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THE GOVERNMENT OF TAMIL NADU, REP. BY ITS DISTRICT COLLECTOR & ANOTHER V/S KADER AVULYA & OTHERS, decided on Thursday, November 28, 2013.
[ In the Before the Madurai Bench of Madras High Court, C.M.A. (MD) No. 854 of 2006 & M.P. (MD) No. 2 of 2006. ] 28/11/2013
Judge(s) : C.S. KARNAN
Advocate(s) : Special Government Pleader (GS), R1 to R4, V. Kannan, R5, S. Sreenivasa Raghavan.
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    (Prayer:Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act to set-aside the award and decree made in M.C.O.P.No.1432 of 2001 dated 05.03.2003 on the file of Motor Accidents Claims Tribunal 1st Additional District Judge Tirunelveli.)1. The appellants / first and second respondents have preferred the present appeal against the judgment and decree passed in M.C.O.P.No.1432 of 2001 on the file of Motor Accidents Claims Tribunal 1st Additional District Judge Tirunelveli.2. The short facts of the case are as follows:-The petitioners who are the parents and brothers of the (deceased) Sathakkathullah have filed the claim in M.C.O.P.No.1432 of 2001 claiming compensation of a sum of Rs.10 00 000/- from the respondents for the death of the said Sathakkathullah in a motor vehicle accident. It was submitted that on 13.08.2001 at about 09.45 a.m. when the (deceased) Sadakathulla was travelling on the first petitioner's TVS suzuki motorcycle bearing registration No.TN-72-E-9937 near the High Ground Roundtana at Palayamkottai the tempo traveller bearing registration No.TN-69-G-0146 coming on the same road and driven in a high speed and in a rash and negligent manner dashed against the motorcycle. As a result the (deceased) sustained grievous injuries and was taken to the Tirunelveli Medical College Hospital at Palayamkottai wherein the doctor after examining him declared him dead. At the time of accident the deceased was aged 22 years and he had completed B.Com. and had also completed Module I and doing Module II in Java Computer Course in SSI Palayamkottai. Hence the petitioners have filed the claim against the respondents 1 to 3. The first and second respondents are the district administrator and controller and employer of the driver of the tempo traveller and the third respondent is the Insurance Company of the TVS suzuki.3. The second respondent in his counter adopted by the first respondent has submitted that the petitioners should prove the age and educational status of deceased and also prove that they are the legal-heirs of the deceased Sathakkathullah through documentary evidence. It was submitted that the driver of the tempo traveller drove it in a careful and cautious manner and that at the place of occurrence of accident the (deceased) had ridden his motorcycle in a rash and negligent manner and had suddenly come across the road. On seeing this the driver of the tempo traveller had applied brakes and stopped the vehicle but in spite of it the (deceased) had dashed his motorcycle against the tempo and caused the accident. It was submitted that the claim was excessive.4. The third respondent in his counter has submitted that the TVS Suzuki bearing registration No.TN-72-E-9937 had been covered under a policy of insurance with them from 18.08.2001 to 17.08.2002 and that as the accident had occurred on 13.08.2001 the respondent is not liable to pay compensation. It was submitted that the claim was bad for non-joinder of the owner of the motorcycle as necessary party. It was submitted that the criminal case has been filed only against the second respondent's driver. The averments in the claim regarding age and educational status of the deceased was also not admitted. It was submitted that the claim was excessive.5. The Motor Accidents Claims Tribunal had framed two issues for consideration in the case viz. (i) Due to whose negligence was the accident caused?(ii) Are the first and second respondents liable to pay compensation to the petitioner? If so what is the quantum of compensation which the petitioners are entitled to get?6. On the petitioners side two witnesses were examined and ten documents were marked as exhibits P1 to P10 viz. Ex.P1-copy of F.I.R. Ex.P2-copy of postmortem report Ex.P3-copy of Motor Vehicle Inspector's report Ex.P4-copy of observation mahazar Ex.P5-copy of rough sketch Ex.P6-copy of charge sheet Ex.P7-legal-heir certificate Ex.P8-B.Com certificate Ex.P9-N.N.I. Certificate Ex.P10-driving licence of deceased. On the respondents side one witness was examined and two documents viz. copies of policy were marked as Exs.R1 and R2.7. P.W.2 Kader Hussain the eyewitness of the accident had adduced evidence that on 13.08.2001 at about 09.45 a.m. when the (deceased) rider of the motorcycle bearing registration No.TN-72-E-9937 was proceeding from South to North near the High ground Roundtana the driver of the second respondent's vehicle coming from west to east near the roundtana had driven it in a rash and negligent manner and dashed it against the motorcycle. P.W.1 the father of the deceased had also adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence he had marked Exs.P1 to P10.8. The Tribunal on scrutiny of Exs.P1 and P6 observed that the F.I.R. had been filed against the second respondent's tempo driver and that the police after investigation has filed the charge sheet against him. The Tribunal on scrutiny of Exs.P4 and P5 and on scrutiny of evidence of R.W.2 held that the accident had been caused by the rash and negligent driving of the second respondent's driver. The Tribunal on considering that the third respondent was the insurer of the first petitioner's vehicle and that the (deceased) being the son of the first petitioner cannot be treated as a third party. Hence the Tribunal dismissed the claim as against the third respondent. The Tribunal held that the first and second respondents jointly and severally liable to pay compensation to the petitioners.9. The Tribunal on scrutiny of Exs.P2 and P10 observed that the age of the deceased was 22 years. The Tribunal on taking the notional income of the deceased as Rs.3 000/- per month and on deducting 1/3rd of it for the personal expenses of the deceased and on adopting a multiplier of '17' awarded a sum of Rs.4 08 000/- as compensation to the petitioners under the head of loss of income (Rs.3 000/- x 2/3 x 12 x 17); Rs.20 000/- was awarded for loss of love and affection and Rs.2 000/- was awarded for funeral expenses. In total the Tribunal awarded a sum of Rs.4 30 000/- as compensation to the petitioners and directed the first and second respondents to jointly or severally deposit the said sum together with interest at the rate of 9% per annum from the date of filing the claim till date of payment of compensation with costs within 30 days from the date of its order. The claim as against the third respondent was dismissed.10. Aggrieved by the award passed by the Tribunal the first and second respondents have preferred the present appeal.11. The learned counsel for the appellants has contended in his appeal that the Tribunal ought to have seen that the deceased drove the vehicle in a rash and negligent manner and had consequently met with the accident and as such the Tribunal had erred in holding that the accident took place only due to the rash and negligent driving of the appellant's driver only based on Exs.P4 and P5. It was also contended that the notional income of Rs.3 000/- taken as the income of the deceased was not proper as the deceased was unemployed and as such the Tribunal erred in awarding a sum of Rs.4 08 000/- as compensation for loss of earning. It was also contended that the Tribunal ought to have seen that the claimants viz. parents and brothers on deceased are not dependant of the deceased and as such they are not entitled to claim any compensation. Hence it was prayed to set-aside the award passed by the Tribunal.12. The highly competent counsel for the claimants argued that the criminal case had been levelled against the driver of the offending vehicle. In order to prove the same F.I.R rough sketch and charge sheet were marked as exhibits before the Tribunal. As such the negligence issue has been proved against the driver of the tempo traveller and the said vehicle is owned by the appellants herein. Hence the appellants are liable to pay compensation. The deceased was aged about 22 years and he has completed his commerce course. The parents and the brothers of the deceased are the only legal-heirs of the deceased. The deceased was the only person who has been educated in his family and the entire family members hoping that the deceased would get a good employment and support them. As such the quantum of compensation is not on the higher side. The learned counsel has further submitted that the Tribunal had decided all the relevant issues in an appropriate manner. As such the impugned award is found to be suitable to be complied with.13. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award passed by the Tribunal this Court does not find any shortcomings in the conclusions arrived at regarding negligence liability and quantum of compensation. This Court is of the view that the Tribunal had decided the negligence and liability on the basis of documentary evidence. Further it is seen that the parents of the deceased had lost their elder graduate son in the said accident. Hence the quantum of compensation of a sum of Rs.4 30 000/- awarded is not on the higher side and the award is found to be suitable for execution. Hence this Court directs the appellants to deposit the entire compensation with interest as per the Tribunal findings within a period of eight weeks from the date of receipt of a copy of this order.14. After such a deposit having been made it is open to the major claimants 1 to 3 to withdraw their apportioned share amount with accrued interest thereon lying in the credit of M.C.O.P.No.1432 of 2001 on the file of Motor Accidents Claims Tribunal 1st Additional District Judge Tirunelveli after filing a Memo along with a copy of this order and the fourth claimant viz. Kalilulla is permitted to withdraw his apportioned share amount on production of proof for attaining the age of a major.15. In the result the above appeal is dismissed. Consequently the award and decree passed in M.C.O.P.No.1432 of 2001 on the file of Motor Accidents Claims Tribunal 1st Additional District Judge Tirunelveli dated 05.03.2003 is confirmed. There is no order as to costs. Consequently connected miscellaneous petitions are closed.