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Judgment
Honourable Mr. Justice T. Mathivanan
This Civil Miscellaneous Appeal is directed against the award, dated 11.06.2010 and made in M.C.O.P. No. 411 of 2005, on the file of the learned Motor Accident Claims Tribunal (III Additional Subordinate Judge), Tiruchirappalli. The second respondent/Insurance Company is the appellant herein. Whereas, the first and second claimants are the respondents 1 and 2 and first respondent, who is the owner of the vehicle is the 3rd respondent herein.
The respondents 1 and 2/claimants have filed the claim petition in MCOP No. 411 of 2005, on the file of the learned Motor Accident Claims Tribunal (III Additional Subordinate Judge), Tiruchirappalli, claiming a sum of Rs. 5,00,000/- for the death of their mother one Silambaye in a road traffic accident, said to have been occurred on 02.04.2004 at 07.00 a.m. near Kovilpatti bus stop at Kovilpatti, when the rider of the motorcycle bearing registration No. 4 TN-65-D-4402 had violently hit against the deceased Silambaye, while she was standing in the above said bus stop for catching the bus. On account of this accident, she had succumbed to injuries on the spot itself.
On an information, a case in crime No. 87 of 2004 u/s 304A I.P.C. was registered on the file of the Valanadu Police Station. The 3rd respondent, being owner of the two wheeler had not chosen to contest the claim petition. On the other hand, the appellant Insurance Company alone had contested the claim petition on three grounds:-
(1) This is a case of hit and run and hence, the vehicle bearing registration No. TN-65-D-4402 has been substituted in the place of some other vehicle.
(2) The rider of the motorcycle had no valid and effective driving licence at the time of the accident, hence, the owner of the vehicle alone is liable to pay the compensation.
(3) The quantum of claim of Rs. 5,00,000/- is excessive.
The respondents 1 and 2 /claimants and the appellant Insurance Company were made to face the trial so as to enable them to substantiate their respective cases. Including the first respondent/claimant, two witnesses were 5 examined on behalf of the claimants. During their examination, Ex.A1 to A3 marked.
On the other hand, the owner and the rider of the motorcycle were examined as RW.1 and RW.2 respectively. During their examination, Ex.R.1 to R.3 marked.
On appreciating the evidence both oral and documentary available on records, the learned Tribunal had proceeded to pass an award of Rs. 1,60,000/- directing the appellant Insurance Company to pay this amount to the respondents 1 and 2/claimants along with interest at the rate of 7.5% p.a. from the date of claim petition within a period of two months.
Impugning the award, the second respondent Insurance Company stands before this Court with this appeal. The claimants 1 and 2, being aggrieved with the award have also filed the cross objection to enhance the award amount.
Heard Mr. K. Bhaskaran, learned Counsel for the appellant and 6 Mr. R. Maheswaran, learned Counsel for the respondents 1 and 2 as well as Mr. M. Ajmalkhan, learned Counsel for the 3rd respondent.
Mr. K. Bhaskaran, learned Counsel for the appellant Insurance Company has projected his arguments on the following grounds:-
(1) The motorcycle bearing registration No. TN-65-D-4402 was not involved in the accident and hence, the Insurance Company is not at all liable.
(2) The quantum of compensation passed by the learned Tribunal against the appellant Insurance Company is perverse and not based on the evidence available on record.
This Court has carefully considered the submission made by Mr. K. Bhaskaran.
Ex.A.1 is the First Information Report. It appears that the case in Crime No. 87 of 2004 was registered u/s 304A of I.P.C. on 02.04.2004, on the file of Valanadu Police Station at 09.00 a.m. based on the complaint given by one Shanmugam S/o Subramaniam Pillai. 7
It is significant to note here that the accident was taken place on 02.04.2004 at about 07.00 a.m. and the complaint seems to have been lodged by the above said Shanmugam within two hours of the accidents (i.e.,) at 09.00 a.m. The averments of the First Information Report itself reflects the registration number of the motorcycle as TN-65-D-4402. The respondent herein, who had the owner of the vehicle, had not disputed the registration number. In fact, he had not chosen to appear before the learned Tribunal to refute the allegations levelled against his vehicle in the claim petition.
It is apparent that the complainant has not been summoned and examined by the appellant Insurance Company so as to disprove the contention made on behalf of the claimants.
It was argued by Mr. K. Bhaskaran, learned Counsel for the appellant Insurance Company that the criminal case in C.C. No. 157 of 2004, on the file of the learned Judicial Magistrate, Manapparai, was ended in acquittal, as the complainant had not supported the case of the prosecution. The hostile attitude of the complainant towards the police as well as the case of the prosecution and the acquittal of criminal case cannot be equated with the claim 8 proceedings.
Insofar as this case is concerned, one Chandran has been examined as P.W.2 and he has been described as the eye witness to the occurrence and he has rightly deposed that he had not lodged the complaint. It is obvious to note that the deceased is his neighbour and as such he has given evidence about the manner of accident. In the claim proceedings, as discussed earlier the complainant to the police viz., Shanmugam S/o Subramaniam Pillai has not been examined on the part of the appellant Insurance Company. When such being the case, the arguments advanced by Mr. K. Bhaskaran, learned Counsel for the appellant Insurance Company is not able to be countenanced. It is to be placed on record that the learned Tribunal has not totally rejected the stand taken on behalf of the appellant Insurance Company.
On the other hand, Mr. K. Maheswaran, learned Counsel for the respondents 1 and 2/claimants has submitted that the acquittal of the rider of the motorcycle in the criminal proceedings in CC. No. 157 of 2004 cannot be taken into account. While advancing his argument, in support of his contention, he has also placed reliance upon the decision of this Court in The New India Assurance Company Ltd. Vs. Sekar and Sivakumar, . In this case, this Court has held that the Criminal Court Judgment cannot be relied upon in civil proceedings on its face value and some other independent evidence has to be put in by the person who is trying to establish the fact before the Court. It is also held that the Admission of driver before the criminal court cannot be relied upon in civil proceedings as a sole factor to establish the fact of accident.
Having regard to the submissions made on behalf of both sides and on considering the related facts and circumstances, this Court is of considered view that the contention of the appellant Insurance Company is not tenable in the eye of law. Under these circumstances, this Court finds that the appeal is liable to be dismissed.
On coming to the cross objection filed by the respondents 1 and 2/claimants, it is manifest that the tribunal has awarded a sum of Rs. 1,60,000/- under the following heads:-
Heads
Amount [Rs.]
Loss of income of the family
1,20,000/-
Loss of love and affection
30,000/-
For funeral expenses
5,000/-
For transportation
5,000/-
In aggregate
1,60,000/-
Mr. K. Maheswaran, learned Counsel for the respondents 1 and 2/claimants has submitted that the deceased was Dobby by profession at the time of occurrence and hence she was earning a sum of Rs. 5,000/- per month. He has also added that since she was aged about 55 years at the time of occurrence as envisaged under Schedule II to Section 163A of the Motor Vehicles Act 1988, multiplier of 11'' would be more appropriate for the calculation of the quantum. He would submit further that without considering all these facts, the learned Tribunal has determined her monthly income at Rs. 3,000/- and after giving 1/3 deduction, the multiplier of 5 has wrongly been applied and arrived at Rs. 1,20,000/-, which is more feeble in nature and hence, the award of Rs. 1,60,000/- might be enhanced.
On coming to the evidence of P.W.1, it appears that she is the daughter of the deceased Silambaye. She says that her mother had earned not less than Rs. 5,000/- per month. But, the claimants have miserably failed to prove the avocation and income of the deceased. In the absence of evidence, the learned Tribunal has assessed the monthly income of the deceased at Rs. 3,000/-, which does not require any interference of this Court. As rightly argued by Mr. K. Maheswaran, learned Counsel for the cross objector/respondents 1 and 2/claimants proper multiplier has not been applied in this case. In this connection, this Court without any hesitation would say that the learned Tribunal has committed an error. As determined by the learned Tribunal, the monthly income of the deceased can be assessed at Rs. 3,000/-, on the basis the annual dependency would be (Rs. 3,000/- x 12) = Rs. 36,000/- after giving 1/3 deduction the 2/3 remainder would be Rs. 24,000/- as envisaged under Schedule II to Section 163A of the Motor Vehicles Act 1988 proper multiplier is 11'' as the deceased was aged about 55 years at the time of occurrence. On application of this multiplier system, the loss of income of the family would be Rs. 2,64,000/- ( 24000 x 11 = 2,64,000). The cross objector/claimants are the daughters of the deceased. Considering these aspects, the learned Tribunal has awarded Rs. 15,000/- each towards loss of love and affection i.e., Rs. 30,000/-, and this could be reduced to Rs. 10,000/- each i.e. Rs. 20,000/- in aggregate. Apart from this, the learned Tribunal under the head of the funeral expenses and transportation has granted each Rs. 5,000/- i.e., Rs. 10,000/- and therefore, the amount granted under this head can be maintained.
Hence, considering the evidence available on record as well as the award of the learned Tribunal, this Court enhances the award of the learned Tribunal in the following manner:-
Heads
Amount [Rs.]
Loss of income of the family
2,64,000/-
Loss of love and affection
20,000/-
For funeral expenses
5,000/-
For transportation
5,000/-
In aggregate
2,94,000/-
The appellant Insurance Company is directed to deposit this amount with interest at the rate of 7.5% per annum from the date of claim petition within the stipulated period of two months from the date of receipt of a copy of this order, less the amount already deposited, if any. On such deposit being made, the cross objectors/claimants are permitted to withdraw the entire amount without filing any formal application.
In the result, the Cross Objection (MD) No. 34 of 2011 is allowed and the award, dated 11.06.2010 and made in MCOP No. 411 of 2005, on the file of the Motor Accident Claims Tribunal, (III Additional Sub-Judge), Tiruchirappalli is enhanced to Rs. 2,94,000/-. There is no order as to costs. In view of the order passed in Cross Objection (MD) No. 34 of 2011, the appeal in CMA(MD) No. 1160 of 2011 is dismissed. Consequently, the connected miscellaneous petition is closed. There is no order as to costs.