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2012 DIGILAW 2306 (MAD)

National Insurance Co. Ltd. , v. Tmt. Vijaya

2012-06-07

R.KARUPPIAH

body2012
Judgment :- 1. The appellant/3rd respondent has filed this civil miscellaneous appeal as against the award and decree dated 17.6.2004 made in MCOP.No.176 of 1998 on the file of Motor Accidents Claims Tribunal (Addl. District Judge), Dharmapuri. 2. The respondents 1 to 4/petitioners have filed the claim petition for compensation of Rs.7,00,000/- for the death of one K. Ganesan in the motor accident. Case of the claimants is that on 12.12.1997, the deceased was travelling as a pillion rider in Hero Hondo motor bike bearing Regn. No. TAL 1501 driven by his friend Govindhan and on the way to Dharmapuri Town in Salem Dharmapuri main road just opposite to Sri Devi Lodge, the lorry bearing Regn. No. TN 28 0510 driven by the 5th respondent/1st respondent in O.P in a rash and negligent manner, hit the abovesaid Hero Honda motor bike, resulting which, the deceased sustained injuries and died and a criminal case was registered in Cr.No.1438/1997 and therefore the 5th respondent/1st respondent as driver of the lorry, 6th respondent/2nd respondent as owner and 3rd respondent/appellant as insurer of the lorry are liable to pay compensation to the claimants. It is further stated that at the time of the accident, the age of the deceased was 32 and he was working as civil contractor and earned Rs.5000/- pm. The claimants are wife, daughter and sons of the deceased and therefore they claimed Rs.7 lakhs as compensation. 3. Before the Tribunal, the case against the 5th respondent/1st respondent driver of the lorry was dismissed and the owner of the lorry viz. 6th respondent/2nd respondent remained ex-parte and only the appellant-insurance company has contested the case and contended that the accident was occurred only due to rash and negligent driving of the Hero Honda motor-cycle bearing Regn. No. TAL 1501 and FIR and charge-sheet were laid against the driver of the abovesaid motor-cycle. The driver of the Hero Honda bike without watching the vehicle coming in the opposite direction tried to overtake the lorry bearing Regn.No.28 0510 with great speed, resulting which, he hit the lorry in rear right side corner and fell down and the deceased died. It is further stated that the claim petition against the respondents is not maintainable and also contended that the petitioners should prove the age, avocation and income of the deceased and the amount of compensation claimed is highly excessive. 4. It is further stated that the claim petition against the respondents is not maintainable and also contended that the petitioners should prove the age, avocation and income of the deceased and the amount of compensation claimed is highly excessive. 4. Before the Tribunal, on the side of the claimants, have examined two witnesses as PWs. 1 and 2 and marked 8 documents as Exs.P1 to P8. On the side of the appellant/3rd respondent, have examined one witness as RW.1 and marked 4 documents as Exs.R1 to R4. 5. The Tribunal has considered the abovesaid oral and documentary evidence adduced on either side and finally held that the accident was occurred due to rash and negligent driving of both the vehicle drivers and the Tribunal has apportioned the negligence of lorry driver and motor-cycle rider as ratio 70: 30 respectively. The Tribunal has also relied on the decisions reported in 1991 A.C.J 704 and 1997 A.C.J. 649 and held that the respondents 2 and 3, who are owner and insurer of the lorry are liable to pay the entire compensation and with regard to quantum of award, the Tribunal has fixed the age of the deceased as 33 years and fixed the annual income as Rs.38,540/-and deducted 1/ 3 for his personal and living expenses and taken Rs.26,193/- as monthly loss of income to the claimants and adopted the multiplier of 17 and awarded Rs.4,45,231/- as loss of income to the claimants and the Tribunal has further awarded Rs.1,00.000/- for future prospects, for consortium Rs.10,000/-and for loss of love and affection Rs.10000/- to the first claimant and claimants 2 to 4 each entitled Rs.10000/-for love and affection and Rs.5000/-for funeral expenses and rounded off and totally awarded Rs.6,00,000/- as compensation to the claimants. 6. 6. As against the abovesaid finding, the claimants have not filed any appeal or cross-appeal and only the third respondent/appellant has filed this appeal and mainly contended that the Tribunal has erred in holding that the accident was occurred due to 70% negligence of the driver of the lorry in spite of the fact that the driver of the motorcycle was also responsible for the accident and failed to note that FIR and charge-sheet were laid against the driver of the motor-cycle and also contended that the Tribunal being held that the driver of the Hero Honda motor-cycle also contributed at the ratio of 30% to the accident, but directed the appellant to pay the entire compensation amount and further contended that the Tribunal also erred in awarding compensation towards future loss of income of Rs.1,00,000/- and also erred in awarding more than Rs.12,000/-towards conventional damages. 7. With regard to negligence aspect, the Tribunal has considered the oral evidence of PW.2 eye-witness and also considered the averments made in the criminal court records and discussed in detail and finally held that the accident was occurred due to negligence of both the vehicle drivers and considering the manner of accident, the Tribunal has apportioned the negligence act at 70:30 as 70% for the first respondent lorry driver and 30% to driver of Hero Honda motor-cycle. 8. On careful reading of oral evidence of PW.2 and criminal court records reveal that this is a case of composite negligence of both vehicle drivers as rightly contended by appellant. As already discussed, both vehicles are involved in the accident but claimants who are third parties filed claim petition against one of owner and insurer of the vehicle alone. 9. The Tribunal has discussed about the composite negligence and considered the decisions reported in 1991 A.C.J 704 and 1997 A.C.J. 649 and finally held that the claimants are entitled to claim compensation from any one of the vehicle owners and insurance company and therefore the 2nd and 3rd respondents, who are 6th respondent and appellant herein viz. owner and insurer of the lorry are liable to pay compensation to the claimants. 10. In this connection, the learned counsel for the appellant has cited a recent decision reported in M/S.ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED v. R.SRIKANTHAN & OTHERS (2010-3-L.W. 613). The relevant paragraph Nos.28 and 29 in the above decision are extracted as under: "28. owner and insurer of the lorry are liable to pay compensation to the claimants. 10. In this connection, the learned counsel for the appellant has cited a recent decision reported in M/S.ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED v. R.SRIKANTHAN & OTHERS (2010-3-L.W. 613). The relevant paragraph Nos.28 and 29 in the above decision are extracted as under: "28. It emerges from the above decisions that while awarding of amount in a case of composite negligence Tribunal can direct payment of entire compensation jointly and severally, but at the same time would apportion the liability between two owners for their facility, and if both the owners or the two insurance companies, as the case may be, may pay the amounts to the claimants in proportion as awarded by the Tribunal, there is no problem for the claimant. But in case of any one of the parties liable does not want to honour the award from the other, leaving such party to claim rateable distribution from the owner of the other vehicle involved in the accident and found negligent by the Tribunal. 29. Upon analysis of evidence and materials on record, there is no escape from the conclusion that this is the case of composite negligence. Tribunal has apportioned the liability at 65% as that of the Mini Lorry driver and 35% as that of the Maruthi car driver. If so apportioning the composite negligence, all the Respondents shall be jointly and severally liable to pay compensation to the Claimants awarded and the Respondents inter se are entitled to rateable contribution in respect of the compensation recovered from them by the Claimants." 11. The learned counsel for the appellant has contended that even the claimants are entitled to recover the entire compensation from any one of the vehicle owners, the insurance company has to pay the entire amount and then has the right to recover from the vehicle owners in view of the abovesaid decision and therefore the appellant has to be given liberty to proceed and recover the amount from the vehicle owners. In this connection, the learned counsel for the appellant has relied on the abovesaid decision in M/S.ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED v. R.SRIKANTHAN & OTHERS (2010-3-L.W. 613). Paragraph No.25 of the above decision is relevant and the same is extracted as under: "25. In 1988 ACJ 8 (Raj) [National Insurance Co. In this connection, the learned counsel for the appellant has relied on the abovesaid decision in M/S.ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED v. R.SRIKANTHAN & OTHERS (2010-3-L.W. 613). Paragraph No.25 of the above decision is relevant and the same is extracted as under: "25. In 1988 ACJ 8 (Raj) [National Insurance Co. v. Kastoori Devi], the Division Bench of Rajasthan High Court held as follows:- "It has been laid down in plethora of cases of this court as well as other High Courts that in case of composite negligence the liability cannot be apportioned. In a case of composite negligence there is no method of indicia to bifurcate or apportion the liability and the only course open in such cases can be to make them both liable as jointly and severally. So far as the claimants are concerned, they can realise the amount from any one of the insurance companies and then the insurance company, which pays the entire amount, can take steps for recovering half of the amount from the other insurance company." 12. In view of the abovesaid contentions of either side and also the principles laid down in the aforesaid decision, I am of the view that the appellant/3rd respondent insurance company is liable to pay the entire compensation to the claimants and the appellant is at liberty to take steps for recovery of 30% of the above amount from the other insurance company i.e., from the insurance company of the Hero Honda motor bike bearing Regn. No. TAL 1501 as stated in the abovesaid decision relied on by the learned counsel for the appellant. 13. With regard to quantum of compensation is concerned, the Tribunal has fixed the age of the deceased as 33 years on the basis of oral and documentary evidence adduced by the petitioners and it is not seriously disputed by the learned counsel for the appellant. With regard to the income of the deceased, the Tribunal has fixed the annual income of the deceased as Rs.38,540/-on the basis of oral evidence of PW.1 and Ex.P6 income tax returns. From the abovesaid amount, Rs.12,347/- was deducted for his personal and living expenses and the remaining amount of Rs.26,193/- was taken as annual loss of income to the claimants and the Tribunal has taken 17 as multiplier and calculated the loss of income as Rs.4,45,231/-. 14. From the abovesaid amount, Rs.12,347/- was deducted for his personal and living expenses and the remaining amount of Rs.26,193/- was taken as annual loss of income to the claimants and the Tribunal has taken 17 as multiplier and calculated the loss of income as Rs.4,45,231/-. 14. On a careful reading of oral evidence of PW.1 and the documentary evidence viz. Ex.P6-Income-tax return of the deceased, this Court is of the view that the abovesaid monthly income fixed by the Tribunal (i.e) Rs.38,540/-and 1/3 deduction for personal and living expenses and multiplier taken as 17 are correct and there is no need to interfere with the abovesaid finding regarding monthly income of the deceased, multiplier and the deduction for personal and living expenses etc. 15. The learned counsel for the appellant has mainly contended that the Tribunal has erred in awarding Rs.1,00,000/- for future prospects and the petitioners are not entitled to the abovesaid amount since the deceased was not a Government employee having permanent income and he relied on a decision of the Honourable Supreme Court in SARLA VERMA v. DTC (2009) 6 SCC 121). The relevant portion in Para No.24 of the abovesaid decision is extracted below:- "24. ..... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances." 16. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances." 16. In view of the above decision, since the deceased was not a Government employee having permanent job, the award for future prospects cannot be maintained and the claimants are not entitled to the said amount as rightly contended by learned counsel for appellant. 17. The learned counsel for the respondents 1 to 4/petitioners have contended that the claimants 2 to 4 are 9, 7, 5 years old respectively but the Tribunal has failed to consider the abovesaid fact and fixed less amount and therefore prayed for increase of the amount awarded for loss of love and affection to claimants 2 to 4. The learned counsel for the appellant objected for the same and contended that the Tribunal has correctly assessed and awarded the abovesaid amount and there is no need to increase the said amount. Considering the age of the respondents 2 to 4/petitioners 2 to 4 and other family circumstances, period of accident and other factors and so as to pass fair and reasonable award, this Court is of the view that the abovesaid amount is to be increased from Rs.10,000/- to Rs.15,000/-each for respondents 2 to 4/petitioners 2 to 4. With regard to other heads, (i.e) Rs.10000/- for loss of consortium and Rs.10,000/- for love and affection to 1st petitioner and Rs.5000/-for funeral expenses, the Tribunal has correctly awarded and there is no need to interfere with the same. 18. Therefore, the award of the Tribunal is modified and reduced as under:- 19. In the result, this appeal is partly allowed and the award amount is modified and reduced from Rs.6,00,000/- to Rs.5,15,231/-with 9% interest. It is reported that this Court has already directed the appellant to deposit 60% of the award amount, but the appellant has not deposited the amount so far. Therefore the appellant is directed to deposit the entire award amount with 9% interest and costs within a period of four weeks from the date of receipt of copy of this Judgment. 20. On such deposit, the first respondent/first petitioner is permitted to withdraw her share. Therefore the appellant is directed to deposit the entire award amount with 9% interest and costs within a period of four weeks from the date of receipt of copy of this Judgment. 20. On such deposit, the first respondent/first petitioner is permitted to withdraw her share. With regard to share of the minor respondents 2 to 4/petitioners 2 to 4, the Tribunal is directed to deposit the same in Fixed Deposit in any one of the nationalised banks till they attain majority and the 1st respondent/1st petitioner is permitted to withdraw the quarterly interest from the bank for the maintenance of minor respondents 2 to 4/petitioners 2 to 4. No costs.