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The New India Assurance Company Ltd., Chennai Vs. Archana and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.M.A.(MD)No. 759 of 2005 & Cross Objection (MD)No. 57 of 2009
Judge
AppellantThe New India Assurance Company Ltd., Chennai
RespondentArchana and Others
Excerpt:
.....only due to rash and negligent driving by driver of fourth respondent, second respondent thus, tribunal awarded compensation with interest. court held respondents 1 to 3 and fourth respondent are dependants on deceased therefore, 1/4th is deducted towards her personal expenses tribunal has not awarded any compensation for loss of love and affection therefore, respondents 1, 3 and 4 are entitled towards loss of love and affection tribunal has not awarded any amount towards transport expenses considering facts and circumstances of case, sum of is awarded towards transport expenses interest awarded by tribunal is excessive and same is reduced and decree insofar as compensation is enhanced appeal dismissed. (paras: 8, 9, 10) case referred: sarla verma (smt.) and others..........2002 on the file of the motor accidents claims tribunal (principal district court), thoothukudi. cross objection filed under order 41 rule 22 c.p.c., in c.m.a. (md)no.759 of 2005, against the judgment and decree dated 29.09.2003 passed in m.c.o.p.no.1 of 2002 on the file of the motor accidents claims tribunal (principal district court), thoothukudi.) common judgment v.m. velumani, j. 1. this civil miscellaneous appeal and the cross objection have been filed against the judgment and decree dated 29.09.2003 passed in m.c.o.p.no.1 of 2002 on the file of the motor accidents claims tribunal (principal district court), tuticorin. 2. since both the civil miscellaneous appeal and the cross objection have been filed against the common judgment and decree, dated 29.09.2003, passed in.....
Judgment:

(Prayers: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 29.09.2003 passed in M.C.O.P.No. 1 of 2002 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Thoothukudi.

Cross Objection filed under Order 41 Rule 22 C.P.C., in C.M.A. (MD)No.759 of 2005, against the judgment and decree dated 29.09.2003 passed in M.C.O.P.No.1 of 2002 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Thoothukudi.)

Common Judgment

V.M. Velumani, J.

1. This Civil Miscellaneous Appeal and the Cross Objection have been filed against the judgment and decree dated 29.09.2003 passed in M.C.O.P.No.1 of 2002 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Tuticorin.

2. Since both the Civil Miscellaneous Appeal and the Cross Objection have been filed against the common Judgment and Decree, dated 29.09.2003, passed in M.C.O.P.No.1 of 2002, by the Motor Accident Claims Tribunal (Principal District Judge), Tuticorin, they are heard together and disposed of by this common judgment.

3. Facts of the case:

(i) The appellant Insurance Company is the second respondent and the respondents 1 to 3 are the petitioners/claimants and the fourth respondent in C.M.A.(MD)No.759 of 2005/second respondent in Cross Objection (MD)No.57 of 2009 [owner of the car] is the first respondent in M.C.O.P.No.1 of 2002 on the file of the Court of Motor Accident Claims Tribunal (Principal District Judge), Tuticorin. The respondents 1 to 3 filed claim petitions in M.C.O.P.Nos.1 and 2 of 2002 claiming a sum of Rs.67,95,000/- and Rs.11,28,130/- for the death of Yamini, the mother of the respondents 1 and 2 and daughter of the third respondent and for the death of one Amirtha [daughter of Yamini], the sister of the respondents 1 and 2 and granddaughter of the third respondent respectively, as compensation.

(ii) According to the respondents 1 to 3/claimants, on 06.01.2001, one Yamini, the mother of the respondents 1 and 2 and daughter of the third respondent along with her daughter, viz., Amirtha and driver Selvam went to Yercaud from Tuticorin in Ford Ikon car bearing Registration No.TN-10-B-4271, belonging to one Dr.S.Arulraj, the fourth respondent in C.M.A.(MD)No.759 of 2005 / second respondent in Cross Objection (MD)No.57 of 2009. While they were nearing Karur in Madurai- Karur Main Road about 12.30 a.m., due to rash and negligent driving of the driver of the car, the car dashed against a bridge near Kullapatti Vilakku in Karur Madurai Main Road. Due to that, Yamini sustained multiple injuries and immediately, she was taken to Karur Government Hospital, where she was declared dead. Her daughter viz., Amirtha, who was also travelled in the car, sustained severe injuries all over her body and also in her head. She was brought to Madurai Meenakshi Mission Hospital, for better treatment and in spite of treatment, she died on 22.01.2001.

(iii) The Vellianai Police in Karur District has registered a case in Crime No.4/2001 for the offences under Sections 279, 337 and 304-A I.P.C.

(iv) The respondents 1 to 3/cross objectors filed a claim petition in M.C.O.P.No.1 of 2002 claiming compensation for the death of Yamini and also a claim petition in M.C.O.P.No.2 of 2002 for the death of Amirtha. The present civil miscellaneous appeal and the cross objection are filed against the award passed in M.C.O.P.No.1 of 2002.

(v) According to the respondents 1 to 3/cross objectors, at the time of accident, the said Yamini was educationally qualified with M.Sc. (Biology) and M.Phil Degree besides having various diploma certificates. She was also an Industrialist and business woman at Tuticorin. She was also one of the Directors in Sundaram Arulraj Health Care Centre (P) Ltd.; Tuticorin Export House, Tuticorin; and Finance and Leasing Company and also a partner in Tuticorin Medicals. She was also a master in Ralki Centre and running a Ralki Centre and a Beauty Parlour at Tuticorin and was earning Rs.2,50,000/- per year. Further, she was an agriculturist, earning Rs.1,50,000/- per year. The income of the deceased Yamini from business and agricultural activities was increasing every year. The accident took place only due to rash and negligent driving by the driver of the car belonging to the fourth respondent in C.M.A.(MD)No.759 of 2005/second respondent in Cross Objection (MD)No.57 of 2009 and insured with the appellant and therefore, the respondents 1 to 3 filed a claim petition in M.C.O.P.No.1 of 2002, claiming a sum of Rs.67,95,000/- as compensation, but restricted their claim to Rs.50,00,000/-.

(vi) The owner of the vehicle viz., the fourth respondent in C.M.A.(MD)No.759 of 2005/second respondent in Cross Objection (MD)No.57 of 2009 remained ex-parte before the Tribunal.

(vii) The appellant in the counter statement denied all the averments made by the respondents 1 to 3 and contended that the respondents 1 to 3 must prove the various averments made in the claim petitions.

(viii) The Tribunal conducted joint trial in both the Claim Petitions in M.C.O.P.Nos.1 and 2 of 2002 and based on the pleadings, framed necessary points for consideration.

(ix) Before the Tribunal, on behalf of the respondents 1 to 3/claimants, the second respondent herself examined as P.W.1 and one Arumugam, the Auditor of Yamini was examined as P.W.2 and 18 documents were marked as Exs.P.1 to P.18. On behalf of the appellant, neither oral nor documentary evidence was let in.

(x) The Tribunal considering the pleadings, oral and documentary evidence [especially Ex.P.1 F.I.R. and Ex.P.2 Observation Mahazar] and arguments of the learned counsel for the parties, held that the accident took place only due to the rash and negligent driving by the driver of the fourth respondent in C.M.A.(MD)No. 759 of 2005/second respondent in Cross Objection (MD)No.57 of 2009.

Further, the Tribunal considering the averments made in the claim petition, oral and documentary evidence, fixed the annual income of the deceased Yamini at Rs.2,00,000/- and fixed the age of the deceased at 45 years as per Ex.P.4 - Postmortem report and applied multiplier of 15 as per the second schedule to Section 163-A of the Motor Vehicles Act and arrived at total loss of income payable to the respondents 1 to 3 at Rs.30,00,000/- and by following the unit system, the Tribunal awarded Rs.15,00,000/- [two units for her two daughters] towards loss of income and awarded a sum of Rs.1,00,000/- towards dowry to the first respondent and Rs.1,00,000/- towards pilgrimage expenses to the third respondent and a further sum of Rs.10,000/- towards funeral expenses and thus, the Tribunal awarded a total sum of Rs.17,10,000/- in M.C.O.P.No.1 of 2002, as compensation with interest at the rate of 9% p.a., from the date of claim petition till realization.

3. Aggrieved by the award made in M.C.O.P.No.1 of 2002, the appellant Insurance Company has come out with the present appeal and the respondents 1 to 3/claimants have filed the Cross Objection seeking enhancement of compensation.

4. The learned counsel for the appellant in C.M.A.(MD)No.759 of 2005 / first respondent in Cross Objection (MD)No.57 of 2009 contended that the respondents 1 to 3 are not the dependants on the deceased Yamini. The first respondent is a married daughter. The second respondent is a major. The third respondent is the mother of the deceased and she is living with her husband, who is a leading Advocate in Madurai Bar. The respondents 1 to 3 failed to prove the income of the deceased. The Tribunal having held that the respondents 1 to 3 failed to prove the income of the deceased, erred in fixing the income of the deceased at Rs.2,00,000/- per year. The fourth respondent / owner of the car, who is father of the respondents 1 and 2 and son-in-law of the third respondent colluded together and obtained an award. The rate of interest awarded by the Tribunal at 9% p.a. is excessive. Therefore, he prayed for allowing the civil miscellaneous appeal and dismissal of cross objection.

5. Per contra, the learned counsel for the respondents 1 to 3 in C.M.A.(MD)No.759 of 2005 / Cross objectors in Cross Objection (MD)No. 57 of 2009 submitted that the Tribunal failed to see that the respondents 1 to 3 have proved the deceased was earning Rs.2,50,000/- per annum from her business and Rs.1,30,000/- by carrying out agricultural activities. Further, the Tribunal by fixing the annual income of the deceased at Rs.2,00,000/- and by applying '15' multiplier, has arrived at the loss of income at Rs.30,00,000/-. Thereafter, applying Unit method, the Tribunal has awarded Rs.15,00,000/- only towards loss of income, which is erroneous. The respondents 1 to 3 are entitled to entire compensation of Rs.30,00,000/- under the head 'loss of income', as arrived at by the Tribunal. The Tribunal erred in not awarding any amount for loss of love and affection to the respondents. Therefore, he prayed for allowing the cross objection for enhancement of compensation and for dismissal of civil miscellaneous appeal.

6. We have carefully perused all the materials available on record and considered the arguments advanced by the learned counsel appearing for the parties.

7. Points for consideration:

(i) Whether the Tribunal is right in awarding Rs.15,00,000/- towards loss of income and Rs.2,10,000/- in other heads after arriving at Rs.30,00,000/- towards loss of income?

(ii) Whether the respondents 1 to 3 are entitled to enhancement of compensation?

(iii) Whether the rate of interest awarded at 9% is excessive?

8. The respondents 1 to 3 have specifically averred in the claim petition in M.C.O.P.No.1 of 2002 that the deceased was an Industrialist and was very dynamic person and was managing many Industries and was earning Rs.2,50,000/- per year. They also claimed that the deceased was an Agriculturalist and was earning Rs.1,30,000/- per year through agricultural activities. The second respondent as P.W.1 has reiterated the averments made in the claim petition. Further, P.W.2 Arumugam, the Auditor of the deceased has deposed about the income of the deceased. Exs.P.15 to P.18 are marked with regard to Income Tax returns and Challans. The Tribunal considering these aspects, has fixed the yearly income of the deceased at Rs.2,00,000/-. There is no infirmity in the said conclusion. The Tribunal erred in applying multiplier of 15 and awarded only Rs.15,00,000/- towards loss of income and Rs.1,00,000/- each to the respondents 1 and 3 and awarding interest at 9% p.a. From the postmortem report and I.T. Return, it is seen that the age of the deceased was 45 years at the time of her death. As per the judgment of the Hon'ble Apex Court in Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation and Another reported in 2009 (6) SCC 121, the correct multiplier is only 14. Therefore, the award of the Tribunal with regard to loss of income is modified as follows:

Rs.2,00,000 x 14 = Rs.28,00,000/-

The respondents 1 to 3 and the fourth respondent are the dependants on the deceased. Therefore, 1/4th is deducted towards her personal expenses [Rs.28,00,000 / 4 = Rs.7,00,000]. The respondents 1 to 4 are entitled to Rs.21,00,000/- [Rs.28,00,000 Rs.7,00,000] towards loss of income. The Tribunal has not awarded any compensation for loss of love and affection. Therefore, the respondents 1, 3 and 4 are entitled to Rs.50,000/- each towards loss of love and affection and the second respondent is entitled to Rs.75,000/- towards loss of love and affection. The Tribunal has not awarded any amount towards transport expenses. Considering the facts and circumstances of the case, a sum of Rs.10,000/- is awarded towards transport expenses. A sum of Rs.10,000/- towards funeral expenses awarded by the Tribunal is confirmed. The amounts awarded under head of dowry to the first respondent and pilgrimage expenses to the third respondent viz., Rs.1,00,000/- each, are set aside. The Tribunal awarded interest at 9% p.a. It is excessive and the same is reduced to 7.5% p.a.

9. This Court on reappraisal of the materials in the form of oral and documentary evidence, is inclined to award the following amounts as compensation.

Sl.No.HeadsAmount awarded by the TribunalAmount Awarded by this CourtAward confirmed/ reduced/ granted/set aside
1Loss of Income15,00,00021,00,000Enhanced by Rs.6,00,000/-
2Dowry to the first respondent1,00,000-set aside
3Pilgrimage expenses to the third respondent1,00,000-set aside
4Loss of love and affection to the respondents 1, 3 and 4 (Each Rs.50,000/-)-1,50,000Granted
5Loss of love and affection to the second respondent-75,000Granted
6Transport expenses-10,000Granted
7Funeral expenses10,00010,000Confirmed
Total17,10,00023,45,000Enhanced by Rs.6,35,000/-
10. In the result, the Civil Miscellaneous Appeal is dismissed and the Cross Objection is partly allowed and the award and decree insofar as the compensation is enhanced to Rs.23,45,000/- with interest at 7.5% p.a. from the date of claim petition till the date of realisation. The appellant/Insurance Company is granted six weeks time to deposit the compensation amount now modified by this Court, less the amount already deposited if any and on such deposit, the first respondent would be entitled to Rs.11,00,000/- and the second respondent would be entitled to Rs.11,00,000/- and the third respondent would be entitled to Rs.70,000/- and the fourth respondent would be entitled to Rs.75,000/-, with respective proportionate accrued interest and costs, less the amount, if any, already withdrawn. No costs.

(v) The respondents 1 to 3/claimants in M.C.O.P.No.2 of 2002contended that, at the time of accident, the deceased Amirtha was veryintelligent and excellent in her studies. Her two sisters are also Doctorsand the deceased Amirtha would have become a Doctor and assisted herfamily members, especially, when her mother also died in the accident.The family members are deprived of her affection care and services. Thedeceased Amirtha was remarkably intelligent and she was a first rankStudent in her class. Her family members strongly believed and trustedthat she would be a great support and render good services to her familymembers and grand-parents. She used to take part in all culturalactivities and had she been alive, she would have become a leadingDoctor, considering her family background and earned very good nameand reputation in the medical field and would have been very helpful toher family members. The family members are deprived of her love andaffection. Her sudden demise brought to untold misery to the familymembers and they are not still recovered from the shock and put to greatmental agony shock and worry. On account of her premature death, therespondents 1 to 3 have lost their companionship of the deceased. Theaccident took place only due to rash and negligent driving by the driver ofthe fourth respondent in C.M.A.(MD)No.759 of 2005/second respondent inCross Objection (MD)No.57 of 2009 and therefore, the respondents 1 to 3filed a claim petition in M.C.O.P.No.2 of 2002, claiming a sum ofRs.11,28,130/- as compensation, but restricted their claim toRs.7,00,000/-.


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