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2013 DIGILAW 2856 (MAD)

National Insurance Co. Ltd. , Tirunelveli v. Mary

2013-08-05

C.S.KARNAN

body2013
JUDGMENT : 1. The appellant/2nd respondent has preferred the present appeal in C.M.A.(MD).No.77 of 2005, against the judgment and decree passed in M.C.O.P.No.986 of 2000, on the file of the Motor Accidents Claims Tribunal/Additional District Judge, Fast Track Court No.II, Tirunelveli. 2. The short facts of the case are as follows:- The petitioners, who are the wife and son of the (deceased) Gnanasamudram have filed the claim in M.C.O.P.No.986 of 2000, claiming compensation of a sum of Rs.2,00,000/-from the respondents for the death of the said Gnanasamudram in a Motor Vehicle Accident. It was submitted that on 01.04.2000 at about 22.30 hours, when the deceased and his son Selvam and son-in-law Paulraj were returning from prayer meeting to their house at Ramaiyanpatti, the 1st respondent's motorcycle bearing Registration No.TCT-7530, coming on the same road and ridden by its driver in a rash and negligent manner, dashed against the (deceased) Gnanasamudram and caused the accident. As a result, the (deceased) Gnanasamudram sustained head injuries and was brought to Tirunelveli Medical College Hospital, Palayamkottai, wherein he was declared dead. At the time of accident, the deceased was aged 58 years and was working as a Bill Collector of Tirunelveli Corporation. He was under suspension due to some dispute and he was getting subsistence allowance of Rs.2,500/-per month. He used to work in his field and earn an additional sum of Rs.1,000/- per month. Hence, the petitioners have filed the claim against the 1st and 2nd respondents, who are the owner and insurer of the motorcycle bearing Registration No.TCT-7530. 3. The 1st respondent, in his counter has submitted that the TVS Champ vehicle bearing Registration No.TCT-7530 had been insured with the 2nd respondent at the time of accident and that the policy was valid from 20.04.1999 to 19.04.2000. It was submitted that as the accident had occurred on 01.04.2000, only the 2nd respondent is liable to pay compensation. It was submitted that the rider of his vehicle, namely Vijayasankar had a valid licence to drive the TVS Champ at the time of accident and that the criminal case filed against him, the said Vijayasankar had paid the fine before the criminal Court. It was submitted that as the accident had occurred only due to the negligence of the deceased, the 1st respondent is not liable to pay compensation. It was submitted that as the accident had occurred only due to the negligence of the deceased, the 1st respondent is not liable to pay compensation. The averments in the claim that the deceased was earning Rs.3,500/-per month was also not admitted. It was submitted that the claim was excessive. 4. The 2nd respondent, in his counter has submitted that the petitioners should prove that they are the legal heirs of the deceased through documentary evidence and also prove his age, income and occupation. It was submitted that no mention had been made in the F.I.R. regarding the Registration Number of the motorcycle involved in the accident and as such the present case is a "hit and run" case. It was submitted that the claimants had colluded with the 1st respondent and made a false claim that the motorcycle bearing Registration No.TCT-7530 had been involved in the accident. As the action of the 1st respondent is in violation of the conditions of policy of Insurance, the 2nd respondent is not liable to pay compensation. It was submitted that as the rider of the 1st respondent's motorcycle namely, Vijayasankar did not have a valid driving licence to drive the vehicle at the time of accident, the 1st respondent had violated the conditions laid down in the Insurance Policy and hence the 2nd respondent is not liable to pay compensation to the petitioners. 5. The Motor Accidents Claims Tribunal framed two issues for consideration in the case namely: (1) Was the accident caused by the rash and negligent driving by the rider of the 1st respondent's vehicle? and (2) Are the petitioners entitled to get compensation? If so, what is the quantum and who is liable to pay compensation? 6. On the petitioner's side, the 2nd petitioner namely Selvam was examined as PW1 and seven documents were marked as Exhibits P1 to P7 namely, Ex.P1-F.I.R; Ex.P2-Postmortem report; Ex.P3-Motor Vehicle Inspector's report; Ex.P4-Copy of observation mahazar; Ex.P5-Rough sketch; Ex.P6-Copy of charge sheet and; Ex.P7-Identification card. On the respondents' side, three witnesses were examined and six documents were marked as Exhibits R1 to R6 namely, Ex.R1-Letter; Ex.R2-Notice; Ex.R3 and Ex.R4-Acknowledgement cards; Ex.R5-Insurance Policy and Ex.R6-Motor Vehicle Inspector's report. 7. On the respondents' side, three witnesses were examined and six documents were marked as Exhibits R1 to R6 namely, Ex.R1-Letter; Ex.R2-Notice; Ex.R3 and Ex.R4-Acknowledgement cards; Ex.R5-Insurance Policy and Ex.R6-Motor Vehicle Inspector's report. 7. RW1, Chandiran, the Administrative Officer of the 2nd respondent's firm had adduced evidence that they had sent a registered letter to the 1st respondent (Ex.R1) asking him to furnish details regarding permit and driving licence of the driver and that they had also sent another notice (Ex.R2) and that the 1st respondent had received both the notices as per acknowledgement cards marked as Exhibits R3 and R4. He further deposed that the Insurance Policy of the vehicle was marked as Ex.R5. 8. PW1, Selvam, the 2nd petitioner and the eyewitness of the accident had adduced evidence that on 01.04.2000, that when his father was proceeding on his cycle from Tirunelveli Town to Ramaiyanpatti Village through Sankarankoil and when he was near Gurunathan Temple and that when he and the son-in-law of his father were following him and proceeding on the left of the road, the 1st respondent's TVS 50 vehicle coming in the opposite direction at a high speed and in a rash and negligent manner, came on to the wrong side of the road and dashed against his father. He deposed that the motorcycle had proceeded without stopping. He deposed that his father i.e. The deceased Gnanasamudram had succumbed to his injuries while being taken to the hospital. He deposed that the F.I.R. marked as Ex.P1 had been registered based on the complaint made by him. In support of his evidence, he had marked Ex.P3 to Ex.P7. 9. RW2, Selvaraj, the 1st respondent had adduced evidence that his TVS 50 vehicle was ridden by one Vijayasankar and that he was not aware of the accident. He deposed that the said Vijayasankar had accepted his guilt and paid the fine before the criminal Court. Hence, the Tribunal on considering that the police after investigation had filed the charge sheet (Ex.P6) against the 1st respondent's vehicle driver and and that the driver had also accepted his guilt and paid the fine before the Criminal Court held that the accident had been caused by the rash and negligent riding by the driver of the 1st respondent's vehicle. 10. 10. The Tribunal, relying on judgments report in 2001 ACJ page 843 SC in New India Assurance Company Limited vs. Kamala and others and also the judgment reported in 2001 (3) Law Weekly page 367, held that the 2nd respondent, being the insurer of the 1st respondent's vehicle is liable to pay compensation for 3rd party claims and that they could recover it from the owner of vehicle, if proved that the 1st respondent had violated the policy conditions by permitting person without a valid driving licence to ride his vehicle. 11. The Tribunal on scrutiny of Ex.P2, held that the deceased was aged 58 years at the time of accident. As no documentary exhibits had been marked to show from when the (deceased) Gnanasamudram had been suspended from service as a Bill Collector from Tirunelveli Corporation and as no documents had been marked to prove that he was earning Rs.3,500/-per month, held that the notional income of the deceased was Rs.2,000/-per month. On deducting 1/3rd of this for his personal expenses and on adopting a multiplier of 8, the Tribunal awarded a sum of Rs.1,28,000/-(2,000X2/3X12X8) as compensation to the petitioner under the head of loss of income; Rs.3,000/- was awarded for funeral expenses; Rs.5,000/-was awarded under the head of loss of consortium to the 1st petitioner and Rs.5,000/- was awarded under the head of loss of love and affection to the 2nd petitioner. In total, the Tribunal awarded a sum of Rs.1,41,000/-as compensation to the petitioners and directed the 2nd respondent to pay the said sum together with interest at the rate of 9% per annum from the date of filing the petition, till date of payment of compensation, with costs, within a period of 30 days from the date of its order. 12. Aggrieved by the award passed by the Tribunal, the 2nd respondent/National Insurance Company Limited, Tirunelveli has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in holding that the TVS Champ bearing Registration No.TCT-7530 was involved in the accident in spite of the fact that PW1, the complainant had mentioned in Ex.P1, i.e. the F.I.R. as "unknown vehicle". It was contended that the Tribunal ought not to have awarded compensation against the appellant as the said accident was caused by a 'hit and run' vehicle. It was contended that the Tribunal ought not to have awarded compensation against the appellant as the said accident was caused by a 'hit and run' vehicle. It was contended that the Tribunal ought to have held that the respondents herein have colluded to get compensation from the appellant and dismissed the claim petition. It was also contended that the Tribunal ought to have drawn adverse inference against RW2/the insurer/3rd respondent herein and held that he has violated the policy condition by permitting the driver, who did not have a valid driving licence to drive the vehicle. It was contended that the Tribunal ought to have placed reliance on the judgment reported in 1994 I L.W. 567, 1997 ACJ 1065, 2001 ACJ 843 and 2004 Supreme Court 243 and held that the appellant is not liable to pay the compensation awarded. Hence, the learned counsel has prayed to set aside the award passed by the Tribunal. 13. The highly competent counsel for the claimants argued that the F.I.R. had been registered against the rider of the motorcycle and he had also admitted his guilt and paid the fine amount before the Criminal Court. The offending vehicle had been insured with the Insurance Company. Therefore, negligence and liability had been proved. Supporting this contention, F.I.R., Rough sketch and Charge sheet had been filed. The deceased was aged about 58 years and he was employed as a Bill Collector attached to the Tirunelveli Corporation. The Tribunal had not granted adequate compensation under the head of consortium, loss of love and affection and funeral expenses. 14. On verifying the factual position of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. This Court is of the further view that as per the F.I.R. and Rough sketch, it is evident that the rider of the motorcycle had committed the said accident and he had paid the fine before the Criminal Court by admitting his guilt. As per Court records, it is seen that this Court directed the appellant to deposit the entire compensation amount. 15. As per Court records, it is seen that this Court directed the appellant to deposit the entire compensation amount. 15. Now, it is open to the claimants to withdraw the entire compensation amount, with accrued interest thereon, as per ratio fixed by the Tribunal, lying in the credit of M.C.O.P.No.986 of 2000, on the file of Motor Accidents Claims Tribunal, Fast Track Court No.II, Additional District Judge, Tirunelveli, after filing a memo/short notes, along with a copy of this order. 16. In the result, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.986 of 2000, dated 12.03.2003, on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.II, Additional District Judge, Tirunelveli, is confirmed. No costs.