The New India Assurance Company Limited, Erode-11 and The New India Assurance Company Limited, Madurai-2 vs Kathirvel and Others

K. Kalyanasundaram, J.—Being aggrieved by the award passed by the Tribunal(Fast Track Court No. II), Madurai in M.C.O.P. No. 168 of 2002, the Insurance companies have filed the above appeal. The brief facts of the case are that:

On 10.03.1997, the deceased Kandasamy was traveling in an Ambassador Car bearing Registration No. TN 58-A 959 from Karur to Dindigul. At that time, a tanker lorry bearing Registration No. TN 57 4079 belonging to the first respondent and insured with the second respondent came from the opposite direction and dashed against the Ambassador Car. Due to the accident, the said Kandasamy died and his legal representatives have filed the claim Petition, alleging that the accident had taken place due to the negligent driving of the driver of the tanker lorry.

Resisting the claim Petition, the Insurance Company has filed a counter disputing the liability, income of the deceased and the manner of the accident.

To substantiate the case, the first claimant was examined as P.W. 1 and he produced Ex. P1 to EX. P31. On the side of the respondents, no witness was examined and no document was produced.

The Tribunal considering the oral and documentary evidence had come to the conclusion that the accident had taken place only due to the rash and negligent driving of the driver of the lorry and awarded compensation of Rs. 6,40,000/- with interest at 7.5% p.a. Challenging the quantum of compensation awarded by the Tribunal, the Insurance Company has filed this appeal. The appellant has not disputed the manner of accident and the negligence decided by the Tribunal.

P.W. 1 has produced Ex. P24-Income Tax returns. The claimant has also produced Ex. P17 to EX. P23 and EX. P27 to EX. P30 to show that the deceased was a Managing Partner in Mappillai Vinayagar Soda Company and he was also having interest in a other business establishments. Ex. P12 shows that Mappillai Vinayagar Cini Complex had income of Rs. 1,50,929/- in the year 1992. Ex. P13 shows that Sri Vignesh Soda Factory had income of Rs. 13,300/- in the year 1991-1992. Ex. P14-income tax returns for the Mappillai Vinayagar Roller Flower Mills shows income of Rs. 3,22,406/- Ex. P15 is a memorandum to show that the deceased was a Director in Mappillai Vinayagar Textile Mill. On the basis of these documents, the claimants have stated that the deceased was contributing Rs. 50,000/- p.m. to the family. EX. P24 is the income tax return filed by the deceased for the year 1997-1998, which shows that he had income of Rs. 67,900/- and paid Rs. 4,320/- towards income tax. The Tribunal on the basis of the evidence had come to the conclusion that the deceased was earning Rs. 10,000/- p.m./-. The tribunal adopted multiplier of "5" and calculated the loss of dependency at Rs. 6 lakhs(Rs. 10,000 x 12 x 5). The Tribunal has awarded Rs. 30,000/- towards loss of love and affection and Rs. 10,000/- towards funeral expenses and awarded compensation of Rs. 6,40,000/-

Mr. G. Prabhu Rajadurai, learned counsel for the appellants would submit that as per the income tax returns-Ex. P24, the annual income of the deceased was Rs. 57,900/- and hence the monthly income is only Rs. 4825/- but the tribunal has taken the income of the deceased at Rs. 10,000/- p.m., which is on higher side and the same is not supported by any documentary evidence.

Per contra, learned counsel for the respondents would submit that the deceased was a Managing Director of Mappillai Vinayagar Textile Mill and he was also an Advisor of the other companies and due to the death of the deceased, the claimants have lost the experience, expertise of the deceased available to the management of the Mill and other companies and in his place, no other persons can be employed. The learned counsel further submitted that the Tribunal after considering the entire evidence of the claimants had fixed the income of the deceased at Rs. 10,000/-, which need not be interfered with by this Court.

It is not in dispute that the deceased Kandasamy was 71 years old at the time of the accident. P.W. 1 has produced Ex. P10 to EX. P30 to prove that the deceased was a Managing Director of Mappillai Vinayagar Textile Mill and he was also actively participating in the business of Mappillai Vinayagar Roller Flower Mills, Sri Vignesh Soda Factory and Mappillai Vinayagar Cini Complex.

In 2008(6)MLJ 1098, this Court had an occasion to consider the loss of a person, who was looking after the business of various concerns and held that, the deceased was a Panchayat President, he was an owner of mills, agriculturist and due to his demise his service, wisdom, experience and his expertise available to the management of the mills, running of business after his demise cannot be doubted and his place cannot be so easily replaced by employing a person on salary basis. In that view, this Court has fixed the income of the deceased at Rs. 20,000/- p.m.

In the case on hand, on the basis of evidence of P.W. 1 and Ex. P10 to Ex. P30, the Tribunal has fixed the income of the deceased at Rs. 10,000/- p.m. Since the income was fixed on the basis of evidence is reasonable and the same is confirmed. The Tribunal has adopted proper multiplier as per Schedule II of the Motor Vehicles Act and calculated the loss of dependency at Rs. 10,000 x 12 x 5 = Rs. 6,00,000/-. However the Tribunal had not deducted one third towards personal expenses of the deceased and if one third amount is deducted, the loss of dependency would Rs. 4 lakhs (Rs. 6,00,000/- - Rs. 2,00,000/-).

Insofar as the conventional damages, the Tribunal has awarded Rs. 30,000/- towards loss of love and affection and Rs. 10,000/- towards funeral expenses and which in my view is very reasonable. The interest rate at 7.5% awarded at the relevant point of time is just and reasonable and the same is confirmed. In the result, the Civil Miscellaneous Appeal is partly allowed and the quantum of compensation is reduced from Rs. 6,40,000/- to Rs. 4,40,000/- with interest at 7.5% from the date of claim petition till the date of realisation. The appellant is directed to deposit the modified compensation, if not already deposited, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the claimants are permitted to withdraw their respective shares along with proportionate interest and costs equally as ordered by the Tribunal. The balance amount, if any, can be withdrawn by the Insurance Company. Consequently, connected Miscellaneous Petition is closed. No costs.