IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3549 of 2006 1.United India Insurance Company Limited Rep.by Manager Ranipet 2.R.S.L.Industries rep.by Manager Chennai .. Appellants/Respondents 2 and 1 Vs 1.Roobibai 2.Minor.Srinivasan 3.Minor Niveetha 4.M.G.Rani .. Respondents/Petitioners (R2 & R3 rep.by their mother and next friend R1) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 23.12.2005, made in M.C.O.P.No.520 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.2, Ranipet. For appellants : Ms.Senthil Vadivu for M/s.N.Mala For respondents : Mr.A.Anbarasu, for RR1 to 3 No appearance - R4 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellants/respondents against the Award and Decree, dated 23.12.2005, made in M.C.O.P.No.520 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.2, Ranipet, awarding a compensation of Rs.11,25,000/-. 2.Aggrieved by the said Award and Decree, the appellants/respondents have filed the above appeal praying to set aside the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: The petitioners submitted that at about 8.30 a.m. on 09.01.1996, the van, bearing registration No.TN23 X1647 was driven by the owner of the van, one M.Baskaran, from west to east on the Ranipet – Madras https://hcservices.ecourts.gov.in/hcservices/ Trunk Road and in a careful manner and at a moderate speed. At that time, a lorry bearing registration No.TN01 J8969, driven by its driver in a rash and negligent manner and at high speed, came in the opposite direction and dashed against the said van at a place called Vaniyanchatiram, on the Ranipet-Bangalore Trunk Road. As a result of the accident, the said Baskaran sustained multiple fractures and injuries all over the body. He was taken to the Government Hospital at Walajahpet, but he died there. 4.The petitioners, who are the legal heirs of the (deceased) Baskaran have therefore claimed a compensation of Rs.23,00,000/- from the first respondent, the owner of the lorry and the second respondent, the insurer of the lorry for the death of Baskaran with interest at the rate of 15% per annum and costs under Section 166 of the Motor Vehicles Act. 5.Regarding the said accident, a criminal case has been registered at Kaveripakkam Police Station as Crime No.10 of 1996. 6.The second respondent, in his Counter, which has been approved by the first respondent also, has resisted the claim stating that the age, income and occupation of the deceased Baskaran has to be proved by the petitioners. The second respondent has also denied the manner of the accident, alleged in the claim petition. It has been submitted that the vehicle involved in the accident was a van bearing registration No.TN01 J8969 and not a lorry as alleged in the petition and that the driver of the van bearing registration No.TN01 J8969 was not responsible for the accident. It has been submitted that the accident has happened only due to the rash, negligent and the high speed at which the deceased Baskaran had driven the van bearing registration No.TN23 X1647 and hence the respondents are not liable to pay compensation to the petitioners. 7.It has further been submitted that the claim of Rs.3,00,000/- by the petitioners for damage to the van owned by the deceased was excessive. The second respondent has also not admitted the income of the deceased as Rs.10,000/- as alleged in the claim. Further, it has been submitted that the petitioners are eligible to claim compensation only under the Workmen Compensation Act with New India Assurance Company. The second respondent has submitted that the claim is excessive and has prayed for dismissal of the petition. 8.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whose negligence was the cause for the accident to happen? (ii) Are the petitioners entitled to receive compensation? If so, what is the quantum of compensation, which the petitioners are entitled to get? 9.On the petitioners' side, the first petitioner was examined as https://hcservices.ecourts.gov.in/hcservices/ PW1 and one Ramasamy, the eye witness of the accident was examined as PW2. Nine documents were marked as Exs.P1 to P9. On the respondents' side, one Raghu, a Senior Assistant in the second respondent's firm was examined as RW1 and one document was marked as Ex.R1. 10.The arguments advanced by the both parties were heard by the Tribunal. 11.The PW1, in her evidence, had adduced that she is the first petitioner and wife of the deceased, that the second and third petitioners are her minor sons and that the fourth petitioner is her mother-in-law, that she had claimed the compensation for the death of her husband in the motor accident. She has deposed in her evidence that on 09.01.1996, at 8.30 a.m. when her husband was driving the van bearing registration No.TN23 X1647 from Ranipet to Chennai and when it was nearing Vaniyamchatiram Village, the driver of the mini lorry bearing registration No.TN01 J8969, coming from the opposite direction, had dashed the mini lorry against the said van as a result of which, her husband had died. She has further deposed that her husband was the owner of the said van and was also doing other business and was contributing a sum of Rs.10,000/- to the family for their expenses. She has further deposed that regarding the accident, the Charge Sheet of the Police, has been only against the driver of the said mini lorry and in support of this, she had marked Ex.P1, the copy of Charge Sheet; she had also marked Ex.P2, the Post-mortem Report; Ex.P3, the Certificate issued by Cheyyaru Institute; Ex.P4, the School Certificate; Ex.P5, the Birth Certificate of the deceased; Ex.P6, the Insurance particulars of the Van; Ex.P7, the R.C.Book of the van; Ex.P8, the driving licence of (deceased) Baskaran. 12.The PW2, Ramasamy, in his evidence has adduced that he was an eye witness of the accident and that he had seen the accident, while he was on his way to do agricultural work. He had deposed that on 09.01.1996, at about 8.30 a.m. he had seen the van bearing registration No.TN23 X1647, going in the direction from Ranipet to Chennai and that at that time, the mini lorry bearing registration No.TN01 J8969, driven by its driver in a rash and negligent manner and at a high speed, coming from the opposite direction had dashed against the said van and that as a result of the accident, the (deceased) Baskaran had sustained injuries and was admitted at the hospital. 13.The Senior Assistant in the second respondent's Insurance Company, was examined as R1. In his evidence, he has adduced that the said lorry bearing registration No.TN01 J8969 had been insured with their firm; that two vehicles had been involved in the accident and that the other van bearing registration No.TN23 X1447 had been insured with New India Assurance Company; that an investigator had been appointed by them to go into the details of the accident and that an investigation report has been filed and in proof of this had marked Ex.R1, the Investigation Report; that the FIR has been filed only as against the driver of the van driven by the (deceased) Baskar and as such they are not liable to pay compensation to the https://hcservices.ecourts.gov.in/hcservices/ petitioners; that non-inclusion of the Insurance Company of the van, driven by the deceased, renders the claim not maintainable as the petitioners have also claimed damages to the van in the accident. 14.The Tribunal, on scrutiny of Ex.P1, the Charge Sheet and after hearing evidence of PW2, the eye witness to the accident, were of the view that a Charge Sheet has been filed only as against the driver of the first respondent, Kandasamy and that the accident has been caused only due to the negligence of the said Kandasamy. But, the RW1, in his evidence had deposed that the accident had happened only due to the negligence of the (deceased) Baskaran and that because of his death, the criminal case against him had been closed. Even in the Investigation Report filed as Ex.R1, it has been stated that the accident had been caused only due to the fault of the (deceased) Baskaran. But, the Tribunal were of the opinion that the respondents had not filed the claim petition and the related Judgements in cases filed by other persons namely Senthil Kumar, Siva, Tamizh and Mayilvaganan, who had also died in the said accident and that only the evidence of RW1, who was employed by the second respondent and R1, the Investigation Report had been furnished as proof to establish that the accident had been caused by the fault of the (deceased) Baskaran. As such, the Tribunal held that the evidence given by the PW2, who was an eye witness, Ex.P1, the Charge Sheet and the fact that the (deceased) Baskaran had a valid driving licence at the time of the accident, were more authentic and powerful enough to quash the contra-evidence furnished on the respondents side. As such, the Tribunal, on scrutiny of documentary evidence furnished by the petitioners side held that the accident had been caused only due to the negligent and rash driving by the driver of the first respondent's mini lorry and that the evidence furnished by the respondents side were not conclusive enough to establish that the accident was caused by the fault on the part of the (deceased) Baskaran. 15.On scrutiny of the evidence of PW1 and Exhibits marked as P9, the Legal Heir Certificate, it was evident that the petitioners were the legal heirs of the deceased Baskaran. The Tribunal, on examination of Exhibits marked as P2, the Post-mortem Report; Ex.P4, the L.S.L.records of the deceased Baskaran; Ex.P5, the Birth Certificate of the deceased Baskaran issued by the Government Secondary School, Cheyyar and Ex.P8, the Driving Licence of the deceased Baskaran, held that the (deceased) Baskaran was aged about 32 years at the time of the accident. From a scrutiny of Ex.P3, the Certificate issued by the Cheyyaru Industrial Training Institute and on examination of evidence given by the PW1, the Tribunal were able to know about the educational qualifications of the (deceased) Baskaran. From an examination of Ex.P7, the Driving Licence of the (deceased) Baskaran, the Tribunal was of the opinion that the (deceased) Baskaran was the owner and driver of the van bearing registration No.TN23 X1647 and that he was earning income by hiring out the said van. Though the respondents had contended that the accident was caused due to the fault of the (deceased) Baskaran, no contra evidence has been advanced by them to refute the claim regarding the age of the deceased and his occupation. As such, the https://hcservices.ecourts.gov.in/hcservices/ Tribunal were of the opinion that the (deceased) Baskaran could have earned an income of Rs.10,000/- per month, as per the evidence given by the petitioners. As no documentary evidence was furnished regarding the income of the (deceased) Baskaran, regarding the type of the delivery and load transported in the van and the hire charges for transporting such load, the Tribunal held that the deceased could have earned Rs.200/- per day and accordingly assessed his income as Rs.6,000/- per month. Deducting 1/3rd of this for his personal expenses, the Tribunal held that the monthly contribution of the deceased to the petitioners was Rs.4,000/- per month. Adopting a multiplier of 17, as per the Judgement cited in 1996-2, Law Weekly, Supreme Court Cases and as is relevant to the age of the second and third petitioners, the Tribunal assessed the total loss of income to the petitioners as 17 X Rs.4,000/- X 12 = Rs.8,15,000/- and accordingly awarded the same to the petitioners under the head of loss of income. The Tribunal further granted an award of Rs.25,000/- each to the first, second, third and fourth petitioners under the head of loss of love and affection. The Tribunal granted an award of Rs.10,000/- to the petitioners towards funeral expenses incurred by them. Further, the Tribunal, on consideration of the relatively young age of the (deceased) Baskaran and the fact that he was educationally well qualified held that he had good prospects of developing his business and earning more in his future life and taking this into account, awarded a compensation of Rs.50,000/- each to the first, second, third and fourth petitioners under the head of loss of future incremental income. In total, the Tribunal awarded a compensation of Rs.11,25,000/- to the petitioners. Further, the Tribunal held that the award of Rs.2,00,000/- granted by them towards loss of future incremental income would not carry any interest and that the balance award amount of Rs.9,25,000/- would have to be paid by the second respondent together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation; into the credit of the M.C.O.P.No.520 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.2, Ranipet, within a period of three months from the date of its Order with costs. The Tribunal further directed that in the event of failure to deposit the above award in time, the second respondent would have to pay an additional 3% penal interest on the award and the penal interest so paid could be recovered by the second respondent from the erring official, who had caused the delay in making payment of the award. The excess Court fees paid by the petitioners was to be refunded to them. Out of the total award, the Tribunal further apportioned Rs.3,75,000/- to the first petitioner; Rs.2,00,000 /- each to the second and third petitioners and Rs.3,50,000/- to the fourth petitioners. The Tribunal directed that the award granted to the first and fourth petitioners was to be deposited in a nationalised bank as fixed deposit for three years and that the award granted to the second and third petitioners should be deposited in a nationalised bank till such time they attain the age of a major. The Advocate fees was fixed at Rs.18,250/- and the second respondent was directed to pay the cost of Rs.10,784/- to the petitioners. 16.The learned counsel for the appellants has contended in his https://hcservices.ecourts.gov.in/hcservices/ appeal that the lower Court ought to have seen and held that it was the negligence of the deceased, which resulted in the accident, and that this was a case of head on collision and further the mini lorry driven by the deceased capsized soon after the accident and the passengers therein had sustained injuries. Further, it has been contended that the Court below ought to have seen that the original FIR was filed against the deceased and on request by the deceased's wife, the FIR was changed, as per PW1's evidence. It was also contended that the lower Court in the absence of any evidence regarding the income of the deceased erred in fixing the monthly income at Rs.6,000/- per month and the contribution at Rs.4,000/- per month. Further, it has been submitted that the award of the lower Court granting an amount of Rs.2,00,000/- under the head of future expectation of life was erroneous. The learned counsel for the appellant has also contended that an award of Rs.1,00,000/- granted by the lower Court to the petitioners under the head of loss of love and affection was erroneous. As such, it has been contended that the total award of Rs.11,25,000/- granted by the lower Court was excessive and is against law and probabilities of the case. Further, it has been contended that the Order of the lower Court imposing a penal interest of 3% in the event of failure to deposit the award within a period of three months and the further direction given by the lower Court to deduct/recover such penal interest from the erring official is without jurisdiction and against all provisions of the act. 17.The learned counsel for the appellant further submitted that the multiplier of 17 adopted by the Tribunal was erroneous. As such, the assessed compensation is not pertinent and in any event, it has been contended, that the compensation granted by the Tribunal is on the higher side. 18.The learned counsel for the respondents argued that the deceased was the only bread winner of his family and that all the four claimants were depending upon his income. The deceased was a skilled person and he had undergone Industrial Training Course. Due to this accident, the normal life of the petitioners family has been disrupted. The first claimant is a young widow and the second and third claimants are minors aged 5 years and 2 years, respectively. The Tribunal, after considering the age of the deceased, his occupation and dependants of the deceased awarded a compensation and so the award is a well considered one. 19.Considering the facts and circumstances of the case and arguments advanced by the learned counsel on either sides, the Court is of the view that there are errors in the award granted by the Tribunal under various heads. The Tribunal awarded compensation as follows: 1.For loss of income, a sum of Rs.8,15,000/- was granted as award by the Tribunal, on the basis of income of the deceased assessed at Rs.6,000/- per month and multiplier of 17 adopted as per age of the deceased taken as 31 years. This Court is of the view that as https://hcservices.ecourts.gov.in/hcservices/ the accident happened in the year 1996, the income of the deceased could be taken as only a sum of Rs.4,500/- per month after deduction of maintenance and other charges incurred as expenses for the van. After deducting 1/3 of the income of the deceased, the nett income earned by the deceased is taken as Rs.3,000/- per month. On the basis of the age of the deceased, the multiplier of 17 adopted by the Tribunal is correct. Hence, this Court computes the compensation under the head of loss of income to the petitioners as Rs.6,12,000/- (Rs.3,000/- X 12 X 17 = Rs.6,12,000/-). 2.For funeral expenses, this Court awards a sum of Rs.5,000/-. 3.For consortium to the first petitioner, this Court Court awards a sum of Rs.15,000/-. 4.For love and affection, this Court awards a sum of Rs.10,000/- each to the second, third and fourth petitioners. 5.This Court sets aside the award granted by the Tribunal under all the other heads, as it is found not to be pertinent in the circumstances of the case. In total, this Court awards a compensation of Rs.6,62,000/- with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, as this is found to be equitable and fair. 20.At the time of admission of this appeal, this Court granted stay in respect of the quantum of award ie. a sum of Rs.6,14,462/- alone. Therefore, this Court, hereby apportion the compensation amount to the claimants as follows: The first, second and third petitioners are apportioned Rs.1,50,000/-, Rs.2,00,000/- and Rs.2,00,000/- respectively, from and out of the award amount granted by this Court and the fourth petitioner's apportioned share is Rs.1,12,000/- and is to be paid by the appellant, together with interest at the rate of 9% per annum, from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.520 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.2, Ranipet, within a period of four weeks from the date of receipt of this Order, after deduction of the deposited amount paid by the appellant/United India Insurance Co., Ltd., 21.As the accident happened in the year 1996, it is open to the claimants to withdraw their apportioned share amount with accrued interest, lying in the credit of the M.C.O.P.No.520 of 2002, on the https://hcservices.ecourts.gov.in/hcservices/ file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.2, Ranipet, after filing necessary payment out application in accordance with law and the second and third claimants, after attaining the age of major, can withdraw their apportioned share amount, subject to deduction of withdrawals, if any. 22.In the result, the above Civil Miscellaneous Appeal is partly allowed and the award and decree passed by the Additional District Judge, Fast Track Court No.2, Motor Accident Claims Tribunal, Ranipet, in M.C.O.P.No.520 of 2002, is modified. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar krk To 1.Additional District Judge, Fast Track Court No.2, Motor Accident Claims Tribunal, Ranipet. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to M/s.N.Mala, Advocate, Sr.No.3963 1 cc to Mr.A.Anbarasu, Advocate, Sr.No.3202 Order in C.M.A.No.3549 of 2006 KSK {CO} TP/16.2.2010. https://hcservices.ecourts.gov.in/hcservices/