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2013 DIGILAW 175 (MAD)

National Insurance Company Limited v. Rani

2013-01-08

C.S.KARNAN

body2013
JUDGMENT 1. The appellant/2nd respondent has preferred the present appeal in C.M.A. (MD).No.1390 of 2009, against the judgment and decree passed in M.A.C.O.P.No.1206 of 2001, on the file of the Motor Accident Claims Tribunal, III Additional Subordinate Court, Tiruchirappalli. 2. The petitioners, who are the legal heirs of the (deceased) Vellusami, have filed the claim in M.A.C.O.P.No.1206 of 2001, claiming a compensation of a sum of Rs.4,00,000/- from the respondents, for the death of the said Vellusami, in a motor vehicle accident. It was submitted that on 29.01.2001, the deceased Velusami had driven the lorry bearing registration No.TN-25/1006 from Kondayampettai to Trichy and carried out repairs in the lorry. At about 03.00 p.m., the other driver of the lorry namely Sekar took charge of the vehicle and when the deceased Velusami was removing the block fixed in front of the tyre of the lorry, the driver Sekar, suddenly started the lorry in a rash and negligent manner and drove the lorry from north towards south. Due to this, the (deceased) Velusami was trapped under the front tyre of the lorry and the tyre rolled over his hip. He sustained fracture injuries on his hip bone and sustained injuries in the vital parts of his body. He was immediately taken to Trichy Government Hospital and after receiving treatment was admitted at Panneer Nursing Home, as an inpatient. In spite of treatment, the deceased died on 21.01.2003. Initially, the injured Velusami had filed the claim against the respondents for the injuries sustained by him in the accident and subsequently after his death, the petitioners have been added as necessary parties and they have filed the said claim against the 1st and 2nd respondents who are the owner and insurer of the lorry bearing registration No.TN-25/1006. At the time of his death, the deceased was aged 41 years and he was employed as a driver and earning Rs.6, 000/- per month. 3. The 2nd respondent, in his counter has denied the averments in the claim regarding the age, income and occupation of the deceased as well as the manner of accident. At the time of his death, the deceased was aged 41 years and he was employed as a driver and earning Rs.6, 000/- per month. 3. The 2nd respondent, in his counter has denied the averments in the claim regarding the age, income and occupation of the deceased as well as the manner of accident. It was submitted that the accident took place in the January 2001 and that the (deceased) had died on January 2003 and that as the deceased had died only after two years from the date of accident, it is evident that he had not died due to the injuries sustained in the accident. The averments in the claim regarding nature of treatment taken and medical expenses incurred were also not admitted. It was also submitted that the 1st respondent’s vehicle had not been insured with the 2nd respondent at the time of accident and that the 1st respondent's lorry driver did not have a valid licence at the time of accident. It was submitted that the claim was excessive. 4. The Motor Accident Claims Tribunal framed two issues for consideration in the case namely: (1) Was the accident caused due to the rash and negligent driving of the 1st respondent's lorry driver? (2) Are the petitioners entitled to get compensation? If so, What is the quantum? 5. On the petitioner's side, two witnesses were examined and three documents were marked as Exs.P1, P2 and P3 namely Ex.P1-F.I.R dated 30.01.2001; Ex.P2-copy of accident register and Ex.P3-copy of judgment of criminal court. On the respondent's side, no witness, no documents. 6. PW.2, Krishnamoorthy, the eyewitness to the accident had adduced evidence that on 29.01.2001, at about 03.00 p.m., the (deceased) Velusami and the said Sekar, after repairing their lorry bearing registration No.TN-25-/1006 at Trichy had carried out service of lorry at Raja Petrol Bunk, Kondayampettai. When the deceased Velusami was in the process of removing the log placed under the front tyre of the lorry, the said sekar who was driving the lorry had rashly and negligently started the lorry and taken in from north towards south due to which the (deceased) was trapped under the tyre of the lorry. He deposed that the lorry over the hip of the (deceased) Velusami and that he sustained fractures of bones in his hip and other injuries in his vital organs. He deposed that the lorry over the hip of the (deceased) Velusami and that he sustained fractures of bones in his hip and other injuries in his vital organs. He deposed that he came to know that the (deceased) had subsequently died. 7. Though it was contended on the side of the respondents, that the accident had occurred only due to negligence of the deceased Velusami, the respondents had not examined the driver of the 1st respondent's lorry to prove their contentions. It is seen that the F.I.R regarding the above accident had been registered after two days from the date of accident. It is seen on scrutiny of F.I.R that the statements made in the F.I.R regarding mode of accident is on similar lines to the statements contained in the evidence of PW.2. It is seen on scrutiny of Ex.P3, Criminal Court judgment that the driver of the 1st respondent's lorry had admitted his guilt and paid the fine. Hence, the Tribunal, on scrutiny of Ex.P1 to P3 and on scrutiny of evidence of PW.2 and on considering that no witnesses or documentary evidence marked on the part of the respondents had been examined to rebut the averments made in the claim regarding manner of accident, held that the accident had been caused by the rash and negligent driving of the 1st respondent's lorry driver. 8. The Tribunal on scrutiny of Ex.P2, wound certificate observed that the injuries sustained by the (deceased) Velusami were a grievous one. Though no post mortem report had been marked on the side of the petitioners to prove that the deceased had died only due to injuries sustained in the said accident, the tribunal on observing that the deceased had taken treatment at the Government Hospital from 29.01.2001 to 02.02.2001 and on considering that the injuries sustained by the deceased in his vital organs was grievous in nature, held that the deceased had died only due to the injuries sustained in the said accident. The Tribunal, on considering that the deceased was aged 41 years and on taking a notional income of Rs.3,000/-per month as the income of the deceased and on adopting a multiplier of 15', awarded a compensation of Rs.3,60,000/-(Rs.3,000x2/3x12x15) to the petitioners under the head of loss of income. The Tribunal, on considering that the deceased was aged 41 years and on taking a notional income of Rs.3,000/-per month as the income of the deceased and on adopting a multiplier of 15', awarded a compensation of Rs.3,60,000/-(Rs.3,000x2/3x12x15) to the petitioners under the head of loss of income. The Tribunal awarded a sum of Rs.10,000/- to the 2nd petitioner under the head of loss of consortium; Rs.10,000/- towards loss of love and affection to the 3rd, 4th and 6th petitioners; Rs.5,000/- towards transport expenses and Rs.5,000/- towards funeral expenses. PW.1 had adduced evidence that the 5th petitioner was her husband's 2nd wife. Hence, the tribunal held that the 5th petitioner is not entitled to get any compensation. In total, the Tribunal awarded a total compensation of Rs.3,90,000/-to the petitioners and directed the respondents to jointly or severally deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of deposit, within two months from the date of its order. 9. Aggrieved by the award passed by the Tribunal, the 2nd respondent has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the tribunal erred in coming to the conclusion that Velusamy died on 21.12.2003, due to the injuries sustained by him in an accident that occurred on 29.01.2001 and that the Tribunal failed to see that no document was filed to prove that Velusamy was given treatment till the date of his death. It was contended that the tribunal failed to see that no autopsy was conducted and report was filed, the cause of death could not be conclusively and authentically ascertained. It was contended that the Tribunal failed to see that no doctor was examined to prove the gravity of injuries sustained by Velusamy and no document was produced as to the treatment given. It was contended that the award was excessive. 10. On considering the facts and circumstances of the case and arguments advanced by the learned counsels for the appellant and on perusing the impugned award of the tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding liability and quantum of compensation. This Court is of the further opinion that the deceased had sustained bone fracture injuries in his hip and also below his abdomen. This Court is of the further opinion that the deceased had sustained bone fracture injuries in his hip and also below his abdomen. Considering the nature of injuries, it is evident that the cause of his death was only due to the injuries sustained by him in the said accident. 11. On 22.12.2009, this Court directed the appellant to deposit 50% of the award amount, with proportionate interests and costs. 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. 12. After such deposit has been made, it is open to the claimants to withdraw their apportioned share amount, as per the ratio fixed by the Tribunal, lying in the credit of M.C.O.P.No.1206 of 2001, on the file of the Motor Accident Claims Tribunal, III Additional Subordinate Court, Tiruchirappalli, after filing a memo, along with a copy of this order. 13. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.A.C.O.P.No.1206 of 2001, on the file of the Motor Accident Claims Tribunal, III Additional Subordinate Court, Tiruchirappalli,is confirmed, dated 28.03.2007. No costs.