The Branch Manager National Insurance Company Ltd., Branch Office, 7/1, West Car Street, Sivakasi Town vs G. Subbulakshmi and Others

Honourable Mr. Justice T. Mathivanan

This Civil Miscellaneous Appeal is directed against the award of Rs.12,47,000/-, dated 31.03.2008 and made in MCOP No.44 of 2006 on the file of the learned Motor Accident Claims Tribunal (Principal District and Sessions Court), Srivilliputhur.

The 2nd respondent Insurance Company is the appellant herein. The claimants are the respondents 1 to 4. Whereas the 2nd respondent, being the owner of the vehicle is the 5th respondent herein.

The facts, which are absolutely necessary for the disposal of the appeal may be summarised as under:-

That on 13.01.2006 at about 5.20 p.m. at Satchiapuram Bus Stand, the deceased Ganesan was run over by the back wheel of the passenger bus bearing registration No.TN-67-R-5151 belonging to the 5th respondent/1st respondent, when the driver, who was on the steer wheel of the bus, had moved the same in a rash and negligent manner, while the deceased was alighting from the bus front foot board. Hence, the respondents 1 to 4 have filed a claim petition before the learned Motor Accident Claims Tribunal (Principal District and Sessions Judge), Srivilliputhur, claiming a sum of Rs.16,00,000/-.

The 5th respondent, being the owner of the vehicle has not chosen to contest the claim petition.

The appellant Insurance Company alone has contested the claim on the following grounds:

(i)The accident was invited by the deceased himself on account of his negligent act, while alighting from the moving bus.

(ii)The appellant Insurance Company has disputed the occupation of the deceased as Revenue Inspector and his monthly salaryatRs.5,959/ At the relevant time.

In order to substantiate their respective contentions, the parties to the claim petition went for trial.

The first respondent/1st claimant herself has examined as PW1. Besides her, two more witnesses were examined, including the eye witnesses as PW2 and PW3 and during the course of their examination, Exs.P1 to P9 were marked. On the other hand, the driver and the conductor of the offending bus were examined as RW1 and RW2. No documentary evidence was adduced on their behalf.

On evaluating the evidences, both oral and documentary, the learned Tribunal has totally awarded a compensation of Rs.12,47,000/-directing the appellant Insurance Company to pay this amount to the respondents 1 to 4 along with interest at the rate of 7.5% per annum within two months with proportionate costs. Being aggrieved by the award passed by the learned Tribunal, the second respondent Insurance Company has approached this Court by way of this appeal.

Heard Mr.S.Kumar, the learned counsel for the appellant and Mr.M.Thirunavukarasu, the learned counsel for the respondents 1 to 4. The 5th respondent/2nd respondent remained absent.

When this appeal came up for hearing, Mr.S.Kumar the learned counsel appearing for the appellant has advanced his argument only on two grounds:

(i)Negligence; and (ii)Quantum.

With regard to the negligence, he has disputed the evidence of PW2, who is said to be the eye witness for the occurrence. The learned Tribunal has mainly placed reliance upon his evidence and rejected, the evidence adduced by R1 and R2. PW2 is non other than the brother-in-law of the deceased Ganesan. He has given a vivid account about the accident as well as the negligent act of the driver and conductor. He has also stated that after getting into the bus at Satchiapuram bus stand, the deceased wanted to alight from the bus, as he did not find any place to sit. When the conductor gave the whistle, the bus was stopped, but without ascertaining the fact that the deceased had completely alighted from the bus, the conductor gave the whistle. The driver had also without noticing the fact that the deceased was alighting from the bus had suddenly moved the bus in a rash and negligent manner. While so, the deceased had lost his balance and fallen down from the foot board of the first entrance and as a result of which, his head was run over by the left back wheel of the bus, which resulted his instantaneous death on the spot.

This Court has carefully perused the evidence adduced by PW2, RW1 & RW2. After giving careful consideration, this Court is of the view that the evidence of PW2, in his chief examination, has withstood the test of cross examination. Under this circumstance, the finding with regard to the negligence given by the learned tribunal does not require any interference of this court.

With regard to quantum, as it appears from Ex.P8, the deceased at the time of accident was getting a sum of Rs.6098/-. It also appears that in the month of January 2006, the deceased was allowed to move to the Selection Grade and his Selection Grade emolument was calculated. Accordingly, his Selection Grade payment was fixed at Rs.8629/-. Considering this aspect as well as the future prospects of the deceased, the learned Tribunal has fixed the monthly income of the deceased at Rs.9,000/-. After giving 1/3rd deduction towards personal and living expenses, the 2/3rd remainder would be Rs.72,000/-. This is the annual dependency of the family of the deceased. Since the deceased was aged about 34 years at the time of accident, as per Second Schedule to Section 163A of the Motor Vehicles Act, the appropriate multiplier ''17'' has been made application by the learned tribunal. On applying this mechanism, the loss of income of the family of the deceased has been determined by the learned tribunal as Rs.12,24,000/-.

Apart from this, the learned tribunal has also determined an amount of Rs.10,000/-towards the consortium to the first respondent and another a sum of Rs.10,000/-towards loss of love and affection and further amount of Rs.3,000 towards funeral expenses. In total, the learned tribunal has awarded Rs.12,47,000/-. Since the award granted by the learned tribunal seems to be proper and proportionate to the loss of the income of the family of the respondents/claimants, the interference of this court does not warrant.

In the result, this appeal is dismissed and the award of Rs.12,47,000/-, dated 31.03.2008 and made in MCOP No.44 of 2006 on the file of the learned Motor Accident Claims Tribunal (Principal District and Session Judge) Srivilliputhur, is confirmed. The respondents 1 and 4 are permitted to withdraw their respective shares along with accrued proportionate interest directly from the learned Tribunal. The shares of the minor respondents 2 and 3 shall be deposited in any of the Nationalised Bank, until they attains majority. The first respondent/1st claimant, being the mother and the next friend of the minor respondents 2 and 3 is permitted to withdraw the interest accrued on the minors'' deposit once in three months for the welfare of the minors. No costs.