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Madras High Court · body

2013 DIGILAW 283 (MAD)

Branch Manager, Kanyakumari District v. Amutha

2013-01-10

C.S.KARNAN

body2013
Judgment 1. The appellant/2nd respondent has preferred the present appeal in C.M.A. (MD).No.936 of 2011, against the judgment and decree passed in M.C.O.P.No.931 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.2, Madurai. 2. The petitioners, who are the legal heirs of the deceased V. Packiaraj, have filed the claim in M.C.O.P.No.931 of 2005, claiming a compensation of a sum of Rs.15,00,000/-from the respondents, for the death of the said Packiaraj in a motor vehicle accident. It was submitted that on 24.05.2004, the(deceased) Packiaraj traveled in the 1st respondents motor cycle namely TVS-Max-100-R bearing registration No.TN-58E-3274, driven by one Soundarapandian, on the Kallupatti to Periyar main road and at around 10.30 p.m., when they were nearing chatrapatti Village, the tractor bearing registration No.TN-58-0650 belonging to the 5th respondent and the trailer bearing registration No.TN-60-5803 belonging to the 3rd respondent, attached to the tractor was going in front of the two wheeler. The said tractor and trailer was driven by its driver in a rash and negligent manner at a high speed and all of a sudden, due to sudden application of brake, the tractor and trailer was stopped abruptly, resulting in the two wheeler which was plying behind the tractor, dashed against the tractor. In the said impact, the deceased was thrown from the vehicle and he sustained grievous and multiple injuries all over the body. He was immediately admitted at the Jawahar Hospital, Madurai and was given treatment till 25.07.2004. In spite of tretment, he died on 25.07.2004. At the time of accident, the deceased Packiaraj was carrying on business in Mosaics and Marbles and was earning Rs.8,000/-per month. Hence, the petitioners, who are the wife, children, parents, sister and brother of the deceased Packiaraj have filed the claim as against the 1st to 6th respondents. The 1st respondent is the owner of the two wheeler and the 2nd respondent is the insurer of the two wheeler. The 5th respondent is the owner of the tractor bearing registration No.TN-58-0650 and the 6th respondent is its insurer. The 3rd respondent is the owner of the trailer bearing registration No.TN-60-5803 and the 4th respondent is its insurer. 3. The respondents 1,3 and 5 were set ex-parte by the tribunal vide its order dated 27.11.2006 and 17.09.2007. 4. The 5th respondent is the owner of the tractor bearing registration No.TN-58-0650 and the 6th respondent is its insurer. The 3rd respondent is the owner of the trailer bearing registration No.TN-60-5803 and the 4th respondent is its insurer. 3. The respondents 1,3 and 5 were set ex-parte by the tribunal vide its order dated 27.11.2006 and 17.09.2007. 4. The 2nd respondent, in his counter has denied the averments in the claim regarding manner of accident, age of the deceased and loss of earning. It was submitted that the vehicle bearing registration No.TN-58E-3274, was driven by the deceased Packiaraj, who did not have a valid driving licence and not driven by T. Soundararajan as alleged in the claim. It was submitted that under the policy taken for the vehicle bearing registration No.TN-58E-3274, coverage is extended to only the owner of the vehicle and not for the third party who drives the vehicle with pillion rider. It was submitted that the claim was excessive. 5. The 4th respondent, in his counter has denied the averments in the claim regarding manner of accident, age of the deceased and claims towards mental agony, loss of love and affection and loss of earning. It was submitted that only the trailer was insured with the respondent and not the tractor. It was submitted that as per the statement of the 5th respondent, when the tractor bearing registration No.TN-58-0650 was proceeding from Periyar to Kallupatti and was nearing Kallupatti, left side tyre was punctured and after mending it, when he was about to move the tractor, one person during the motorcycle had rashly and negligently dashed against the tractor and fallen down. As per F.I.R given by one Ponnusamy, brother-in-law of the deceased, it is stated that the deceased Packiaraj alone drove the motor cycle, but in the claim it has been stated that rider was one Soundararajan. It was submitted that the accident occurred due to the rash and negligent riding by the rider of the motor cycle bearing registration No.TN-58E-3274. It was submitted that there was collusion between the petitioners and the owners, driver of the motor cycle besides others, who were compelled to give statements before the police. Hence, it was prayed to dismiss the claim as against the 4th respondent. 6. It was submitted that there was collusion between the petitioners and the owners, driver of the motor cycle besides others, who were compelled to give statements before the police. Hence, it was prayed to dismiss the claim as against the 4th respondent. 6. The 6th respondent, in his counter has denied the averments in the claim regarding manner of accident, age of the deceased and claims towards mental agony, loss of love and affection and loss of earning. It was submitted that on the date of accident, there was no insurance coverage for the tractor and as such the 6th respondent cannot be held liable to indemnify the 5th respondent, in respect of liability arising out of the accident. It was submitted that the driver of the two wheeler was not maintaining adequate and safe distance between his vehicle and the on going tractor and as such the driver of the two wheeler was unable to stop his vehicle in time and consequently dashed it against the rear portion of the trailer. It was submitted that the driver of the tractor had not been negligent as alleged in the claim and that the accident had occurred only due to the rash and negligent driving by the rider of the two wheeler. It was submitted that the claim was excessive. 7. The Motor Accident Claims Tribunal framed three issues for consideration in the case namely: (1) Whether the accident was caused due to the rash and negligent driving by the driver of the tractor, bearing registration No.TN-58-0650 belonging to the 5th respondent and trailer bearing registration No.TN-60-5803, belonging to the 3rd respondent and (2) Are the petitioners entitled to get compensation?; (3) To what relief are the petitioners entitled to get? 8. 8. On the petitioners side, three witnesses were examined and 29 documents were marked exs.P1 to P29 namely: Ex.P1-F.I.R; Ex.P2-copy of charge sheet; Ex.P3-post mortem report dated 26.07.2004; Ex.P4-Motor Vehicle Inspector's Report for trailer bearing registration No.TN-60/5803; Ex.P5-copy of judgment passed in C.C.No.43/2005 on the file of the Judicial Magistrate , Thirumangalam, dated 30.08.2005; Ex.P6-accident register issued by Jawahar hospital dated 24.07.2004; Ex.P8-prescriptions; Ex.P9-school transfer certificate of the deceased; Ex.P10-medical bills; Ex.P11-family card for period from 1998-2003; Ex.P12-proceeding of the District Collector, Madurai dated 05.02.2002; Ex.P13-copy of letter addressed by District Collector to Canara bank, Athipatti dated 10.12.2001; Ex.P14-form of way bills; Ex.P15-xerox copies of orders; Ex.P16-receipts for purchase of marbles; Ex.P17-bank loan card; Ex.P18-notice issued by Panchayat; Ex.P19-visiting card; Ex.P20-bills showing the running of Mosaic Company; Ex.P21-bills of cell phone; Exs.P22 and P23-school card in the name of Ramesh; Ex.P24-RC book; Ex.P25-policy of vehicle belonging to the 1st respondent; Ex.P26-driving licence; Ex.P27-policy of trailer; Ex.P28-copy of RC book of trailer; Ex.P29-RC book of tractor. On the respondent's side, four witnesses were examined and five documents were marked as exhibits R1 to R5 namely Ex.R1-Insurance policy of vehicle bearing registration No.TN-59E-3274; Ex.R2-copy of RC book of tractor; Ex.R3-investigation report of insurance company; Ex.R4-copy of lawyers notice to Muniyandi dated 25.02.2008 and Ex.R5-returned cover. 9. PW.2, Muniasamy, the eyewitness to the accident had adduced evidence that on 24.05.2004, around 10.30 p.m., when he was walking near the bridge situated on the western side of the T. Kallupatti to Periyar road from west towards east, he had seen the tractor (registration No.TN-58-0650) and Trailer (registration No.TN-60-5803) coming on the same road proceeding from west towards east and that a two wheeler, driven by one Soundarapandian along with the deceased Packiaraj as pillion rider, was also coming behind in the same direction and that due to the sudden application of brakes by the driver of the tractor and trailer and stopping of the tractor-trailer, the rider of the two wheeler lost his control and dashed the motor cycle against the tractor and in the impact, the pillion rider was thrown out and sustained grievous injuries. He deposed that the accident took place due to the fault of the drivers of both the vehicles. 10. He deposed that the accident took place due to the fault of the drivers of both the vehicles. 10. PW.1, Amutha, the wife of the deceased had also adduced evidence which is in similar lines to the evidence of PW.1 as regards the manner of accident and in support of her evidence, she had marked Exs.P1 to P5. It is seen on scrutiny of Ex.P5, that the driver of the tractor cum trailer had admitted his guilt and paid the fine. 11. RW.1, Murugan, one of the Officers of the 2nd respondent's firm had adduced evidence that as per the policy taken for the two wheeler i.e., Ex.R1 as no additional premium had been paid to extend coverage to the pillion rider, the 2nd respondent cannot be held liable to pay any compensation. In the written arguments filed by the 2nd respondent it was also argued that PW.2 during cross examination had admitted that there was no light in the occurrence place and that he saw the collusion of vehicles only after hearing the sound and as such he could not have seen how the accident had occurred. 12. RW.2, Thiru. Elangovan, the official from the Regional Transport Corporation, Madurai south, had adduced evidence that the driver of the tractor did not have a licence to drive the tractor at the time of accident. 13. RW.4, Thiru. Muniyandi, the owner of the tractor, had adduced evidence that he did not have a valid driving licence to drive the tractor at the time of accident and that the tractor had not been insured with the 6th respondent at the time of accident. He had also deposed that he had admitted his guilt before the criminal court and paid the fine. 14. The Tribunal, on scrutiny of the evidence of PW.2, observed that he could not have witnesses the accident, even if he was present at the place of occurrence, at the time of accident, on scrutiny of Ex.P1-F.I.R, the Tribunal opined that the complainant was not the eye witness to the said accident and his statements before the police is only hearsay and it cannot be looked into. The Tribunal, on scrutiny of evidence of RW.4, observed that though he had stated that he paid the fine for non holding of driving licence and parking the tractor on the road, the documentary evidence shows that he was charged the offence under sections 279, 304(a) of IPC only for which he paid the fine. Hence, the Tribunal, on scrutiny of the oral and documentary evidence, held that the accident occurred due to the rash and negligent act of both the drivers of the said vehicles (i.e., the tractor and trailer as well as the two wheeler) as the two wheeler hit the tractor on the rear side. 15. The Tribunal opined that even if the version of the petitioners that the driver of the tractor and trailer suddenly stopped the tractor and as such the rider of the two wheeler coming behind the tractor, dashed his two wheeler against the tractor is taken as correct, there is negligence on the part of the rider of two wheeler, as he has to keep the minimum distance from the vehicle proceeding in front of it. Further, the Tribunal, opined that even if the version of RW.4 is taken as true and that he had parked the trailer on the side of the road, after removing it from tractor, there is negligence on the part of RW.4, as the driver of the tractor had parked the tractor without putting proper lights on the sides for view. Hence, the Tribunal, held that the accident had been caused by negligence of both the drivers of said vehicles and apportioned the negligence equally i.e., 50:50 among the drivers of the said two vehicles. 16. On scrutiny of Ex.P25 and Ex.R1 marked through RW.1, it is seen that the insurance policy for the two wheeler was in force at the time of accident and that it was a package policy. The Tribunal on considering that at the time of accident, the tractor had not been insured with the 6th respondent dismissed the claim as against the 6th respondent and held the 1st and 2nd respondents liable to pay 50% of the award amount with accrued interest. The Tribunal on considering that at the time of accident, the tractor had not been insured with the 6th respondent dismissed the claim as against the 6th respondent and held the 1st and 2nd respondents liable to pay 50% of the award amount with accrued interest. As RW.4, the driver of the offending vehicle was not having any valid licence during occurrence of the accident, the tribunal, on holding that there is clear violation of policy conditions, held that the 4th respondent is not liable to indemnify the 3rd respondent, as the trailer was attached with the tractor and as such dismissed the claim against the 4th respondent and held the 3rd and 5th respondents jointly and severally liable to pay 50% of the award amount. 17. PW.1, had further adduced evidence that the deceased was the owner of Annai Mosaics and Marbles and was earning Rs.8,500/-per month. Though the petitioner has marked several documents under Ex.P12 to Ex.P21 to show that the deceased was running the said firm, no document has been filed regarding his income. Hence, the tribunal on considering the nature of work done by the deceased, fixed the notional income of the deceased as Rs.6,000/-per month. On scrutiny of Ex.P9 and Ex.P11, it is seen that the age of the deceased was 29 years on the date of accident. Hence, the Tribunal, on adopting a multiplier of 17' awarded a compensation of Rs.8,16,000/-(Rs.6,000/-x2/3x12x17) to the petitioners under the head of loss of income. There is no dispute that the deceased survived for some period after the accident and in this regard, the petitioners incurred some expenses. The tribunal, on scrutiny of Exs.P7, P8 and P10 observed that the petitioner did not file the final bills and only the advance bills were produced. Hence, the Tribunal on considering the nature of injuries sustained by the petitioner and the period of treatment undergone by the deceased before his death, awarded a sum of Rs.1,00,000/-under the head of medical expenses. The Tribunal further awarded a sum of Rs.10,000/- to the 1st petitioner under the head of loss of consortium and Rs.5,000/- each to the other petitioners under the head of loss of love and affection. Rs.10,000/- was awarded towards funeral expenses. In total, the Tribunal awarded a sum of Rs.9,66,000/-as compensation to the petitioners. The Tribunal further awarded a sum of Rs.10,000/- to the 1st petitioner under the head of loss of consortium and Rs.5,000/- each to the other petitioners under the head of loss of love and affection. Rs.10,000/- was awarded towards funeral expenses. In total, the Tribunal awarded a sum of Rs.9,66,000/-as compensation to the petitioners. However, the tribunal held that the 6th and 7th petitioners being the sister and brother of the deceased are not the legal heirs of the deceased and hence did not apportion any award for them. The Tribunal, directed the 2nd respondent to pay 50% of the total award amount along with interest at the rate of 9% per annum from the date of claim till date of deposit within two months from the date of receipt of the copy of the order failing which the 2nd respondent was directed to pay the said sum together with interest at the rate of 12% per annum from the stipulated period of payment. Likewise, the 3rd and 5h respondents jointly and severally were directed to deposit 50% of the award amount along with interest of the rate of 9% per annum from the date of filing the petition till date of deposit within two months from the date of its order failing which they were directed to pay the said award together with interest at the rate of 12% per annum from the stipulated period of payment. 18. Aggrieved by the award passed by the Tribunal, the 2nd respondent/United India Insurance Company Limited, Kanyakumari District has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the tribunal has misdirected itself in not accepting the recitals of F.I.R, which is the earliest document, in which, it is stated that the deceased Packiaraj had ridden the motor cycle bearing registration No.TN-58E-3274 at the time of accident and which document the claimants rely for the factum and manner of accident. It was contended that the claims tribunal after having found that the rider of the motor cycle had also contributed to the case of accident, ought to have held that the claimants are not entitled to get compensation against the appellant herein for the tortious act committed by the deceased Packiaraj. It was contended that the claims tribunal after having found that the rider of the motor cycle had also contributed to the case of accident, ought to have held that the claimants are not entitled to get compensation against the appellant herein for the tortious act committed by the deceased Packiaraj. It was pointed out that the claims tribunal has also failed to render a definite finding as to the manner and cause of the said accident. It was also submitted that the claims tribunal has failed to give credence to the facts that the driver of the tractor cum trailer was alone prosecuted by the police for rash and negligent driving and that the said driver pleaded guilty of the said offence before the criminal court. It was contended that the claims tribunal has failed to note that the claimants have pleaded that the driver of tractor cum trailer had driven it in a rash and negligent manner, with great speed and that the said accident had happened only due to the rash and negligent act of the driver of the tractor cum trailer during the course of his employment and therefore the respondents 9 and 11 are vicariously liable to pay compensation. It was also pointed out that the claims tribunal has also failed to note that RW.4, the owner of the tractor had admitted that he was not holding driving licence to drive the suit tractor cum trailer aid that he was prosecuted by the police for driving the suit motor vehicle without driving licence which should be the probable cause for the suit accident. It was contended that the claims tribunal has grossly erred in rendering a finding that the suit accident happened due to the negligence of both the drivers of tractor cum trailer and motor cycle fixed the ratio as 50:50, ignoring the admitted fact that the suit accident happened at 10.30 p.m., due to RW.4's negligence act of stationing the trailer on the road without putting up any signal to caution the on coming vehicles and consequently erred to find that RW.4, the driver of the tractor cum trailer alone could be made responsible for the suit accident. It was also contended that the tribunal failed to see that the 10th respondent had not proved the alleged RW.4's violation of conditions of policy of insurance issued by it and that the 12th respondent had not proved the absence of coverage of the tractor bearing registration No.TN-58/0650 on the date of suit accident by letting in acceptable documentary evidence and as such the tribunal's order of dismissal of claim against the respondents 10 and 12 is arbitrary, perverse and bereft of evidence and proof. It was also pointed out that the fixation of notional income the deceased as Rs.6,000/- per month by the tribunal was erroneous as the claimants have not filed any document for proof of income of the deceased Packiaraj. It was contended that the multiple of 17' adopted by the tribunal was high and that the award granted for loss of dependency, medical expenses and funeral expenses were on the higher side. Hence, it was prayed to set aside the award passed by the tribunal. 19. On considering 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 said award, in the conclusions arrived at regarding liability and quantum of compensation. Hence, this Court declines to interfere with the impugned award. As per the records of this Court, it is seen that this Court directed the appellant on 08.08.2011, to deposit 50% of the award amount. Now, this Court directs the appellant to pay the balance compensation amount, as per the ratio fixed by the Tribunal, with accrued interest thereon, within a period of four 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 the date of payment of compensation. The Tribunal had fixed the ratio of interest as 9%. It has been modified by this Court to 7.5% per annum. 20. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. The Tribunal had fixed the ratio of interest as 9%. It has been modified by this Court to 7.5% per annum. 20. After such deposit has been made, it is open to the claimants to withdraw their apportioned share amount, with accrued interest thereon, as fixed by the tribunal, lying in the credit of M.C.O.P.No.931 of 2005, on the file of Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. II, Madurai, after filing a memo along with a copy of this order. This Court further directs the learned tribunal to deposit the 2nd and 3rd minors apportioned share of award amount, with accrued interest thereon, in a nationalized bank, as fixed deposit in the cumulative deposit scheme till they attain the age of a major and hand over the fixed deposit certificates to the mother of the minor claimants i.e., the 1st claimant in the claim petition, 21. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.931 of 2005, on the file of Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. II, Madurai, is confirmed, dated 31.07.2009.No costs.