.4,00,000/- from Union Bank as overdraft. It clearly proves that the deceased had run the partnership firm without availing any loan from banks. The other two partners are only sleeping partners. As such, loss has been sustained by the other partners. The deceased was an income tax assessee. In order to prove the same, Ex.P6, Saral form was marked. From scrutiny of Ex.P8, it clearly shows that the deceased was a contractor in Railway Department. As such, his earning was Rs.15,000/- per month. For maintaining the two-wheeler of the deceased, he had spent a sum of Rs.3,000/- for maintenance of the vehicle. This is also one of the supporting evidence to show that the deceased was earning a sum of Rs.15,000/-, out of which, he had contributed a major portion to his family. 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 deceased was a registered contractor with the Railways and was an Income-tax assessee, he was also maintaining a two wheeler, the claimants are four in number; considering all these aspects, this Court fixes the income of the deceased as Rs.10,000/- per month. After deducting ¼ of this as personal expenses of deceased, this Court has assessed the compensation as follows:- For loss of income (Rs.10,000 x ¼ x 3 x 12 x 8) .. Rs.7,20,000/- For loss of consortium .. Rs. 5,000/- For loss of love and affection .. Rs. 15,000/- For funeral expenses .. Rs. 5,000/- In total, this Court awards a sum of Rs.7,45,000/- as compensation in the instant case as it is found to be fair and justifiable. 12.On 12.04.2010, this Court imposed a condition on the appellant / National Insurance Company Limited to deposit a sum of Rs.7,00,000/- with accrued interest and costs to the credit of https://hcservices.ecourts.gov.in/hcservices/ M.C.O.P.No.789 of 2006 on the file of Motor Accidents Claims Tribunal, First Additional District Judge, Salem. Now, this Court directs the appellant / National Insurance Company Limited to pay the balance compensation of a sum of Rs.45,000/- as observed above, together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of deposit within a period of six weeks from the date of receipt of this order. After such deposit has been made, it is open to the claimants to withdraw their modified compensation amount, as fixed by this Court and as apportioned by the Tribunal, lying in the credit of M.C.O.P.No.789 of 2006 on the file of Motor Accidents Claims Tribunal, First Additional District Judge, Salem, after filing a Memo along with this order, subject to withdrawals, if any, made already. 13.Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the award and decree dated 30.01.2009, made in M.C.O.P.No.789 of 2006, on the file of Motor Accidents Claims Tribunal, First Additional District Judge, Salem is modified. Accordingly ordered. There is no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar r n s To The First Additional District Judge, Motor Accident Claims Tribunal, Salem. +1cc to M/s.S.Arunkumar, Advocate Sr 34388 +1cc to Mr.M.S.Palaniswamy, Advocate Sr 34797 KJ(CO) km/29.7. C.M.A.No.934 of 2010 https://hcservices.ecourts.gov.in/hcservices/