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2008 DIGILAW 1446 (MAD)

Ramasamy & Another v. M. Palanisamy & Another

2008-04-29

V.PERIYA KARUPPIAH

body2008
Judgment :- This appeal is filed by the claimants against the grant of lesser compensation for the loss of life of their son who died in the motor vehicle accident, in M.C.O.P.No.889 of 2001 on the file of the Motor Accidents Claims Tribunal, Salem (In the Court of Principal District Judge), Salem dated 18.04.2002. 2. On 06.06.2001, at about 4.15 a.m., the deceased Sekar was travelling in the Taras lorry bearing Registration No.TN 28F 7833 on the Karur to Dindigul Road. The lorry bearing Registration NO.TN 28F 6814 was parked on the left side of the road. At that time, the driver of the lorry TN 28F 7833 drove the lorry in a rash and negligent manner and dashed against the back side of the parked lorry. As a result of the accident, the deceased sustained injury and died in the lorry itself. The age of the decesed at the time of accident was 20. He was a Cleaner in Taras lorry and he was earning a sum of RS.5,000/- per month. The claimants claimed a sum of Rs.5,00,000/- towards compensation for the loss of life of their son. 3. The Tribunal after going through the evidence and after full fledged enquiry had come down with the finding that the claimants are entitled for a sum of RS.50,000/-only towards compensation on the compassionate ground for the loss of life of their son Sekar under no fault liability. Now the point for consideration is whether the claimants are entitled for enhanced compensation after revising the compensation arrived at by the Tribunal under no fault liability? 4. The case of the claimants is that, their son namely, Sekar was working as a Cleaner in a lorry bearing Registration No.TN 28F 7833 belonging to the first respondent and the said lorry was driven by Rajendran in a rash and negligent manner and dashed against the stationery lorry bearing Registration No.TN 28 F.6814 in Karur to Dindigul Road, at about 4.15 a.m., and thereby the son of the claimants Sekar sustained head injury and other multiple injuries and died on the spot itself. Therefore, the claimants asked for a sum of Rs.5,00,000/- towards compensation for the loss of life of their son since the claimants are the dependants of the deceased Sekar. 5. Therefore, the claimants asked for a sum of Rs.5,00,000/- towards compensation for the loss of life of their son since the claimants are the dependants of the deceased Sekar. 5. The learned counsel for the second respondent would contend that the accident was denied and the vehicle bearing No.TN 28 F 7833 in which the deceased was travelling as Cleaner and the another vehicle bearing registration No.TN 28 F.6814 were collided with each other and the Driver of the lorry bearing registration No.TN 28F7833 did not possess valid licence at the time of accident and therefore, the Insurance Company is not liable to pay compensation to the claimants. 6. The Tribunal had come to the conclusion that the claimants did not prove that the accident occurred only due to the rash and negligent driving of one Rajendran, as the driver of the lorry with valid licence and the claimants failed to produce any driving licence possessed by the deceased Sekar to show as if he was having lorry driving licence. Further, the owner of the lorry was not examined to show that the said Rajendran is having valid licence and he had only driven the lorry at the time of accident. Due to non examination of owner of the lorry, the Tribunal had come to the conclusion that the lorry was driven only by the deceased Sekar and he only dashed the lorry against the stationery lorry and hence, the Tribunal had not awarded any amount to the claimants towards the loss of life of their son Sekar and had awarded only a sum of Rs.50,000/- towards no fault liability. Now the point for consideration is whether the finding of the Tribunal and the award of Rs.50,000/-towards no fault liability are liable to be set aside and the compensation amount had to be revised and enhanced? 7. Now the point for consideration is whether the finding of the Tribunal and the award of Rs.50,000/-towards no fault liability are liable to be set aside and the compensation amount had to be revised and enhanced? 7. The learned counsel for the appellants/claimants would submit that the Tribunal had not appreciated the documentary evidence properly and therefore, it had come to the conclusion that the driver of the vehicle bearing Registration No.TN 28 F.7833 namely, Rajendran was not having any valid licence at the time of accident and actually the said lorry was driven by the deceased Sekar only and therefore, it had presumed that since the deceased had driven the vehicle without any valid licence, the claimants are entitled to the compensation only under no fault liability at Rs.50,000/-, which is not a correct preposition. He would further submit that the employment of the deceased as Cleaner of the said lorry was not disputed by the respondents and therefore, the Tribunal cannot presume that the said lorry was driven by the deceased Sekar at the time of accident without any evidence. He had also submitted that the possession of licence by the driver of the vehicle should have been initially proved by the owner of the vehicle and thereafter, only it would shift to the Insurance company to prove that the driver of the vehicle has not possessed any valid driving licence and the said principle has not been followed by the Tribunal. He had also submitted that the driver of the vehicle was not examined by the Insurance Company in order to prove that he had no valid driving licence. The Tribunal had wrongly come to the conclusion that the owner of the vehicle had colluded with the claimants and therefore, the Insurance Company is at liberty to raise the contentions that the driver of the vehicle did not possess any licence. Apart from that, the Insurance company is estopped from questioning the driving licence of the driver Rajendran when the Insurance company itself had granted a sum of Rs.1,00,000/- towards personal accident claim payable under the policy to the Cleaner and therefore, the Tribunal ought to have accepted the employment of the deceased Sekar as well as the possession of the valid driving licence of the driver who drove the vehicle at the time of accident. Therefore, the amount awarded by the Tribunal under no fault liability has to be set aside, revised compensation has to be awarded to the claimants and appeal may be allowed. 8. The learned counsel for the second respondent would submit that the Tribunal was quite right in accepting the plea of the second respondent to permit him to raise the defence under Section 170 of the Motor Vehicle Act and thereby raise the question of validity of the licence of the driver at the time of accident and the owner of the vehicle was colluded with the claimants and therefore, it has become necessary that the claimant should have proved the possession of the licence of the driver of the vehicle at the time of accident and thereafter only the burden shifts to the second respondent Insurance company. Therefore, he would submit that the Tribunal is perfectly right in awarding a sum of Rs.50,000/- under no fault liability. Moreover, he had also submitted that personal accident compensation was also paid to the claimants by the Insurance Company and if the Court enhanced the original award amount, the said amount of Rs.1,00,000/- may be deducted. The learned counsel further prays for the dismissal of the civil miscellaneous appeal. 9. On a careful consideration of the arguments advanced by the learned counsel on either side, this Court finds that the accident happened on 06.06.2001 and the deceased Sekar was working as a Cleaner until the said lorry bearing Registration No.TN 28F 7833 dashed against the another stationery lorry bearing Registration No.TN 6814 and in the accident, the said Sekar was died on the spot. The claimants produced Ex.P.1, xerox copy of the F.I.R., and Ex.P.2, the post mortem certificate. 10. On a careful reading of Ex.P.1, F.I.R., we could see that the vehicle bearing registration No.TN 28F 7833 was driven by its Driver Rajendran and the Cleaner, Sekar was sitting by his left side on the fateful day and the said vehicle dashed against the stationery lorry bearing Registration NO.TN 28F 6814 and caused accident thereby the deceased Sekar sustained injuries and died on the spot. Ex.P.2, the post mortem certificate would also prove the same. In these circumstances, the respondents had not adduced any oral evidence by examining the driver of the vehicle nor any other person who had seen the accident. Ex.P.2, the post mortem certificate would also prove the same. In these circumstances, the respondents had not adduced any oral evidence by examining the driver of the vehicle nor any other person who had seen the accident. In these circumstances, it could be safely concluded that the driver of the vehicle bearing Registration No.TN 28F 7833 was driven only by Rajendran and the finding of the Tribunal that the said lorry was driven only by the deceased Sekar is without any basis of evidence. The presumption drawn by the Tribunal cannot be a proof. The said presumption is also against the documentary evidence Ex.P.1. Therefore, the finding of the Tribunal that the lorry bearing Registration No.28F 7833 was driven by the deceased Sekar at the time of accident is not correct. So far as the driving licence of Rajendran is concerned, Ex.P.1, F.I.R., goes to show that he had driven the vehicle and dashed against the stationery lorry. So far as the grant of compensation by the second respondent to the claimants on personal accident insurance for a sum of RS.1,00,000/-is concerned, it is not disputed that the Insurance Company had paid the said amount to the claimants directly. When such payment has been made by the Insurance Company directly to the claimants, it could have been done without verification of documents i.e., licence of the driver who drove the vehicle at the time of accident. Therefore, the said admitted fact of payment of Rs.1,00,000/- to the claimants by the second respondent Insurance Company would estop the second respondent to contend that the driver of the vehicle Mr.Rajendran had no licence at the time of accident. Therefore, the finding of the Tribunal is that neither the driver of the vehicle Mr.Rajendran was having any licence nor the said vehicle was driven by the deceased Sekar who had also not having valid driving licence at the time of accident is ex-facie incorrect. The documents, Ex.P.1 would show that the accident had happened only due to the rash and negligent driving of the driver of the vehicle bearing registration No.TNF 7833 namely, Mr.Rajendran that a presumption ought to have been drawn by the Tribunal, in respect of the possession of the valid driving licence. It cannot be presumed that the deceased Sekar would have driven the vehicle at the time of accident. It cannot be presumed that the deceased Sekar would have driven the vehicle at the time of accident. Moreover, the Insurance company failed to examine any other person or Mr.Rajendran to disprove that he has not having any valid driving licence. In such circumstances, this Court holds that the finding of the Tribunal that the claimants are entitled to compensation only under no fault liability is not correct. The claimants are entitled to get the compensation on the actual pecuniary loss caused to them due to the monetary loss from the earnings of their son. Therefore, this Court finds that the second respondent is liable to pay compensation to the claimants for the rash and negligent driving of the driver of the lorry bearing registration No.TN 28F 7833 and the first respondent is vicariously liable to pay the same since, the first respondent had insured the vehicle to the second respondent, the second respondent is also liable along with the first respondent to compensate the claim of the claimants. 11. On coming to the calculation of the compensation for the loss of life of the deceased Sekar, the Tribunal had not alternatively calculated any amount of compensation to be paid on the head of the absolute liability of the Insurance company to the claimants. Therefore, it has become necessary for this Court to calculate the compensation for the loss of life of the deceased Sekar. It is an admitted fact that the deceased Sekar who was working as a Cleaner in the lorry bearing registration No.TN 28F 7833 which is belonging to the first respondent. The petition averment goes to show that he was earning a sum of Rs.5,000/- p.m., from the avocation of Cleaner and he was aged only 20 years at the time of accident. The evidence of P.W.1 would show that the deceased Sekar was earning a sum of RS.5,000/-p.m., and they were also dependant upon his income. There is no contra evidence. However, the Cleaner of a lorry could have earned around a sum of Rs.3,000/-per month and the said sum may be taken as the income of the deceased at the time of accident. The claimants are the parents of the deceased Sekar. The deceased Sekar was a bachelor at the time of accident. No other claimants have joined with the claimants claiming dependency from the earnings of the deceased Sekar. The claimants are the parents of the deceased Sekar. The deceased Sekar was a bachelor at the time of accident. No other claimants have joined with the claimants claiming dependency from the earnings of the deceased Sekar. Therefore, the dependancy of the claimants could have been 2/3rd of the salary of the deceased Sekar and 1/3rd can be deducted for the maintenance towards his personal expenditure. Therefore, the monthly dependancy from out of the income of the Sekar for the claim would be Rs.2,000/-and on that basis, the annual dependancy would be Rs.24,000/-. When we have to calculate the compensation for the loss of life of the deceased, the multiplier should have been fixed on the factors of the age of the deceased as well as the dependants. As per Ex.P.2, the age of the deceased was 23 years and the age of the first claimant was 42 years on the date of death of deceased Sekar as per his evidence. The second claimant, the mother was aged only 38 years on the date of death of the deceased Sekar. Therefore, the age of the mother alone should be taken for fixing the multiplier. As per II schedule of the Motor Vehicle Act , for the age of 38 years, the multiplier should be 16. When we calculate the multiplier with the annual dependancy, we could see that a sum of sum of Rs.3,84,000/-is found to be the compensation for loss of life of the deceased Sekar. Apart from that, the claimants have made a claim that they have spent a sum of Rs.5,000/- for taking the dead body of their son to their native place and further, the claimants spent Rs.5,000/-for funeral. Hence, the claimants are entitled to for a sum of Rs.5,000/- towards transport charges and Rs.5,000/-towards funeral expenses and the same ought to have been awarded to the claimants. Therefore, totally, a sum of Rs.3,94,000/- ought to have been awarded by the Tribunal. It is an admitted fact that a sum of Rs.1,00,000/-was already paid by the second respondent to the claimants after admitting the claim for payment of personal accident insurance for the death of the deceased Sekar. The amount paid already by the second respondent to the claimants at Rs.1,00,000/-should have been deducted from and out of the compensation amount. It is an admitted fact that a sum of Rs.1,00,000/-was already paid by the second respondent to the claimants after admitting the claim for payment of personal accident insurance for the death of the deceased Sekar. The amount paid already by the second respondent to the claimants at Rs.1,00,000/-should have been deducted from and out of the compensation amount. Therefore, a sum of Rs.2,94,000/- has to be paid as compensation towards the loss of life of the deceased Sekar. Apart from that, the Tribunal had awarded a sum of Rs.50,000/- under no fault liability. After deducting this sum also, the claimants are found to be entitled for a sum of Rs.2,44,000/- as enhanced compensation to be paid by the second respondent to the claimants. Accordingly, the claimants are entitled for an enhanced amount of Rs.2,44,000/- with interest at 7.5% from the date of petition till the date of realisation, apart from the compensation of Rs.50,000/-already awarded under no fault liability. In fine, the civil miscellaneous appeal is allowed with costs.