S.Sumathi v. G.Anbalagan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.02.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.BASKARAN C.M.A.No.1323 of 2017 and C.M.P.No.2420 of 2017 S.Sumathi ...Appellant/Petitioner vs 1.G.Anbalagan 2.United India Insurance Co.Ltd., No.2, Sankaran Road Namakkal 3.Murugesan ..Respondents/Respondents Civil Miscellaneous Appeal filed against the judgment and decree dated 13.01.2015 made in M.C.O.P.No.259 of 2010 on the file of Motor Accident Claims Tribunal, Special Sub Court No.I, Small causes court, Chennai.
For appellant : : Mr.S.Ravikumar for Respondents : : Mr.Srinivasa Ramalingam for R2
J U D G M E N T
This Civil Miscellaneous Appeal is filed by the appellant/claimant, challenging the judgment and decree dated 13.01.2015 made in M.C.O.P.No.259 of 2010 on the file of Motor Accident Claims Tribunal, Special Sub Court No.I, Chennai.
2. For the sake of convenience, the parties are referred to as per their litigative status before the Tribunal. The case of the petitioner is that on 18.11.2009 while the deceased was going in his cycle in Kaliammalkoil street, at around 08.00 hours, a van bearing Reg.No.TN-39-9033 owned by the 1st respondent and insured with the 2nd respondent came at high speed in the same direction and dashed against the cycle, in which the deceased was going, causing him fatal injuries resulting in his death on the spot itself. At the time of the accident, the deceased who is the only son of the Petitioner herein was aged 14 years and he was studying in 8th standard. As the petitioner, who has lost her husband already, lost her only son due to the accident, seeks a sum of Rs.6,00,000/- as compensation.
3. On the other hand, opposing the petition, the 2nd respondent/Insurance Company filed counter, contending that the vehicle involved in the accident was not having necessary permit to attach the ready mix compressor along with the vehicle insured. The vehicle bearing Reg.No.TN 39 9033 was insured, but there is no provision to attach ready mix compressor. The 2nd respondent further contends that the insured vehicle is not involved in any accident and the present owner of the vehicle bearing Reg.No.TN 39 9033 viz., Murugesan is not impleaded as party. The owner of the vehicle has not paid any additional premium towards the ready mix compressor attached with the insured vehicle. Further the deceased while riding the cycle was under influence of alcohol and dashed against the unknown vehicle resulting in his death. As such, the 2nd respondent is not liable to pay any compensation. Thus, the 2nd respondent sought for dismissal of the Petition.
4. Before the Tribunal, the petitioner examined herself as P.W.1 and two other witnesses as P.W.2 and P.W.3. The Petitioner produced documents Ex.P.1 to Ex.P.6 to prove her claim. On the other hand, the 2nd respondent has not produced any oral or documentary evidence.
5. The Tribunal, on the basis of available materials before it, held that the deceased died only due to the rash and negligent driving by the driver of the van bearing Reg.No.TN-399033 and further held that as the insurer of the offending vehicle, the 2nd respondent is liable to pay compensation to the petitioner. The Tribunal, after considering the attendant circumstances, held that the petitioner is entitled for a just and reasonable compensation of Rs.5,75,000/-. Being not satisfied with the quantum of the award, the petitioner/claimant has come forward with the present appeal.
6. The learned counsel for the appellant/petitioner contends that the deceased being the only child of the petitioner, the Tribunal ought to have awarded compensation for mental agony suffered by her. The Tribunal also failed to consider the future prospects of the deceased, and the amount awarded under different heads is very low. Hence, the Petitioner seeks to enhance the award and in this regard filed CMP.No.2420 of 2017 seeking to enhance the claim amount from Rs.6,00,000/- to Rs.10,75,000/- and further sought to entertain the appeal.
7. Per contra, the learned counsel for the 2nd respondent contends that the deceased being a minor son and in the absence of any material to show that he was a bright student doing his 8th standard, as stated by the Petitioner, the award passed by
the Tribunal itself, is on the higher side and there is no need to enhance the compensation. The 2nd respondent thus sought to dismiss the appeal.
8. Heard both sides and perused the records carefully.
9. The Petitioner/claimant has come forward with the appeal aggrieved over the quantum of award passed by the Tribunal. The 2nd respondent/Insurance Company which disputed the coverage of the offending vehicle under the Insurance Policy has not preferred any appeal. The Petitioner states that on 18.11.2009, at about 08-00 hours, when the deceased was riding his cycle in Kaliamman Koil Street, Virugambakkam, Chennai, opposite to Adi Dravida Welfare Middle School, the van bearing Reg.No.TN-39-9033 came from behind driven in a rash and negligent manner, dashed against her son, the deceased, causing him death on the spot. The eyewitness to the occurrence who deposed as P.W.2 has stated that only due to rash and negligent driving of the driver of the van bearing Reg.No.TN-39-9033, the accident occurred.
The case has been registered against the driver of the 1st respondent van only, as evidenced by Ex.P.1-FIR. The Petitioner produced Rough Sketch of the accident spot as Ex.P.2. It is categorically stated by P.W.2 in her evidence that the van/offending vehicle hit and ran over the deceased, resulting in the death of the petitioner's son. As such, in the absence of any contra evidence on the respondents side, it is evident from the evidence of P.W.2 and the contents of Ex.P.1-FIR that the accident occurred only due to rash and negligent driving of the 1st respondent van driver. The Point is answered accordingly.
10. The main contention of the appellant/Petitioner is that the Tribunal erred in fixing the nominal monthly income of the deceased and also in not providing for any compensation towards future prospects. Admittedly, the deceased was a student at the time of the accident. The Petitioner claims that the deceased was aged 14 years and studying 8th standard at Chinmaya Vidhyalaya, Virugambakkam, Chennai. In Ex.P.3-Post Mortem Certificate and Ex.P.4-Death Certificate, the age of the deceased is mentioned as 14 years. However, in Ex.P.6-Legal Heir Certificate, the age of the deceased is given as 13. The tribunal, after considering the materials available on record, fixed the age of the deceased as 13 years. There is nothing on record to contradict the said finding.
Hence, the conclusion of the Tribunal that the deceased was aged 13 years is just and proper. The Petitioner examined P.W.3, who stated that the deceased was working as Part-time Paper boy and earned Rs.5000/- per month. As rightly pointed out by the Tribunal, in the petition averments, nothing is mentioned about such employment of the deceased. On the other hand, in Column No.
"does not arise". Likewise, in Column No.5 of the Petition, about the details of the employer of the deceased, it is clearly mentioned that the same "does not arise". In such circumstances, the evidence of P.W.3 that he employed the deceased as Paper boy and was paying Rs.5000/- per month as salary cannot be accepted. Further P.W.3 himself admitted that there is no record available with him to prove his claim. In such circumstances, the conclusion of the Tribunal that the deceased was employed as Paper boy is not established is to be accepted.
11. P.W.1 has stated that her son/deceased was studying 8th standard in a private school, but, she has not produced any certificate from the school concerned. However, it is mentioned in the Petition and also stated by P.W.1 that the deceased was studying 8th standard at the time of the accident. The Tribunal, accepting the said contention of the Petitioner that the deceased was studying 8th standard in the school, fixed the notional income of the deceased at Rs.5000/- per month. The Insurance Company has not come forward with any appeal challenging the same. However, the learned counsel for the Petitioner/claimant contends that even in the case of a student, notional monthly income should be fixed on the higher side and compensation should be awarded towards Future Prospects since the deceased was a bright student.
He relied upon the Ruling of this court reported in 2017 (1) TN MAC 180 [The General Manager, Tamil Nadu State Transport Corporation, Nagercoil Vs. J.James and others] and contended that there was every chance of earning more money by him in future. In the said Ruling, it is held as follows:- "6. On the other hand, Mr.B.Tamil Nidhi, learned counsel for the respondents 1 to 3/claimants would submit that the deceased was a bright student and he was studying in 12th standard and there was every chance of earning more money by him in future. He would rely upon the Judgement of the Division Bench of this Court in The Managing Director, Tamil Nadu State Transport Corporation, Kancheepuram Vs. Minor S.Surya, rep. By her father, Subramaniyam, C.M.A.No.2234 of 2016, decided on 22.09.
2016 wherein, a 14 year old student got injured and for determining the compensation, the Division Bench took a sum of Rs.6,000/- (Rupees Six Thousand only) as Monthly income relying upon the Judgment of the Honourable Supreme Court in V.Mekala V.M.Malathi, 2014 (2) TN MAC 6 (SC) : 2014 ACJ 1441 and thereafter, added 50% towards future prospects and determined the monthly income at Rs.9,000/- (Rupees Nine Thousand only).
12. Considering the contention of the Petitioner, in the light of the above said Ruling and taking into consideration the date of the accident i.e., 18.11.2009, this court is of the view that it will be appropriate to fix the notional income of the deceased at Rs.6000/- per month.
Further, the correct multiplier to be adopted is 15 as the deceased was aged 13 years. Further 50% as future prospects is to be added to the notional income of the deceased. Since the deceased was a bachelor, 50% of the amount is to be deducted towards his personal expenses. As such, the loss of dependency is calculated as under:- 6000 + 50 % future prospects (3000) = 9000 9000 - 50% deduction (4500) = 4500 4500 x 12 x15 = Rs.8,10,000/- Therefore, this court is inclined to award Rs.8,10,000/- under the head "loss of dependency".
Further, following the decision of Apex Court reported in 2017
(2) TN MAC 609 (SC) [National Insurance Co.Ltd., Vs Pranay Sethi and Others], this court is also inclined to award the following amounts as compensation under conventional heads:- Funeral Expenses = Rs. 15,000/- Loss of Estate = Rs. 15,000/- Add: Loss of dependency = Rs. 8,10,000/- Total = Rs. 8,40,000/- The award amount granted by the Tribunal under other heads are set aside. Thus, the modified enhanced compensation granted by this Court is Rs.8,40,000/-.
13. In the result, the Civil Miscellaneous Appeal is Partly allowed in the terms as shown below:-
(1) The award granted by the Tribunal is enhanced to Rs.8,40,000/- from Rs.5,75.000/-.
(2) The interest granted by the Tribunal at 7.5% per annum is confirmed.
(3) The 2nd respondent/Insurance Company is directed to deposit the enhanced award of Rs.8,40,000/-, less the amount, if any already deposited, along with proportionate accrued interest and costs, within a period of six weeks from the date of receipt of a copy of this order.
(4) The Petitioner/claimant is permitted to withdraw the award amount along with with accrued interest, before the Tribunal, by filing necessary application, less the amount if any already withdrawn. Further, the petitioner is also directed to pay the required additional court fee for the enhanced award amount, at the time of receiving the order copy.
(5) Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS-V) //True Copy// Sub Assistant Registrar nvsri To 1.The Motor Accident Claims Tribunal, Special Sub Court No.I, Small causes court,Chennai. 2.The Section Officer, V.R.Section, High Court, Madras.(2 copies) +1cc to Mr.S.RAVIKUMAR, Advocate, S.R.No. 11440 C.M.A.No.1323 of 2017 ak(CO) TR(04/04/2018)