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Judgment
T. Mathivanan, J.—This Civil Miscellaneous Appeal is directed against the award, dated 26.10.2007 and made in MCOP No. 75 of 2005 on the file of the learned Motor Accident Claims Tribunal/Additional District and Sessions Judge, (Fast Track Court No. 2), Madurai. The 2nd respondent Insurance Company is the appellant herein. The claimants are the respondents 1 to 3 herein. Whereas the first respondent/the owner of the vehicle, is the 4th respondent herein.
The respondents 1 to 3/claimants are the husband and the minor children of the deceased Pitchaiammal. They have made a claim in MCOP No. 75 of 2005 on the file of the learned Motor Accident Claims Tribunal (Additional District and Sessions Judge)(Fast Track Court No. 2), Madurai, claiming a sum of Rs. 4,00,000/- for the death of the deceased Pitchaiammal, in a road traffic accident said to have been taken place on 27.09.2004 at about 8.30 a.m. on Madurai to Melur Main Road near Venkateswara I.T.I., Uthangudi, involving the lorry bearing registration No. TN - 58-E-2116 belonging to the 4th respondent herein, which was insured with the appellant Insurance Company, at the relevant point of time.
It is alleged that the lorry bearing registration No. TN-58-E-2116 had hit against the deceased Pitchaiammal from behind, when she was proceeding by walk towards Othakadai. In the said accident, she had sustained multiple grievous injuries on all over her body. Soon after the occurrence, she was removed to Government Rajaji Hospital, Madurai and thereafter, she had succumbed to injuries on 21.11.2004, while she was on treatment. Hence, the respondents 1 to 3/claimants, claiming a sum of Rs. 4,00,000/- have preferred the above said claim petition.
The 4th respondent/owner of the vehicle, never chosen to appear, as he remained ex-parte. The appellant Insurance Company alone had contested the claim on the following grounds:-
(i) The accident did not take place in front of Venkateswara I.T.I. at Uthangudi, as per the accident register issued by the Government Rajaji Hospital, Madurai.
(ii) The vehicle bearing registration No. TN-58-E-2116 was not involved in the accident, but some other unidentified vehicle might have knocked down the deceased, while she was crossing the road without minding the on coming vehicle and in order to make a fortune, out of her misfortune, the claimants have implicated the above said vehicle with the connivance of the 4th respondent.
(iii) The cause of death of the deceased had nothing to do with the injuries sustained by the deceased on account of the accident, without minding the oncoming vehicle.
(iv) The avocation and the monthly income of the deceased are
disputed.
In order to substantiate their respective claims, the parties to the claim petition were made to face the trial.
The first respondent/1st claimant had examined himself as PW 1. Besides him, yet another witness one Mani, who has been described as an eye witness was examined as PW 2. During the course of their examination, Exs. P 1 to P 7 were marked. On the other hand, on the side of the appellant Insurance Company, two witnesses were examined as R.W. 1 and R.W. 2 and during the course of their examination of Exs.R1 and R 2 were marked.
On appreciation of the evidences, both oral and documentary, the learned Motor Accident Claims Tribunal, had proceeded to pass an award of Rs. 4,61,000/- under the following heads:-
(i) The learned Tribunal had fixed the monthly income of the deceased at Rs. 3,000/-, since the deceased was aged about 30 years at the time of accident, the multiplier of 17 was applied and accordingly, after deducting 1/3rd towards personal and living expenses, the annual income of the family has been calculated at Rs. 4,08,000/-.
(ii) Towards loss of consortium in respect of the first claimant a sum of Rs. 20,000/- was awarded.
(iii) Towards loss of love and affection in respect of the respondents 1 to 3, a sum of Rs. 10,000/- each, was awarded.
(iv) Towards funeral expenses Rs. 3,000/- was awarded.
Having been aggrieved with the award passed by the learned Tribunal, the Insurance Company has approached this court by way of this appeal.
When the appeal came up for hearing, Mr. K. Elangovan, the learned counsel appearing for the appellant Insurance Company has mainly projected his argument only on the ground of liability.
He would submit that the accident was not taken place in front of Venkateswara ITI at Uthangudi, on Madurai-Melur Main Road, but as seen from Ex. R 1, primary case records, issued by the Government Rajaji Hospital, Madurai, the occurrence was taken place at Pandi Kovil Ring Road.
Further, he would submit that the vehicle bearing registration No. TN-58- E-2166 belonging to the 4th respondent herein was not involved in the accident and some other unidentified vehicle might have been involved in the accident.
He has also added that the claimants with the connivance of the owner of the vehicle, the 4th respondent herein, have filed the claim petition only to gain the monetary benefit and enrich their status.
This has been vehemently rejected by Mr. G. Marimuthu, the learned counsel appearing for the respondents 1 to 3, while advancing his argument. He has also submitted that PW 2, being the eye witness for the occurrence, had correctly and clinchingly spoken to about the manner and place of accident, involving the lorry bearing registration No. TN-58-E-2166.
The learned counsel appearing for the respondents 1 to 3 has also submitted that the appellant Insurance Company had never chosen to examine the driver of the lorry or any competent witness to disprove the contention of the claimants.
No doubt, in the accident register, which has been tagged along with the medical records, it is written that the accident was taken place on Pandi Kovil Ring Road.
On coming to the evidence of PW 2, he would depose that on 27.09.2004 at about 9.00 a.m., when he was taking tea in a tea shop in front of Venkateswara ITI at Uthangudi, the deceased Pitchaiammal was proceeding on the edge of the road, with a rice bag in her hand. While so, the lorry bearing registration No. TN- 58-E-2166, which was coming towards Madurai-Othakadai had dashed against her from behind and caused the accident. He would further depose that the accident was taken place due to the rashness and negligence on the part of the driver of the vehicle.
It is also revealed from the evidence of PW 2 that soon after the occurrence, the deceased was thrown out and she had sustained fracture injuries over her both legs and injuries on all over her body. He has also added that she along with one Andi and Manikandan had taken the victim to the Government Rajaji Hospital, Madurai and admitted there and thereafter, information was given to the first respondent/1st claimant (husband of the deceased).
The appellant Insurance Company has not come forward to disprove the place of occurrence with unassailable evidence. Even, the First Information Report also reveals that the accident was occurred in front of Venkateswara ITI, Uthangudi. In fact, the First Information Report was lodged by the first respondent/1st claimant, who is the husband of the deceased, on the next day of the occurrence. But, it cannot be heard to say that the First Information Report was lodged after confabulation or after deliberation.
It is quite relevant to note here that the 4th respondent, being the owner of the vehicle, has not disputed the occurrence as well as the involvement of his vehicle in the accident. In fact, the appellant Insurance Company has also not chosen to summon the owner of the vehicle or his driver to disprove the contentions of the claimants.
RW 2 is the Investigator of the appellant Insurance Company and he was deputed to investigate about the manner of the accident. But his evidence cannot be trusted to brush aside the contention of the claimants, because RW 2, being the investigator, does not have competency to speak about the rashness and negligence on the part of the driver of the vehicle or about the manner of the accident, and therefore, much credence or weight cannot be attached to his evidence.
On scrutinisation of the evidences available on record, this Court is of view that the finding of the learned Tribunal, fastening the liability on the 4th respondent, the owner of the vehicle and vicarious liability on the Insurance Company does not suffer from any infirmity and hence, it does not require any disturbance.
It is significant to note here that Ex. R 2, post-mortem certificate also clearly says that the deceased would appear to have died of multiple injuries. Therefore, the contention that the death of the deceased did not have nexus with the injury sustained by her in the accident, does not sound much.
With regard to quantum, the learned Tribunal has determined the age of the deceased, at the time of accident at 30 years. Accordingly, as envisaged under Second Schedule to Section 163-A of the Motor Vehicles Act, the learned Tribunal has applied the multiplier of 17.
The learned Tribunal has also determined the monthly income of the deceased at Rs. 3,000/- and based on this, the annual multiplicand was calculated at Rs. 36,000/- After deducting 1/3rd, the 2/3rd remainder would be Rs. 24,000/-. On application of the multiplier of 17, the loss of income of the family comes to Rs. 4,08,000/-. The learned Tribunal has also awarded a sum of Rs. 20,000/- towards loss of consortium in respect of the first respondent, being the husband of the deceased and an another sum of Rs. 30,000/- towards loss of love and affection to the claimants 1 to 3. Apart from this, the learned Tribunal has also awarded sum of Rs. 3,000/- towards funeral expenses. In total, the Tribunal has awarded a sum of Rs. 4,61,000/- towards compensation.
In this connection, this court would like to place it on record that the respondents 1 to 3 have claimed only a sum of Rs. 4,00,000/-. Hence, the learned Tribunal has restricted the compensation only to the extent of Rs. 4,00,000/-. It has not been disputed by the respondents/claimants 1 to 3. Accordingly, this court also finds that the award of the learned Tribunal to the extent of Rs. 4,00,000/- does not require any interference of this court.
In the result, this Civil Miscellaneous Appeal is dismissed. The award, dated 26.10.2007 and made in MCOP No. 75 of 2005 on the file of the learned Motor Accident Claims Tribunal, (Fast Track Court No. 2), Madurai, is confirmed. The appellant Insurance Company is directed to pay this amount to the respondents 1 to 3/claimants, as directed by the learned Tribunal, with interest at the rate of 7.5% per annum, within a period of one month from the date of receipt of a copy of this order. On such deposit being made, the first respondent is permitted to withdraw his share as determined by the learned Tribunal, without filing any formal application before the learned Tribunal. The share of the minor respondents 2 and 3 shall be invested in any one of the nationalised Banks, till they attains majority. The first respondent, being the father of the minor respondents 2 and 3 is entitled to receive the interest accrued thereon, once in three months. Consequently,connected Miscellaneous Petitions are closed. No costs.