K. Vijayan v. K.V. Ram Prasanth

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 16.03.2016

CORAM:

THE HONOURABLE MR. JUSTICE R.SUDHAKAR AND THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN Civil Miscellaneous Appeal No.305 of 2014 1.

K.Vijayan 2.

V. Jayakodi 3.

V. Deepa ... Appellants/Claimants vs.

1.

K.V.Ram Prasanth (was set exparte in the Trial Court) 2.

Reliance General Insurance Co. Ltd., Regional Office (Legal Department), Reliance House, 6th Floor, No.6, Haddows Road, Nungambakkam, Chennai 600 034.

... Respondents/Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 22.08.2013 passed in M.C.O.P.No.3096 of 2010, on the file of the Chief Judge, Motor Accidents Claims Tribunal, (Court of Small Causes), Chennai.

For Appellants :

Mrs. P.T. Salim Fathima M.Swamikkannu For 2nd Respondent :

Mr.S.Arunkumar * * * * * * *

J U D G M E N T

(Judgment of the Court delivered by S.VAIDYANATHAN,J.) Challenging the judgment and decree dated 22.08.2013 passed by the Chief Judge, Motor Accidents Claims Tribunal, (Court of Small Causes) Chennai in M.C.O.P.No.3096 of 2010, the claimants have come up with this appeal seeking enhancement of compensation.

2.

On 02.08.2010, about 13.20 hours, when the deceased V.Deepan was travelling as a pillion rider in the motor cycle

bearing Registration No.TN-07-BD-8760 driven by his brother, proceeding on the left side of Velachery main road from Velachery to Medavakam, near Saravana Furniture Mart, Senthamizh Nagar, Medavakkam, an Eicher Van bearing Registration No.TN-09M-4915 driven by its driver in a rash and negligent manner came from behind to the extreme left side of the road and dashed against the motor cycle, due to which, both the rider and pillion rider fell down, sustained skull injury and succumbed to it. The claimants, who are the parents and unmarried sister of the deceased Deepan filed a claim petition filed before the Tribunal seeking a sum of Rs.22,00,000/- as compensation for his death.

3.

The Tribunal tried this matter along with connected M.C.O.P.No.3095 of 2010. Common evidence was recorded. In respect of this matter, on the side of the claimants, Mrs.Jayakodi, mother of the deceased was examined as P.W.2; one Mr.Dilipan was examined as P.W.3; one Mr.Jayaraman, an eyewitness to the accident was examined as P.W.4 and Exs.P1, P5 to P7 were marked. On the side of the Insurance Company, one Mr.D.Vijaya Karthi, Assistant Manager (Legal) was examined as R.W.1 and Exs.R1 to R4 were marked. Details of the Exhibits would run thus:

Ex.P1 Copy of F.I.R., dated 02.08.2010 Ex.P5 Copy of Death Report, dated 03.08.2010 Ex.P6 Copy of Post mortem Certificate of Deepan Ex.P7 Legal Heir Certificate, dated 11.01.2011 Ex.R1 Copy of Insurance Policy Ex.R2 Copy of Driving Licence of R1's driver Ex.R3 Copy of Driving Licence particulars on website Ex.R4 Series copy of notice to R1 and his driver 4.

On consideration of the available oral and documentary evidence, the Tribunal, held that the accident had occurred due to the rash and negligent driving of the driver of the offending vehicle, i.e. Eicher Van and fixed the liability to compensate the claimants on the 2nd respondent/Insurance Company and recover the same from the owner of the offending vehicle. The 1st respondent herein, who is the owner of the offending vehicle was set exparte before the Tribunal. Against the claim of Rs.22,00,000/- for the death of the deceased, the Tribunal awarded a sum of Rs.5,26,000/- as compensation under the following heads:

S.No.

Heads Compensation awarded by the Tribunal Loss of Income (Rs.4,500/- x 12 x 1⁄2 x '18'

Rs. 4,86,000/- Loss of Love and Affection Rs. 25,000/- Funeral expenses Rs. 10,000/- Transportation Rs. 5,000/- Total Rs. 5,26,000/- 5.

Learned counsel for the appellants/claimants contended that when the deceased, who was a carpenter by profession, has left behind his parents and unmarried sister as his legal heirs, the Tribunal erred in fixing his monthly income only at Rs.4500/-, which is very low on account of the rising prices. She further contended that the Tribunal erred in not awarding any amount towards "Loss of expectation of life" and that the compensation awarded towards "loss of love and affection" is less against the claim.

6.

On the other hand, learned counsel appearing for the 2nd respondent/Insurance Company submitted that the compensation awarded by the Tribunal is just and reasonable and sought dismissal of the appeal.

7.

Heard the learned counsel on either side, gave careful consideration to their submissions and perused the material documents available on record.

8.

On the basis of the oral evidence of P.W.2, mother of the deceased and also relying upon Ex.P5 - Post-mortem Certificate, the Tribunal fixed the age of the deceased as 21 years. It is her further evidence that her son Deepan was doing Carpentry work along with his brother and was earning a sum of Rs.20,000/- per month. Since there is no proof in support of his avocation, the Tribunal fixed the notional monthly income of the deceased at Rs.4,500/- and after deducting 50% of his income towards his personal expenses taking note of the fact that he was a bachelor at the time of accident and applying the multiplier of '18', a sum of Rs.5,26,000/- was awarded by the Tribunal towards 'loss of dependency'.

9.

This Court is not inclined to interfere with the fixation of age of the deceased by the Tribunal. Coming to the income aspect, we feel that the notional monthly income fixed by the Tribunal is low in view of the present economic scenario. Hence, taking note of the ratio laid down in Syed Sadiq vs.

Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735, wherein, the notional monthly income of an injured vegetable vendor was fixed at Rs.6,500/- and also taking into account the escalating prices, this Court fixes the notional monthly income of the deceased in this case at Rs.7,000/-. Further, deducting 50% towards the personal expenses of the deceased and applying the multiplier of '18', the revised compensation towards "loss of dependency" is arrived at a sum of Rs.7,56,000/- (Rs.7000/- x 12 x 1⁄2 x '18'). 10.

Further, we find that the compensation awarded under the heads, 'Loss of Love and affection' and 'Funeral expenses' are on the lower side. Hence, we enhance the same by awarding a sum of Rs.1,50,000/- towards 'Loss of Love and Affection' and a sum of Rs.25,000/- together for 'Transport and Funeral expenses'.

11.

Since the 3rd appellant in this appeal is the sister of the deceased and as her father, i.e. the 1st appellant is very much alive, she cannot be considered as a legal heir of the deceased. In fine, the compensation of Rs.5,26,000/- awarded by the Tribunal is enhanced and the appellants 1 and 2, who are the parents of the deceased, are entitled to a sum of Rs.9,31,000/- (Rupees Nine Lakhs Thirty One Thousand only) as revised compensation, as per the ratio fixed by the Tribunal. Interest awarded by the Tribunal at 7.5% per annum from the date of petition till the date of realization is confirmed. Break-up details of the revised award are tabulated below: S.No.

Heads Compensation awarded by the Tribunal Revised Compensation awarded by this Court Loss of Income Rs. 4,86,000/- Rs. 7,56,000/- Loss of Love and Affection Rs. 25,000/- Rs. 1,50,000/- Funeral expenses Rs. 10,000/- Transport Rs. 5,000/- Rs. 25,000/- Total Rs. 5,26,000/- Rs. 9,31,000/- 12.

The revised compensation awarded by this Court along with interest and proportionate costs shall be deposited by the 2nd respondent/Insurance Company to the credit of M.C.O.P.No.3096 of 2010, less the amount already deposited within a period of six (6) weeks from the date of receipt of a copy of this order. It is also made clear that the proportionate share of the amount awarded by this Court to the appellants 1 and 2 shall be paid to them in the form of a crossed Account Payee Cheque, favouring only them and it should not be issued in favour of any other person/Company.

13.

The dismissal of claim petition by the Tribunal in respect of the 3rd claimant is confirmed. The Insurance Company can recover the award amount from the owner of the offending vehicle.

The Civil Miscellaneous Appeal is allowed with the above direction and observation. No costs.

-s/dAssistant Registrar(CSVI) True Copy Sub-Assistant Registrar aeb To:

The Chief Judge, Motor Accidents Claims Tribunal, Court of Small Causes, Chennai.

copy to The Section Officer VR Section High Court Madras +1 cc to Mr.M.Swamikkannu Advocate sr.16753/16 +1 cc to Mr.S.Arunkumar Advocate sr.17135/16 C.M.A.No.305 of 2014 aa06/06/2016