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2012 DIGILAW 4589 (MAD)

S. Dhanalakshmi v. K. Subramanian

2012-11-05

C.S.KARNAN

body2012
JUDGMENT 1. The appellants/claimants had filed in M.C.O.P.No.1427 of 1995, on the file of the Motor Accident Claims Tribunal, III Additional Subordinate Judge, Trichirapalli, against the respondents and claimed a sum of Rs.4,17,500/-due to the death of the husband of the 1st appellant herein in the appeal. On 10.11.1994, at about 02.30 p.m., the 1st respondents auto bearing registration No.TTG-3606 was driven by its driver, i.e., deceased Sukumar. While the auto was crossing the unmanned railway gate at Thiruvarumbur, the said auto stopped due to mechanism failure. At that point, the "Thirupathi Express" which had come at a high speed and without sounding horn , dashed against the auto rickshaw with the result, the occupant Ramalingam @ Raman succumbed to his injuries and the auto driver also expired in the said accident. Hence, the 1st appellant, being the wife and the 2nd and 3rd appellants, being the son and daughter of the deceased driver Sukumar have filed the said claim petition against the respondents. 2. The 2nd respondent/National Insurance Company had filed counter statement and opposed the claim petition. The respondent stated that the accident had not been committed due to any act of rash and negligent driving. Further, the said auto had not been insured with the 2nd respondent. The age of the deceased and income of the deceased were also denied. 3. After, verifying the averments of both parties, the learned motor accident claims Tribunal had framed two issues viz., (1) Whether the 1st respondent's driver had committed the said accident due to his rash and negligent driving; (2) If so, what is the quantum? On the side of the claimant, the below mentioned documents have been marked viz., Ex.P1-FIR, Ex.P2-Post mortem certificate; Ex.P3-Insurance Policy Copy; Ex.P4-Driving licence of the auto driver. The 1st claimant was examined as PW.1 and the 2nd claimant was examined as PW.2. PW.1 had adduced evidence that at the time of accident, her husband's age was 32 years and that her husband was an auto driver and earning Rs.150/- per day. After considering the evidence of both parties, the learned motor accident claims Tribunal, had come to a conclusion that the 1st and 2nd respondents are liable to pay compensation. PW.1 had adduced evidence that at the time of accident, her husband's age was 32 years and that her husband was an auto driver and earning Rs.150/- per day. After considering the evidence of both parties, the learned motor accident claims Tribunal, had come to a conclusion that the 1st and 2nd respondents are liable to pay compensation. Accordingly, the learned Tribunal had fixed the deceased's income at Rs.30,000/- per annum and after deducting 1/3rd of the deceased's income and adopting a multiplier of 16' had awarded a compensation of a sum of Rs.3,20,000/-to the claimants. Besides, this the Tribunal had awarded a sum of Rs.10,000/- to the 1st claimant towards consortium. The 2nd and 3rd claimants had been given a sum of Rs.5,000/- each under the head of love and affection. In total the Tribunal awarded a sum of Rs.3,40,000/-. Further, the Tribunal had fastened the liability in the Insurance Company only 50%. As such, the Insurance Company is liable to pay a sum of Rs.1,70,000/- with interest. 4. Not being satisfied with the said award, the claimants have filed the above appeal for enhancement of compensation. On the side of the respondent, no witness and no documentary evidence. 5. The Learned counsel for the claimants/appellants submitted that the said auto involved in the accident had been duly ensured with the 2nd respondent/Insurance Company. As such, the Insurance Company is liable to pay the entire compensation amount. The learned counsel further submits that the 2nd claimant is aged about two months and the 3rd claimant is aged about five years both are minors at the time of accident. The 1st claimant is the young widow of the deceased. The learned counsel further submitted that the Tribunal fastened the liability on the 2nd respondent after discussing the 1st issue. As such, the 2nd respondent Insurance Company is liable to pay compensation. The Insurance Company merely filed an affidavit and denied the liability that the auto had not been insured with them. In order to prove the said contentions, the Insurance Company had not come forward to establish the same. As such, the Insurance Company is liable to pay the entire compensation, since the vehicle had been insured with them. 6. The Insurance Company merely filed an affidavit and denied the liability that the auto had not been insured with them. In order to prove the said contentions, the Insurance Company had not come forward to establish the same. As such, the Insurance Company is liable to pay the entire compensation, since the vehicle had been insured with them. 6. The learned counsel for the respondent submitted that the claimants ought to have produced the Insurance particulars in order to prove that the vehicle has been registered with the Insurance company. But, the complaint had failed to produce the Insurance Policy, in order to prove that the vehicle was insured and it was in force at the time of accident. 7. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award passed by the Tribunal, this Court is of the view that once the Insurance Company entered appearance and opposed the claim petition, they ought to have produced the Insurance Policy pertaining to the said vehicle. The same was not done by the Insurance Company. Further, the Insurance Company had not adduced any oral evidence supporting the contention raised by way of counter statement on behalf of the Company. Therefore, the Insurance Company, has failed to establish their liability. Hence, the Insurance Company is held liable to pay the entire compensation. Therefore, this Court confirms the award granted by the Tribunal i.e., a sum of Rs.3,40,000/-. Besides this, the Tribunal had not granted compensation under the head of funeral expenses. Therefore, this court grants a compensation of Rs.5,000/- under the said head. In total, the claimants/appellants are entitled to receive the balance compensation of a sum of Rs.1,75,000/-. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till date of deposit. 8. This Court directs the 2nd respondent/National Insurance Company, to deposit the additional compensation amount, as per this Court findings mentioned above, within a period of eight weeks from the date of receipt of this order. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till date of deposit. 8. This Court directs the 2nd respondent/National Insurance Company, to deposit the additional compensation amount, as per this Court findings mentioned above, within a period of eight weeks from the date of receipt of this order. After, such a deposit has been made into the credit of M.C.O.P.No.1427 of 2005, on the file of Motor Accident Claims Tribunal/III Additional Subordinate Judge, Trichirapalli, the 1st claimant is permitted to withdraw a sum of Rs.50,000/- with proportionate interest and the 2nd claimant viz., Ranjitha, is entitled to receive a sum of Rs.75,000/- with proportionate interest thereon and the 3rd claimant is entitled to receive a sum of Rs.50,000/-with proportionate interest after filing a memo before the Trial Court, along with a copy of this order, subject to the minor claimants attaining the age of major. 9. In the result, this Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed in M.C.O.P.No.1427 of 1995, on the file of II Additional Subordinate Judge, Thiruchirapalli, Dated 30.09.1997, is modified. No costs.