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2013 DIGILAW 3724 (MAD)

National Insurance Co. , Ltd. v. Alamelu

2013-10-29

C.S.KARNAN

body2013
Judgment : 1. The appellant / fifth respondent has preferred the present appeal against the judgment and decree dated 29.03.2006, made in M.C.O.P.No.403 of 2004, on the file of the Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam. 2. The short facts of the case are as follows:- The claimants, who are the wife, minor sons, mother and brother of the deceased Senthil, had filed a claim petition in M.C.O.P.No.403 of 2004, on the file of the Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam, claiming a sum of Rs.9,65,600/- as compensation, from the respondents, for the death of the said Senthil in a motor vehicle accident. 3. It was submitted that on 10.02.2003, at about 08.15 a.m., when the deceased Senthil was travelling in a minidor auto bearing registration No.TN36 E7754, as a owner of Tomato vegetable and when the auto was proceeding on Kunnathur-Gobi road, from north to south and nearing Netissipalayam division, the driver of the auto drove it in a rash and negligent manner and dashed against the Tamil Nadu State Transport Corporation Bus bearing registration No.TN33 N1526. As a result, the deceased Senthil sustained grievous injuries and died while being taken to Gobi Government Hospital. At the time of accident, the deceased was aged 29 years and he was working as an agriculturist and earning Rs.300/-per day. Hence, the claimants had filed the claim petition against the respondents. The first and second respondents are the driver and owner of the bus bearing registration No.TN33 N1526 and the third, fourth and fifth respondents are the driver, owner and insurer of the Auto bearing registration No.TN36 E7754. 4. The second respondent Tamil Nadu State Transport Corporation, in their counter affidavit, had denied the averments made in the claim petition regarding age, income and occupation of the deceased. It was submitted that the first respondent had been rash and negligent in his driving, as alleged and that the accident was caused due to the composite negligence of the deceased, who was sitting in the auto along with a large quantity of goods and the driver of the auto, who drove it in a rash and negligent manner and at a high speed. It was submitted further that the second respondent cannot be held liable to pay compensation and only the respondents 3 to 5 are liable to pay compensation to the claimants. It was submitted further that the second respondent cannot be held liable to pay compensation and only the respondents 3 to 5 are liable to pay compensation to the claimants. Further, it was submitted that the claim was excessive. 5. The fifth respondent Insurance Company, in their counter affidavit, had submitted that FIR had been filed only against the driver of the bus bearing registration No.TN33 N1526 and that the charge sheet had also been filed against him. It was also submitted that the deceased Senthil had travelled as a gratuitous passenger in the minidor auto and that as the policy conditions of insurance had been violated, the fifth respondent is not liable to pay compensation. Further, it was submitted that the claimants should prove the age, income and occupation of the deceased and also prove that they are the legal heirs of the deceased through documentary evidence. It was submitted that the claim was excessive. 6. On considering the averments of both sides, the Tribunal had framed two issues for consideration namely: i. Due to whose negligence was the accident caused? and ii. Whether the claimants are entitled to get any compensation? If so, what is the quantum of compensation? 7. On the claimants' side two witnesses were examined as P.Ws.1 and 2 and eleven documents were marked as Exs.P1 to P11 namely copy of FIR, copy of charge sheet, copy of observation mahazar, postmortem report, copy of M.V.I's report, death and legal heir certificate, copy of rough sketch, patta, adangal and kanthaya receipts. On the respondents' side, one witness was examined as R.W.1 and policy particulars was marked as Ex.R1. 8. P.W.1, wife of the deceased, had adduced evidence that on 10.02.2003, when her husband Senthil was travelling in the fourth respondent's auto, along with vegetable products from their garden and when the vehicle was proceeding from Arasankuttai towards Kunnathur Market, the auto was involved in an accident with a bus and that the accident was caused due to contributory negligence of both the first and third respondents. She deposed further that her husband had sustained grievous injuries and died while being taken to Gobi Government Hospital. In support of her evidence, she had marked Exs.P1, P2, P5, P8 to P10. 9. She deposed further that her husband had sustained grievous injuries and died while being taken to Gobi Government Hospital. In support of her evidence, she had marked Exs.P1, P2, P5, P8 to P10. 9. P.W.2 Palanisamy had adduced evidence that on 10.02.2003, at about 08.15 a.m., when the deceased Senthil was travelling in the fourth respondent's auto, along with their vegetable products, and when the auto was proceeding from Arasankuttai to Kunnathur Market, 2 to 3 other gardeners, who were also carrying vegetable bags, had also been taken as passengers in the auto and that when the auto was proceeding from north to south, the bus, coming in the opposite direction, had dashed against the right side of the auto. Due to which seven persons travelling in the auto had sustained injuries and that one of them had died on the spot and that the deceased Senthil died while being taken to Hospital. He deposed further that the accident was caused due to contributory negligence of both the drivers of the auto as well as the bus. 10. R.W.1 Subramanian, employee of the fifth respondent firm, had adduced evidence that P.W.1 had not witnessed the accident and that P.W.2 Palanisami, who was aged 70 years had adduced evidence that the accident had been caused by the rash and negligent driving of the drivers of the both the bus and the auto and as he had also deposed that seven persons had travelled in the auto, the policy conditions of insurance had been violated and in support of his evidence, he had marked Ex.R1 insurance policy. 11. On scrutiny of Exs.P1 and P2, it is seen that the FIR and charge sheet had been filed against the third respondent i.e., driver of the auto. The Tribunal further observed from the evidence of R.W.1 that as per the policy conditions, it had been mentioned that the insurance company is liable to cover third party risks, but it had been empowered to recover the amount paid from the owner of the vehicle. Hence, the Tribunal, on scrutiny of oral and documentary evidence held that the accident had been caused by the rash and negligent driving of the auto by the third respondent and hence dismissed the claim as against the first and second respondents. Hence, the Tribunal, on scrutiny of oral and documentary evidence held that the accident had been caused by the rash and negligent driving of the auto by the third respondent and hence dismissed the claim as against the first and second respondents. The Tribunal, on observing that the fourth respondent's auto had been insured with the fifth respondent at the time of accident, held that the fifth respondent is liable to pay compensation to the claimants. However, the Tribunal permitted the fifth respondent to recover the compensation paid from the third and fourth respondents. 12. The Tribunal, on scrutiny of Exs.P9, P10 and P11 observed that the above documents were not in the name of the deceased Senthil. Hence, the Tribunal, on holding the notional income of the deceased as Rs.4,200/-per month and after adopting a multiplier of 17, as per the age of the deceased, which was 25 years as per Ex.P4, awarded a sum of Rs.5,71,200/-as compensation under the head of loss of income (4,200 X 2/3 X 12 X 17), Rs.15,000/-was awarded to the first claimant under the head of loss of consortium, Rs.5,000/-was awarded to the claimants under the head of loss of love and affection and Rs.5,000/-was awarded for funeral expenses. In total, the Tribunal, awarded a sum of Rs.5,96,200/-as compensation to the claimants and directed the fifth respondent to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, with costs, within a period of one month from the date of it's order. The claim as against the first and second respondents was dismissed. 13. Aggrieved by the award passed by the Tribunal, the fifth respondent Insurance Company has preferred the present civil miscellaneous appeal. 14. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal failed to note that the ninth respondent herein has violated the policy conditions by carrying five passengers in a goods vehicle. It is contended that the Tribunal failed to note that in a minidor auto, seat is provided only for the driver and for carrying small load of goods. Further, it is contended that the Tribunal failed to appreciate the evidence of R.W.1 properly and failed to distinguish the claim made by a third party and by an unauthorized passenger. It is contended that the Tribunal failed to note that in a minidor auto, seat is provided only for the driver and for carrying small load of goods. Further, it is contended that the Tribunal failed to appreciate the evidence of R.W.1 properly and failed to distinguish the claim made by a third party and by an unauthorized passenger. It is contended further that the Tribunal failed to note that the appellant cannot be made liable to pay compensation without any additional premium being paid by the ninth respondent. It is contended that the Tribunal failed to note that admittedly the alleged passengers have sat on top of the goods and have thus violated the Motor Vehicles Rules and consequently they are not entitled to get compensation. It is also contended that the Tribunal should have held only the ninth respondent alone liable to pay compensation. It is also contended that the Tribunal erred in fixing the contribution at Rs.33,600/-per annum and applying 17 as multiplier, without any basis. Hence, it is prayed to set aside the award passed by the Tribunal. 15. The highly competent counsel for the claimants argued that the deceased was travelling as owner of goods, along with tomato bags in the minidor auto and the driver of the auto had committed the said accident due to his negligent driving. The said auto had been insured with the appellant herein. Therefore, the Tribunal directed the appellant to deposit the entire compensation amount and also permitted them to recover the same from the owner of the vehicle in the same proceedings. Further, the deceased was aged 29 years and he was a vegetable vendor earning Rs.6,000/- per month. The claimants are 5 in numbers consisting of young widow, minor children, mother and brother of the deceased and all are depending upon the income of the deceased, who was the sole breadwinner of the family. 16. On considering the factual position 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. This Court is of the further view that the criminal proceedings had been levelled against the driver of the auto and the auto had been insured with the appellant herein. This Court is of the further view that the criminal proceedings had been levelled against the driver of the auto and the auto had been insured with the appellant herein. Further, the quantum of compensation is also reasonable, considering the age, occupation of the deceased and dependency of the claimants on the income of the deceased. The pay and recovery formula and rate of interest adopted by Tribunal remain unaltered. 17. This Court directs the appellant Insurance Company to deposit the entire award amount together with interest, to the credit of M.C.O.P.No.403 of 2004, on the file of the Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam, within a period of four weeks from the date of receipt of a copy of this Judgment. 18. Now, this Court permits the major claimants to withdraw their apportioned share amount with proportionate interest thereon, lying in the credit of M.C.O.P.No.403 of 2004, on the file of the Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam, after filing a memo along with a copy of this Judgment. 19. Further, this Court directs the learned II Additional Sub-Judge, Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam, to deposit the minors' apportioned share amount in a nationalized bank, as fixed deposit, in the cumulative deposit scheme until such time the minors attain the age of major and hand over the fixed deposit certificates to the mother of the minors. 20. In the result, this civil miscellaneous appeal is dismissed and the Judgment and decree dated 29.03.2006, made in M.C.O.P.No.403 of 2004, on the file of the Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam, is confirmed. Consequently, connected miscellaneous petition is closed. No costs.