Madras High Court
K.P.Thomas vs The Divisional Manager on 2 February, 2006
Author: A.C.Arumuga Perumal Adityan
Bench: A.C.Arumuga Perumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 02/02/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGA PERUMAL ADITYAN C.M.A.No.457 of 1998 1.K.P.Thomas 2.Mary Thomas ... Appellants vs 1.The Divisional Manager, The United India Insurance Co., Ltd., 7A, West Veli Street, Madurai-1. 2.Elthos David ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree dated 25.11.1996 and made in M.C.O.P.No.256 of 1991 on the file of the Motor Accidents Claims Tribunal - Principal District Judge, Dindigul. !For Appellants ... M/s.Khan K.S.M.S.Ibrahim ^For Respondents ... Mr.P.Jeganathan for R1 Ms.R.Dhanam for R2 :JUDGMENT
The appellants are the claimants in M.C.O.P.No.256 of 1991 on the file of the Motor Accidents Claims Tribunal - Principal District Judge, Dindigul.
2. The short facts of the case are that on 15.04.1990, at about 02.00 p.m., the deceased in the accident, namely Domi, the son of the appellants, was proceedings along with his friends from a place at Kerala, near Edukki, called Rajakumari to Kodaikanal in a Jeep bearing Registration No.KCE-1077, met with an accident due to the rash and negligent driving of the driver of the said Jeep, resulting the death of Domi. The claimants had claimed Rs.2,00,000/- towards compensation.
3. The first respondent had filed a counter contending that the accident had not occurred due to the rash and negligent driving of the driver of the Jeep, but due to the overloading of 13 persons in the Jeep and that as per the terms and conditions of the Insurance Policy, the first respondent claims that he is not liable to pay the compensation. The second respondent / the owner of the Jeep remained ex-parte. On the available evidence, the learned Tribunal has come to a conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the Jeep and awarded Rs.40,000/- towards compensation.
4. Aggrieved by the award of the learned Tribunal, the claimants have preferred this appeal for enhancement of the compensation.
5. Now, the point for determination in this appeal is whether the award passed in M.C.O.P.No.256 of 1991, dated 25.11.1996, on the file of the Motor Accidents Claims Tribunal - Principal District Judge, Dindigul, is liable to be enhanced for the reasons stated in the Memorandum of appeal?
The Point:
6. The learned Counsel appearing for the appellants would contend that as against the first respondent / Insurance Company, the claim under M.C.O.P.No.256 of 1991 was dismissed, on the ground that at the time of accident, 13 persons had travelled in the Jeep, contrary to the terms and conditions of Ex.R.1, policy.
7. The learned Counsel appearing for the appellants relying on the decision in Saroj Vs. New India Assurance Co., Ltd., reported in 2005 ACJ 906 and contended that there was no evidence on record to show that 13 persons had travelled in the Jeep at the time of accident and only due to the overloading of the Jeep, the accident had occurred. The learned Counsel would contend that the learned Tribunal had decided that only due to the rash and negligent driving of the driver of the Jeep, the accident had occurred. The learned Counsel also brought to the notice of this Court that the learned Tribunal has wrongly mentioned in the award that Domi was the driver of the Jeep, but actually one, Mohanan was the driver of the Jeep. Even in Paragraph 2 of the award, the learned Tribunal has clearly stated that the Jeep bearing Registration No.KCE- 1077, which involved in the accident, was driven by Mohanan, but subsequently at paragraph 6, the learned Tribunal has mentioned that the deceased Domi had driven the Jeep, by mistake. The relevant observation in Saroj Vs. New India Assurance Co., Ltd., reported in 2005 ACJ 906 is as follows:
"We have perused the evidence on record. The accident was admitted by opposite party No.1. The burden to prove this fact that the vehicle was overloaded was upon the insurance company. Even assuming that there were eight persons in the vehicle at the time of accident, the insurance company cannot escape its liability as there was no evidence on record that the accident took place on account of overloading."
8. Even as per the terms and conditions of the policy, Ex.R.1, the Insurance Company is liable to pay compensation for six (5+1) persons. There is nothing in evidence to show that the Insurance Company / first respondent had paid compensation already for six persons in the accident. Further, there is a clear finding by the learned Tribunal that only due to the rash and negligent driving of the driver of the Jeep, the accident had occurred and not due to the overloading of 13 persons in the Jeep.
9. The learned Counsel appearing for the appellants, relying on the decision in National Insurance Co., Ltd., Vs. Hansi Bisht reported in 2005 ACJ 794 and contended that even if the vehicle had permitted more passengers against the terms and conditions of the Insurance Policy, if it is proved that the accident had occurred due to the rash and negligent driving of the driver of the Jeep and not due to the overload, then the Insurance Company is liable to pay compensation for the passengers, who had sustained injuries in the accident. The relevant observation in National Insurance Co., Ltd., Vs. Hansi Bisht reported in 2005 ACJ 794 is as follows:
"The issues of violation of terms and conditions of insurance policy and that the driver of the bus has no valid driving licence have been raised by the appellant-respondent National Insurance Co., Ltd. Therefore, burden of proof lies upon the insurance company. The insurance company has not pressed before the learned Claims Tribunal for framing of issues on both these points nor lead any evidence in this connection. However, if the owner of the vehicle has flouted the terms and conditions of insurance policy or the driver has no valid driving licence, the liability of the insurance company towards the third party does not get avoided. The insurance company on proof that owner of vehicle was aware of fact that licence was fake, can, however, recover the amount from insured."
10. So, it is clear from the above dictums that even if there is any violation in the terms and conditions of the policy, the Insurance Company is liable to pay compensation for six (5+1) persons as per the terms and conditions of Ex.R.1, policy.
11. Hence, I hold that the first respondent / Insurance Company is also liable to pay the award of compensation. The point is answered accordingly.
12. The next point raised by the learned Counsel for the appellants is that the compensation awarded is very meagre. The accident had occurred near Kodiakanal and Domi was taken to Government Rajaji Hospital, Madurai. So, under the head, transport to hospital, I award Rs.500/-. Domi died in the hospital only on 23.04.1990, eight days after admission. So, on that score, for extra nourishment, I award Rs.500/-. Under the head of damages to the cloth, the claimants are entitled to Rs.500/-. During Domi's stay in the hospital, he would have engaged an attendant, so for keeping an attendant, I award a sum of Rs.1,000/- . For funeral expenses, I award Rs.2,000/-. The parents / appellants are very aged people, Hence, I award Rs.20,000/- towards loss of love and affection. The aged parents have lost their son in the accident. So, far mental agony of the appellants, I award Rs.10,000/-. Towards loss of income, the deceased was aged 22 years and the mother of the deceased was aged 49 years, at the time of accident and hence, the relevant multiplier to be applicable is 13 as contended by the learned Counsel appearing for the claimants as well as the respondents. Ex.A.3 shows the monthly income of the deceased as Rs.1,000/-. So, after deducting 1/3 towards his personal expenses, the deceased would have given at least Rs.770/- per mensum to the appellants. Under the head of loss of income, I award Rs.1,20,120/- [Rs.770 X 12 X 13 = Rs.1,20,120/-]. The total compensation to which the appellants are entitled to, is Rs.1,54,620/- [Rs.500/- + Rs.500/- + Rs.500/- + Rs.1,000/- + Rs.2,000/- + Rs.20,000/- + Rs.10,000/- + Rs.1,20,120/- = Rs.1,54,620/-] (Rupees one lakh fifty four thousand six hundred and twenty only).
13. In the result, the appeal is allowed and the award of compensation is enhanced to Rs.1,54,620/- (Rupees one lakh fifty four thousand six hundred and twenty only) and the appellants are entitled to get 12% interest and proportionate costs from the date of filing of the petition till the date of realisation from Respondents 1 and 2. The appellants are permitted to withdraw Rs.1,00,000/- (Rupees one lakh only) and the balance of award amount is to be deposited in fixed deposit in any one of the nationalised bank for three years. The claimants are entitled to withdraw the accrued interest once in three months. No costs in the appeal.
rsb To The Motor Accidents Claims Tribunal -
Principal District Judge, Dindigul.