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M/s. Oriental Insurance Company Limited, through its Divisional Manager, Chennai Vs. R. Muthulakshmi and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.M.A.(MD)No. 700 of 2012 & M.P(MD)No. 2 of 2012
Judge
AppellantM/s. Oriental Insurance Company Limited, through its Divisional Manager, Chennai
RespondentR. Muthulakshmi and Others
Excerpt:
.....section 338 - compensation - whether tribunal was justified in fixing liability on appellant/insurance company - whether compensation awarded was just and fair one - court held - insofar as negligence aspect was concerned, one of passengers of ill-fated tnstc bus was examined as p.w.2 and he was very categorical that offending bus was driven in rash and negligent manner and dashed on right side of tnstc bus and as consequence, driver of tnstc bus/husband of first respondent/first claimant died on spot and some of passengers had also sustained injuries - jurisdictional police also registered f.i.r and rough sketch would also disclose that omni bus owned by fifth respondent was root cause for accident and tribunal had rightly found that appellant/insurance company being insurer of..........loss of earning power---totalrs.20,35,588.00 though the claimants claimed a sum of rs.20,35,588/- (rupees twenty lakhs thirty five thousand five hundred and eighty eight only), they restricted their claim to rs.13,00,000/- (rupees thirteen lakhs only) for the purpose of court fees. 4. the first respondent - owner of the offending vehicle remained exparte and the second respondent - insurer has filed a counter statement denying all the averments and also questioning their liability and also stated that the quantum of compensation at any rate is excessive. 5. during the course of the trial, on behalf of the claimants, the wife of the deceased examined herself and two other witnesses were examined and exs.p.1 to p.7 were marked. on behalf of the respondents, neither oral nor documentary.....
Judgment:

(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.63 of 2009, dated 16.08.2011, on the file of the Motor Accident Claims Tribunal - Subordinate Court, Paramakudi.)

M. Sathyanarayanan, J.

1. The second respondent in M.C.O.P.No.63 of 2009 on the file of the Motor Accident Claims Tribunal cum Sub Court, Paramakudi, filed by the respondents 1 to 4 herein/claimants, is the appellant and challenging their liability to pay compensation and also questioning the quantum, had filed this Civil Miscellaneous Appeal.

2. The deceased is one Radhakrishnan, who was employed as a Senior Driver in the services of the Tamil Nadu State Transport Corporation (in short 'TNSTC'). On 11.03.2009, the deceased, in the course of his employment, was driving a bus belonging to the TNSTC bearing Registration No.TN-63-N-0907 from Kamuthi to Ramanathapuram and when the said bus was proceeding on Kamuthi Parthipanoor road at about 07.00 a.m. on 11.03.2009, the Omni bus belonging to the first respondent was driven in a rash and negligent manner and dashed against the TNSTC bus driven by the deceased and as a consequence, the deceased, namely, Radhakrishnan died on the spot and the passengers travelled in the said bus sustained injuries. In this regard, a complaint was also lodged against the driver of the offending vehicle in Cr.No.36 of 2009 with the jurisdictional Police Station for the commission of the offences under Sections 279, 337, 338 and 304(A) I.P.C.

3. The wife, the daughter and two minor daughters of the deceased had filed a petition for compensation, claiming the amounts under the following heads:

21(a).PARTICULARS OF LOSS AND EXPENSES:
PART - I
(a) Loss of earning from --- to --- -------
(b) Partial loss of earning from ---to -- at the rate of of Rs.--- a day/week -------
(c) Transport to Hospital for Postmortem and return back to Village for cremationRs. 10,000.00
(d) Extra Nourishment---
(e) Damages to clothings and articles (as in column 12)Rs. 3,500.00
(f) Others:
1. Loss of Income and Loss of Expectation of LifeRs. 18,87,088.00
2. Loss of ConsortiumRs. 25,000.00
3. Loss of HappinessRs. 25,000.00
4. Loss of Love and AffectionRs. 25,000.00
5. For Mental Agony and Anguish suffered by PetitionerRs. 50,000.00
6. Funeral ExpensesRs. 10,000.00
PART - II
(g) Compensation for pain and suffering---
(h) Compensation for continuing permanent disability.---
(i) Compensation for the loss of earning power---
TOTALRs.20,35,588.00
Though the claimants claimed a sum of Rs.20,35,588/- (Rupees Twenty Lakhs Thirty Five Thousand Five Hundred and Eighty Eight only), they restricted their claim to Rs.13,00,000/- (Rupees Thirteen Lakhs only) for the purpose of Court fees.

4. The first respondent - owner of the offending vehicle remained exparte and the second respondent - insurer has filed a counter statement denying all the averments and also questioning their liability and also stated that the quantum of compensation at any rate is excessive.

5. During the course of the trial, on behalf of the claimants, the wife of the deceased examined herself and two other witnesses were examined and Exs.P.1 to P.7 were marked. On behalf of the respondents, neither oral nor documentary evidence was let in.

6. The Tribunal on consideration of oral and documentary evidence and other materials, has awarded the compensation of Rs. 20,00,000/- (Rupees Twenty Lakhs only) with interest at the rate of 7.5% from the date of petition till deposit and also apportioned the amount vide impugned award dated 16.08.2011 and aggrieved by the same, the second respondent therein Insurance Company has filed this Civil Miscellaneous Appeal.

7. The learned Counsel for the appellant/Insurance Company would contend that admittedly, the collision took place between the TNSTC bus driven by the deceased and the Omni bus owned by the first respondent and as such, the Tribunal, in any event, ought to have held that it is a case of composite negligence and apportioned the compensation.

8. The learned Counsel for the appellant/Insurance Company, on the quantum of compensation, would submit that there is absolutely no evidence to show as to the future prospects of the deceased and the impugned award under various heads, is very much on the higher side and therefore, he prays for setting aside the impugned award and decree and for allowing this appeal.

9. Per contra, the learned Counsel for the respondents 1 to 4/claimants has drawn the attention of this Court to the impugned award and would submit that the claimants by letting in oral and documentary evidence, had sustained their claim and in the absence of any contra evidence, it is not open to the appellant/Insurance Company to question their liability and indemnify the owner of the offending vehicle and also the quantum of compensation and in support of his submission, placed reliance on the judgment of the Honourable Supreme Court in Sarla Verma v. DTC reported in (2009) 6 Supreme Court Cases 121

10. This Court paid it's best attention to the rival submissions and also perused the materials available on record.

11. The questions that arise for consideration are, (i) Whether the Tribunal is justified in fixing the liability on the appellant/Insurance Company?

(ii) Whether the compensation awarded is just and fair one?

Question No.(i):

12. Insofar as the negligence aspect is concerned, one of the passengers of the ill-fated TNSTC bus was examined as P.W.2 and he is very categorical that the offending bus was driven in a rash and negligent manner and dashed on the right side of the TNSTC bus and as a consequence, the driver of the TNSTC bus/husband of the first respondent/first claimant died on the spot and some of the passengers had also sustained injuries. The jurisdictional police also registered the F.I.R in Cr.No.36 of 2009 and Ex.P.3 - rough sketch would also disclose that the Omni bus owned by the fifth respondent herein was the root cause for the accident and therefore, the Tribunal has rightly found that the appellant/Insurance Company being the insurer of the offending vehicle is liable to indemnify the insured. Accordingly, the Question No.(i) is answered.

Question No.(ii):

13. As regards the quantum of compensation, it is not in dispute that the deceased was a Senior Driver in the services of TNSTC and was drawing a gross salary of Rs.11,022/- (Rupees Eleven Thousand and Twenty Two only) and after deduction, he had drawn a sum of Rs.8,566/- (Rupees Eight Thousand Five Hundred and Sixty Six only) and Ex.P.5 - Salary Certificate as well as Ex.P.7 - Salary Details of the deceased, were marked. The Tribunal found that the deceased was aged about 38 years and therefore, adopted the multiplier of 15. In the light of the ratio laid down in the judgment of the Honourable Supreme Court in Sarla Verma case (cited supra) and approved in the judgment in Reshma Kumari v. Madan Mohan reported in (2013) 9 Supreme Court Cases 65, the Tribunal has rightly found that 50% of the salary is to be taken as future prospects. In Sarla Verma case (cited supra), in paragraph 30, it has been held that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the dependent family members exceeds six.

14. Though the one-fourth (1/4th) deduction is to be made, the Tribunal has deducted one-third (1/3rd) for personal expenses and arrived at a loss of income at Rs.19,80,000/- (Rupees Nineteen Lakhs and Eighty Thousand only).

15. The Tribunal has also awarded a fair and reasonable amounts under the other heads and found that the respondents 1 to 4/claimants are entitled to a sum of Rs.20,35,000/- (Rupees Twenty Lakhs and Thirty Five Thousand only) and since they prayed for a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only), the Tribunal awarded a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) with interest at the rate of 7.5% from the date of petition till date of full and final settlement.

16. In the considered opinion of this Court, the reasons assigned by the Tribunal are based upon proper consideration and appreciation of evidence as made available before it and also in tune with the above cited decisions of the Honourable Supreme Court. There is no error apparent or infirmity in the impugned award and therefore, this appeal is liable to be dismissed. Accordingly, the Question No.(ii) is answered.

17. In the result, this Civil Miscellaneous Appeal is dismissed, confirming the judgment and decree in M.C.O.P.No.63 of 2009, dated 16.08.2011, on the file of the Motor Accident Claims Tribunal - Subordinate Court, Paramakudi. However, in the facts and circumstances of the case, there shall be no order as to costs.


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