1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 22.12.2009 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A.(MD)No.409 of 2009 and M.P.(MD)Nos.1 and 2 of 2009 The New India Assurance Company Limited, Represented by its Manager, Rex Complex, 29, paramathi Road, Namakkal - 637 001 ... Appellant / II Respondent Vs. 1. Rajeswari 2. Minor Pathirakali 3. Minor Maharaja 4. Velu Nadar 5.Thavamani ...1to5 Respondents/Petitioners/Claimants (Minors rep by their Mother and Next Friend,the first respondent herein) 6. Sekar ... 6th Respondent / 1st Respondent (The 6th respondent herein remained exparte before the Tribunal) Prayer: Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and decree made in M.C.O.P.NO.276 of 2003, dated 16.09.2008, on the file of the Motor Accident Claims Tribunal, Additional District Court/FTC No.2) Tuticorin. For Appellant : Mr.B.Vijay Karthikeyan For Respondents : Mr.T.Selvakumaran for R.1 to R.5 For R6 : Exparte JUDGMENT This Civil Miscellaneous Appeal is filed by the appellant against the Judgment and decree made in M.C.O.P.NO.276 of 2003, dated 16.09.2008, on the file of the Motor Accident Claims Tribunal, Additional District Court/FTC No.2) Tuticorin. 2. The facts of the case, are as follows: In the claim petition, it is stated that on 23.08.2003, at about 5.45 p.m. while the deceased Marimuthu was coming by his bicycle in Ezhil nagar diversion, in Thireshpuram State Bank https://hcservices.ecourts.gov.in/hcservices/ 2 Colony road on the left side, a lorry bearing registration No.KA-01-B-9596 belonging to the first respondent was driven in a rash and negligent manner and dashed against the cyclist and he was ran over by the front wheel of the lorry and he died on the spot. He was aged about 37 years at the time of the accident and he was earning a sum of Rs.8,000/- by running a Backery. The first petitioner is the wife of the deceased and the second and the third petitioners are their children and the fourth and the fifth petitioners are his parents and hence a sum of Rs.10,00,000/- is prayed for as compensation. 3. In the counter filed by the second respondent, it is stated that the accident took place due to the fault on the part of the cyclist. The age, the income and the avocation of the deceased have to be established by the claimants. The compensation claimed is high and the interest could not be awarded beyond 6% and hence, the petition may be dismissed. 4. In the additional counter filed by the second respondent, it is stated that in the investigation, it was learnt that the deceased will be slipped by the gravel portion and hence, he fell down in the back wheel of the lorry as evidenced from the news in the newspaper. The driver was liable for the accident and hence, the petition may be dismissed. 5. The learned Tribunal Judge after analysing the evidence on record, fixed the liability upon the lorry driver, which is not disputed before this Court and hence, the said finding is to be confirmed. 6. As far as the quantum of compensation as fixed by the Tribunal, the learned Counsel for the appellant would dispute very much by stating that it is on the higher side. 7. The deceased was aged about 37 years and he was running a Backery under the name and style of Mary's Backery on the back side of new bus stand at Tuticorin. From Exs.A.6 and A.7, which are the cash receipts received by the Stamping Inspector of Labour, on 04.12.2002 and the certificate of verification issued by the same Authority on the even date, by means of production of these documents, it is established that the deceased was running a Backery in the new bus stand in Tuticorin. 8. Considering the above said records, the Tribunal has fixed a sum of Rs.6,000/- as monthly income. After deducting 1/3rd amount and adopting multiplier "16", a sum of Rs.7,68,000/- has been awarded as loss of dependency. A sum of Rs.20,000/- has been awarded for loss of consortium for the first claimant/wife, a sum of Rs.5,000/- each has been allowed for loss of love and affection for the claimants 2 to 5 and another sum of Rs.5,000/- has also been allowed for funeral expenses and totally a sum of Rs.8,13,000/- has been awarded as compensation to the claimants. 9. The learned Counsel for the appellant would say that Exs.A.6 and A.7 could not constitute the sole basis for deciding the income. But, this Court is of the considered view that since the deceased was running a Backery in the new bus stand at Tuticoin which is fame locality in the town, this Court is of the considered opinion that a sum of Rs.5,700/- may be considered as monthly income of the deceased. If 1/3rd is https://hcservices.ecourts.gov.in/hcservices/ 3 deducted a sum of Rs.3,800/- has to be taken as monthly income and applying multiplier "16", the total loss dependency would come to Rs.7,29,600/-. The conventional damages allowed by the Tribunal are confirmed and totally, the claimants are entitled for the compensation at Rs.7,74,600/-. 10. In fine, this Civil Miscellaneous Appeal is allowed in part reducing the compensation to Rs.7,74,600/- (*)along with interest at the rate of 7.5% from the date of filing of the claim petition till the realisation and the connected Miscellaneous Petition is closed. No costs. In the compensation, the first claimant is entitled to Rs.5,24,600/-, the second and the third claimants are entitled each to Rs.75,000/- and the fourth and the fifth claimants are entitled each to Rs.50,000/-. Sd/- Assistant Registrar(P&A) (*)Amended as per order of this Court dt.19.8.2010 and made herein /True Copy/ Sub-Assistant Registrar To: TO BE SUBSTITUTED FOR THE ORDER ALREADY DESPATCHED The Additional District Judge, The Motor Accident Claims Tribunal, FTC No.2 Tuticorin. +One Cc to Mr.B.Vijay Karthikeyan, Advocate, SR.No.44622 +One Cc to Mr.T.Selvakumaran, Advocate, SR.No.45176 ssl rl/4c – 19.1.2010 SMA/20.8.2010/Amended order/4c/3p C.M.A.(MD)No.409 of 2009 and M.P.(MD)Nos.1 and 2 of 2009 22.12.2009 https://hcservices.ecourts.gov.in/hcservices/