(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 13.02.2019 made in M.C.O.P.No.461 of 2017 on the file of Motor Accident Claims Tribunal, Additional District Court, Hosur.)
1. This Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company against the award dated 13.02.2019 made in M.C.O.P.No.461 of 2017 on the file of Motor Accident Claims Tribunal, Additional District Court, Hosur.
2. The appellant is 2nd respondent/Insurance Company in M.C.O.P.No.461 of 2017 on the file of Motor Accident Claims Tribunal, Additional District Court, Hosur. The respondents 1 to 5 filed the said claim petition claiming a sum of Rs.30,00,000/- as compensation for the death of one Govindaraj, who died in the accident that took place on 16.11.2016.
3. According to the respondents 1 to 5, on the date of accident i.e., on 16.11.2016 at 4.30 p.m., while the deceased was riding in his motorcycle from Hosur towards his residence at Dhoddamettarai village on the left side of the road and when he reached the main road near Murugan koil, the lorry belonging to the 6th respondent driven by its driver in a rash and negligent manner, dashed on the motorcycle and caused the accident. In the accident, the deceased sustained grievous injuries and died on the spot. Therefore, the respondents 1 to 5 filed the above claim petition claiming compensation against the 6th respondent and appellant.
4. The 6th respondent, owner of the lorry, remained exparte before the Tribunal.
5. The appellant/Insurance Company filed counter statement denying the averments made in the claim petition and contended that the deceased, rider of the motorcycle alone without giving any signal, suddenly turned the vehicle, hit against the lorry and invited the accident. However, the driver of the lorry applied sudden break to avoid the accident. Therefore, the driver of the lorry belonging to the 6th respondent was not responsible for the accident. The claim petition is bad for non-joinder of owner and insurer of the motorcycle driven by the deceased. Hence, the appellant/Insurance Company is not liable to pay any compensation to the respondents 1 to 5.
6. Before the Tribunal, the 1st respondent, wife of the deceased, examined herself as P.W.1 and one Ramasamy, eye-witness, was examined as P.W.2 and marked fifteen documents as Exs.P1 to P15. On the side of the appellant/Insurance Company, one Anuradha, Officer from R.T.O., Hosur, was examined as R.W.1 and one Ravi, officer of the Insurance Company, was examined as R.W.2 and marked three documents as Exs.R1 to R3.
7. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the lorry belonging to the 6th respondent and directed the appellant/Insurance Company being insurer of the said lorry to pay a sum of Rs.23,98,000/- as compensation to the respondents 1 to 5.
8. Against the said award dated 13.02.2019 made in M.C.O.P.No.461 of 2017, granting compensation to the respondents 1 to 5, the appellant/Insurance Company has come out with the present appeal.
9. The learned counsel appearing for the appellant/Insurance Company contended that as per Ex.R3/rough sketch and evidence of P.W.2/eye-witness, there is some discrepancy with regard to place of occurrence where the accident had occurred. The rider of the motorcycle did not possess valid driving license at the time of accident and the same has been proved by examining R.W.1/Officer from R.T.O., Hosur and R.W.2/Officer of the Insurance Company. The Tribunal considering the above aspects ought to have fixed 50% contributory negligence on the part of the deceased. The Tribunal erred in fixing a sum of Rs.12,000/- per month as notional income of the deceased, applying multiplier 15 and granting 40% enhancement towards future prospects. In any event, the total compensation awarded by the Tribunal is excessive and prayed for setting aside the award of the Tribunal.
10. Heard the learned counsel appearing for the appellant/Insurance Company and perused the entire materials available on record.
11. It is the contention of the respondents 1 to 5 that the accident has occurred due to rash and negligent driving by the driver of the lorry belonging to the 6th respondent. They have marked Ex.P1-FIR to prove that the case has been registered against the driver of the lorry. PW2/eye-witness was examined to prove the manner of the accident and his evidence was corroborated by evidence of PW1. On the other hand, it is the case of the appellant/Insurance Company that the accident did not occur due to rash and negligent driving by the driver of the lorry. Though the appellant/Insurance Company has examined R.W.1 & R.W.2/Officers from the R.T.O. & Insurance Company respectively and marked Exs.R1 to R3, they have not examined the driver of the lorry to prove that the accident has occurred due to rash and negligent riding by the deceased, rider of the motorcycle. When the negligence is not fixed on the part of the deceased, the questioning of non-possessing of driving license does not arise. The Tribunal considering the evidence of PW1, PW2 and Ex.P1/F.I.R., held that the accident has occurred only due to rash and negligent driving by the driver of the lorry belonging to the 6th respondent. There is no error in the said finding of the Tribunal warranting interference by this Court.
12. As far as quantum of compensation is concerned, the respondents 1 to 5 have claimed that the deceased was working as mason coolie and was earning not less than Rs.25,000/- per month. They have failed to prove the income of the deceased. In the absence of any material evidence to prove the income of the deceased, the Tribunal fixed a sum of Rs.12,000/- per month as notional income of the deceased. The accident is of the year 2016 and the notional income fixed by the Tribunal is not excessive. The deceased was aged 36 years at the time of accident as per Ex.P2/post-mortem certificate. The Tribunal applied multiplier 15, deducted 1/4th towards personal expenses and awarded a sum of Rs.16,20,000/- (Rs.12,000/- X 12 X 15 X 3/4) towards loss of dependency. The Tribunal granted 40% enhancement towards future prospects and awarded a sum of Rs.6,48,000/- towards future prospects. Considering the date of accident, age, avocation and income of the deceased, the amount awarded by the Tribunal towards loss of dependency is not excessive and it does not warrant any interference by this Court. The Tribunal after considering both oral and documentary evidence, awarded a total sum of Rs.23,98,000/- to the respondents 1 to 5 under different heads, which is not excessive and the same is hereby confirmed.
13. In the result, the Civil Miscellaneous Appeal is dismissed and the sum of Rs.23,98,000/- awarded by the Tribunal as compensation to the respondents 1 to 5/claimants, along with interest and costs is confirmed. The appellant/Insurance Company is directed to deposit the entire amount awarded by the
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Tribunal along with interest and costs, less the amount already deposited if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the respondents 1 and 5/claimants 1 and 5 are permitted to withdraw their respective share of the award amount as per the apportionment fixed by the Tribunal, along with proportionate interest and costs, less the amount if any, already withdrawn. The shares of the minors/respondents 2 to 4 are directed to be deposited in any one of the Nationalised Banks till the minors attain majority. The 1st respondent being mother of the minors/respondents 2 to 4 is permitted to withdraw the accrued interest once in three months for the welfare of the minors. No costs. Consequently, connected Miscellaneous Petition is closed.