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2011 DIGILAW 2731 (MAD)

National Insurance Co. Ltd. v. K. Lakshmi

2011-06-10

K.MOHAN RAM, M.DURAISWAMY

body2011
JUDGMENT : K. Mohan Ram, J. In respect of the death of one Vedula Lakshmi Narayana Sastry alias V.L.N. Sastry in a motor accident on 5.9.2003 involving a lorry bearing registration No. TNM 2737 belonging to the respondent No. 4 and insured with the appellant herein and a car bearing registration No. TN 01-W(T) 172 belonging to the respondent No. 5 and insured with the respondent No. 6 herein, the respondent Nos. 1 to 3 in the above appeal preferred a claim petition in M.A.C.T.O.P. No. 887 of 2005 before Motor Accidents Claims Tribunal (Chief Judge, Court of Small Causes, Chennai) claiming a total compensation of Rs. 25,00,000. The Tribunal, on the basis of the evidence adduced before it, came to the conclusion that accident had occurred only due to rash and negligent driving of the lorry by its driver and accordingly held that the respondent No. 4, who is the owner of the lorry, is liable to pay the compensation and being the insurer of the lorry, the appellant is liable to indemnify the respondent No. 4. The Tribunal, taking into consideration the evidence on record, passed an award for a total compensation of Rs. 21,95,000. 2. Being aggrieved by that, the appellant insurer has filed the above appeal. 3. Not being satisfied with the quantum of compensation awarded by the Tribunal. the claimants have filed Cross-Objection No. 103 of 2009. 4. Heard both. 5. Mr. S. Vadivelu, the learned counsel appearing for the appellant, submitted that Tribunal has failed to see that the claimants have not examined any eyewitness to prove that the accident had occurred only due to rash and negligent driving of the lorry by its driver. Learned counsel further submitted that though initially a criminal case was registered against the owner of the lorry, after investigation, the same was referred as "mistake of fact" which itself would show that there was no negligence on the part of the driver of the lorry. The learned counsel wanted to rely upon the rough sketch prepared by the Investigating Officer showing the scene of occurrence and the manner of accident which has been marked as part of Exh. R2, investigation report. The learned counsel wanted to rely upon the rough sketch prepared by the Investigating Officer showing the scene of occurrence and the manner of accident which has been marked as part of Exh. R2, investigation report. But, since the author of the sketch, viz., the Investigating Officer had not been examined as a witness and he was not made available for cross-examination by the claimants, we are not inclined to permit the learned counsel to place any reliance on the rough sketch. Learned counsel submitted that it is in evidence and admitted by both the driver of the lorry as well as the driver of the car that a dog crossed the vehicles and to avoid hitting against it, both of them took evasive action and in that process the accident had occurred and, therefore, the negligence should be apportioned to both the drivers. Learned counsel further submitted that originally the claim petition was filed against the owner of the lorry and its insurer. But, subsequently, they impleaded the owner of the car as well as the insurer and, therefore, the Tribunal failed to apportion the liability on both the insurance companies. The learned counsel submitted that the Tribunal has not given any valid reason for not considering the evidence of RW 1. Learned counsel further submitted that Tribunal has not considered the rough sketch produced by RW 2 along with Exh. R2, investigation report. Learned counsel submitted that the Tribunal is not correct in fixing the monthly salary of the deceased, as it is against the principle laid down in the decision in Oriental Insurance Company Ltd. Vs. Jashuben and Others, (2008) 4 SCC 162 , Learned counsel further submitted that the monthly income of the deceased fixed at Rs. 30,000 is not correct. Learned counsel submitted that considering the age of the deceased, viz., 51 years, his future prospects ought not to have been taken into consideration. 6. Countering the aforesaid submission, Mr. P. Gopalan, learned counsel appearing for respondent Nos. 1 to 3, who are the cross-objectors, submitted that admittedly the owner of the lorry, who is the owner-cum-driver of the lorry, viz., respondent No. 4, had not filed any counter-statement before the Tribunal and remained ex parte, but at the instance of the insurer, he was examined as a witness. P. Gopalan, learned counsel appearing for respondent Nos. 1 to 3, who are the cross-objectors, submitted that admittedly the owner of the lorry, who is the owner-cum-driver of the lorry, viz., respondent No. 4, had not filed any counter-statement before the Tribunal and remained ex parte, but at the instance of the insurer, he was examined as a witness. In the absence of rebuttal of the averments contained in the claim petition by way of filing a counter-statement, his oral evidence should not be relied upon to decide the question of negligence. Non-filing of the counter denying the claim petition will amount to admitting the averments contained in the claim petition and, therefore, the oral evidence of the owner-cum-driver of the lorry has no relevance. 7. Learned counsel submitted that the multiplier adopted by the Tribunal is 9, but the Tribunal ought to have applied the multiplier of 11. In support of his claim, learned counsel has placed reliance on the decision reported in Oriental Insurance Company Ltd. Vs. Jashuben and Others, (2008) 4 SCC 162 , Learned counsel submitted that though in the decision in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , the Apex Court held that if the age of the deceased is above 50, future prospects should not be taken into consideration. As in the decision reported in Oriental Insurance Company Ltd. Vs. Jashuben and Others, (supra) the Supreme Court has taken into consideration the salary receivable by the deceased on the date of his retirement and if the salary of Rs. 45,000 that would have been received by the deceased on the date of his retirement, as spoken to by PW 2, is taken into consideration and if 1/3rd is deducted towards his personal expenses, the pecuniary loss will be Rs. 30,000 and, therefore, the pecuniary loss arrived at by the Tribunal per month is correct. 8. Learned counsel submitted that as far as the question of negligence is concerned, the Tribunal has thoroughly considered the entire evidence and came to the correct conclusion that the accident had occurred only due to rash and negligent driving of lorry driver and, therefore, the said finding does not warrant any interference. 9. We have considered the aforesaid submission on either side and perused the materials available on record. 10. 9. We have considered the aforesaid submission on either side and perused the materials available on record. 10. In the claim petition, the claimants have clearly stated that the lorry bearing registration No. TNM 2737 driven by its driver rashly and negligently came to its wrong side from the opposite direction and dashed against the car thereby the occupants sustained multiple injuries and the deceased died on the way to hospital. The accident and injuries and the resultant death are only due to rash and negligent driving of the lorry by the driver bearing registration No. TNM 2737. As rightly pointed out by learned counsel for respondent Nos. 1 to 3 that the owner-cum-driver of the lorry, viz., the respondent No. 4 in the appeal has remained ex parte and has not chosen to file a counter-statement denying the aforesaid averments contained in the claim petition. In the absence of the counter-statement filed by respondent No. 4, the averments contained in the claim petition should be taken as admitted by him and, therefore, any amount of oral evidence by the respondent No. 4 as a witness by the insurance company cannot be given any weight and, therefore, we are not able to countenance the contention put forth by the learned counsel for the appellant. On the basis of the complaint given by the driver of the car, a criminal case was registered against the driver of the lorry, but after investigation, further action has been dropped. The mere fact that further action was dropped by the police against the driver of the lorry, this court cannot come to a conclusion that there was no negligence on the part of the driver of the lorry. The negligence on the part of the driver of the lorry has to be independently established before the Tribunal. To prove the negligence on the part of the driver of the lorry, the driver of the car has been examined and to counter the evidence, the driver of the lorry has been examined. As pointed out, since the owner-cum-driver of the lorry, respondent No. 4 in the appeal, has not filed any counter-statement denying the averments contained in the claim petition and his liability to pay the compensation, his oral evidence cannot be given any weight. As pointed out, since the owner-cum-driver of the lorry, respondent No. 4 in the appeal, has not filed any counter-statement denying the averments contained in the claim petition and his liability to pay the compensation, his oral evidence cannot be given any weight. If the evidence of the lorry driver is not taken into consideration, then we have to accept the evidence of the owner of the car. During his cross-examination nothing is elicited to disbelieve his evidence. Therefore, the finding of the Tribunal that the accident had occurred due to rash and negligent driving of the lorry by its driver has to be confirmed and is accordingly confirmed. As far as the quantum of compensation awarded by the Tribunal is concerned, while it is the contention of the learned counsel for the insurer appellant in the appeal that the Tribunal has erred in taking into consideration the future prospects of the deceased and a sum of Rs. 30,000 is taken as monthly income is not correct, it is the contention of learned counsel for the respondent Nos. 1 to 3 that even if future prospects of the deceased cannot be taken into consideration in view of his age, being 51 years, and in the light of the decision in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (supra) and in the light of the decision reported in Sri. K.R. Madhusudhan and Others Vs. The Administrative Officer and Another, (supra), the salary that would have been received by the deceased on the date of his retirement could be taken into consideration. If the salary is taken into consideration as spoken to by PW 2, the deceased would have received Rs. 45,000 per month on the date of his retirement. Even if 1/3rd is deducted from that, it will come to Rs. 30,000. Therefore, the sum of Rs. 30,000 is taken as monthly income of the deceased by the Tribunal, does not warrant any interference. The Tribunal has deducted 1/3rd towards personal expenses of the deceased and has fixed the pecuniary loss per month at Rs. 20,000 and by adopting multiplier of 9, it has assessed the pecuniary loss at Rs. 21,60,000. But, according to the learned counsel, the correct multiplier to be applied is 11 as per the decision reported in Sri. K.R. Madhusudhan and Others Vs. The Administrative Officer and Another, (supra). 20,000 and by adopting multiplier of 9, it has assessed the pecuniary loss at Rs. 21,60,000. But, according to the learned counsel, the correct multiplier to be applied is 11 as per the decision reported in Sri. K.R. Madhusudhan and Others Vs. The Administrative Officer and Another, (supra). In the aforesaid decision, the age of the deceased was 52 years, yet, the multiplier of 11 has been applied. In the said decision, the Apex Court has pointed out that when there is a clear and incontrovertible evidence on record that the deceased was entitled and in fact bound to get a raise in income in the future, it will come within "exceptional circumstances" and not within the purview of rule of thumb laid down by Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (supra) Therefore, even though the deceased was above 50 years of age, he shall be entitled to increase in income, due to future prospects. In view of the same, the contention of the counsel for respondent Nos. 1 to 3 merits acceptance. If the pecuniary loss per month is taken as Rs. 20,000 it will come to Rs. 26,40,000 per year and the compensation allowed on other heads, it will come to Rs. 26,75,000. However, since claimants have restricted their claim to Rs. 25,00,000 in the cross-objections, the total compensation is now fixed at Rs. 25,00,000. Therefore, the appellant shall deposit the difference in the compensation awarded by this court and the compensation awarded by the Tribunal together with interest at 7.5 per cent per annum to the credit of M.A.C.T.O.P. No. 887 of 2005, Motor Accidents Claims Tribunal, Chennai, within a period of eight weeks from the date of receipt of a copy of this order. The civil miscellaneous appeal is dismissed. The cross-objection is allowed. However, there will be no order as to costs.