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Madras High Court · body

2014 DIGILAW 2509 (MAD)

A. Sellam v. I. Subramani

2014-08-08

R.SUBBIAH

body2014
Judgment : 1. Both the above appeals arise out of the same award dated 31.08.2007 in M.C.O.P.Nos.1976 and 1975 of 2004 passed by the Motor Accidents Claims Tribunal (Fast Track Court No.II), Salem. Hence, they are disposed of by way of this Common Judgment. 2. Both the appeals have been filed questioning the finding of the Claims Tribunal in exonerating the Insurance Company from paying the compensation amount as well as for enhancement of the amount awarded by the Tribunal. 3. The appellants in C.M.A.No.3742 of 2008 are the legal representatives of the deceased Senthilkumar, who died in a road accident, that had occurred on 02.09.2004, involving a vehicle namely LMV Tri-wheeler Minidoor auto (Van), bearing Registration No.TN-30E-9720, owned by the 1st respondent and insured with the 2nd respondent Insurance Company. The appellant in C.M.A.No.3665 of 2008 is the injured in the said accident. 4. It is the case of the appellants/claimants before the Tribunal that on 02.09.2004, when the deceased Senthilkumar was riding a TVS Max 100 motor cycle, bearing Registration No.TN-30W-2836, from Narasingapuram to Thuraiyur, along with one Ganapathy, as a pillion rider, a LMV Tri-wheeler Minidoor auto (van), bearing Registration No.TN-30E-9720, driven in a rash and negligent manner by its driver, dashed against the motorcycle. In the said accident, the rider of the motor cycle Senthilkumar died on the spot. The pillion rider Ganapathy sustained grievous injuries. Hence, the legal representatives of the deceased viz., his father, mother and a minor sister, have filed the claim petition in M.C.O.P.No.1976 of 2004 on the file of Motor Accidents Claims Tribunal (Fast Track Court No.II), Salem, claiming a sum of Rs.5,00,000/-as compensation. The injured Ganapathy has filed the claim petition in MCOP No.1975 of 2004, claiming compensation of Rs.5,00,000/-. 5. The claims made by the appellants/claimants were resisted by the Insurance Company contending that the driver of the mini-door auto (Van) was not having a valid and effective driving licence to drive the vehicle and the the said vehicle is meant for commercial purpose; therefore, the driver of the Van has to possess necessary endorsement on the licence to drive the commercial vehicle and should hold a badge; in this case, the driver of the Van was not having a badge to drive the commercial vehicle; hence, he has violated the terms and conditions of the policy and as such, the Insurance Company is not liable to pay compensation. 6. In order to prove their claim, on the side of the claimants, the wife of the deceased examined herself as P.W.1 and the injured victim examined himself as P.W.2, besides examining one Dr.Rajamanickam as P.W.3 and one Palanisamy as P.W.4, who have rendered corroborative evidence, and marked 16 documents as Ex.P.1 to Ex.P.16. On the side of the Insurance Company, one Dr.Kumudha has been examined as RW1 and Motor Vehicle Inspector has been examined as R.W.2 and the Administrative Officer of the Insurance Company has been examined as RW3 and three documents were marked as Ex.R1 to Ex.R3. 7. The Tribunal, after analysing the entire evidence adduced on either side, has come to the conclusion that at the time of accident, the driver of the Van did not possess the badge and there is a violation of the conditions of policy. By coming to such a conclusion, the Tribunal exonerated the Insurance Company from its liability to pay the compensation amount. Thereafter, the Claims Tribunal has passed an award for a total sum of Rs.81,000/-as compensation to the injured in M.C.O.P.No.1975 of 2004 as against the owner of the van. Similarly, in respect of claim made by the legal representatives of the deceased Senthilkumar, the Claims Tribunal has passed an award for a total sum of Rs.2,62,000/- as compensation in M.C.O.P.No.1976 of 2004 as against the owner of the van. Aggrieved over the same, the present appeals have been filed. 8. Heard the submissions made on either side and perused the materials available on record. 9. It is the main submission of the learned counsel for the appellants that even if the driver of the van did not possess the badge endorsement and there is a violation of conditions of policy, the Insurance Company is liable to pay compensation. Further, it is contended that the Tribunal ought to have directed the Insurance Company to pay compensation amount and then, permitted to recover the same from the owner of the vehicle. Therefore, the Insurance Company has to be directed to pay compensation to the victims. 10. Further, it is contended that the Tribunal ought to have directed the Insurance Company to pay compensation amount and then, permitted to recover the same from the owner of the vehicle. Therefore, the Insurance Company has to be directed to pay compensation to the victims. 10. In my considered opinion, the contention of the learned counsel for the Insurance Company that if the driver of the offending vehicle did not possess a valid and effective driving licence at the time of accident, the Insurance company is not liable to pay the compensation amount to the victim, is no longer res integra, in the light of the recent decision of the Hon'ble Supreme Court in S.Iyyappan Vs. M/s. United India Insurance Company Ltd., and another, reported in (2013) 7 SCC 62 , wherein the said contention has been rejected and an order was passed directing the Insurance Company to pay the compensation to the victim, with liberty to the insurance company to recover the same from the owner of the vehicle. 11. In view of the above said dictum laid down by the Hon'ble Supreme Court, the Insurance Company cannot deny their liability to pay compensation amount to the third party victim. However, the Insurance Company can recover the compensation amount from the owner of the vehicle after paying it to the victim. Therefore, I am of the opinion that the finding rendered by the Claims Tribunal is not legally sustainable. The Insurance Company is liable to pay the compensation amount to the victims/claimants. 12. So far as the quantum of compensation is concerned, it is the submission of the learned counsel for the appellants/claimants that the calculation made by the Tribunal to award compensation is not proper and the compensation amounts awarded in both the claim petitions, are on the lower side; therefore, the compensation amounts awarded by the Tribunal have to be reassessed. 13. Per contra, the learned counsel for the Insurance Company contended that the compensation amounts awarded by the Claims Tribunal are just and fair compensation and therefore, there is no need for enhancement of compensation. C.M.A.No.3665 of 2008 14. Keeping the submissions made on either side, I have carefully perused the materials available on record and if find that on account of the accident, the appellant in CMA.No.3665 of 2008 had sustained fractures on the right hand wrist and on the right leg. C.M.A.No.3665 of 2008 14. Keeping the submissions made on either side, I have carefully perused the materials available on record and if find that on account of the accident, the appellant in CMA.No.3665 of 2008 had sustained fractures on the right hand wrist and on the right leg. PW3-Doctor has assessed the disability suffered by the victim as 45%. Considering the nature of injuries and the extent of disability, the Claims Tribunal has awarded a sum of Rs.45,000/-for the disability of 45% suffered by the victim. That apart, the Tribunal has awarded a sum of Rs.7,000/- for medical expenses, a sum of Rs.5,000/- for pain and suffering, Rs.5,000/-for extra nourishment, Rs.5,000/- for transportation, Rs.5,000/- for attendant charges and a sum of Rs.9,000/- for loss of income during the period of treatment. Altogether, the Tribunal has awarded a sum of Rs.81,000/- as compensation with interest @7.5% from the date of claim, till the date of realisation. 15. Considering the gravity of the injuries sustained by the injured/claimant, sum of Rs.81,000/-awarded by the Tribunal cannot be said be on the higher side. Further, normally, the Tribunals are awarding a sum Rs.2,000/- per percentage of disability. Even in this case also, a sum of Rs.2,000/- can be awarded for each percentage of disability, which would be the just and proper compensation. Hence, the compensation amount of Rs.45,000/-awarded by the Tribunal under the head of disability is hereby enhanced to Rs.90,000/-, by awarding a sum of Rs.2,000/-per percentage of disability. 16. Further, I find that the Tribunal has not awarded any amount under the head loss of amenities. Considering the fact that the injured/claimant would find it difficult to carry on his day-to-day works, as he was doing before the accident, a sum of Rs.50,000/- is hereby awarded under the head of loss of amenities. Except the above modifications, the award passed by the Tribunal in MCOP NO.1975 of 2004 i.e., in respect of the appellant in C.M.A.No.3665 of 2008, is hereby confirmed. Consequently, the compensation amount of Rs.81,000/- awarded by the Tribunal is hereby modified and enhanced to a sum of Rs.1,76,000/-. The break up details of the modified/enhanced compensation amount are as follows:- Disability Compensation -Rs.90,000/- Medical Expenses -Rs. 7,000/- Extra Nourishment -Rs. 5,000/- Transportation -Rs. 5,000/- Pain and suffering -Rs. 5,000/- Attendant Charges -Rs. 5,000/- Loss of earning during the period of treatment -Rs. The break up details of the modified/enhanced compensation amount are as follows:- Disability Compensation -Rs.90,000/- Medical Expenses -Rs. 7,000/- Extra Nourishment -Rs. 5,000/- Transportation -Rs. 5,000/- Pain and suffering -Rs. 5,000/- Attendant Charges -Rs. 5,000/- Loss of earning during the period of treatment -Rs. 9,000/- Loss of amenities -Rs.50,000/- Total -Rs.1,76,000/- C.M.A.No.3742 of 2008 17. In CMA.No.3742 of 2008, on perusal of the materials available on record, I find that P.W.4 has deposed in his evidence that the deceased was earning a sum of Rs.2,500/- per month by doing milk business. Based on the evidence of P.W.4, the Tribunal has fixed the monthly income of the deceased as Rs.2,500/- and arrived a sum of Rs.30,000/-as annual income of the deceased. Thereafter, by deducting 1/3 towards personal expenses, and by applying the multiplier 13, the Tribunal has awarded a sum of Rs.2,60,000/-under the head of loss of dependency. Considering the present day cost of living, the sum of Rs.2,500/-fixed by the Tribunal as monthly income of the deceased is extremely on the lower side. Hence, the monthly income of the deceased is hereby fixed as Rs.3,500/-. The annual income of the deceased works out to Rs.42,000/-(3500 x 12 = 42,000). If 1/3 amount is deducted towards personal expenses, the balance amount comes to Rs.28,000/- (42000 – 14000 = 28000). The Tribunal has taken the multiplier of 13 only. Considering the age of the deceased, who was 27 years at the time of accident, the correct multiplier to be applied is 17. If multiplier 17 is applied, the total amount works out to Rs.476,000/- (28000 x 17 = 4,76,000). Hence, the compensation amount of Rs.2,60,000/-awarded by the Tribunal under the head of loss of dependency is hereby enhanced to Rs.4,76,000/-. That part, I find that the Tribunal has not awarded any amount for the loss of love and affection to the claimants. Hence, a sum of Rs.10,000/- each is hereby awarded for the loss of love and affection. The sum of Rs.2,000/- awarded by the Tribunal for funeral expenses is hereby confirmed. 18. Consequently, the total compensation amount of Rs.2,62,000/- awarded by the Tribunal is hereby modified and enhanced to Rs.5,08,000/-. Break of details of the modified/enhanced compensation amount are as follows_ Loss of dependency - Rs.4,76,000/- Loss of love and affection - Rs. 30,000/-Funeral expenses - Rs. The sum of Rs.2,000/- awarded by the Tribunal for funeral expenses is hereby confirmed. 18. Consequently, the total compensation amount of Rs.2,62,000/- awarded by the Tribunal is hereby modified and enhanced to Rs.5,08,000/-. Break of details of the modified/enhanced compensation amount are as follows_ Loss of dependency - Rs.4,76,000/- Loss of love and affection - Rs. 30,000/-Funeral expenses - Rs. 2,000/- Total Rs.5,08,0000/- From the said compensation amount of Rs.5,08,000/-, the parents of the deceased/appellants 1 & 2 are entitled to a sum of Rs.2 lakh each and the sister of the deceased is entitled to the balance amount of Rs.1,08,000/-. 19. In view of the above, both the Civil Miscellaneous Appeals are partly allowed. No costs. 20. The Insurance Company is directed to deposit the entire award amount, in both the cases, with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit, to the credit of the above said MCOPs, within a period of three weeks from the date of receipt of a copy of this order. On such deposit, the injured/appellant in C.M.A.No.3665/2008 and the parents of the deceased/appellants 1 & 2 in C.M.A.No.3742 of 2008 are entitled to withdraw their share amount. The sister of the deceased/3rd appellant in C.M.A.No.3742 of 2008 is entitled to withdraw her share amount, by making an appropriate application before the Tribunal to declare her as major. The Second respondent Insurance Company is permitted to recover the amount from the owner of the vehicle.