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2019 DIGILAW 1269 (MAD)

Papathi v. P. Velumani

2019-04-24

V.M.VELUMANI

body2019
JUDGMENT : V.M. Velumani, J. 1. The Civil Miscellaneous Appeal is filed by the appellant/claimant for enhancement of compensation granted by the Tribunal in the award dated 04.11.2009 made in M.C.O.P. No. 54 of 2008 on the file of Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. II, Gobichettipalayam. 2. The appellant is claimant in M.C.O.P. No. 54 of 2008 on the file of Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. II, Gobichettipalayam. She filed the said claim petition claiming a sum of Rs. 7,00,000/- as compensation for the death of her son viz., Thirumoorthy, who died in the accident that took place on 24.12.2005. 3. According to the appellant, her son is a motor mechanic and he is an expert in rectifying the spring cut defect. On the date of accident, the lorry belonging to the 2nd respondent while coming with goods, broke down suddenly at Nanjangud. The 2nd respondent engaged the deceased and three others to repair the said lorry. After repairing the same, the deceased and three co-workers travelled in the lorry to come to Sathyamangalam. At that time, the 1st respondent, driver of the lorry drove the lorry in a rash and negligent manner and applied sudden brake near Bama hotel at Hasanur, due to that, the deceased who was sitting in the left hand side of the cabin fell down, sustained fracture injuries and died. The accident occurred only due to rash and negligent driving by the 1st respondent, driver of the lorry belonging to the 2nd respondent insured with the 3rd respondent. All the three respondents are liable to pay compensation. The deceased was aged 33 years at the time of accident and was earning up to Rs. 10,000/- per month. The appellant claimed a sum of Rs. 7,00,000/- as compensation. 4. The respondents 1 and 2 remained ex parte before the Tribunal. The 3rd respondent filed counter statement contending that the lorry belonging to the 2nd respondent was a goods vehicle and the deceased travelled as an unauthorised passenger. As per the permit and policy conditions, only three persons can travel in the cabin but four persons travelled at the time of accident. In view of the same, the 3rd respondent is not liable to pay compensation for violation of policy condition and prayed for dismissal of the appeal. 5. As per the permit and policy conditions, only three persons can travel in the cabin but four persons travelled at the time of accident. In view of the same, the 3rd respondent is not liable to pay compensation for violation of policy condition and prayed for dismissal of the appeal. 5. Before the Tribunal, the appellant examined herself as P.W. 1 and one Nagaraj was examined as P.W. 2 and marked six documents as Exs. P1 to P6. The 3rd respondent examined one Venkatasubramaniam as R.W. 1 and marked two documents as Exs. R1 and R2. 6. The Tribunal, considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the 1st respondent, driver of the lorry belonging to the 2nd respondent and directed the respondents 1 and 2 to pay a sum of Rs. 2,87,000/- as compensation to the appellant, jointly and severally and dismissed the claim petition against the 3rd respondent/Insurance Company holding that the deceased did not travel in the lorry as owner of the goods or representative of the owner of the goods. Against the said award dated 04.11.2009 made in M.C.O.P. No. 54 of 2008, the appellant has come out with the present appeal challenging the portion of the award dismissing the claim petition as against the 3rd respondent and for enhancement of compensation. 7. The learned counsel appearing for the appellant/claimant contended that the Tribunal erred in passing the award fastening the liability only against the respondents 1 and 2, when the deceased travelled in the cabin of the lorry and erroneously held that the Insurance Company is not liable to pay compensation. At the time of accident, there was valid insurance policy and the Tribunal ought to have ordered pay and recovery. In support of his contention, he relied on the following judgments: (i) 2004 (4) CTC 290 (New India Assurance Company Limited, Theni vs. Minor Krishnan); "16. In the light of the above discussion, particularly the legal position as enunciated by the Hon'ble Supreme Court with reference to Section 147 of the Motor vehicles Act, 1988 and in view of the materials placed by the Insurance Company before the Tribunal, particularly Ex. In the light of the above discussion, particularly the legal position as enunciated by the Hon'ble Supreme Court with reference to Section 147 of the Motor vehicles Act, 1988 and in view of the materials placed by the Insurance Company before the Tribunal, particularly Ex. R.2-policy, we hold that in spite of the Amendment Act, 1994, there is no compulsion on the part of the Insurance Company to cover persons other than the owner of goods or his authorised representative. To this extent we clarify the legal position. 17. Coming to the grievance expressed by the claimants, namely that the persons travelled on the lorry are mostly illiterate ladies and child labourers belonging to Scheduled caste, the claimants being parents and dependents of the deceased and also taking note of the fact that the amount awarded is reasonable and acceptable (no challenge with regard to quantum), again we intend to refer the observation made in the penultimate paragraph in Baljit Kaur case ( 2004 (1) CTC 210 ), which reads as under: "21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh ( 2000 (1) CTC 370 ). The said decision has been overruled only in Asha Rani ( 2003 (2) SCC 223 ). We, therefore, are of the opinion that the interest of justice will be sub-served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the tribunal in such a proceeding." We are of the view that the said observation/direction of the Hon'ble Supreme Court is also applicable to cases on hand, since here also the Tribunal following the decision in Satpal Singh's case (supra), directed the appellant Insurance Company to pay the compensation amount. In view of the reasons given by the Hon'ble Supreme Court referred to above (para 21), we are of the view that interest of justice would be met by directing the appellant Insurance Company to satisfy the awarded amount in favour of the claimants if not already satisfied and recover the same from the owner of the vehicle. For the said purpose, we permit the Insurance company to initiate proceeding before the Tribunal as if the dispute between the insurer and the owner was the subject matter of determination before it and the issue is decided against the owner and in favour of the insurer. The above direction of us is in consonance with similar directions issued in Baljit Kaur's case (supra)." (ii) The judgment delivered by me dated 10.10.2018 made in CMA(MD) Nos. 1562 to 1570 of 2011 (Oriental Insurance Company Limited vs. Malliga and others); "11. It is well settled that even if Insurance Company is liable to discharge their burden that the driver of the offending vehicle had carried passengers in a goods vehicle as against claims of third parties, the Insurance Company cannot seek total exoneration. In such cases, the only option available to the Insurer is to pay compensation at the first instance and thereafter, recover the same from the owner of the vehicle as per the following mode of recovery incorporated in Oriental Insurance Co. Ltd. vs. Nanjappan and others reported in (2004) 13 Supreme Court Cases 224. The relevant portion of the said judgment is extracted below: "8. Ltd. vs. Nanjappan and others reported in (2004) 13 Supreme Court Cases 224. The relevant portion of the said judgment is extracted below: "8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount, which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises, the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs." 8. Per contra, the learned counsel appearing for the 3rd respondent/Insurance Company contended that the deceased travelled as an unauthorised passenger in the goods vehicle belonging to the 2nd respondent. The deceased was not an employee of the 2nd respondent and he was doing independent work. The Tribunal considering the above materials, rightly dismissed the claim petition against the 3rd respondent/Insurance Company by giving valid reason and prayed for dismissal of the appeal. In support of his contention, he relied on the following judgment of this Court reported in 2018 (2) TNMAC 731 DB (Bharati AXA General Insurance Co. Ltd. v. Aandi and others); "50. The Tribunal considering the above materials, rightly dismissed the claim petition against the 3rd respondent/Insurance Company by giving valid reason and prayed for dismissal of the appeal. In support of his contention, he relied on the following judgment of this Court reported in 2018 (2) TNMAC 731 DB (Bharati AXA General Insurance Co. Ltd. v. Aandi and others); "50. In fact, we find that in none of the judgments referred to viz., National Insurance Co. Ltd. v. Swaran Singh and others, 2004 (1) TN MAC 104 (SC): 2004 (3) SCC 297 ; Mangla Ram V. Oriental Insurance Co. Ltd. 2018 (1) TN MAC 681 (SC): 2018 (5) SCC 656 ; Rani & ors. v. National Insurance Co. Ltd. & ors., 2018 (2) TN MAC 278 (SC): 2018 (9) Scale 310 ; and Manuara Khatun and others v. Rajesh Kumar Singh and others, 2017 (1) TN MAC 289 (SC): 2017 (4) SCC 796 , the question regarding the liability of the Insurance Company to pay the compensation in respect of an unauthorized Passenger in the Goods Vehicle did arise for consideration. We are therefore of the considered opinion that the Judgment of the Two-Judge Bench in Shivaraj v. Rajendra and another referred to supra cannot be taken as a precedent to conclude that the Insurance Company would be liable to pay the Compensation even in respect of an unauthorized Passenger, in a Goods Vehicle, in the light of categorical India Assurance Company v. Asha Rani and others; and National Insurance Co. Ltd. v. Baljit Kaur and others, referred to supra. We therefore conclude that the Tribunal, in the case on hand, was not right in directing the Insurance Company to pay the Compensation and giving it the liberty to recover the same from the Owner." 9. Heard the learned counsel appearing for the appellant as well as the 3rd respondent/Insurance Company and perused the materials available on record. 10. From the materials available on record, it is seen that the appellant has contended that the deceased was a motor mechanic and was expert in repairing the spring cut defect. The deceased and three others were taken by the 2nd respondent, owner of the lorry to repair the lorry, which broke down while coming from Nanjangud along with the goods. The deceased and three others after repairing the lorry were coming to Sathyamangalam in the very same lorry. The deceased and three others were taken by the 2nd respondent, owner of the lorry to repair the lorry, which broke down while coming from Nanjangud along with the goods. The deceased and three others after repairing the lorry were coming to Sathyamangalam in the very same lorry. On the way, due to rash and negligent driving by the 1st respondent, driver of the lorry and sudden brake applied by him, the deceased who was sitting in the left hand side of the cabin fell down and died. The 3rd respondent/Insurance Company has erroneously contended that the deceased was an unauthorized passenger in the lorry. The 3rd respondent has not disputed the contention of the appellant that the deceased and three others travelled in the lorry after repairing the lorry. The 3rd respondent further contended that the deceased himself fell down from the running lorry and invited the accident and the police falsely registered the case against the 1st respondent. The 3rd respondent has not examined the 1st respondent or any independent witness to prove the above contention. When the deceased travelled in the vehicle as per the instruction of the 2nd respondent after repairing the lorry, he travelled in the lorry only as an employee under the 2nd respondent on a temporary basis. In such circumstances, the deceased cannot be termed as an unauthorized passenger travelling in the goods vehicle. The Tribunal failed to consider the above materials in proper perspective and erroneously dismissed the claim petition against the 3rd respondent/Insurance Company holding that the deceased did not travel in the lorry as owner of the goods or representative of the owner of the goods. The judgment relied on by the 3rd respondent/Insurance Company reported in 2018 (2) TNMAC 731 DB (Bharati AXA General Insurance Co. Ltd. v. Aandi and others) does not advance the case of the 3rd respondent as the facts in the said judgment are different from the facts of the present case. On the other hand, in the judgment relied on by the learned counsel appearing for the appellant/claimant reported in 2004 (4) CTC 290 (New India Assurance Company Limited, Theni vs. Minor Krishnan), this Court considering para-13 to 15 of the judgment reported in : 2003 (2) SCC 223 (New India Assurance Co. On the other hand, in the judgment relied on by the learned counsel appearing for the appellant/claimant reported in 2004 (4) CTC 290 (New India Assurance Company Limited, Theni vs. Minor Krishnan), this Court considering para-13 to 15 of the judgment reported in : 2003 (2) SCC 223 (New India Assurance Co. Ltd., vs. Asha Rani), para-13 & 14 of the judgment reported in 2000 (1) CTC 370 : 2000 (1) SCC 237 (New India Assurance Company Ltd., vs. Satpal Singh) and para-14 of the judgment reported in 2004 (1) CTC 210 (National Insurance Co. Ltd. vs. Baljit Kaur), has held that the Courts have discretionary power to direct the Insurance Company to satisfy the award amount in favour of the claimant and recover the same from the owner of the vehicle. I had an occasion to consider this issue in the judgment dated 10.10.2018 made in CMA(MD) Nos. 1562 to 1570 of 2011 (Oriental Insurance Company Limited vs. Malliga and others) and held that the Insurance Company cannot be exonerated from its liability to pay compensation and pay and recovery must be ordered. In para-40 of the judgment relied on by the learned counsel appearing for the 3rd respondent/Insurance Company reported in 2018 (2) TNMAC 731 DB, the Division Bench of this Court extracted the following portion: "Therefore, it cannot be said as an inexorable Principle of Law that in each case where the liability is in respect of a passenger in a Goods Vehicle, which is not required to be covered under Section 147 of the Act, the Insurance Company would be directed to first pay the amount and thereafter recover the same from the owner and such discretion is obviously with the Court either to apply such principle or not." The said portion of the said judgment is recorded. In view of the principles laid down in the above judgment, I hold that the 3rd respondent/Insurance Company is also liable to pay compensation to the appellant as the deceased travelled as employee under the 2nd respondent and was not as an unauthorised passenger. 11. As far as quantum of compensation is concerned, the learned counsel appearing for the appellant/claimant contended that the deceased, who is the son of the appellant was motor mechanic and was earning a sum of Rs. 10,000/- per month. She failed to prove the income of the deceased. 11. As far as quantum of compensation is concerned, the learned counsel appearing for the appellant/claimant contended that the deceased, who is the son of the appellant was motor mechanic and was earning a sum of Rs. 10,000/- per month. She failed to prove the income of the deceased. In the absence of material evidence, the Tribunal fixed notional income of the deceased at Rs. 3,000/- per month. The accident is of the year 2005 and the notional income fixed by the Tribunal is meagre. This Court fixes a sum of Rs. 5,000/- per month as notional income of the deceased. The deceased was aged 33 years at the time of accident. The appellant is entitled to 40% enhancement towards future prospects. The deceased was a bachelor. The Tribunal deducted 1/3rd instead of 1/2 towards personal expenses and applied multiplier 8 by considering the age of the mother of the deceased. The Tribunal ought to have taken into account the age of the deceased and the correct multiplier is 16. The loss of income awarded by the Tribunal is modified to Rs. 6,72,000/- (Rs. 5,000/-+ 2000 (Rs. 5,000/- X 40%) X 12 X 16 X 1/2). A sum of Rs. 50,000/- awarded by the Tribunal towards loss of love and affection is excessive and the same is reduced to Rs. 40,000/-. A sum of Rs. 15,000/- and Rs. 25,000/- awarded by the Tribunal towards loss of dependency and mental agony respectively are set aside. A sum of Rs. 5,000/- awarded by the Tribunal towards funeral expenses is meagre and the same is enhanced to Rs. 15,000/-. The Tribunal has not awarded any amount towards loss of estate and this Court awards a sum of Rs. 15,000/- towards loss of estate. Thus the compensation awarded by the Tribunal is modified as follows: S. No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted 1. Loss of income 1,92,000 6,72,000 Enhanced 2. Loss of love and affection 50,000 40,000 Reduced 3. Funeral expenses 5,000 15,000 Enhanced 4. Mental agony 25,000 - Set aside 5. Loss of dependency 15,000 - Set aside 6. Loss of estate - 15,000 Granted Total Rs.2,87,000/- Rs.7,42,000/- Enhanced by Rs.4,55,000/- 12. In the result, this Civil Miscellaneous Appeal is allowed and the compensation awarded by the Tribunal at Rs. 2,87,000/- is hereby enhanced to Rs. Funeral expenses 5,000 15,000 Enhanced 4. Mental agony 25,000 - Set aside 5. Loss of dependency 15,000 - Set aside 6. Loss of estate - 15,000 Granted Total Rs.2,87,000/- Rs.7,42,000/- Enhanced by Rs.4,55,000/- 12. In the result, this Civil Miscellaneous Appeal is allowed and the compensation awarded by the Tribunal at Rs. 2,87,000/- is hereby enhanced to Rs. 7,42,000/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The appellant/claimant is directed to pay necessary Court fee, if any, on the enhanced compensation. The 3rd respondent/Insurance Company is directed to deposit the entire award amount now determined by this Court along with interest and costs within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the appellant/claimant is permitted to withdraw the enhanced award amount along with interest and costs, less the amount if any, already withdrawn. No costs.