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2012 DIGILAW 2305 (MAD)

United India Insurance Co. Ltd v. T. Vijaya

2012-06-07

R.KARUPPIAH

body2012
JUDGMENT:- 1. This civil miscellaneous appeal is preferred by appellant-Insurance Company challenging the quantum of compensation awarded in the award and decree dated 31.1.2005, made in M.C.O.P.No.110 of 2004 on the file of Motor Accidents Claims Tribunal (Addl. District and Sessions Court-cum-Essential Commodities Act Special Court) Coimbatore. 2. The respondents 1 to 4/petitioners have filed the claim petition for the death of one Krishna kumar, who died in the motor accident. It is stated in the claim petition that on 15.5.2003 at about 9.45 pm the deceased was travelling in Bajaj M-80 bearing Regn. No. MH 16-3282 in Trichy Main Road from east to west and at that time, the Tempo belonging to the sixth respondent herein/2nd respondent bearing Regn. No. TN 39 H 4777, driven by its driver 5th respondent herein/1st respondent in a rash and negligent manner, dashed behind the above said Bajaj M-80, resulting which, the said Krishna kumar sustained head injuries and later on he died on 17.5.2003 and the accident was occurred only due to the rash and negligent driving of the 5th respondent herein/1st respondent driver. It is further stated that the age of the deceased at the time of accident was 45 years and he was Assistant in TEA Public Matriculation Higher Secondary School and earned Rs.8000/-pm. The claimants are wife, daughters and mother of the deceased and they claimed compensation of Rs.15 lakhs from the driver, owner of the Tempo and the insurance company/appellant herein, who are respondents 1 to 3 in M.C.O.P. 3. Both the driver and owner of the Tempo remained exparte before the Tribunal. On the side of the appellant-insurance company has contended that the accident was not occurred as stated in the petition and also contended that the driver of the Tempo was not authorised to drive a commercial vehicle by way of Transport endorsement to that effect and he was also not holding a badge and further contended that the driver was acquitted in Criminal Case in CC.No.63 of 2004 since the speediness and rashness of the vehicle was not proved and the amount of compensation claimed under various heads are excessive and the appellant/3rd respondent was not entitled to pay compensation to the petitioners. 4. Before the Tribunal, on the side of the claimants, have examined four witnesses as P.Ws.1 to 4 and marked 16 documents as Exs.P1 to P16. 4. Before the Tribunal, on the side of the claimants, have examined four witnesses as P.Ws.1 to 4 and marked 16 documents as Exs.P1 to P16. On the side of the appellant/third respondent, has examined four witnesses as RWs.1 to 4 and marked four documents as Exs. R1 and R2 and C1 and C2. 5. On perusal of the above said oral and documentary evidence, the Tribunal has held that the accident was occurred only due to rash and negligent driving of the driver of the 2nd respondent's Tempo and therefore the respondents 1 to 3 are liable to pay compensation to the claimants 1 to 4. The Tribunal has further held that the second respondent's Tempo was a light motor vehicle and therefore no violation of any valid driving licence and hence the appellant insurance company, who is the third respondent in O.P is liable to pay compensation as insurer of the vehicle. With regard to compensation, the Tribunal has awarded as under: "Loss of income. Rs. 7,20,000.00 Medical expenses, Rs. 65,000.00 Loss of consortium to the 1st petitioner .. Rs. 10,000.00 For mental agony to petitioners 1 to 4 -Rs.5000 each/-. .. Rs. 20,000.00 Damage to clothes .. Rs. 2,000.00 Funeral expenses Rs. 10,000.00 ------------------ Rs. 8,27,000.00 -------------------" 6. Aggrieved with the above said award, the appellant-insurance company has filed this appeal and the claimants have not filed any appeal or cross appeal as against the award. With regard to negligence aspect, as already stated, on the side of the petitioners, have examined eye witness to the occurrence and also marked Ex.P1-copy of FIR, Ex.P2-copy of M.V. Report, Ex. P3-Report of Motor Vehicle Inspector regarding the vehicle bearing Regn. No. MH 16 T 3282, Ex.P4-Rough sketch, Ex.P5-post-mortem certificate and Ex.P6-copy of charge sheet. 7. On careful reading of the above said oral and documentary evidence adduced by the claimants and no contra evidence on the side of the respondents in the O.P regarding negligence, it is clear that the claimants have clearly proved that the accident was occurred only due to rash and negligent driving of the first respondent in the O.P, who is the driver of the second respondent in the O.P as rightly held by the Tribunal. 8. 8. With regard to liability, as already stated, the driver and owner of the Tempo remained exparte before the Tribunal and only the appellant insurance company has contested the case. 9. The main contention of the appellant-insurance company is that the driver of the second respondent Tempo was not holding any valid driving licence with necessary badge and therefore the appellant/second respondent is not liable to pay compensation. To prove the particulars of driving licence, RWs. 1 to 4 including RTO have been examined and also marked Exs.R1 and R2 and Exs.C1 and C2. In contra, on the side of the claimants, have not produced any witness or marked any document to prove that the first respondent has valid licence with badge at the time of accident or the above said badge is not necessary to the above said vehicle. On a careful reading of oral and documentary evidence adduced on the side of the appellant reveals that the first respondent was not holding valid licence with badge at the time of accident. 10. In this connection, the learned counsel for the appellant has contended that this Court in several decisions had held that the insurance company which has to be paid the compensation to the claimants/third party with a right to recover the same from the owner of the vehicle if any violation of policy condition and relied on a decision of a Division Bench of this Court in UNITED INDIA INSURANCE COMPANY LIMITED v. V.VIJAYAKUMAR (2010 (2) TNMAC 388 (DB). Para No.48 of the above said decision is relevant and it is extracted as under:- "48. In the result, the quantum of compensation of Rs.19,59,895/- awarded by the Tribunal in MCOP.No.428 of 2003 on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge) Coimbatore is confirmed. The award passed by the Tribunal holding that the Appellant Insurance Company is jointly and severally liable to pay the compensation along with Respondent No.3 and 4 – Driver and Owner of the vehicle is modified and it is held that the Appellant-Insurance Company must pay the compensation amount to the 1st Respondent-Claimant along with interest at 9% per annum and then recover the same from the insured and Civil Miscellaneous Appeal is partly allowed to that limited extent. The Insurance Company is entitled to file execution petition against Respondent 3 and 4 in the same proceedings and on the basis of this judgment/award." 11. The learned counsel for the appellant has also relied on another decision of a Division Bench of this Court in BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. v. P.MANIMOZHI AND ORS. (2010-4-LW 742) for the above said proposition in which it is stated in para 29 as under: "29. ...... Hence, we are of the view that the insurance company should be directed to make payment with liberty to recover the same." 12. In view of the finding in the above said decision, in this case also, liberty is to be given to the appellant/insurance company to pay and recover the same from owner of the vehicle. 13. With regard to quantum of compensation, the Tribunal has fixed the age of the deceased as 45 and the income of the deceased as Rs. 6000/- pm and after deducting 1/3 for his personal expenses, the loss of income was calculated as Rs.48,000/-per annum and applied the multiplier as 15 and thus the Tribunal awarded Rs.7,20,000/-towards loss of income and the Tribunal has awarded on other heads and the total compensation of Rs.8,27,000/- as stated in para 5. 14. The learned counsel for the respondents 1 to 4/petitioners would contend that the Tribunal has correctly fixed the age, income of the deceased and assessed the loss to the claimants on the basis of oral and documentary evidence and therefore there is no need to interfere with the above said finding. 15. A perusal of records, Tribunal has correctly fixed the age as 45 on the basis of Ex.P5 and oral evidence of PW.1 and also correctly held that the claimants are dependents and legal heirs as per Ex.P11 Legal Heir Certificate. It is not disputed by appellant. 16. With regard to the income of the deceased, Tribunal has considered the oral evidence of PW.1, PW.3 and PW.4 and Exs.P12 to P16 and correctly fixed the monthly income as Rs.6000/- and after deducting 1/3 for personal expenses and applied multiplier as 15 and fixed Rs.7,20,000/-(i.e) (4000 x 12 x 15) for loss of income. A perusal of the above said finding reveals that the Tribunal has correctly assessed the loss of income and hence no need to interfere with it. A perusal of the above said finding reveals that the Tribunal has correctly assessed the loss of income and hence no need to interfere with it. With regard to medical expenses, the Tribunal has correctly awarded Rs.65000/-on the basis of Exs.P7 to P10 medical bills. The award of the Tribunal viz. Rs.10,000/- for loss of consortium, Rs.5000/-each for claimants for mental agony, Rs.2000/- for damage to clothes and Rs.10,000/-for funeral expenses are all reasonable and not excessive as contended by learned counsel for appellant. 17. Therefore from the above said oral and documentary evidence, this Court is of the view that the Tribunal has correctly fixed the award amount and therefore the impugned award of the Tribunal is absolutely correct and there is no need for any interference. As already discussed in para 12, the appellant is to pay the compensation to respondents 1 to 4/claimants and recover the same from owner of the vehicle and accordingly this appeal is to be allowed in part for above said reason alone. 18. In the result, the appeal is partly allowed and the appellant is directed to make payment to the petitioners 1 to 4 and recover the same from the 6th respondent/2nd respondent owner of the Tempo. No costs. 19. Out of the above said amount, the petitioners 1, 2 and 4 are permitted to withdraw their respective shares. With regard to share of minor 3rd respondent/3rd petitioner, the Tribunal is directed to deposit the same in Fixed Deposit in any one of the nationalised banks till she attains majority and the 1st respondent/1st petitioner is permitted to withdraw the quarterly interest from the bank for the maintenance of the minor 3rd respondent/3rd petitioner.