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2014 DIGILAW 3440 (MAD)

Branch Manager v. Poongathai

2014-09-18

G.CHOCKALINGAM, V.DHANAPALAN

body2014
Judgment V. Dhanapalan, J. 1. Heard Mr.N.Vijayaraghavan, learned counsel for the appellant and Mr.M.Sriram, learned counsel appearing for respondents 1 to 6. 2. This appeal is filed by the Insurance Company questioning the correctness of the award of the Tribunal dated 25.07.2011 made in M.C.O.P.No.1024 of 2006 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Krishnagiri, urging various facts and legal contentions in justification of their stand. 3. It was the averment of the claimants before the Tribunal that on 30.05.2005, while the deceased Bakthavatsalam was travelling as a pillion rider in a Yamaha Motor Cycle bearing Registration No.TN.29/Z-4347, driven by one Vedi, in Kaveripattinam to Agaram road viz. Sappanipatti, near Madhanur Indira nagar, the driver of the Eicher Tempo bearing Registration No.TN 33-C-5175 belonging to one Mr.K.Dhanapal and insured with Oriental Insurance Co. Ltd., drove the same in a rash, reckless and negligent manner, at an uncontrollable speed, without sounding horn and without minding the rules of the road, came in the opposite direction and dashed on the Yamaha Motorcycle forcibly. As a result of the accident, the deceased sustained injuries on his head and other vital organs and died on the spot itself. On a complaint, a criminal case was registered against the driver of the Swaraj Mazda in Crime No.207/2005 of Nagarasampatti Police Station. Claiming that the family had lost the support and care of the deceased Bakthavatsalam, the claimants sought a sum of Rs.20,00,000/- as compensation. 4. The Insurance Company resisted the claim petition before the Tribunal denying the negligence on the part of the Eicher Tempo and contending that the claim of Rs.20,00,000/- is highly excessive and baseless. As per the Investigation Report, the driver Perumal and owner Dhanapal of the vehicle have not admitted the accident. Further, it is averred that claimants 2 to 6 are not dependants of the deceased. Since the accident itself is denied, the Insurance Company would submit that they are not liable to pay compensation to the claimants. 5. Before the Tribunal, on behalf of the claimants, three witnesses were examined and Exs.A1 to A9 were marked. The 1st claimant, viz. Poongothai was examined as P.W.1 and one Thirumal, who witnessed the accident was examined as P.W.2. 5. Before the Tribunal, on behalf of the claimants, three witnesses were examined and Exs.A1 to A9 were marked. The 1st claimant, viz. Poongothai was examined as P.W.1 and one Thirumal, who witnessed the accident was examined as P.W.2. On the side of the respondents, the driver and owner of the Tempo were examined as R.W.1 and R.W.2, respectively and the Administrative Officer of the Insurance Company was examined as R.W.3. A copy of the driving licence of R.W.1, Claim form and Investigation Report were marked as Exs.B1 to B3, respectively. 6. The Tribunal, on evaluation of pleadings and evidence, found that the accident had occurred due to the rash and negligent driving of the driver of the Eicher Tempo bearing Registration No.TN 33-C-5175 and held him responsible for the accident and awarded a sum of Rs.17,21,136/- as compensation with interest at the rate of 7.5% per annum. The compensation awarded by the Tribunal under different heads are as under: S.No. Heads Amount 1. Loss of dependency (Rs. 8808 x 12 x 16) Rs.16,91,136.00 2. Loss of love and affection Rs.25,000.00 3. Funeral Expenses Rs.5,000.00 Total Rs.17,21,136.00 The award of the Tribunal was apportioned to the claimants in the following manner. S.No. Heads Amount 1. 1st Petitioner/Mother Rs.4,71,136.00 2. 2nd Petitioner/Sister Rs.2,50,000.00 3. 3rd Petitioner/Sister Rs.2,50,000.00 4. 4th Petitioner/Sister Rs.2,50,000.00 5. 5th Petitioner/Minor brother Rs.2,50,000.00 6. 6th Petitioner/Minor brother Rs.2,50,000.00 Total Rs.17,21,136.00 Challenging the said award passed by the Tribunal, the Insurance Company is before this Court by way of this appeal. 7. Learned counsel for the appellant/Insurance Company would mainly question the liability of negligence fixed by the Tribunal on the driver of the Eicher Tempo, i.e. the offending vehicle. Pointing to the evidence of R.W.3, the Administrative Officer of the Insurance Company and Exs.B2 and B3 – Driving licence of one Perumal, driver of the Eicher Tempo and Claim form, respectively, he would submit that the Eicher Tempo was not involved in the accident. It is his contention that the Tribunal failed to take into account the evidence of R.W.1, the driver of the Eicher Tempo. Though the learned counsel raised a plea as to the income of the deceased and the application of multiplier, he did not seriously contest the aspect of quantum of compensation. 8. It is his contention that the Tribunal failed to take into account the evidence of R.W.1, the driver of the Eicher Tempo. Though the learned counsel raised a plea as to the income of the deceased and the application of multiplier, he did not seriously contest the aspect of quantum of compensation. 8. On the other hand, learned counsel appearing for the respondents/claimants would submit that the Tribunal, after giving due consideration to the oral and documentary evidence placed on record, has fixed the liability of negligence on the part of the driver of the Eicher Tempo. It is his contention that the appellant/Insurance Company cannot take a different stand now merely based on the report of R.W.3 – Administrative Officer of the Insurance Company, which has been given after two years from the date of accident. To substantiate his stand on the question of negligence and credence to the eye-witness, learned counsel has relied on a decision of the Hon'ble Supreme Court reported in 2011 ACJ 926 in the case of Kusum Latha and others v. Satbir and others. The ratio laid down therein would read thus: "9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that as the name of Dheeraj Kumar was not mentioned in the F.I.R., so it was no possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact-situation in this case. It is well-known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The court must keep this distinction in mind. 10. Reference in this connection may be made to the decision of this Court in Bimla Devi v. Himachal Road Transport Corporation, 2009 ACJ 1725 (SC), in which the relevant observation on this point has been made and which is very pertinent and is quoted below : "(15) In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. ..." 9. We have given careful consideration to the submissions made by the learned counsel on either side and the materials placed on record. 10. Now, the questions which arise for consideration before this Court is (i) whether the Tribunal is right in fixing the liability of negligence on the driver of the offending vehicle, i.e. the Eicher Tempo, which is insured with the appellant Insurance Company and (ii) whether the compensation awarded by the Tribunal is reasonable. 11. While answering the first question as regards the liability of negligence, the manner of accident, deposition of witnesses and the documentary evidence in that regard needs to be looked into. It is seen that on 30.05.2005, while the deceased by name Bakthavatsalam was travelling as a pillion rider in a Yamaha Motor Cycle bearing Registration No.TN.29/Z-4347, driven by one Vedi, in Kaveripattinam to Agaram Road viz. Sappanipatti, an Eicher Tempo bearing Registration No.TN.33-C-5175, belonging to one Mr.K.Dhanapal, who was arrayed as 1st respondent in the Claim Petition and insured with the appellant Insurance Company, came in the opposite direction in an uncontrollable speed, without sounding horn and dashed on the Yamaha Motor Cycle forcibly, due to which, both Vedi and Bakthavatchalam, driver and pillion rider of the Motor Cycle, respectively, were thrown away from the vehicle. As a result of which, Bakthavatchalam sustained fatal injuries on his head and other vital organs and died on the spot itself. A complaint was made and a criminal case, on the basis of the First Information Report was registered under Sections 279, 337 and 304(A) IPC in Crime No.207/2005 against the driver of the Tempo in Nagarasampatti Police Station. 12. P.W.2, one Thirumal, an eye witness to the accident had clearly spoken to about the manner of accident that due to the negligence of the driver of the Tempo bearing Registration No.TN 33-C-5175, the accident had occurred resulting in the death of Bakthavatsalam, the deceased. The evidence of P.W.2 is strengthened by the recitals in the First Information Report vide Ex.A1. 13. The evidence of P.W.2 is strengthened by the recitals in the First Information Report vide Ex.A1. 13. Further, the driver of the Eicher Tempo, viz. Perumal, who was examined as R.W.1, in his evidence has stated that he had initially been working as a Cleaner and thereafter began working as a Driver for Goods vehicle under Mr.Dhanapal from 2004 till 2005 for his vehicle bearing Registration No.TN 33 C 5175. He has further deposed that on 30.05.2005, he drove the said Tempo from Pannandur towards Kaveripattinam and that he is not aware of the alleged accident and he was just passing through the said accident, which according to his knowledge, had already occurred. Also, it is his evidence that he has got Driving License and that the alleged vehicle which he drove was not involved in the said accident. To the contrary, in the cross-examination, R.W.1 has admitted that the said accident had occurred because of his negligence. He also admitted to the registration of a criminal case against him in Nagarasampatti Police Station in Crime No.207 of 2005 and filing of charge sheet on him. 14. For better appreciation, the evidence of R.W.1 in the vernacular language, is extracted hereunder: (“Tamil”) 15. With regard to the insurance of the vehicle, R.W.1, in his chief examination has deposed that he has received a letter from the Insurance Company about the case, to which, he informed the company that no accident took place. Whereas, in the cross-examination, he has deposed that he took the alleged Eicher Tempo for inspection by the Inspector of Motor Vehicles, as it was involved in an accident. The evidence of R.W.1 in the cross-examination, in the vernacular version, is as under: (“Tamil”) 16. R.W.3, the Administrative Officer of the appellant Insurance Company, in his evidence has deposed that the Eicher Tempo bearing Registration No.TN 33-C-5175 was not involved in the accident and he obtained claim form from the owner Dhanapal and in the claim form, Dhanapal has stated that the vehicle was not involved in the accident and the driver Perumal has no valid Driving Licence and the said Perumal was acquitted. Through R.W.3, the claim form vide Ex.B2 and Investigation Report vide Ex.B3 were marked. While so, R.W.3, in his cross-examination has admitted that the date in the claim form and Investigation Report is the same. 17. Through R.W.3, the claim form vide Ex.B2 and Investigation Report vide Ex.B3 were marked. While so, R.W.3, in his cross-examination has admitted that the date in the claim form and Investigation Report is the same. 17. Considering the evidences of P.Ws.1 and 2 and that of R.Ws.1 to 3 as also taking note of the recitals in the First Information Report, the Tribunal came to the conclusion that in order to escape from the liability, the Insurance Company has taken the stand of non-involvement of the Eicher Tempo in the accident, in collusion with its owner and accordingly, held that the accident was due to the rash and negligent driving of the driver of the Eicher Tempo bearing Registration No.TN 33 C 5175. 18. On the liability of negligence, the Insurance Company has relied on the Investigation Report, dated 26.06.2007 of their Administrative Officer, who was examined as R.W.3. In the said Report, vide the column 'how did the accident', it has been informed that'as per the First Information Report, the deceased Bakthavatsalam, who was a pillion rider of the T.P. Vehicle bearing Reg. No.TN-29-Z-4347 came from Thammarahalli to Sappanipatty road near Indira Nagar Bus Stop. When the insured vehicle bearing Reg. No.TN 33 C 5175 came opposite and dashed against the motor cycle, the accident occurred.' 19. In the counter of the Insurance Company before the Tribunal, it has been stated that the manner of accident averred in column No.23 of the Petition are all not true and correct. It is further stated that on 30.05.2005, the driver of the Eicher Tempo bearing Registration No.TN 33-C-5175 drove the same slowly, cautiously, observing all the rules of the road, with sounding horn, and keeping to the extreme left side of the road. At about 17.45 hours while thus the said Eicher Tempo was proceeding in Agaram to Sappanipatti road near Indira Nagar bus stop at Madhanoor, the rider of the Yamaha Motor Cycle bearing Registration No.TN 29 -Z-4347, in which the deceased Bakthavatchalam was travelling as a pillion rider, riding the same in a rash, reckless and negligent manner, without observing any rules of the road, without sounding horn, and at an uncontrollable speed, in the opposite direction, all of a sudden, without giving any signal, started to cross the road, without hearing the horn given by the driver of the said Eicher Tempo. The driver of the said Eicher Tempo has not anticipated that the motor cyclist would cross the road suddenly. However, the driver of the said Tempo applied sudden brake to avoid hit on the said motor cycle. But, before ever the Tempo could come to a stop, the rider of the said motor cycle riding the same with great speed, came to a contact with the Tempo and caused the accident. Thus, it is the version of the Insurance Company that the accident had occurred only due to the contributory negligence and rash and negligent driving of the rider of the said Yamaha motor cycle. 20. On a reading of the above counter of the Insurance Company before the Tribunal and the evidence deposed by R.W.1 – driver of the Eicher Tempo, one can easily come to a conclusion that the statements made therein are contradictory. It is pertinent to note that R.W.1, driver of the Eicher Tempo, in his chief examination, has deposed that he is not aware of the alleged accident and he was just passing through the said accident, which according to his knowledge, had already occurred. Also, he deposed that he has got Driving License and that the alleged vehicle which he drove was not involved in the said accident. But,in the cross-examination, R.W.1 has admitted that the said accident had occurred because of his negligence. It is also pertinent to note that R.W.3 – Administrative Officer of the Insurance Company, in his evidence has stated that R.W.1 - Perumal, driver of the Eicher Tempo has no valid Driving Licence and hence, he was acquitted. Also, it has to be noted that the Investigation Report of R.W.3 - Insurance Officer of the appellant Insurance Company is dated 26.06.2007, which is after two years from the date of accident i.e. 30.05.2005. 21. To establish the standard of proof beyond reasonable doubt, the Tribunal has taken into consideration the respective stories of the parties and after taking note of the oral and documentary evidence, fixed the liability of negligence on the driver of the Eicher Tempo. Though the appellant Insurance Company has seriously disputed the liability of negligence, on a comparison of the evidence of R.W.1 - driver of the Eicher Tempo and R.W.3 – Administrative Officer of the Insurance Company, such seriousness is shattered, as the statements made by them are not only contradictory, but ridiculous too. Though the appellant Insurance Company has seriously disputed the liability of negligence, on a comparison of the evidence of R.W.1 - driver of the Eicher Tempo and R.W.3 – Administrative Officer of the Insurance Company, such seriousness is shattered, as the statements made by them are not only contradictory, but ridiculous too. What more is necessary to come to a conclusion that the Eicher Tempo has caused the accident, when R.W.1 – driver of the offending vehicle has clearly and distinctly given contradictory statements about the accident. When in the chief examination, he says that he is not aware of the accident, subsequently, in the cross-examination, he admits that the accident had occurred due to his negligence. Above all, the evidence of P.W.2, an eye-witness to the accident, who is a reliable witness, would clearly show that the accident occurred only due to the rash and negligent driving of the driver of the Eicher Tempo. Apart from the oral evidence, the material evidence in Ex.A1 - First Information Report would also show that the accident had occurred only due to the negligence of the driver of the Eicher Tempo. 22. From the above discussion, we hold that the liability of negligence fixed by the Tribunal on the driver of the Eicher Tempo is correct and it does not warrant any interference by this Court. 23. As regards the second question as to the quantum of compensation, the appellant Insurance Company has raised a plea that the multiplier of 16' adopted by the Tribunal is wrong. It is seen that the deceased Bakthavatsalam was a bachelor, aged 32 years at the time of accident, as could be established from Ex.A2–post-mortem report, Ex.A3–copy of Policy and Ex.A6-copy of R.C. Book. As per the guidelines laid down in Sarla Verma's case, the proper multiplier to be adopted to the age of the deceased is 16'. Hence, we are of the view that the Tribunal has rightly adopted the proper multiplier of 16' and the plea of the appellant Insurance Company that it is wrong, is rejected. 24. As per the guidelines laid down in Sarla Verma's case, the proper multiplier to be adopted to the age of the deceased is 16'. Hence, we are of the view that the Tribunal has rightly adopted the proper multiplier of 16' and the plea of the appellant Insurance Company that it is wrong, is rejected. 24. As regards the compensation of Rs.16,91,136/- awarded towards 'loss of dependency', it is seen that the Tribunal has fixed the income of the deceased as Rs.8,808/- per month placing reliance on Ex.A4 – Salary Certificate of the deceased, which, in our considered opinion, needs no interference, taking into account the number of dependants of the deceased and his family circumstances. Apart from the said amount, the Tribunal has awarded a sum of Rs.25,000/-towards loss of love and affection and Rs.5000/- towards funeral expenses. In the absence of any evidence to disprove the age and income of the deceased and also taking into account the family circumstances of the deceased as also his age, we are not inclined to interfere with the quantum awarded by the Tribunal and accordingly, it is confirmed in all respects. 25. In view of the above, this Civil Miscellaneous Appeal filed by the Insurance Company is dismissed. No costs. Consequently, connected M.P.No.1 of 2012 is closed.