IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.05.2010 CORAM: THE HONOURABLE Mr.JUSTICE M.VENUGOPAL C.M.A.No.236 of 2006 and C.M.P.No.772 of 2006 New India Assurance Company Limited, Represented by its Branch Manager, Branch Office, 2nd Floor, 27th Cross, Jayanagar, III Block Bangalore 560 011. ... Appellant/2nd Respondent Vs. 1.Masiammal 2.Devaraj 3.Kempan 4.Ramachandran 5.Sekar 6.Balaraman 7.Gudiammal ...Respondents 1 to 7/Petitioners 8.G.Selvaraj ...8th Respondent / Ist Respondent (8th Respondent is given up) Prayer: Appeal filed against the award and decree dated 06.07.2005 made in M.C.O.P.No.265 of 2003 on the file of the Motor Accidents Claims Tribunal (Sub Court), Krishnagiri, Dharmapuri. For Appellant : Mr.R.Sivakumar For Respondents 1 to 7 : Mr.V.R.Anna Gandhi For 8th Respondent : Given up JUDGMENT The Appellant/Second Respondent Insurance Company has filed the Civil Miscellaneous Appeal as against the Award dated 06.07.2005 in M.C.O.P.No.265 of 2003 passed by the Motor Accidents Claims Tribunal viz., Sub Judge, Krishnagiri. 2.The Claims Tribunal viz., Sub Judge, Krishnagiri had passed an Award in the Original Claim Petition filed by the Respondents 1 to 7/Claimants holding that the Respondents 1 to 7/Claimants holding that the Respondents 1 to 7/Claimants are entitled to a total compensation of Rs.5,90,000/- from the date of filing of the petition till date of deposit together with interest at 9% per annum and also with procosts. https://hcservices.ecourts.gov.in/hcservices/ 3.Before the Tribunal on the side of the Respondents 1 to 7/Claimants, witnesses P.W.1 and P.W.2 were examined and Ex.P.1 to P.3 were marked. On the side of the Appellant/ Second Respondent Insurance Company, no one witness was examined and no documents were marked. 4.Dissatisfied with the Award passed by the Claims Tribunal, the Appellant/Insurance Company had projected this appeal before this Court. 5.In regard to the issue of negligence, it is to be pointed out that P.W.2 in his evidence has deposed that on 22.07.2002 the accident took place and on that day he was proceeding from Krishnagiri to Thogarapalli and near Angur one lorry came in a fast speed and over took an Auto and the Qualis Car dashed against the Auto. Further it is the evidence of P.W.2 that because of the rashness of the Qualis vehicle driver the accident had taken place. 6.It is the further evidence of P.W.2 that he knew the deceased from his small age and the Qualis vehicle came at 50 kilogram speed and dashed against the Auto and the driver stopped the vehicle after dashing against the Auto at a distance of 10 to 15 feet and it is not correct to state that he had not witnessed the occurrence. 7.In-Ex.P.1 Xerox Copy of F.I.R. the date of occurrence is mentioned as 22.7.2002 at 10.30 hours. The name of the complainant is Meer Wajith Ali of Krishnagiri. The name of the accused is mentioned as driver of the Tata Qualis vehicle bearing Registration No.KA-03- MA-1755. A perusal of Ex.P.1-F.I.R. clearly indicates that the Kandhikuppam Police of Bargur Circle, Krishnagiri District had registered a case in Crime No.168 of 2002 under Section 279 and 304 (A) I.P.C. Ex.P.2 is the Xerox Copy of Postmortem Certificate in respect of the deceased Saravanan was aged about 28 years. In Ex.P.2 Xerox Copy of Postmortem Certificate, the Doctor had opined that the deceased would have died 6 hours prior to autopsy due to shock and hemorrhage as a result of injuries to vital organs. 8.Though on the side of the Appellant/Second Respondent Insurance Company, a plea is raised that the deceased Autorickshaw driver Saravanan who drove the Auto TN-29-U- 5776 was responsible for causing the accident, this Court is unable to accept the said contention because of the simple fact that P.W.2, eyewitness had clearly spoken in his evidence about the happening of occurrence and also because of the fact that a criminal case was registered against the Tata Qualis vehicle driver bearing Registration No.KA-03-MA-1755 and in short, this Court by placing reliance on the evidence of P.W.2 and also Ex.P.1-F.I.R. comes to an inescapable conclusion that the driver of Tata Qualis vehicle bearing Registration No.KA-03-MA-1755 was responsible for happening of the occurrence and accordingly the https://hcservices.ecourts.gov.in/hcservices/ point is answered against the Appellant/Second Respondent Insurance Company. 9.As regards the quantum of compensation to be awarded, it is to be pointed out that the Respondents 1 to 7/ Claimants (Mother, Brothers and Sisters) had claimed a compensation of Rs.33,14,000/- but restricted their claim to Rs.10,00,000/-. 10.The First Respondent/Claimant is the mother of the deceased Saravanan. Respondents 2 to 7/Claimants are the brothers and sisters of the deceased. In the claim petition, the Respondents/Claimants 1 to 7 had made the following claims under different heads which run as follows: "(a) Loss of earnings for 42 yrs. : Rs.20,16,000.00 (b) Partial loss of earnings : Rs. -- (c) Transport to Hospital : Rs. 1,000.00 (d) Extra nourishment : Rs. -- (e) Damages to clothing and Articles : Rs. 5,000.00 OTHERS: (i)Loss of dependency : Rs. 72,000.00 (ii)Funeral Expenses : Rs. 20,000.00 (iii)Loss of consortium and company : Rs. -- (iv)Loss of Love affection : Rs. 5,00,000.00 (v)Mental Agony and shock : Rs. 2,00,000.00 (vi)Loss of Happiness : Rs. 1,00,000.00 (f)Compensation for pain and suffering : Rs. 4,00,000.00 (g)Compensation for continuing as permanent disability : Rs. -- (h)Compensation for loss of future earning power : Rs. -- ----------------- Total Rs.33,14,000.00 ----------------- But the claim is restricted to : Rs.10,00,000.00" 11.The Learned Counsel for the Appellant/Insurance Company contends that the mother of the deceased First Respondent/Claimant was aged about 60 years at the time of filing of the Claim Petition and therefore, the Tribunal should have adopted a Multiplier of 5 only. But the same was not done by the Tribunal which in turn had caused prejudice to the Appellant/Insurance Company. 12.The Learned Counsel for the Appellant/ Insurance Company urges before this Court that the First Respondent/ First Claimant being the mother of the deceased is only entitled to claim compensation for the death of her son Saravanan and the other Claimants 2 to 7 viz., brothers and sisters of the deceased Saravanan are not entitled to claim the compensation because when mother is https://hcservices.ecourts.gov.in/hcservices/ alive, the brothers and sisters, in law, are not entitled to claim the compensation as heirs and this aspect of legal plea was not adverted to by the Claims Tribunal while passing the impugned Award in issue. 13.At this stage this Court aptly points out the decision in Union of India V. Golendra Moshahari and others 2005 ACJ 263 at page 265 in para 7 and 8 it is observed as follows: "7.It is clear from the judgment of the Division Bench and the facts of the case in the matter of Gujarat State Road Trans. Corpn. V. Ramanbhai Prabhatbhai, 1987 ACJ 561 (SC), that the Supreme Court has awarded compensation to the brother of the deceased he being the heir and legal representative of the deceased. In the present case the claim petition has been filed by the brother of the deceased on behalf of his father and the father was later on joined as party. The brother is not mentioned in Section 1-A of the Fatal Accidents Act, 1855 nor he is heir of his deceased brother, when the father is alive under the Hindu Succession Act, 1956. When the father is alive the brother has no right to claim property of his deceased brother as heir. Hence, the brother not being the heir the compensation could not have been awarded in his favour individually nor along with his father. The learned Tribunal has committed an error while granting compensation applying multiplier of 17 considering the age of the deceased. The Tribunal has failed to see that brother not being heir is not entitled for compensation. The Tribunal has further failed to see that it is the father alone who was entitled to compensation and while applying the multiplier, it has to take into consideration the years of dependency of the father. 8.The statement of the father, Soniram Moshahari, is recorded in the Court. From the statement it appears that at the time of recording the statement of Soniram Moshahari, father of the deceased, was about 67 years. Considering the fact that Tribunal has taken note of the future prospect of the deceased and the age of father, we feel the dependency of the father would continue for five years more taking into consideration the uncertainty of life and thus the compensation, which would be entitled by https://hcservices.ecourts.gov.in/hcservices/ Soniram Moshahari, would be an amount of Rs.3,344 x 12 x 5 = Rs.2,00,040 plus the amount of Rs.6,000 towards expenses for performing religious rites and incidental expenses as awarded by the Tribunal. The amount of compensation shall also carry an interest at the rate of 12 per cent per annum with effect from 3.5.1990. The appeal is partly allowed and the award is modified to the extent indicated above. In the facts and circumstances of the case, there shall be no order as to costs." 14.In the aforesaid decision, it is laid down that 'brother not being heir is not entitled to claim compensation and further it is held that the father alone is entitled to claim compensation and while applying the multiplier, the Tribunal has to taken into consideration the years of Dependency of the father.' 15.It is worth to recall the decision in Jamni Devi V. Som Nath and others 1998 ACJ 1071 at page 1072 in para 7 it is, among other things, observed as follows: "7.It is not being disputed that the appellant was class I heir of the deceased under the Hindu Succession Act, 1956. Father of the deceased admittedly is a class II heir. Otherwise also, he was not dependent on the deceased. In that view of the matter, giving half of the total compensation awarded to the appellant is improper. She was thus entitled to whole of the compensation." 16.In the decision in Cheriyakutty Mammi V. Ummerkutty 1996 ACJ 402 (Kerala) in which it is held that "it was not necessary that the claimant should be a legal representative of the deceased but it should be shown that the claimant was in fact dependent on the deceased." 17.In Vaman V. Ved Prakash 2007 ACJ at page 174, 175 and 176 it is laid down as follows: "6.Learned Counsel for appellant placed reliance on a decision reported in Gujarat State Road Trans. Corpn. V. Ramanbhi Prabhatbhai, 1987 ACJ 561 (SC), wherein the Hon'ble Supreme Court has observed as under: "(12)We feel that the view taken by Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the https://hcservices.ecourts.gov.in/hcservices/ conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by sections 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of Torts that every injury must have a remedy. It is for the Motor Accidents Claims Tribunal to determine the compensation which appears to it to be just as provided in section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under section 110-A of the Act have to be done in accordance with well- known principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the breadwinner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which, as we have already held, has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicle accidents. We express our approval of the decision in Megjibhai Khimji Vira V. Chaturbhai Taljabhai, 1977 ACJ 253 (Gujarat) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under section 110-A of the Act if he is a legal representative of the deceased." 18.This Court worth recalls the decision in Kapila Uppal V. Kishan Datt 1997 ACJ 600 at page 605 it was inter alia held that "it is relevant to mention here that the appellant Nos. 2 to 4, who are legal representatives of the deceased claimant No.1, do not https://hcservices.ecourts.gov.in/hcservices/ constitute dependants. A brother or sister in the presence of mother is not entitled to compensation on account of death of their brother." 19.As far as the present case is concerned, the First Respondent/Claimant, being the mother of the deceased Saravanan, is entitled to claim compensation on account of his death and when the First Respondent/Claimant is alive then the other Respondents 2 to 7/Claimants (being the brothers and sisters) are not entitled to compensation on account of death of their brother Saravanan as opined by this Court. 20.In the Claim Petition, it is mentioned that the deceased Saravanan was an Auto Driver, besides being an Agriculturist and was aged 28 years at the time of occurrence on 22.07.2002 at about 10.30 hours. His monthly income was said to be Rs.4,000/-. 21.It is useful to refer to the evidence of the First Respondent/First Claimant (mother of the deceased Saravanan) because of the fact that it will be of assistance while arriving at a Loss of Income/Loss of Dependency to be determined by this Court. It is the evidence of P.W.1 (First Respondent/First Claimant that her deceased son Saravanan was employed as an Auto Driver and was getting an income of Rs.4,000/- per month and that all the Respondents/ Claimants 1 to 7 dependent on his income and that he was aged about 28 years at the time of the occurrence. Even though P.W.1 (mother of the deceased Saravanan) in her evidence had deposed that her son Saravanan (since deceased) during his life time was earning a sum of Rs.4,000/- per month by means of his employment as an Auto Driver, there is no material documentary proof to show the monthly income of the deceased son Saravanan at Rs.4,000/-. However, taking note of the fact that the MACT proceedings are of a summary nature and also because of another established fact that a strict rules of Evidence Act do not apply to these proceedings by taking into account of the employment of the deceased son Saravanan as an Auto Driver and since he was aged 28 at the time of his death on 22.7.2002, this Court is of the considered view that the deceased Saravanan would have earned a salary of Rs.4,000/- per month easily and accordingly determines the monthly income of the deceased Saravanan at Rs.4,000/-, which is a fair, just and an equitable one too. 22.From and out of the monthly income of the deceased Saravanan of Rs.4,000/-, if a deduction of Rs.1,000/- is made towards the personal expenses of the deceased in a month, then the balance comes to Rs.3,000/-. For a year this works out to Rs.36,000/-. Inasmuch as the First Respondent/ First Claimant (being the mother of the deceased) was aged about 60 years as shown in the Claims Petition then this Court opines that a proper multiplier to be adopted in the instant case for arriving at a just compensation will be 8 and accordingly, the Loss of Income/Loss of Dependency works out to Rs.2,88,000/- (3000 x 12 x 8). Towards Funeral Expenses etc., this https://hcservices.ecourts.gov.in/hcservices/ Court grants a sum of Rs.25,000/- as spoken to by P.W.1 (mother of the deceased) in her evidence. Towards Love and Affection and Mental Anguish, this Court awards a sum of Rs.50,000/-. Towards Loss of Estate, this Court awards a sum of Rs.15,000/-. Thus, the First Respondent/First Claimant is only entitled to receive a total compensation of Rs.3,78,000/- together with interest at 9% per annum from the date of filing of the petition till date of payment together with procosts as she being the class I heir of the deceased son Saravanan under the Hindu Succession Act, 1956. 23.In regard to the Award of Rs.1,000/- towards Loss of Articles and Damage to clothings, Car Hire Expense of Rs.1,000/-, Future Life Expectation Loss of Rs.50,000/-, Loss of Happiness of petitioners to Rs.21,000/- are all negatived by this Court in the absence of satisfactory proof and not being permissible in law. 24.It is to be borne in mind that interest is not awarded as Damages but is awarded to a Claimant only for being left out of money, which ought to have been paid to her. It takes care of the period between the date of claim and the date of final payment of compensation, in the considered opinion of this Court. It is true that rate of interest must be a reasonable and fair one depending upon the facts and circumstances of a given case, taking note of all relevant facts including inflation, change of Economy and Policy adopted by the Reserve Bank of India from time to time. Bearing this principles in mind, this Court in the instant case sustains the grant of interest at 9% per annum from the date of filing of the petition till date of payment. 25.Earlier, this Court in C.M.P.No.772 of 2006 on 21.01.2006 has passed an order of interim stay subject to the Petitioner/Appellant depositing 50% of the award amount with accrued interest to the credit of M.C.O.P.No.265 of 2003 on the file of the Motor Accidents Claims Tribunal, Sub Court, Krishnagiri within eight weeks from the date of receipt of a copy of this order, failing compliance of the condition imposed, the stay will stand automatically vacated. On such deposit being made, the respondent shall be permitted to withdraw 50% of the award amount with proportionate interest and the remaining sum shall be invested in the Fixed Deposit in the local State Bank of India under reinvsetment scheme, initially for a period of one year, which shall be renewed periodically pending further orders and issued notice. 26.In the result, the Civil Miscellaneous Appeal is allowed in part, leaving the parties to bear their own costs. Consequently, the Award passed by the Tribunal in M.C.O.P.No.265 of 2003 dated 06.07.2005 stands modified. Since this Court in C.M.P.No.772 of 2006 on 21.01.2006 has permitted the Respondents 2 to 7 to receive 50% of the award amount with proportionate interest etc. and the same is left undisturbed by this Court and in fact, no recovery shall be https://hcservices.ecourts.gov.in/hcservices/ effected from them in this regard. The remaining balance amount lying to the credit of M.C.O.P.No.265 of 2003 on the file of the Motor Accidents Claims Tribunal, Sub Court, Krishnagiri to which the First Respondent/First Claimant is entitled by means of this Judgment shall be withdrawn by her from the Claims Tribunal by filing necessary application as per Civil Rules of Practice in the manner known to law and the Claims Tribunal shall pass appropriate orders thereto without any loss of time. Lawyer's Fee is fixed at Rs.11,000/-. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sgl To The Subordinate Judge, Motor Accident Claims Tribunal Krishnagiri. C.M.A.No.236 OF 2006 TM(CO) sra 05/08/2010 https://hcservices.ecourts.gov.in/hcservices/