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The Branch Manager, M/s.Oriental Insurance Company, Dharmapuri District Vs. S. Mohammed Abivahas and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.M.A.(MD)No. 690 of 2011
Judge
AppellantThe Branch Manager, M/s.Oriental Insurance Company, Dharmapuri District
RespondentS. Mohammed Abivahas and Others
Excerpt:
.....8, 10, 11) cases referred: 2013 (3) ctc 883 [rajesh and others vs. rajbir singh and others] 2009 (6) scc 121 [sarla verma (smt.) and others vs. delhi transport corporation and..........sahabudeen was an engineering graduate and also a diploma holder in computer science. at the time of accident, the deceased was 36 years old and was earning rs.50,000/- per month. the respondents 1 to 3 were the dependants of the deceased. therefore, they filed a claim petition claiming a sum of rs.1,24,76,180.95 as compensation, but restricted their claim to rs.83,00,000/-. (iii) the motorcycle involved in the accident was insured with the appellant and therefore, the respondents 1 to 3 claimed compensation from the respondents 4 and 5 and the appellant. (iv) the respondents 4 and 5 remained ex-parte before the tribunal. (v) the appellant filed counter statement and denied the various averments mentioned in the claim petition. according to the appellant, the accident did not take.....
Judgment:

(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 20.01.2011 passed in M.C.O.P.No. 429 of 2007 on the file of the Motor Accidents Claims Tribunal, Principal District Judge, Pudukkottai.

V.M. Velumani, J.

1. This Civil Miscellaneous Appeal has been filed against the judgment and decree dated 20.01.2011 passed in M.C.O.P.No.429 of 2007 on the file of the Motor Accidents Claims Tribunal, Principal District Judge, Pudukkottai.

2. The facts in brief leading to the filing of this Civil Miscellaneous Appeal, are as follows:

(i) The appellant/Insurance Company is the third respondent and the respondents 1 to 3 are the claimants and the fourth respondent/rider of the Bajaj Boxer motorcycle is the first respondent and the fifth respondent/owner of the Bajaj Boxer motorcycle is the second respondent in M.C.O.P.No.429 of 2007 on the file of the Court of Motor Accident Claims Tribunal (Principal District Judge), Pudukkottai. The respondents 1 to 3 filed a claim petition in M.C.O.P.No.429 of 2007 against the appellant and the respondents 4 and 5, claiming a sum of Rs.83,00,000/- as compensation.

(ii) According to the respondents 1 to 3/claimants, the father of the respondents 1 and 2 and husband of the third respondent viz., M.Sahabudeen was a B.E. Graduate. He worked in abroad. On 31.03.2006, the said Sahabudeen and one Jabarullah went to Bangalore and were returning from Bangalore in a Car, on the way, they stayed in Agarwal Lodge at Dharmapuri. Jabarullah stayed in the room and Sahabudeen went out to have a tea. While he was crossing the road, a Bajaj Boxer motorcycle bearing Registration No.TN-29-H-2325 belonging to the fifth respondent driven by the fourth respondent in a rash and negligent manner dashed against the said Sahabudeen. Due to that, he suffered multiple injuries. He was given first-aid at Government Hospital and taken to Apollo Hospital, Chennai and was taking treatment as inpatient from 01.04.2006. In spite of treatment, he died on 23.04.2006 due to the injuries suffered by him. The accident occurred due to rash and negligent riding by the fourth respondent. The deceased Sahabudeen was an Engineering Graduate and also a Diploma Holder in Computer Science. At the time of accident, the deceased was 36 years old and was earning Rs.50,000/- per month. The respondents 1 to 3 were the dependants of the deceased. Therefore, they filed a claim petition claiming a sum of Rs.1,24,76,180.95 as compensation, but restricted their claim to Rs.83,00,000/-.

(iii) The motorcycle involved in the accident was insured with the appellant and therefore, the respondents 1 to 3 claimed compensation from the respondents 4 and 5 and the appellant.

(iv) The respondents 4 and 5 remained ex-parte before the Tribunal.

(v) The appellant filed counter statement and denied the various averments mentioned in the claim petition. According to the appellant, the accident did not take place due to rash and negligent riding by the fourth respondent. The accident took place only due to negligence on the part of the deceased. At the time of accident, the fourth respondent was not having any valid driving licence and therefore, the appellant is not liable to pay any compensation to the claimants. The appellant also denied the age, occupation and income of the deceased.

(vi) Based on the pleadings, the Tribunal framed necessary points for consideration.

(vii) Before the Tribunal, the third respondent herself examined as P.W.1 and one Muralidharan, Managing Partner of K.M.Liners India, was examined as P.W.2 and one Rajkumar, eyewitness was examined as P.W.3 and Salimraj, Ambulance Driver was examined as P.W.4 and Dr.Krishnaprasath was examined as P.W.5 and marked 26 documents as Exs.P.1 to P.26. On behalf of the appellant, one Ravichandran was examined as R.W.1 and 9 documents were marked as Exs.R.1 to R.9 and on the side of witnesses, Apollo Hospital Bills was marked as Ex.W.1 and Medical Records was marked as Ex.W.2.

(vi) The Tribunal considering all the materials available on record, came to the conclusion that the accident took place only due to rash and negligent riding by the fourth respondent. The Tribunal took note of the fact that the fourth respondent did not have valid driving licence, directed the appellant to pay compensation to the respondents 1 to 3 and recover the same from the respondents 4 and 5 and awarded sum of Rs.14,28,680/- as compensation with interest at the rate of 7.5% p.a., from the date of claim petition till realization under the following heads.

Sl.No.HeadsAmount
1Loss of Income9,60,000
2Loss of Consortium and Loss of love andaffection10,000
3Funeral expenses2,000
4Transport and medical expenses4,56,680
Total14,28,680
3. Aggrieved by the said award, the appellant Insurance Company has come out with the present appeal.
4. The learned counsel for the appellant contended that the respondents 1 to 3 have not proved that the deceased was employed at the time of accident and was earning. Eyewitness was not examined in the criminal case. The person, who lodged First Information Report was not the eyewitness and what is narrated in the F.I.R. is only on hearsay. Admittedly, the fourth respondent did not possess valid driving licence at the time of accident. The Tribunal erred in directing the appellant to pay compensation and recover the same from the respondents 4 and 5. In any event, the amount of compensation awarded is excessive.

5. Per contra, the learned counsel counsel for the respondents 1 to 3 contended that the respondents 1 to 3/claimants have proved that the deceased got employment in Malaysia and abou t to go to Malaysia. They have also proved the income of the deceased by examining P.W.2, Managing Partner of K.M.Liners India and marking the documents Exs.P. 23 and P.24. The Tribunal erred in not accepting the said the evidence and documents and fixed Rs.7,500/- per month as income of the deceased and therefore, prayed for enhancement of compensation.

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. The points for consideration in this civil miscellaneous appeal are,

(i) Whether the compensation awarded by the Tribunal is just compensation or liable to be enhanced?

(ii) Whether the Tribunal is correct in ordering pay and recovery? 8. Point No.(i):

(i) The respondents 1 to 3/claimants have stated that the deceased was getting a salary of Rs.50,000/- p.m., but they have not produced any document to prove the same. The Tribunal considering the facts and circumstances of the case, fixed the salary of the deceased at Rs.7,500/- p.m., and deducted 1/3rd amount towards the personal expenses of the deceased. The third respondent/P.W.1, in her evidence, has stated that the deceased was aged 36 years at the time of accident.

In the Postmortem report, the age of the deceased has been mentioned as 36 years. In view of the same, the Tribunal fixed the age of the deceased at 36 years. As per the Second Schedule to M.V. Act, the Tribunal applied multiplier '16' and thereafter, awarded Rs.9,60,000/- [Rs.7,500 Rs.2,500 (1/3) = Rs.5,000 x 12 x 16 = Rs.9,60,000/-] towards loss of income. (ii) The respondents 1 to 3 proved that the deceased was 36 years at the time of accident. As per Ex.P.19, the date of birth of the deceased is 20.06.1969 and the age of the deceased was 36 years at the time of accident and he could have got better job and earned more. The Tribunal has not granted any amounts for future prospects. In the Judgment reported in 2013 (3) CTC 883 [Rajesh and others Vs. Rajbir Singh and others], the Hon'ble Apex Court held that the income can be enhanced upto 50% as future prospects for the persons below 40 years. The Tribunal failed to consider this aspect. In view of well settled judicial pronouncements, this is a fit case to invoke Order 41 Rule 33 C.P.C. to enhance the compensation, even though the respondents 1 to 3 have not filed any appeal or cross objection. Taking into consideration of all the facts and circumstances of the present case, the income of the deceased fixed by the Tribunal at Rs.7,500/- per month is confirmed and by adding 50% towards future prospects, the monthly income is fixed at Rs.11,250/- [Rs.7,500 + Rs.3,750 (50%)]. The deceased was aged about 36 years at the time of accident. The Tribunal applied multiplier '16'. As per the judgment of the Hon'ble Apex Court reported in 2009 (6) SCC 121 [Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation and Another], the correct multiplier is 15. After deducting 1/3rd from the income towards his personal expenses, the monthly contribution to the family is fixed at Rs.7,500/- [Rs.11,250 Rs.3,750 (Rs.11,250 / 3)]. By applying multiplier '15', the respondents 1 to 3 are entitled to Rs.13,50,000/- [Rs.7,500 x 12 x15] towards loss of income. The respondents 1 and 2 have lost love and affection of their father at their age of 6 and 4 respectively and the third respondent has lost her husband at her early age. The Tribunal awarded a total sum of Rs.10,000/- to the respondents 1 to 3 towards loss of consortium and loss of love and affection. Therefore, the same is modified to Rs.10,000/- to the third respondent towards loss of consortium and Rs.10,000/- each to the respondents 1 and 2 towards loss of love and affection. In all other aspects, the award of the Tribunal is confirmed. Point No.(ii)

9. The contention of the learned counsel for the appellant that the appellant is not liable to pay any compensation, as the fourth respondent did not have valid driving licence at the time of accident, is untenable. Now, it is well settled that even if the driver of the vehicle did not possess valid driving licence, the Insurer is liable to pay compensation and recover the same from the owner of the vehicle. In any event, the appellant has not examined any officials from the Regional Transport Office to prove that the fourth respondent did not possess any valid driving licence at any point of time or prohibited from driving any vehicle.

10. 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.HeadsAmountawarded bythe TribunalAmountAwarded bythis CourtAwardconfirmed/reduced
1Loss of Income9,60,00013,50,000Enhanced byRs.3,90,000/-
2Loss of consortium andLoss of love andaffection10,000(i) Loss ofconsortium towife/third

respondent

Rs.10,000

(ii) Loss of

love and

affection to

the

respondents

1 and 2

Rs.20,000

Modified
3Funeral Expenses2,0002,000Confirmed
4Transportation chargesand Medical expenses4,56,6804,56,680Confirmed
Total14,28,68018,38,680Enhanced byRs.4,10,000/-
11. In the result, the Civil Miscellaneous Appeal is disposed of and the award and decree insofar as the compensation is enhanced to Rs.18,38,680/- with interest at 7.5% p.a. from the date of petition till the date of realisation. The appellant/Insurance Company is granted six weeks time to deposit the compensation amount, less the amount already deposited if any and on such deposit, the third respondent/major claimant is permitted to withdraw her share in the ratio as apportioned by the Tribunal, less the amount already withdrawn, if any. The Tribunal shall deposit the shares of the respondents 1 and 2, who are minor claimants, in a Fixed Deposit in Indian Bank, Madurai Bench of Madras High Court, Madurai, to the credit of C.M.A.(MD)No.690/2011, which shall be renewed periodically till they attain majority. The third respondent mother of the minors is permitted to withdraw interest on the shares of her minor children, viz., the respondents 1 and 2, once in three months from the bank directly. No costs.

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