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2013 DIGILAW 17 (MAD)

Oriental Insurance Company Limited v. Rasu

2013-01-02

C.S.KARNAN

body2013
Judgment 1. The respondents/claimants have filed a claim petition in M.C.O.P.No.561 of 2007, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Kumbakonam, for claiming compensation a sum of Rs.5,00,000/-with interest against the appellant/respondent, stating that at about 09.30 a.m., on 26.07.2007, the 1st claimant's wife viz., Pachaiammal and her son, the 2nd claimant were proceeding on the Kalyanapuram to Poompuhar road, in order to work as coolies and at that point of time, the rider of the motor cycle had driven his vehicle bearing registration No.TN-51S-8451 at a high speed and in a rash and negligent manner, from the opposite direction and dashed against the (deceased) Pachaiammal and her son Raja, who is the 2nd claimant in the above said original petition. In the impact, the deceased Pachaiammal died and the 2nd claimant Raja also sustained grievious injuries. Hence, the claimants had levelled the claim petition against the respondents and sought compensation. 2. The 2nd respondent/Oriental Insurance Company had filed a counter statement. It was admitted that the offending vehicle was insured with their company, that the rider of the motor cycle did not have a valid driving licence. It was also submitted that the vehicle was not worthy to ply on the road. The averments in the claim regarding age, income of the deceased was also denied. Further, the respondent did not admitted that the petitioners are the sole legal heirs of the deceased. It was submitted that the claim was excessive. 3. On the averments of the both parties, the Tribunal had framed three issues for determining liability, quantum and interest. On the side of the claimants five documents were marked namely: F.I.R, Post mortem certificate, Motor Vehicle Inspector's Report, Accident register and Insurance policy. The claimants 1 and 2 were examined as PW.1 and PW.2. On the side of the respondent, two witnesses were examined as RW.1 and RW.2 and two documents were marked namely Ex.R1. Driving licence, Ex.R2-insurance policy. 4. PW.1, had adduced evidence that the deceased Pachaiammal was his wife and mother of the other claimants. He deposed that on 26.07.2007, when she and her son Raja was proceeding on the Kalyanapuram-Poompuhar road for doing coolie work and about 09.30 a.m., the 1st respondent's vehicle coming in the opposite direction had dashed against his wife and she had succumbed to her injuries on the way to hospital. 5. He deposed that on 26.07.2007, when she and her son Raja was proceeding on the Kalyanapuram-Poompuhar road for doing coolie work and about 09.30 a.m., the 1st respondent's vehicle coming in the opposite direction had dashed against his wife and she had succumbed to her injuries on the way to hospital. 5. PW.2, had adduced evidence which is corroborative with the evidence of PW.1 as regard, the manner of accident. In support of their evidence, PW.1 and PW.2 have marked the above mentioned documents. 6. RW.2, who was attached to the RTO Office, had adduced evidence stating that the rider of the motor cycle did not have a valid driving licence. After considering the evidence of both sides and on perusing the documents marked by them, the Tribunal had awarded a sum of Rs.3,09,600/- as compensation to the petitioners with interest at the rate of 7.5% per annum. Aggrieved by the said award and decree, the insurance company has filed the above appeal. 7. The learned counsel for the appellant argued that the rider of the motor cycle did not possess a valid driving licence and as such the liability should be fastened only on the owner of the vehicle and not on the appellant. It was contended that the Tribunal had not followed the pay and recovery principle in the instant case. The Tribunal, in the absence of documentary proof had fixed the income of the deceased as Rs.2,400/-per month. The learned counsel for the claimants vehemently argued that the deceased is a middle aged woman and she was involved in the agricultural operations as a Coolie and earned a sum of Rs.3,000/- per month and extended her support to the family members consisting of six members including herself. The claimants are 5 in numbers and as such the Tribunal has to deduct the personal expenses of the deceased as 1/4th of the income and not 1/3rd as was done. The Tribunal had not awarded adequate compensation under the head of loss of love and affection. The tribunal had not awarded adequate compensation under the head of funeral expenses and loss of consortium. Hence, the learned counsel has entreated the court to dismiss the above appeal. 8. The Tribunal had not awarded adequate compensation under the head of loss of love and affection. The tribunal had not awarded adequate compensation under the head of funeral expenses and loss of consortium. Hence, the learned counsel has entreated the court to dismiss the above appeal. 8. 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 of the tribunal, this Court does not find any discrepancy in the conclusions arrived at for determining the liability and quantum of compensation. As per Court records, this Court imposed a condition on the appellant on 05.01.2012 to deposit 50% of the award amount with accrued interest thereon. Now, this Court directs the appellant to deposit the balance compensation amount, with accrued interest thereon, within a period of four weeks from the date of receipt of this order, before the Trial Court. After such deposit, the insurance company is at liberty to recover the said amount from the owner of the vehicle as per usual procedure. 9. After such deposit has been made, it is open to all the claimants to withdraw their apportioned share amount with accrued interest thereon, as per the ratio fixed by the Tribunal, lying in the credit of M.C.O.P.No.561 of 2007, on the file of Motor Accident Claims Tribunal, Additional Subordinate Court, Kumbakonam, after filing a memo along with a copy of this order, subject to deduction of withdrawals made, if any, by the claimants. 10. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.561 of 2007, on the file of Motor Accident Claims Tribunal, Additional Subordinate Court, Kumbakonam, is confirmed, dated 30.01.2010, No costs.