Madras High Court
R.Gopal (Deceased) vs Rangasamy on 11 November, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.814 of 2006 1.R.Gopal (Deceased) 2.Sumathi 3.Minor. Prasanth 4.Minor. Preetha (Minors 3 and 4 are rep. by mother, natural guardian the 2nd appellant Tmt.Sumathi) 5.Visathal .. Appellants (Appellant 2 to 5 are brought on record as legal representatives of the deceased sole appellant vide order of the Court dated 4.10.2010 made in CMP.No.1384 of 2010) vs 1.Rangasamy 2.Janaki 3.Saravanan 4.M/s.Sathyamangalam People's Association, No.366A, Opposite to Taluk office, Sathyamangalam, Erode Dt. 5.The New India Assurance Company Ltd., Divisional office, Sathyamangalam. 6.Kumarasamy 7.The New India Assurance Company Ltd., 490-A, 1st Floor, Avinashi road, Peelamedu, Coimbatore. .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Common Order and Decree in M.A.C.T.O.P.No.968 of 2002, before the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.I, Coimbatore) dated 29.06.2005, in so far as it is against the appellant is concerned. For Appellants : Mr.A.Sivaji For Respondents: Mr.N.Vijayaraghavan (for R5 & R7) Mr.V.Elango (for R1 & R2) R3, R4 & R6 - Served JUDGMENT
The appellant / 4th respondent has preferred the present appeal in C.M.A.No.814 of 2006, against the Common Order and Decree passed in M.C.O.P.No.968 of 2002, on the file of the Motor Accidents Claims Tribunal / Additional District Court, Fast Track Court No.I, Coimbatore.
2.The short facts of the case are as follows:-
The petitioners, who are the parents of the deceased Muthu @ Muthusamy have preferred the claim in M.C.O.P.No.968 of 2002, claiming compensation of a sum of Rs.5,00,000/- from the respondents for the death of the said Muthu @ Muthusamy in a Motor Vehicle Accident. It was submitted that on 14.01.2002, at around 10.30 a.m., when the (deceased) Muthu was travelling as a pillion rider in the motorcycle bearing Registration No.MDB-2550, ridden by one Gopal, on the Kovilpalayam-Kovai Sathi road, towards west and when the vehicle was near Aravindan Hospital diversion, the 1st respondent drove the Maruthi Ambulance Van bearing Registration No.TN-36-Z-6963, in a rash and negligent manner and dashed it against the motorcycle. As a result, the rider and pillion rider of the motorcycle sustained injuries. The (deceased) Muthu succumbed to his injuries, while being taken to Coimbatore Government Hospital. At the time of accident, the (deceased) Muthu was aged 26 years and he was working as a Vegetable commission agent and earning Rs.4,500/- per month. Hence, the petitioners have filed the claim against the respondents 1 to 6. The respondents 1 to 3 are the driver, owner and insurer of the Ambulance Van and the respondents 4 to 6 are the driver, owner and insurer of the motorcycle.
3.The 3rd and 6th respondents in their counter have denied the averments in the claim that the accident had been caused by the rash and negligent driving of the Ambulance Van driver and that the name of the Ambulance Van driver was not Murugesan, as alleged in the claim. It was submitted that the accident was caused only due to the rash and negligent riding of the motorcycle by the 4th respondent, who had suddenly come on to the highway, without seeing the oncoming van and that as the criminal case had been filed against the 4th respondent, the 3rd and 6th respondents are not liable to pay compensation to the petitioners. The averments in the claim regarding age and income of the deceased was also not admitted. It was submitted that as the deceased was a bachelor, the multiplier relevant to the age of his parents should only be considered while assessment of loss of income. It was submitted that the claim was excessive.
4.The 4th respondent, in his counter has submitted that on 14.01.2002, at around 10.30 a.m., when the 4th respondent was riding the motorcycle bearing Registration No.MDB-2550, along with the (deceased) Muthu as pillion rider, the 1st respondent drove the Ambulance Van bearing Registration No.TN-36-Z-6963 at a high speed and in a rash and negligent manner and dashed it against the motorcycle, as a result of which both of them were thrown out of the motorcycle. It was submitted that the 4th respondent was admitted at Ramakrishna Hospital and that till now, he has not been able to talk and that he is also not able to eat and walk without the support of his wife and that his entire nerve system in the brain has been affected. It was submitted that even though the accident had been caused by the rash driving of the 1st respondent, the case has been wrongly filed against this respondent. Hence, it was prayed to dismiss the claim. It was submitted that as the 4th respondent had sustained 100% disability in the accident and as the motorcycle had been covered under a valid policy of Insurance with the 6th respondent, only the 6th respondent is liable to pay compensation to the petitioners, if so decided by the Tribunal.
5.The 5th respondent, in his counter has submitted that as the accident was caused due to the rash and negligent driving of the Ambulance Van by the 1st respondent, the 5th respondent is not liable to pay any compensation. It was submitted that the petitioners should prove the income of the deceased through documentary evidence. It was submitted that the claim was excessive.
6.In the same accident, another claim has been filed by the appellant, the rider of the motorcycle namely Gopal, who had sustained injuries, in M.C.O.P.No.734 of 2003. On the request made by the learned counsels for their respective petitioners in the claims, through a joint memo, a joint trial was conducted and common evidence was recorded in M.C.O.P.No.968 of 2002. On the petitioners' side, 6 witnesses were examined and 20 documents were marked as Exhibits P1 to P20 namely Ex.P1-Copy of F.I.R.; Ex.P2-Copy of postmortem report; Ex.P3 and Ex.P4-Copy of Motor Vehicle Inspector's report; Ex.P5-Copy of charge sheet; Ex.P6-Observation mahazar; Ex.P7-Death Certificate; Ex.P8-Legal heir certificate; Ex.P9-Medical treatment records; Ex.P10 and Ex.P11-Copy of medical treatment records; Ex.P12-Driving licence; Ex.P13-Scan report; Ex.14-Medical bills (series); Ex.P15-X-rays; Ex.P16-Scan; Ex.P17-Copy of I.D. of Natarajan; Ex.P18 and Ex.P19-Certificate showing receipt of commission; and Ex.P20-Wound and Disability Certificate. On the respondents' side, one witness was examined and 3 documents were marked as Exhibits R1 to R3 namely Ex.R1-Copy of rough sketch; Ex.R2-Copy of charge sheet; and Ex.R3-Policy.
7.The Motor Accidents Claims Tribunal framed three issues for consideration in the case namely (1) Who is liable to pay compensation? (2) Are the petitioners entitled to get compensation? and (3) What is the quantum of compensation which the petitioners are entitled to get?
8.PW1, Rangasamy, the father of the deceased Muthu and the 1st petitioner in M.C.O.P.No.968 of 2002 and PW2, the wife of Gopal and the 2nd petitioner in M.C.O.P.No.734 of 2003 had adduced evidence, which is corroborative of the statements made in the claim regarding manner of accident and in support of their claim they had marked Exhibits P1 to P20. PW3, Natarajan the eyewitness of the accident had adduced evidence that the accident had been caused by the rash and negligent driving of the Ambulance Van driver. He had further stated that there are speed breakers on the road, on which the motorcyclist had proceeded and that this road leads to the main road.
9.RW1, Saravanan, the driver of the Ambulance Van had adduced evidence that on the day of occurrence of accident, he was driving the Van on the main road in a careful and cautious manner and that the accident was caused due to the rash and negligent riding of the motorcycle by its rider, who had suddenly turned his motorcycle while coming out from the diversion road to the main road, without noticing the oncoming vehicle and dashed the motorcycle against the Van. He further deposed that there were no speed breakers in the diversion road, on which the motorcycle had proceeded.
10.The Tribunal, on scrutiny of Ex.P1, observed that the F.I.R. had been filed against the driver of the motorcycle i.e. the 1st petitioner. The Tribunal, on scrutiny of Ex.P3 and Ex.P4 and after observing the damages caused to the motorcycle and Van involved in the accident and on scrutiny of Ex.R1-Rough sketch, observed that the accident had been mainly caused due to the negligence of the motorcyclist, who after proceeding on his motorcycle on the diversion road, had suddenly turned his vehicle on the main road and dashed it against the Van. The Tribunal further observed that the 1st respondent had also stated that he was carrying a patient in the Ambulance Van and that he had put on the lights on his vehicle while proceeding on the main road. Hence, the Tribunal on scrutiny of Ex.R1-Rough sketch, Ex.P6-Observation mahazar and on scrutiny of evidence of PW3 and RW1 held that the accident had been caused by the contributory negligence of both the motorcyclist and van driver and apportioned the negligence in the ratio 70% : 30% amongst them respectively and hence held that the respondents 1 to 3 liable to pay 30% of the compensation assessed to the petitioners and held the respondents 4 to 6 are liable to pay 70% of the compensation assessed to the petitioners.
11.PW1 had further adduced evidence that his son was aged 26 years and that he was working as a Commission agent and earning Rs.3,500/- to Rs.4,500/- per month. PW4, Ponnusamy had adduced evidence that the (deceased) Muthu was working as a Commission agent under him and earning Rs.4,500/- per month and in support of his evidence, he had marked Ex.P18. However, he had deposed that he had not maintained any separate account books to show payments made to the said Muthu and had also stated that he was not paid a fixed salary as was paid to permanent employee. Hence, the Tribunal held that the notional income of the deceased could only be taken as Rs.3,000/- per month. The Tribunal on observing that the 1st and 2nd petitioners were aged 55 and 45 years respectively, adopted a multiplier of 10 and awarded a sum of Rs.2,40,000/- (3,000X2/3X12X10) as compensation to the petitioners under the head of loss of income; Rs.10,000/- was awarded to each of the 1st and 2nd petitioners under the head of loss of love and affection; Rs.5,000/- was awarded for funeral expenses. In total, the Tribunal awarded a sum of Rs.2,65,000/- as compensation to the petitioners and directed the respondents 1 to 3 to pay 30% of the said compensation and directed the respondents 4 to 6 to pay 70% of the said compensation to the petitioners, together with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation, with costs, within a period of one month from the date of its order.
12.Aggrieved by the award passed by the Tribunal, the petitioners have preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in holding that the accident had been caused by the rash and negligent driving of the two wheeler belonging to the 4th respondent and driven by the appellant herein. It was contended that the Tribunal failed to see that the independent witness and eyewitness has spoken about the manner in which the accident occurred and that the Tribunal failed to consider his evidence. It was contended that the Maruthi Van was carrying a patient from Gobichettipalayam for urgent treatment at Coimbatore. In the normal circumstances, it can be taken judicial notice of the fact that such a vehicle will not run in a normal speed in view of the urgency. It was pointed out that on account of the fact that the van was running on the highway, coupled with the urgency, RW1 would not have driven the Van in a normal speed. It was contended that the Tribunal failed to see that the Van was thrown to a distance of 40 feet and that this indicates the speed at which the Van was proceeding in a busy area. It was contended that the Tribunal erred in fixing 70% liability on the two wheeler driver. Hence, it was prayed to set aside the award passed by the Tribunal.
13.The learned counsel for the Insurance Company argued that the contributory negligence had been attributed in an appropriate manner on the basis of F.I.R. and rough sketch. Further, the deceased was a bachelor, but the Tribunal had deducted only 1/3rd of his income for personal expenses instead of 1/2 while assessment of loss of earning. However, the quantum of compensation awarded is adequate.
14.The learned counsel for the respondents 1 and 2 submits that the trial Court had framed necessary issues and decided the issue of negligence and liability after recording oral and documentary evidence.
15.On verifying the facts and circumstances of the case and arguments advanced by the learned counsel on all side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding contributory negligence, liability and quantum of compensation.
16.Now, the claimants are at liberty to withdraw their compensation amount, as per order of the trial Court, after filing a memo, along with a copy of this order, before the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.I, Coimbatore).
17.In the result, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Common Order and Decree, passed in M.C.O.P.No.968 of 2002, dated 29.06.2005, on the file of the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.I, Coimbatore), is confirmed. No costs.
11.11.2013 vs Index : Yes / No Internet: Yes / No To
1.The Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.I, Coimbatore.
2.The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN.J vs PRE-DELIVERY ORDER IN C.M.A.No.814 of 2006 11.11.2013 (2/2)