1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:08.04.2011 CORAM: THE HONOURABLE MS.JUSTICE K.B.K.VASUKI CMA(MD)No.452 of 2011 and MP(MD)No.3 of 2011 The Oriental Insurance Co., Ltd., Through its Divisional Manager, Spencer Towers, IVth floor, Chennai. :Appellant/2nd Respondent -Vs- 1.Nagarajan 2.Chandra 3.Jothipandi 4.Vijayan (4th respondent remained ex-parte before the lower Court):Respondents/Claimants and 1st Respondent PRAYER:Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award dated 31.08.2009 made in M.C.O.P.No.54 of 2008 on the file of the Motor Accident Claims Tribunal cum Additional District Judge(FTC), Virudhunagar. For Appellant : Mr.K.Bhaskaran For R1 to R3 : Mr.S.Srinivasa Raghavan JUDGMENT This Civil Miscellaneous Appeal is filed by the insurer against the award of compensation of Rs.3,98,500/- with interest at 7.5% per annum from the date of claim petition passed in favour of the parents and elder brother of one Mareeswaran aged about 19 years who was the victim of the fatal accident occurred at 9.45 a.m., on 15.10.2007 at Maravankulam on Madurai to Virudhunagar High Ways due to rash and negligent driving of the lorry owned by the first respondent and insured with the second respondent in the claim petition. 2.The insurer has in this appeal questioned the award both by denying the liability and by questioning the quantum of compensation. The liability is denied on the ground that the deceased who was riding the motor-cycle did not possess any driving licence on the date of the accident and he was also equally negligible in causing the accident and is to be held guilty of contributory negligence. 3.The fact that the motor-cycle rider who was third party insofar as the present insurer is concerned, did not possess any driving licence, is not denied on the side of the claimants. However, that by itself will not, as rightly held by the Apex Court in the judgment reported in IV (2008) ACC 770 (SC) (Sudhir Kumar Rana vs. Surinder Singh & others), lead to an inference https://hcservices.ecourts.gov.in/hcservices/ 2 of negligence on the part of the deceased. The Supreme Court has in para.8 of the above referred judgment clearly observed that it is one thing to say that the deceased did not possess any licence and the different thing is to say that he was driving the vehicle rashly and negligently and contributed to the accident. 4.Further the second respondent/Insurer has not in their counter specifically pleaded that the deceased/rider of the two wheeler driven his vehicle rashly and negligently and contributed to the accident. Except saying that he was not having any driving licence, no such plea is raised in the counter. As a matter of fact, the driver of the vehicle owned by the first respondent and insured with the second respondent was found guilty for the offence and sentenced to pay fine in the criminal Court and the same can be, in the absence of any plea and proof on the side of the contesting respondent regarding the contributory negligence on the part of the deceased/two wheeler rider held sufficient enough to prove that the driver of the lorry is solely at fault for the accident. As such, the ground on which the liability is denied in this appeal is to be necessarily negatived. 5.Regarding the quantum of compensation, the Tribunal has awarded a sum of Rs.3,98,500/- under the following heads: Loss of Income and loss of dependency (24,000 X 16) :Rs.3,84,000/- Funeral Expenses :Rs. 2,000/- Loss of love and affection Rs.5000/- each :Rs. 10,000/- Loss of Estate :Rs 2,500/- --------------- Total :Rs.3,98,500/- --------------- 6.According to the learned counsel for the appellant, the Tribunal has erred in deducting 1/3 of the income of the deceased for his personal expenses as against 1/2 as laid down in the judgment reported in 2009 2 SCC(Cri) 1002(Syed Basheer Ahamed & Others vs. Mohd. Jameel and another). It is further argued by the learned counsel for the appellant that as the deceased was bachelor, the multiplicant to be adopted for assessing the loss of income shall not exceed "10" as against "16" adopted by the Tribunal which is against the observation of the Supreme Court in the judgment reported in 2004(1) T.A.C.3 (S.C)(Municipal Corporation of Greater Bombay vs. Shri Laxman Iyer and another) as followed by the Division Bench of this Court reported in 2008 ACJ 1202 (United India Insurance Co., Ltd., vs. P.Mumtaj and others). https://hcservices.ecourts.gov.in/hcservices/ 3 7.Per contra, the learned counsel for the claimants would seek to question the fixation of monthly income of Rs.3,000/- by the Tribunal as too low and inadequate considering the age of the deceased at 19 years at the time of the accident and his qualification in catering course. It is sought to be argued by the learned counsel for the claimants that considering the age and the period during which the accident taken place, his income can be reasonably fixed at Rs.150/- per day as against Rs.100/- per day fixed by the Tribunal. 8.It may be true that the claimants have not filed any cross appeal seeking enhancement. However, this Court in view of the settled legal position, is empowered to enhance the compensation in the appeal filed by the insurer questioning the quantum of compensation without filing any independent cross appeal by the claimants. 9.In this case, the deceased was admittedly aged about 19 years at the time of the accident and was holding certificate of catering course. It may be true that there was no oral and documentary evidence to show that the deceased was earning Rs.10,000/- per month. However, considering the demand for caterers in day-to-day life, this Court is inclined to enhance the monthly income of the deceased to Rs.4,000/- per month. 10.Regarding the deduction of 1/3 for personal expenses of the deceased, though this Court is bound by the judgment of the Apex Court, the same is actually distinguishable, this Court is of the view that considering the age of the deceased and considering the fact that the fatal accident victim had been during the relevant point of time residing with his parents who were fully depending upon him and had been sharing the same shelter and food, the question of deducting 50% for his personal expenses does not arise herein and the deduction of 1/3 as done by the Tribunal is hence confirmed. 11.Regarding the multiplier to be adopted though in the judgment cited on the side of the appellant multiplier of "10" is fixed by the Supreme Court, considering the age of the claimants and the possibility of reduction in the contribution after his getting marriage, the same can be reduced to "14", having regard to the age of the deceased and the age of the claimants and the fact that the deceased died at much younger age (i.e) 19 years. The loss of income and loss of dependency to be awarded in this case is hence assessed at Rs.4,48,000/- (4000 X 12 X 14 X 2/3). 12.Further, as rightly pointed out by the learned counsel for the claimants, the award of compensation at Rs.2,000/- and Rs.5000/-(each) for funeral expenses and loss of love and affection is too low and inadequate and the same is enhanced to Rs.5,000/- and Rs.10,000/-(each). As far as the compensation https://hcservices.ecourts.gov.in/hcservices/ 4 awarded for loss of estate is concerned, the same is without any basis and is set aside. In the result, the compensation awarded by the Tribunal is modified as follows: Loss of income and loss of dependency :Rs.4,48,000/- Funeral Expenses :Rs. 5,000/- Loss of love and affection (Rs.5000/- each) :Rs. 20,000/- ------------ Total :Rs.4,73,000/- ------------- 13.The Tribunal apportioned the award amount amount among the claimants 1 to 3, parents and elder brother aged 41 years. In my considered view the apportionment of a sum of Rs.50,000/- to the elder earning brother from and out of total compensation is not factually sustainable and the entire compensation is hence apportioned among the parents. 14.In the result, the award dated 31.08.2009 made in M.C.O.P.No.54 of 2008 on the file of the Motor Accident Claims Tribunal cum Additional District Judge(FTC), Virudhunagar, is modified by awarding a sum of Rs.4,73,000/- payable with interest at 7.5% per annum from the date of claim petition till the date of payment payable by the appellant/Insurer within two weeks from the date of receipt of the copy of this order. Out of the compensation amount, the respondents 1 and 2 are entitled to get Rs.1,73,000/- and Rs.3,00,000- respectively. On deposit of the amount into Court, the respondents/claimants 1 and 2 are permitted to withdraw 50% of the amount allotted to them with proportionate interest and costs and the balance sum is directed to be deposited in any of the nationalised banks for three years and the respondents 1 and 2 are permitted to withdraw the future accrued interest once in three months directly from the bank. The claim petition is dismissed in so far as the third claimant is concerned. The claimants 1 and 2 are directed to pay the additional Court fees for the enhanced amount within one month from the date of receipt of the copy of this order failing which they are not entitled to claim interest for the enhanced amount for the delayed period. No Costs. Consequently, connected miscellaneous petition is closed. Sd/- Deputy Registrar (LA) / TRUE COPY / Assistant Registrar To: The Motor Accident Claims Tribunal cum Additional District Judge(FTC), Virudhunagar. +1CC to Mr.S.Srinivasaraghavan, Advocate. SR.No.13089. +1CC to Mr.K.Bhaskaran, Advocate. SR.No.13025. PM CMA(MD).No.452 of 2011 RP/07.06.2011/4p/4c. 08.04.2011 . https://hcservices.ecourts.gov.in/hcservices/