(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 29.09.2009 made in M.C.O.P.No.556 of 2007 on the file of Motor Accidents Claims Tribunal, Sub Court, Tiruvallur.)
1. This Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company challenging the award dated 29.09.2009 made in M.C.O.P.No.556 of 2007 on the file of Motor Accidents Claims Tribunal, Sub Court, Tiruvallur.2. The appellant/Insurance Company is the 2nd respondent in M.C.O.P.No.556 of 2007 on the file of Motor Accidents Claims Tribunal, Sub Court, Tiruvallur. The respondents 1 to 4 filed the said claim petition claiming a sum of Rs.30,00,000/- as compensation for the death of one Harikumar, who died in the accident that took place on 05.10.2007.
3. According to the respondents 1 to 4, on the date of accident i.e. on 05.10.2007, at about 08.30 am, while the deceased was riding in his motorcycle at Jawarharlal Nehru 100 feet road, Chennai, near Semati Silks from South to North direction, the private omni bus, which came in the same direction, driven by its driver in a rash and negligent manner, hit behind the motorcycle driven by the deceased and due to the said impact, the deceased Harikumar died on the spot. Therefore, the respondents 1 to 4 have filed the above claim petition claiming compensation.
4. The 5th respondent/owner of the omni bus filed counter statement denying the averments made by the respondents 1 to 4 and contended that the accident has occurred only due to rash and negligent riding of the motorcycle driven by the deceased. The claim petition is bad for non-joinder of owner and insurer of the motorcycle. One T.V.S.50 was also involved in the accident and therefore, the 5th respondent is not liable to pay any compensation.
5. The appellant/Insurance Company filed counter statement denying the averments made by the respondents 1 to 4 and contended that as per rough sketch, only the rear wheel of the omni bus brushed against the motorcycle. The respondents 1 to 4 filed the claim petition under Section 166 of the Motor Vehicles Act and therefore, they have to prove the rash and negligent driving by the driver of the omni bus. The appellant has also denied the age, avocation and income of the deceased.
6. Before the Tribunal, the 1st respondent, wife of the deceased examined herself as P.W.1 and one K.Rajaram, eye-witness, was examined as P.W.2 and marked thirteen documents as Exs.P1 to P13. On the side of the appellant/Insurance Company, no oral and documentary evidence was let in.
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 omni bus belonging to the 5th respondent and directed the appellant/Insurance Company being insurer of the said omni bus to pay a sum of Rs.12,10,000/- as compensation to the respondents 1 to 4.
8. Against the said award dated 29.09.2009 made in M.C.O.P.No.556 of 2007, granting compensation to the respondents 1 to 4, the appellant/Insurance Company has come out with the present appeal.
9. The learned counsel appearing for the appellant/Insurance Company contended that the Tribunal failed to adjudicate the issue properly on negligence aspect. The accident has occurred only due to negligence on the part of the deceased and negligent driving by the driver of unknown TVS-50. In any event, the monthly income of the deceased fixed by the Tribunal is excessive. The deceased was aged 36 years at the time of accident. The Tribunal, erroneously applied multiplier 16 instead of 15. The respondents 3 and 4 are not dependants of the deceased. The amounts granted by the Tribunal for loss of consortium and loss of love & affection are excessive. The amounts awarded by the Tribunal under different heads are excessive and prayed for setting aside the award of the Tribunal.
10. Heard the learned counsel appearing for the appellant/Insurance Company and perused all the materials available on record.
11. It is the contention of the respondents 1 to 4 that the accident has occurred due to rash and negligent driving by the driver of the omni bus belonging to the 5th respondent. To substantiate the said contention, the respondents 1 to 4 have examined one K.Rajaram as P.W.2, who is an eyewitness to the accident. P.W.2 in his evidence has deposed that the driver of the omni bus overtook the car driven by P.W.2 and hit behind the motorcycle driven by the deceased, due to the said impact, the deceased fell down on the road and the bus ran over the deceased. P.W.2 lodged the complaint and Ex.P1/FIR has been registered against the driver of the omni bus. Though the appellant/Insurance Company has contended that one TVS 50 moped was involved in the accident and its rider alone hit the motorcycle of the deceased, they have not produced any oral and documentary evidence to substantiate the said contention and the driver of the omni bus was also not examined. In the absence of any material evidence, the Tribunal considering the evidence of P.W.2/K.Rajaram, eyewitness and the documents filed by the respondents 1 to 4, held that the accident has occurred only due to rash and negligent driving by the driver of the omni bus belonging to the 5th respondent. There is no error or perversity in the said finding of the Tribunal warranting interference by this Court.
12. As far as quantum of compensation is concerned, it is the contention of the respondents 1 to 4 that the deceased was aged 36 years at the time of accident and was earning a sum of Rs.1,47,488/- per annum by working as Auditor. The respondents 1 to 4 have marked Ex.P7 to Ex.P11/educational qualifications of the deceased and Ex.P12 & Ex.P13 income tax returns to prove the avocation and income of the deceased. The Tribunal considering the documents filed by the respondents 1 to 4, has fixed a sum of Rs.7,500/- per month as notional income of the deceased, deducted 1/3rd towards personal expenses, applied multiplier '16' and awarded a sum of Rs.9,60,000/- towards loss of dependency. The deceased was aged 36 years and the correct multiplier applicable is 15. There are four dependants of the deceased and the Tribunal ought to have deducted 1/4th towards personal expenses of the deceased. The Tribunal has not granted any enhancement towards future prospects. The respondents 1 to 4 are entitled to 40% enhancement towards future prospects. A sum of Rs.10,000/- awarded by the Tribunal towards funeral expenses is meager. The Tribunal has not awarded any compensation towards loss of estate. The Tribunal considering the fact that the 1st respondent has lost her husband at the age of 26 and the minor son was aged only 4 months, awarded compensation under different heads. In view of the above, the multiplier '16' applied by the Tribunal for granting compensation towards loss of dependency and the amounts of Rs.40,000/- & Rs.20,000/- granted by the Tribunal towards mental agony and loss of expectation of life respectively, are not interfered with.
13.In the result, this Civil Miscellaneous Appeal is dismissed and the sum of Rs.12,10,000/- awarded by the Tribunal as compensation to the respondents 1 to 4/claimants, along with interest and costs is confirmed. The appellant/ Insurance Company is directed t
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o deposit the entire amount awarded by the 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, 3 & 4 are permitted to withdraw their respective share of the award amount, on the basis of apportionment fixed by the Tribunal, along with proportionate interest and costs, less the amount if any, already withdrawn. The share of the minor/2nd respondent is directed to be deposited in any one of the Nationalized Banks till she attains majority. The 1st respondent being the mother of the 2nd respondent is permitted to withdraw the accrued interest once in three months for the welfare of the minor. No costs. Consequently, connected Miscellaneous Petition is closed.