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2014 DIGILAW 3844 (MAD)

Oriental Insurance v. Sivappan (Died)

2014-10-15

S.VIMALA

body2014
Judgment 1. Kaliammal, aged 21, an agricultural coolie, earning Rs.2,000/-per month died in an accident involving tractor and a trailer and the accident took place on 24.10.1998. The father Sivappan, aged 58 years (at the time of accident) filed a claim petition in M.C.O.P.No.151 of 2000 against the respondents 1 to 3 who were owners of the vehicle (respondents 1 and 2) and the insurance company (Respondent 3). The claims tribunal on consideration of oral and documentary evidence passed an award for a sum of Rs.2,92,500/-. The award was directed to be paid by the second and third respondents joint and severely. 2. While passing the award, the claims tribunal gave a finding that the insurance company was liable to pay the compensation in view of the decision reported in 1999 ACJ 231 . 3. Challenging the liability to pay the compensation, the insurance company has preferred this appeal. The main contention of the insurance company is that the passenger travelling in the tractor was not covered by the policy of insurance and therefore, the insurance company was not liable to pay any compensation. Quantum of compensation is also under challenge on the ground that it is only the age of the dependant/claimant that should be taken into account for choosing an appropriate multiplier and not the age of the deceased, when the deceased was a bachelor. 4. In view of the contention raised by the insurance company, the following issues arise for consideration: (a) When the accident had taken place while the deceased was travelling in the tractor which did not have any space at all to accommodate anybody excepting the driver, whether the insurance company would be liable to pay the compensation? (b) What is the appropriate multiplier to be adopted for computing the compensation, when the deceased was a bachelor and the claimant was the aged father? 5. During the pendency of the appeal, the claimant/first respondent herein died and the legal representatives have been added as respondents 4 to 8 in the Civil Miscellaneous Appeal. The first contention of the learned counsel appearing for the appellant is that there was no proof at all to show negligence on the part of the owner of the vehicle and therefore, the insurance company cannot be made liable. The first contention of the learned counsel appearing for the appellant is that there was no proof at all to show negligence on the part of the owner of the vehicle and therefore, the insurance company cannot be made liable. This contention is patently not correct in view of the observation made by the claims tribunal that the driver has admitted the findings of rash and negligent driving before the criminal Court and therefore, the driver and subsequently, the owner alone are liable to compensate the claimant. Apart from that, there was no evidence on the part of the respondents to repudiate the evidence given by P.W.1 and P.W.2 on the side of the claimants. Therefore, the negligence on the part of the owner of the vehicle (R2 at the time of accident) has been established. 6. It is the contention of the appellant that the appellant is not at all liable to pay any compensation as there was no coverage of insurance in respect of a third party. But a perusal of the order of the claims tribunal would go to show that the deceased had been employed as coolie at the time of accident and probably, she might have travelled only as a coolie. The finding is that the deceased could not have been negligent and the negligence is only on the part of the driver of the second respondent owner (in the M.C.O.P.). Admittedly, there is no contra evidence. Therefore, it is clear that the accident had taken place only on account of rash and negligent driving on the part of the driver of the second respondent vehicle. 7. Who is liable to compensate the claimant is the only issue to be decided. The deceased cannot be stated to be a trespasser. It is stated in the order of the claims tribunal that the deceased had loaded sand in the trailer and thereafter, she has travelled along with the property in the trailer. Therefore, it is the mistake/negligence of the driver of the second respondent vehicle for having permitted the deceased to travel in the trailer. In such circumstances, for the fault committed by the owner, the insurance company cannot be made liable. However, as there is coverage of insurance policy, the insurance company will pay the amount and it will have the liberty of recovering the same from the second respondent/owner of the vehicle. 8. In such circumstances, for the fault committed by the owner, the insurance company cannot be made liable. However, as there is coverage of insurance policy, the insurance company will pay the amount and it will have the liberty of recovering the same from the second respondent/owner of the vehicle. 8. In the decision reported in 2008 ACJ 974 (Ravunammal and another vs. Sambandham and others), it has been clearly held that the insurance company shall first pay the compensation to the claimant and then should recover the same from the owner of the vehicle. This judgment is based on a judgment of the Hon'ble Supreme Court reported in 2004 ACJ 2094 (National Insurance Co. Ltd. vs. Chella Bharathamma). 9. Quantum of compensation is stated to be exorbitant and disproportionate to the income of the deceased. According to the learned counsel for the appellant, the appropriate multiplier cannot be 18'. According to the evidence, the age of the deceased was 58 years. Therefore, according to the decision made in Sarala Verma and others V. Delhi Transport Corporation and another [ (2009) 6 SCC 121 ], in respect of the age group 56 to 60 years, the appropriate multiplier is 9'. Taking the modest estimate of the income of the deceased at Rs.2,000/-and the future prospective income at Rs.1000/- more, the total monthly income would be Rs.3,000/-. Deducting 50% towards personal expenses and adopting multiplier 9, the compensation payable on loss of dependancy would be Rs.1,62,000/- (Rs.1,500 x 9 x 12). Awarding a sum of Rs.2,000/-towards funeral expenses and a sum of Rs.20,000/- towards loss of love and affection, the compensation is quantified as Rs.1,84,000/-. 10. In the result, the Civil Miscellaneous Appeal is partly allowed modifying the liability as well as the quantum of compensation. The liability is modified directing the appellant to pay the compensation with liberty to recover the same from the second respondent viz., the owner of the vehicle. The compensation awarded is reduced from Rs.2,92,500/- to Rs.1,84,000/-. The respondents 4 to 8 are the legal representatives of the deceased Sivappan/first respondent herein. Even at the time when the petition was filed claiming compensation, unfortunately, the mother though alive has not been added as legal representative of the deceased Kaliammal. Only on the death of Sivappan, the mother Parasakthi has been brought on record as legal representative of her deceased husband. Even at the time when the petition was filed claiming compensation, unfortunately, the mother though alive has not been added as legal representative of the deceased Kaliammal. Only on the death of Sivappan, the mother Parasakthi has been brought on record as legal representative of her deceased husband. She ought to have been on record already in the capacity as legal representative of the deceased daughter. Therefore, the major amount of compensation has to be paid only to the mother Parasakthi who have been the much affected person because of the death of the deceased daughter. Therefore, a sum of Rs.1,00,000/-(Rupees one lakh only) with proportionate interest is to be payable to the fourth respondent Parasakthi. The remaining amount of Rs.84,000/- is divisible among the respondents 5 to 8 in equal proportion with proportionate interest. The cost is payable to the fourth respondent Parasakthi alone. As per the order dated 02.07.2003, the insurance company has deposited a sum of Rs.3,45,718/-. As the amount of compensation is now reduced from Rs.2,92,500/- to Rs.1,84,000/-, the balance amount with proportionate interest would be refunded to the insurance company. No costs.