The Branch Manager vs Mariyayee & Ors.

This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree award

and decree dated 27.07.2011 made in M.C.O.P.No.981 of 2009 on the file of the Motor Accidents Claims Tribunal, Additional District and

Sessions Court, Pudukkottai.

It is a case of fatal accident, which took place on 29.05.2008 at about 2.00 p.m. The case of the claimants before the Tribunal is that on the

date of accident, when the deceased by name Rajesh was travelling in a tractor sitting adjacent to the driver bearing Registration No.TN 55 M

0063, the driver of the tractor drove the vehicle in a rash and negligent manner by which, the deceased had fallen off from the tractor and caused

the accident and in the said accident, the said Rajesh sustained grievous injuries and thereafter, while he was taking to the hospital, he died on the

way.

The claimants filed an application in M.C.O.P.No.981 of 2009 on the file of the Motor Accidents Claims Tribunal, Additional District and

Sessions court and Special Court, Pudukkottai seeking compensation.

Before the Tribunal, the claimants examined one witness as P.W.1 and 2 and marked six documents as Ex.P1 to P6. On the side of the

respondents, two witnesses were examined as R.W.1 and 2 and no documents were marked and evidence testimony document was marked.

The Tribunal, after considering the pleadings, oral and documentary evidences and the arguments advanced on either side and also appreciating

the evidences on record held that the accident occurred only due to the rash and negligent driving of the driver of the tractor belonging to the first

respondent insured with the second respondent and held that the owner of the vehicle are jointly and severally are liable to pay compensation of

Rs. 3,00,000/-.

Against which, the insurance company has filed this present appeal challenging the liability as well as quantum of compensation.

The learned counsel appearing for the insurance company has made four fold submissions which are as follows:-

a. Firstly, in the case on hand, there is violation of policy condition and therefore, the insurance company is not liable to pay compensation.

b. Secondly, there is an error while arriving at loss of dependency.

c. Thirdly, the tribunal has wrongly adopted the multiplier by taking into account the age of the mother of the deceased which is in the higher side.

d. Fourthly, the tribunal has awarded the total compensation amount along with interest from the date of accident instead of giving it from the date

of judgment and

e. The award granted by the tribunal is excessive and needs interference at the hands of this Court.

For the above foregoing reasons, he prays for allowing this appeal.

Per contra, the learned counsel appearing for the claimants submit that the Court below after appreciating the oral and documentary evidence

and other connected documents had granted the award, which need not be interfered at the hands of this court. To sum up, he prays for the

dismissal of this appeal.

This Court heard the submissions on either side and perused the materials available on record.

As far as the first contention is concerned, the Court below at paragraph No.7 has come to the conclusion that the accident had happened due

to the negligence of the tractor of the driver and for arriving at such conclusion, it has relied on the first information report, P.W.2 an eye witness

and other relevant factors, which in the considered opinion of this Court, holds good. In addition to which, during the cross examination of the staff

by name one Sivanathanm attached to the RTO office, as to whether, anyone can accompany in the tractor while carrying the goods, he replied it

in negative. Above all, the tribunal further found that though the insurance company pleaded that the driver of the tractor is not responsible for the

accident in question, it has not chosen to mark any documents on their side to rebut the claim of the claimants. Therefore, the tribunal has rightly

fastened the liability on the offending vehicle and the same is confirmed. Hence, the first contention fails.

10.1. As far as the second contention is concerned, as per Sarla Varma Vs. Delhi Transport Corporation, reported in 2009 SC 3104, where the

deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is

deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is

also the possibility of his getting married in a short time, in which event the contribution to the parents and siblings is likely to be cut drastically.

However, in the present case, the Court below has wrongly deducted 1/3rd amount towards personal expenses instead of deducting 50%.

Therefore, the argument of the insurance company in this regard has substance. However, in the present case multiplier is wrongly adopted and if

correct multiplier of 18 is adopted, it will be much more than the award granted by the tribunal. Since no cross appeal is filed, this Court deems it

appropriate to confirm the award granted by the tribunal. Hence, the second contention also fails.

10.2. As regards the third contention of the insurance company that the Court below at the time of arriving at the compensation, has wrongly taken

the age of the deceased for applying multiplier has also got substance. As per the judgment reported in Reshma Kumari Vs Madan Mohan,

reported in 2013 ACJ 1253 (SC), it has been held that in the case of death of unmarried son/daughter, multiplier should be applied on the basis of

age of the deceased and not on the basis of average age of the parents of the deceased. Therefore, the correct multiplier in this case is 18 and not

15 as calculated by the tribunal. As discussed at paragraph No.9.1, since there is no cross-appeal, this Court does not want to go into aspect but

to confirm the order of the tribunal. Hence, the third contention also fail.

10.3. As far as the fourth contention is concerned, it is to mention that limitation for filing claiming before tribunal in respect of any accident, sub-

section (3) of Section 166 of the Motor Vehicles Act, 1988 has been omitted by the Motor Vehicles (Amendment) Act, 1988 which came in

force with effect from 14.11.1994. After the amendment, there is no time limitation for filing claims before tribunal in respect of any accident. While

passing the amendment, the parliament realised the grave injustice being done to the heirs/injured/legal representatives of the victims who died in

accident by rejecting their claim petition only on grounds of time limitation. Thus, now there is no time limitation for filing claims before tribunals.

Moreover, the Pa rliament thought that prescribing a period of limitation and restricting the power of Tribunal to entertain any claim petition beyond

the period of twelve months from the date of accident was too harsh (Ref.Dhanapal Vs. D.P.Vijayavargiya, AIR 1996 SC 2155 ). According to

Sub-Section (4) of Section 166 that the claims tribunal shall also treat any report of accidents forwarded to it under sub- Section (6) of Section

158 as an application for compensation under this Act. Such is the position in the Motor Vehicles Act. It is a beneficial legislation to help the

distressed family who lost their beloved ones. It is a common knowledge that when somebody loses their beloved ones in the accident, one cannot

expect to go and file a complaint and get FIR copy, death certificate, legal heir certificate, driving license, copy of the insurance copy, accident

register report, investigation report, charge sheet, M.V.Report, approaching an advocate and so on and so forth. Usually, it takes some time to file

a petition before the Court concerned for want of necessary certificates to be issued by the competent authority. When the accident is not disputed

in the manner known to law, on technicalities, this court cannot brush aside the rightful claim of the victim. In otherwords, the aggrieved party is

entitled to claim compensation from the date of claim petition. Let us keep in mind that the provisions relating to the award of compensation are

benevolent provisions in nature. Therefore, this Court is of the considered view that the aggrieved family is entitled to claim compensation from the

date of claim petition. In otherwords, the contention of the appellant that the compensation should be awarded from the date of judgment is

misconceived. If the Court consumes time to dispose of the matter, the delay cannot be attributed against the aggrieved family. In the case on hand,

the accident had occurred on 29.05.2008, for which, the judgment was delivered on 21.07.2011. It is not fair on the part of this Court the three

year delay cannot be shifted on the aggrieved family. It is not the intention of the deceased family to drag on the matter endlessly and it is due to the

inbuild system which the Tribunal has to dispose of the matter the time is consumed. Since the wisdom of the Parliament is to safeguard the

distressed family from the mental agony and untold sufferings due to the accident, this Court to meet the ends of justice, holds that the deceased

family is entitled to draw interest from the date of the claim petition and not on the date of the judgment. Hence, the fourth contention also fail.

10.4. Lastly, the Honourable Supreme Court in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. reported in 2014 (1)

TNMAC 459 (SC), determined the monthly income at Rs.6,500/- (Rupees Six Thousand and Five Hundred only) per month for a vegetable

vendor, who sustained injury in the accident occurred on 14.07.2008. In this case, he died on 29.05.2008. Hardly two months prior to the Apex

Court judgment, the accident had occurred. In the said case, Rs.6,500/- is taken as monthly income of the deceased. In the present case, the

Court below has taken a sum of Rs.2,400/- which is very meagre compared to the income arrived at by the Supreme Court. Therefore, the

contention of the insurance company that the award amount is on the higherside is nothing but a farce and it has no legs to stand. Hence, the last

contention also fail.

In the considered opinion of this Court, the award of the tribunal is wholly justifiable and reasonable and there is no warranting circumstances

to interfere with the award of the Tribunal. Hence, the appeal is dismissed by confirming the award of the Tribunal. The appellant -insurance

company is directed to deposit compensation, as awarded by the Tribunal, after deducting the amount, if any, already paid to the claimants, within

a period of four weeks from the date of receipt of a copy of this judgment. The claimants are entitled to withdraw their share as apportioned by the

Tribunal without filing any formal application in the Tribunal.

The Insurance Company is directed to deposit the entire enhanced award amount along with accrued interest and costs, less the amount

deposited, if any, to the credit of M.C.O.P.No.981 of 2009 on the file of the Motor Accidents Claims Tribunal, Additional District and Sessions

Court, Pudukkottai, within a period of four weeks from the date of receipt of a copy of this judgment;

The Tribunal is directed to transfer the entire award amount, as apportioned by this Court in this Civil Miscellaneous Appeal, along with

accrued interest and costs directly to the respective Personal Savings Bank Account Numbers of the claimants, through RTGS/NEFT system, after

getting their Account Details, within a period of four weeks, thereafter; and in the facts and circumstances of the case, there shall be no order as to

costs.

Accordingly, this civil miscellaneous appeal is dismissed. Consequently, connected miscellaneous petitions are closed. No costs.