M/S. Iffco Tokio General v. Kaliamoorthy S/O Raju.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.03.2016
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR and THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN C.M.A.No.1292 of 2014 & M.P.No.1 of 2014 and Cross Objection No.57 of 2015 M/s Iffco Tokio General Insurance Co. Ltd., J.H. Tower, II Floor, New No.24, LIC Colony Road Salem 636 004 Rep. by its Branch Manager ... Appellant/1st Respondent in Cross Objection vs.
1.Kaliamoorthy
2. Amaravathi
3. Ramesh ..Respondents 1-3/Cross objectors in Cross Objection No.57/15
4. R.Paramasivam (4th Respondent and 2nd Respondent in Cross Objection set exparte in Lower Court) ..Respondent 4/respondent 2 in Cross Objection Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 10.04.2013 passed in M.C.O.P.No.157 of 2011 on the file of the Motor Accidents Claims Tribunal ( Subordinate Court), Ariyalur. Cross Objection filed under Order 41 Rule 22 of CPC against the award dated 10.04.2013 passed in M.C.O.P.No.157 of 2011 on the file of the Motor Accidents Claims Tribunal ( Subordinate Court), Ariyalur.
For Appellant in CMA and 1st respondent in Cross Objcetion : Mr.N.Vijayaraghavan For Respondents 1 to 3 in CMA and Cross Objectors in Cross Objection : Mr.A.K.Kumarasamy R4 in CMA set exparte before the Tribunal below
JUDGMENT
(Judgment of the Court was delivered by R.SUDHAKAR,J.) While the Insurance Company has filed the Civil Miscellaneous Appeal, the claimants have preferred Cross Objections, both challenging the award dated 10.04.2013 passed in M.C.O.P.No.157 of 2011 on the file of the Motor Accidents Claims Tribunal ( Subordinate Court), Ariyalur.
2. It is a case of fatal accident. On 06.02.2011 at about 8.30 p.m., when the deceased Senthil Kumar, was riding his Herohonda Motorcycle bearing Registration No.TN 31 s 6418 from his house and was proceeding on the main Road of Mavilanda Kottai, at that time, the 4th respondent's Mahindra Goods vehicle bearing Registration No.TN 34 F 5125 driven by its driver in a rash and negligent manner, dashed against the vehicle driven by the deceased Senthil Kumar, thereby causing fatal injuries all over his body and ultimately he succumbed to the injuries. The claimants, who are the parents and brother of the deceased have filed a claim for compensation for a sum of Rs.25,00,000/-.
3. In support of the claim, Kaliamoorthy was examined as P.W.1, One Anbarasam was examined as P.W.2 and one Sakthivel was examined as P.W.3 and Ex.P-1 to Ex.P.35 were marked, the details of which are as follows:- Ex.No.
Details P1 FIR P2 Postmortem certificate P3 Inspection report of the Motor Vehicle P4 Charge sheet P5 Driving licence P6 R.C.Book P7 copy of the policy
Ex.No.
Details P8 Medical bill P9 Discharge summary P10 Treatment summary I P11 Treatment summary II P12 Bills for medical expenses P13 Rent receipt for ambulance P14 Driving license of Senthilkumar P15 Educational certificate P16 Engineering diploma certificate P17 Salary certificate P18 MS Office education certificate P19 Diploma education certificate P20 Auto Cad education certificate P21 Technology Diploma education certificate P22 Passport P23 Technology Diploma education certificate P24 Module education certificate P25 National ITE education certificate P26 Module education certificate P27 National ITE education certificate P28 TAKENAKA CORPORATION identity card P29 I.D. Card P30 Diploma education certificate P31 Certificate given to Senthilkumar for working as Technician P32 Module education certificate P33 Diploma certificate P34 Bills for purchase of Medicines P35 Copy of R.C.Book On behalf of the Insurance Company, no witnesses were examined and no documents were marked before the Tribunal and the 4th respondent herein remained exparte.
4. The Tribunal based on the oral evidence of the witnesses, the F.I.R. and also taking note of the fact that the deceased was having valid driving licence to drive the two wheeler came
to conclusion that due to the rash and negligent driving of the 4th respondent herein, the accident had occurred and he alone was responsible for the accident and consequently liability was fixed on the appellant, Insurer to compensate the claimants.
5. Based on the oral and documentary evidence, the Tribunal granted the following amounts as compensation with interest at 7.5% per annum:- Sl.
No.
Head Amount granted by the Tribunal Loss of income Rs.8,64,000/- For Private treatment as per Ex.11 Rs.3,68,527/- Medical expenses Rs.1,06,662/- Transport expenses Rs. 150/- Loss of Love and affection Rs. 60,000/- Funeral expenses Rs. 10,000/- Total Rs.14,09,339/-
6. The learned counsel for the appellant would submit that the awarding a compensation of a sum of Rs.14,09,339/- towards the death of a 30 year old Bachelor, in favour of his parents and brother is highly excessive and unsustainable. The Tribunal has erred in considering the monthly income of the deceased at Rs.6,000/- per month based on the certificate produced, without producing actual proof of receipt of the amount. Further, the Tribunal has erred in deducting 1/4th for personal expenses instead of 50% when the deceased was a bachelor. The learned counsel further pleaded that the Tribunal has erred in adopting a multiplier of 18 based on the age of the deceased instead of applying multiplier based on the mother's age. So far as medical bills are concerned, the Tribunal ought to have disbelieved the same as falsely fabricated for want of corroborative admissible evidence. Hence, the learned counsel for the appellant has sought for allowing of the Civil Miscellaneous Appeal.
7. On the other hand, the learned counsel for the cross objectors would submit that the compensation awarded by the Tribunal is not adequate and too low considering the age and occupation of the deceased. The Tribunal has erred in calculating the loss of income, based on the last drawn income, without considering the qualification, and the previous job held by the deceased. Further, while calculating the loss of income, the future prospects has not been taken into account. Thus, the learned counsel for the claimants has sought for enhancement of compensation.
8. This Court heard the submissions of the learned counsel on either side and perused the materials available on record.
9. Insofar as the award of compensation is concerned, based on the evidence adduced before the Tribunal, taking the income of the deceased at Rs.6,000/- and reducing 1/3rd towards the personal expenses of the deceased and adopting a multiplier of 18, a sum of Rs.8,64,000/- was arrived at under the head "loss of income". Though a plea was taken that 50% should be deducted in case of a bachelor, we are convinced that the contribution of the deceased to the family at Rs.4,000/- is fully satisfied and the compensation arrived at under the heading "Loss of income" is fully sustainable. Further, a perusal of the Judgment of the Tribunal reveals that the compensation granted under the other heads also appear to be reasonable.
10. There is no serious objection with respect the interest granted at 7.5% per annum.
11. In the above circumstances, finding no merit, the Civil Miscellaneous Appeal is dismissed and the award of the Tribunal is confirmed. Consequently, the Cross Objection filed by the claimants is also dismissed. Since this Court has already directed to deposit the entire award amount and permitted the claimants to withdraw 50% of their respective shares, the claimants are now permitted to withdraw the balance 50% of their respective shares by filing appropriate application before the Tribunal. There will be no order as to costs in this appeal. Connected miscellaneous petition is also dismissed. Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrar To 1.The Subordinate Judge, (Motor Accidents Claims Tribunal) Ariyalur.
2.The Section Officer, VR Section, High Court Madras.
+1cc to Mr.M.B.Gopalan, Advocate sr.14192 +1cc to Mr.A.K.Kumarasamy, Advocate Sr.13536 C.M.A.No.1292 of 2014 & Cross Objection No.57 of 2015 tej(CO) srg(28/03/2016)