Prayer: Civil Miscellaneous Appeals filed against the common award made in M.C.O.P Nos. 29/2003, 31/2003 and 42/2003 dated 30.4.2004 on the file of Motor Accident Claims Tribunal [Sub-Court], Devakottai.

JUDGMENT

R. Banumathi, J.

1. Feeling aggrieved by the liability and award of compensation, Appellant-Insurance Company has filed these Civil Miscellaneous Appeals. Since, all the Appeals arise out of the common order and the point for consideration are one and the same, all the Appeals were taken up together and disposed of by this Common Judgment.

2. Brief facts are that on 19.1.2003, the deceased Murugappan along with his son Nagappan @ Siva and his wife Uma were proceeding in TVS Suzuki bearing registration No. TN-63-Z-0009 from Aravayal to Karaikudi. When the motorcycle was proceeding in Devakottai-Karaikudi main road, the lorry bearing registration No. TN-49-N-0077 driven by its driver in a rash and negligent manner dashed against the motorcycle and the motorcycle dragged to some distance. Due to the impact, the rider of the motorcycle [Murugappan] and the pillion rider [Nagappan] died on the spot. In the accident, Claimant-Uma who is also one of the pillion rider sustained grievous injuries in her left leg and lost her two toes. Regarding the accident, Criminal case in Crime No. 16/2003 of Karaikudi South Police Station was registered against the Lorry driver. At the time of accident, deceased Murugappan was aged 44 years and was earning Rs. 13,728/- by working as Clerk in Indian Overseas Bank, Karaikudi. Claimant-Uma was aged 40 years and was earning Rs. 5,500/- per month by running A1 Game Zone at Karaikudi. Deceased Nagappan @ Siva was studying in IX standard in Azhagappa Matriculation School, Karaikudi. Alleging that the accident was due to rash and negligent driving of the lorry driver, the Claimants have filed Claim Petitions.

3. Resisting the Claim Petitions, Appellant-Insurance Company has filed Counter contending that as per Section 128 of Motor Vehicles Act, no driver of a two wheeled Motorcycle shall carry more than one person in addition to himself on the motorcycle and that the accident had occurred only due to the sole negligence of the deceased Murugappan. Case of Appellant-Insurance Company is that three persons having travelled in the Motorcycle contributed to the accident. Appellant-Insurance Company also averred that the compensation claimed by the Claimants are exorbitant and prayed for dismissal of the Claim Petitions.

4. Before the Tribunal, Claimant-Uma [CMA. No. 184/2004] examined herself as PW1. One Balamurugan, who was then working as Record incharge in Apollo Hospital was examined as PW2. Dr. Devakumar, who issued the Disability Certificate to Claimant-Uma was examined as PW3. One Meyyappan, an employee of Indian Overseas Bank was examined as PW4. Exs.P1 to P49 were marked. The driver of the lorry viz., Karuppiah was examined as RW1. No documents were marked on the side of Appellant-Insurance Company.

5. Upon consideration of oral and documentary evidence, Tribunal held that the accident occurred due to rash and negligent driving of the Lorry driver. Considering the income of the deceased Murugappan and deceased Nagappan @ Siva and also considering the nature of injuries sustained by Claimant-Uma, the Tribunal awarded Rs. 16,56,860/- in M.C.O.P No. 31/2003 [C.M.A No. 183/2004]; Rs. 4,18,775/- in M.C.O.P No. 42/2003 [C.M.A No. 184/2004] and Rs. 3,74,500/- in M.C.O.P No. 29/2003 [C.M.A No. 185/2004] under various heads respectively.

6. Learned Counsel for Appellant-Insurance Company contended that Tribunal failed to take into consideration that three persons having travelled in the Motorcycle were equally responsible and contributed for the accident and therefore, Tribunal ought to have fastened 50% negligence upon the rider of the motorcycle viz., the deceased Murugappan. It was further submitted that the Tribunal failed to take into consideration the admission in the Claim Petitions that deceased Murugappan drove the Motorcycle along with his son and wife [Claimant in C.M.A No. 184/2004 and deceased in C.M.A No. 185/2004 respectively]. The quantum of compensation is also assailed as excessive.

7. Even though, Respondents-Claimants entered appearance, at the time when the Appeals were taken up for hearing, there was no representation for the Respondents. Notwithstanding the non-appearance of the Counsel for the Respondents/Claimants, since the Appeals are of the year 2004, we have taken up the matter. We have carefully considered the records, award of the Tribunal and the materials on record.

8. To prove that the accident was due to the negligence of the lorry driver, Claimant in C.M.A No. 184/2004 [Uma] was examined as PW1. In her evidence, PW1-Uma has stated that they were proceeding in TVS Suzuki motorcycle from south to north in Karaikudi-Devakottai main road. When they were proceeding in the main road, at about 3.00 p.m the lorry bearing registration No. TN-49-N-0077 without sounding horn came from the opposite side driven in a rash and negligent manner hit against the TVS Suzuki motorcycle. Due to the impact, TVS Suzuki was dragged to a distance and her husband [Murugappan] and son [Nagappan @ Siva] died on the spot. The lorry ran over her left leg and she sustained crush injury. In her evidence, PW1 has categorically spoken about the negligent driving of the lorry driver.

9. The defence plea is that three persons have travelled in the motorcycle contributed to the accident. To substantiate the defence plea, the driver of the lorry bearing registration No. TN-49-N-0077 was examined as RW1. In his evidence, RW1 has stated that while he was driving the lorry in Karaikudi-Devakottai main road near Kallupatti, the TVS Suzuki came with three persons and even though, he attempted to swerved the lorry to the right side, the rider of TVS Suzuki speedily hit against the lorry and that the accident was due to the negligence of the rider of TVS Suzuki.

10. Learned Counsel for Appellant-Insurance Company mainly contended that as per Section 128 of M.V Act, no driver of two wheeled motorcycle shall carry more than one person in addition to himself and having violated the provisions of Section 128 of M.V Act, the deceased himself contributed to the accident. It was further contended that Tribunal has failed to appreciate that as per the Police records and the admissions in the Claim Petitions, the deceased Murugappan drove the motorcycle along with his son and his wife and thereby contributed to the accident which the Tribunal failed to take into account.

11. Plea of contributory negligence has to be established by substantive evidence. After necessary Application under Section 170 of M.V Act, Appellant-Insurance Company must have adduced proper evidence to substantiate the plea of contributory negligence. Even though Appellant-Insurance Company has taken the plea of contributory negligence, no substantive evidence was adduced to establish the same. Apart from the self-serving evidence of RW1, no evidence was adduced to substantiate the same.

12. As seen from Exs.P1-FIR, Criminal case in Crime No. 16/2003 was registered against the lorry driver. After completion of the investigation, charge-sheet [Ex.P4] was also filed against the lorry driver. Filing of charge-sheet [Ex.P4] is a prima facie indication showing that the driver of the Lorry is responsible for the accident. Merely because three persons travelled in the Motorcycle, it is not to be readily presumed that deceased was negligent in riding the TVS Suzuki. It is pertinent to note that the deceased was travelling with his wife and with their son Nagappan @ Siva, aged 14 years. In the absence of substantive evidence, Tribunal rightly held that the accident was due to rash and negligent driving of the Lorry driver and rightly rejected the plea of contributory negligence.

13. C.M.A No. 183/2004 − Deceased Murugappan was employed in Indian Overseas Bank as Clerk and was getting salary of Rs. 13,728/- per month at the time of accident. In her evidence, PW1-Uma has stated that her husband would have got promotion and he would have worked for another 15 years, if he had alive. To prove the income of the deceased, PW4-Meyyappan, an employee in Indian Overseas Bank was examined. In his evidence, PW4 has stated that deceased Murugappan was getting salary of Rs. 13,728/- per month and that his date of birth is 4.1.1959 Ex.P48 is the Service Register. As per which, the date of birth of the deceased Murugappan was 4.1.1959 i.e he was aged 45 years at the time of accident. PW4 has further stated that deceased would have worked till 31.1.2019 and the deceased would have got promotion and he would have also got the salary of Rs. 20,000/- per month and after the retirement, he would have drawn the pension of Rs. 10,000/- p.m Having regard to the income of the deceased, Tribunal has taken the monthly income at Rs. 13,728/- and calculated the annual income at Rs. 1,64,736/- and adopting multiplier “15”, Tribunal has calculated the “Loss of Dependency” at Rs. 24,71,040/-. Deducting 1/3rd towards Personal Expenses, Tribunal calculated the “Loss of Dependency” at Rs. 16,47,360/-. Tribunal has also awarded Rs. 2,000/- for “Funeral Expenses”, Rs. 5,000/- for “Loss of Love and Affection” and Rs. 2,500/- for “Loss of Estate”, totalling into Rs. 16,56,860/-. In our considered view, the quantum of compensation awarded by the Tribunal is reasonable warranting no interference.

14. C.M.A No. 184/2004 − Claimant-Uma [PW1] sustained crush injury on the left foot, due to which two toes were removed. Immediately after the accident, Claimant-Uma was admitted in Apollo hospital, Madurai where she had taken treatment from 19.1.2003 to 1.3.2003 and again on 15.4.2003 to 20.4.2003 In her evidence, PW1 has stated that the crush injury in the left foot was not healed and that she has difficulty in walking and sitting. PW1 has further stated that for medical expenses, she had spent Rs. 2,00,000/-.

15. PW3-Dr. Devakumar examined the Claimant-Uma [PW1] on 27.3.2004 and assessed the disability at 46.3%. In his evidence, PW3 has stated that two toes in the left foot were removed and that the Claimant has got difficulty in walking long distance and squatting and sitting across let. Assessing the disability at 46.3%, PW3 has issued Ex.P46-Disability Certificate.

16. In her evidence, PW1 has stated that she was running A1 Game Zone in Annai Plaza Complex, Karaikudi and that she was getting the income of Rs. 5,500/- p.m Pointing out that there was no evidence as to the income of the Claimant [PW1], the Tribunal has taken the monthly income at Rs. 5,000/-. Since the Claimant was aged 40 years at the time of accident and having regard to the injuries sustained by her, Tribunal adopted multiplier “15”. Taking the annual income at Rs. 60,000/- and adopting multiplier “15”, Tribunal has calculated the “Loss of Income” at Rs. 9,00,000/-. Deducting 1/3rd towards Personal Expenses, Tribunal has taken the amount of Rs. 6,00,000/-. Taking the percentage of disability at 46.3%, Tribunal has awarded Rs. 2,70,000/- for “Loss of Earning” and “disability” which is quite reasoable. Apart from that Tribunal also awarded a sum of Rs. 1,43,775/- for “Medical Expenses” and Rs. 5,000/- for “Pain and Suffering”, totalling Rs. 4,18,775/- which in our considered view is very reasonable warranting no interference.

17. C.M.A No. 185/2004 − Deceased Nagappan @ Siva, son of PW1 was aged 14 years at the time of accident and he was studying in IX standard. In her evidence, PW1 has stated that her son Nagappan @ Siva was a very bright student and that he was a good chess player and participated in the district level chess competitions. From Ex.P22, it is seen that deceased child [Nagappan @ Siva] also participated in the handwriting competition conducted by the Chennai Bharthi Cultural Academy and he has also participated in the drawing competition and has got the first prize. The evidence adduced by the Claimant would show that the deceased child was a bright student and he was very much actively involved in sports, chess competition and karate and other activities. Tribunal has taken the notional income at Rs. 3,000/- and adopted multiplier “15”. Even though the deceased was not an earning member, as per the decision of Lata Wadhwa and others v. State of Bihar and other, 2001 (8) SCC 197, in a case of death of children, Tribunal/Court is to award just compensation, so as to compensate the loss of child. In our considered view, the notional income taken by the Tribunal at Rs. 3,000/- per month is quite reasonable. After deducting 1/3rd towards Personal Expenses and adopting multiplier “15”, Tribunal has awarded Rs. 3,60,000/- for “Loss of Dependency” which in our considered view is very reasonable. Tribunal has also awarded Rs. 2,000/- for “Funeral Expenses”, Rs. 5,000/- for “Loss of Love and Affection”; Rs. 2,500/- for “Loss of Estate” and Rs. 5,000/- for “Pain and Suffering”, totalling Rs. 3,74,500/- and same is confirmed.

18. In all three cases, Tribunal has ordered that Appellant-Insurance Company to pay compensation along with accrued interest at the rate of 9% p.a In Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya & Others, 2005 (1) TN MAC 341 (SC) : 2005 (6) SCC 236, the Supreme Court has awarded interest at the rate of 7.5% p.a Following the consistent view of the Supreme Court, interest awarded at the rate of 9% p.a by the Tribunal is reduced to 7.5% p.a from the date of filing of Claim Petitions till the date of deposit.

19. In the result, the quantum of compensation of Rs. 16,56,860/- awarded in C.M.A No. 183/2004; Rs. 4,18,775/- in C.M.A No. 184/2004 and Rs. 3,74,500/- in C.M.A No. 185/2004 respectively are confirmed. Rate of interest awarded by the Tribunal at 9% p.a alone is reduced to 7.5% p.a from the date of filing of the Claim Petitions till the date of deposit and these Civil Miscellaneous Appeals are partly allowed to that extent. Consequently, connected M.Ps are closed. There is no order as to costs in these Appeals.

It was stated before us that Appellant-Insurance Company has deposited the entire compensation. From out of which, the Claimants have also withdrawn a part of the amount. Claimants are permitted to withdraw their respective apportioned balance compensation along with accrued interest at the rate of 7.5% p.a Appellant-Insurance Company is also permitted to withdraw the excess amount deposited.