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2013 DIGILAW 3428 (MAD)

National Insurance Co, Ltd v. Saraswathi

2013-09-20

C.S.KARNAN

body2013
Judgment : 1. The appellant / second respondent has preferred the present appeal against the judgment and decree dated 25.02.2008, made in M.C.O.P.No.944 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court-V), Tirupur at Coimbatore. 2. The short facts of the case are as follows:- The petitioners, who are the wife, sons and daughter of the deceased Ramasamy, had filed a claim petition in M.C.O.P.No.944 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court-V), Tirupur at Coimbatore, against the respondents, claiming a compensation of Rs.12,00,000/- for the death of the said Ramasamy in a motor vehicle accident. 3. It was submitted that on 27.03.2004, at about 02.45 hours, when the deceased Mani was proceeding in a Qualis car bearing registration No.TN39 S7953, along with others from north to south, on Dindigul-Madurai N.H.7 Main Road and when the vehicle was near Pallapatty Pirivu, the first respondent's bus bearing registration No.KL9 K6351, coming in the opposite direction and driven in a rash and negligent manner, dashed against the car and caused the accident. As a result, the deceased and others had sustained grievous injuries and were admitted at Government Hospital, Dindigul, but in spite of treatment, the deceased and two others succumbed to their injuries. At the time of the accident, the deceased Ramasamy was aged about 58 years and was working as a Block Development Officer, at Panchayat Union Office, Tiruppur and earning Rs.12,115/- per month. Hence, the petitioners had filed the claim petition against the respondents, who are the owner and insurer of the bus bearing registration No.KL9 K6351. 4. The second respondent Insurance Company, in their counter statement, had submitted that as the first respondent's bus bearing registration No.KL9 K6351, was not covered under a valid permit to ply on the roads in Tamil Nadu and as the first respondent had violated the policy conditions of insurance, only the first respondent is liable to pay compensation. It was submitted that the accident was caused only due to the rash and negligent driving by the driver of the car bearing registration No.TN39 N7953 and as such the claim is bad for non-joinder of the owner and insurer of the car as necessary parties in the claim. It was submitted that the accident was caused only due to the rash and negligent driving by the driver of the car bearing registration No.TN39 N7953 and as such the claim is bad for non-joinder of the owner and insurer of the car as necessary parties in the claim. It was submitted that the petitioners should prove that the driver of the car had a valid driving licence and that the car was covered under a valid file and insurance police at the time of accident. The averments made in the claim petition regarding age, income and occupation of the deceased was also not admitted. It was submitted that the claim was excessive. 5. On considering the averments of both sides, the Tribunal had framed three issues namely: i. Due to whose negligence was the accident caused? ii. Are the owner and insurer of the car bearing registration No.TN39 L7953 necessary parties in the claim? Is the petition liable to be dismissed due to the non-joinder? and iii. Are the petitioners entitled to get compensation? If so, what is the quantum? 6. On the petitioners' side eight witnesses were examined as P.Ws.1 to 8 and 22 documents were marked as Exs.P1 to P22 namely FIR, postmortem report of Mani, death and legal heir certificate of Mani, postmortem report, death and legal heir certificate of Mani relating to M.C.O.P.No.943 of 2004, salary certificate of Mani in M.C.O.P.No.943 of 2004, salary certificate of Mani in M.C.O.P.No.943 of 2004 issued by Velan Textiles, postmortem report, death and legal heir certificate, salary certificate of Ramasami, attendance register, salary register of Mani in M.C.O.P.No.944 of 2004, salary particulars of Ramasamy, R.C.Book, insurance policy of the car, driving licence of the Mani, power of attorney letter given to P.W.8 to adduce evidence and copy of saral and statement. On the respondents' side one witness was examined as R.W.1 and one document was marked as Ex.R1 namely receipt for Rs.7,070/-. 7. In the same accident, two other claims had been filed by the legal heirs of the deceased persons, who had travelled in the car, in M.C.O.P.Nos.829 and 943 of 2004, claiming compensation from the same respondents. On the request made by the counsels for their respective petitioners, through a joint memo, a joint trial was conducted and common evidence was recorded in M.C.O.P.No.829 of 2004. 8. On the request made by the counsels for their respective petitioners, through a joint memo, a joint trial was conducted and common evidence was recorded in M.C.O.P.No.829 of 2004. 8. P.W.1/first petitioner in M.C.O.P.No.829 of 2004 had adduced evidence, which is corroborative of the statements made in the complaint regarding manner of accident and in support of her evidence, she had marked Ex.P1 FIR. On scrutiny of Ex.P1, it is seen that FIR had been registered against the bus driver based on the complaint given by one Thiyagarajan, who was examined as P.W.7. 9. P.W.7 had adduced evidence that on the day of occurrence of the accident, when he, one Duraisamy and Palanisami, were proceeding in an Ambassador Car and when one B.D.O.Ramasami, Assistant B.D.O.Thirumalaisami, Chairman Palanisami and Writer Mani along with the driver Mani were proceeding in a Qualis Car, on Dindigul-Madurai N.H.Road and nearing Pallapattipirivu, the first respondent's bus bearing registration No.KL9 K6351, coming in the opposite direction and driven in a rash and negligent manner, had dashed against the Qualis Car, due to which the said B.D.O. Ramasami, Arusami, Palanisami, Mani and the driver Mani had died on the spot. 10. Hence, the Tribunal on relying on the evidence of P.W.7 and on the oral and documentary evidence and on considering that no evidence had been let in on the part of the respondents side to rebut the claim of P.W.7 regarding manner of accident, held that the accident had been caused by the rash and negligent driving of the driver of the first respondent's bus and hence held that claim need not be dismissed for the nonjoinder of the owner and insurer of the Qualis car as necessary parties. 11. P.W.3, who is the first petitioner in M.C.O.P.No.944 of 2004 and wife of the deceased Ramasami had further adduced evidence that her husband Ramasamy was aged 58 years and that he was a Block Development Officer, at Panchayat Union, Tiruppur and earning Rs.12,115/-per month. In support of her evidence, she had marked Exs.P12 and P13. 12. P.W.6 Vimalavathi, Assistant in the Panchayt Union Office at Tiruppur, had adduced evidence that the deceased Ramasamy was working as a Block Development Officer, and earning a sum of Rs.12,115/-per month and in support of her evidence she had marked Exs.P16 and P17. In support of her evidence, she had marked Exs.P12 and P13. 12. P.W.6 Vimalavathi, Assistant in the Panchayt Union Office at Tiruppur, had adduced evidence that the deceased Ramasamy was working as a Block Development Officer, and earning a sum of Rs.12,115/-per month and in support of her evidence she had marked Exs.P16 and P17. On scrutiny of Ex.P17, it is seen that the income tax deducted from salary of the deceased was Rs.4,312/-per year. Hence, the Tribunal on holding that the salary of the deceased was Rs.11,750/-per month and on adopting a multiplier of 8, awarded a sum of Rs.7,92,000/-as compensation under the head of loss of income (11,750 X 2/3 X 12 X 8), Rs.30,000/-was awarded to the first petitioner under the head of loss of consortium, Rs.10,000/-was awarded to each of the petitioners 2 to 5 under the head of loss of love and affection and Rs.5,000/-was awarded for funeral expenses. In total, the Tribunal had awarded a sum of Rs.8,27,000/- as compensation to the petitioners. 13. R.W.1 Praburam Divakaran, employee of the Motor Vehicles Inspectors Office at Sankarankovil, had adduced evidence that a temporary permit had been issued for the bus bearing registration No.KLK6251 to operate in Kerala from 21.03.2004 to 27.03.2004 and as the owner had violated the permit conditions by plying the bus from Marthandam to Coimbatore along with 25 passengers, Tamil Nadu Motor Vehicle Tax of Rs.7,070/- was levied on the first respondent permitting it to ply for seven days and in support of his evidence he had marked Ex.R1. On scrutiny of Ex.R1, it is seen that the tax had been levied on 23.03.2004 and that the accident had occurred on 27.03.2004. Hence, the Tribunal held that the bus was covered under a valid permit to ply on the road at the time of accident and hence held that the second respondent liable to pay compensation. The Tribunal had directed the second respondent Insurance Company to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, with costs, within a period of one month from the date of it's order. 14. Aggrieved by the Award passed by the Tribunal, the second respondent Insurance Company has preferred the present civil miscellaneous appeal. 15. 14. Aggrieved by the Award passed by the Tribunal, the second respondent Insurance Company has preferred the present civil miscellaneous appeal. 15. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal had erred in assuming the income of the deceased at Rs.94,000/-per annum in spite of the fact that the deceased was due to retire shortly. It is also contended that the Tribunal erred in adopting multiplier of 8, without considering that the deceased would not have contributed the same amount after the date of superannuation. It is also contended that the awards passed under the heads of loss of consortium and loss of love and affection are excessive and hence it is prayed to set aside the award passed by the Tribunal. 16. The learned counsel appearing for the claimants has argued that the accident had been committed by the driver of the bus in a negligent manner and therefore a criminal case had been levelled against him for an offence under Sections 279, 337 and 304(A) I.P.C. The said bus had been insured with the appellant herein. As such, the negligence, liability and quantum of compensation had been awarded by the tribunal after considering oral and documentary exhibits marked. The deceased was 58 years old and he was working as a Block Development Officer, attached to the Panchayat Union Office, Tiruppur. The claimants had marked the salary certificate of the deceased. However, the Tribunal had not granted adequate compensation under the head of funeral expenses, loss of love and affection and transport expenses. The deceased was earning a sum of Rs.11,750/- after all deductions. However, the impugned award had been decided after considering the evidence apppriately. 17. 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 regarding negligence, liability and quantum of compensation. Further, the Tribunal had decided all the issues on the basis of FIR, salary certificate of deceased. Further, it is seen that the offending vehicle had been insured with the appellant herein. Therefore, this Court is of the view that the appeal does not have enough force to allow it. 18. Further, the Tribunal had decided all the issues on the basis of FIR, salary certificate of deceased. Further, it is seen that the offending vehicle had been insured with the appellant herein. Therefore, this Court is of the view that the appeal does not have enough force to allow it. 18. This Court has already directed the appellant Insurance Company to deposit the entire compensation amount with interest thereon, to the credit of M.C.O.P.No.944 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court-V), Tirupur at Coimbatore. 19. Now, all the claimants can withdraw their share amount, apportioned by the Tribunal, with accrued interests, lying in the credit of M.C.O.P.No.944 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court-V), Tirupur at Coimbatore, after filing a memo along with a copy of this Order. 20. In the result, this civil miscellaneous appeal is dismissed and the Judgment and decree dated 25.02.2008, made in M.C.O.P.No.944 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court-V), Tirupur at Coimbatore, is confirmed. Consequently, connected miscellaneous petitions are closed. There is no order as to costs.