Madras High Court
Revathi Rajasekaran And Anr. vs Vijayakumaran And Anr. on 9 February, 2001
Equivalent citations: 2002ACJ1925, (2001)1MLJ672
JUDGMENT K. Sampath, J.
1. A ticklish problem has arisen because of the pronouncement of the Supreme Court in Chinnama George v. N.K. Raju , wherein the Supreme Court has held as follows (paras 10 and 8):
...The insurer cannot maintain a joint appeal along with the owner or driver if defence on any ground under Section 149(2) is not available to it. In that situation joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of the appellants. The appellate court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken in the pleadings and was pressed before the Tribunal. On the appellate court being so satisfied the appeal may be entertained for examination of the correctness or otherwise of the judgment of the Tribunal on the question arising from/relating to such defence taken by the insurer. If the appellate court is not satisfied that any such question was raised by the insurer in the pleadings and/or was pressed before the Tribunal, the appeal filed by the insurer has to be dismissed as not maintainable. The court should take care to ascertain this position on proper consideration so that the statutory bar against the insurer in a proceeding of claim of compensation is not rendered irrelevant by the subterfuge of the insurance company joining the insured as a co-appellant in the appeal filed by it. This position is clear on a harmonious reading of the statutory provisions in Sections 147, 149 and 173 of the Act. Any other interpretation will defeat the provision of Sub-section (2) of Section 149 of the Act and throw the legal representatives of the deceased or the injured in the accident to unnecessary prolonged litigation at the instance of the insurer.... If none of the conditions as contained in Sub-section (2) of Section 149 exist for the insurer to avoid liability under the policy of insurance he is legally bound to satisfy the award, he cannot be a person aggrieved by the award. In that case insurer will be barred from filing any appeal against the award of the Claims Tribunal.
On facts, the Supreme Court in that case found that none of the grounds as given in Sub-section (2) of Section 149 existed for the insurer to defend the claim petition. That being so, no right existed in the insurer to file an appeal against the award of the Claims Tribunal and merely by associating the owner or the driver in the appeal when neither was an aggrieved person and it was also not reflected in the judgment of the High Court, that neither had any grievance, it would be mocking at the law which prohibited the insurer from filing appeal except on the limited grounds on which it could defend the claim petition. The Apex Court further observed:
We have to give effect to the real purpose of the provision of law relating to the award of compensation in respect of the accident arising out of the use of the motor vehicles and cannot permit the insurer to give him right to defend or appeal on grounds not permitted by law by a back door method. Any other interpretation will produce unjust results and open gates for the insurer to challenge any award. We have to adopt purposive approach which would not defeat the broad purpose of the Act. Court has to give effect to true object of the Act by adopting purposive approach.... In the present case we do not find any argument addressed on behalf of the owner of the offending vehicle and the only argument, which the High Court noticed, was that of the counsel for the insurer. That argument was on the quantum of compensation granted to the appellants. That ground is certainly not available to the insurer for the purpose of filing the appeal.
The Supreme Court was, indeed, apprised of its own decision in Narendra Kumar v. Yarenissa . In that case, the question arose whether the appeal filed by the insurance company in association with one or more of the tortfeasors against whom the award had been made was maintainable. While holding that such an appeal was not maintainable, the further question arose before the Apex Court as to whether the appeal should be dismissed in toto. The Supreme Court held that the appeal need not be dismissed in toto and the tortfeasors could be permitted to pursue the appeal after suitably amending the cause-title while the appeal by the insurance company could be dismissed.
2. While referring to this decision, later the Supreme Court in Chinnama George's case , made the observations set out at the beginning of this judgment which it is necessary to repeat:
There is no dispute with the proposition so laid by this court. But the insurer cannot maintain a joint appeal along with the owner or the driver if defence on any ground under Section 149(2) is not available to it. In that situation joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of the appellants. The appellate court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken in the pleadings and was pressed before the Tribunal. On the appellate court being so satisfied the appeal may be entertained for examination of the correctness or otherwise of the judgment of the Tribunal on the question arising from/relating to such defence taken by the insurer.
3. Dealing with the problem of standing, Wade in his Administrative Law, 6th Edn., p. 68, has observed as follows:
It has always been an important limitation on the availability of remedies that they are awarded only to litigants who have sufficient locus standi, or standing. The law starts from the position that remedies are correlative with rights and that only those whose own rights are at stake are eligible to be awarded remedies. No one else will have the necessary standing before the court.
In private law that principle can be applied with some strictness. But in public law it is inadequate, for it ignores the dimension of the public interest.
In page 74, dealing with the expression 'any person aggrieved', the learned author has observed as follows:
The statutory remedy may be invoked by 'any person aggrieved'.... This is the same phrase as is used at common law to define standing for obtaining certiorari and prohibition and as has been seen it bears a very wide meaning in that context, so that virtually any one concerned in any way personally falls within it. It has also been used in many statutes, where its meaning ought to be equally wide; for in earlier times the usual phrase was 'any person who feels aggrieved' or 'any person who thinks himself aggrieved', which made it clear that the grievance was purely subjective e.g., the Highway Act, 1835, Section 72 ('if any person shall think himself aggrieved'); Public Health Act, 1875, Section 268 ('deems himself aggrieved'). The National Insurance Act, 1911, Section 66(1) referred to 'any person who feels aggrieved'. In the National Insurance Act, 1965, Section 65 (3) this had become 'any person aggrieved'. The phraseology evolved similarly in rating law; see Arsenal Football Club Ltd. v. Ende 1979 AC 1 at 15. Even the 'feels aggrieved' formula can be restrictively interpreted; see R. v. Ipswich Justices ex p. Robson (1971) 2 QB 340. When this was abbreviated to 'any person aggrieved' the meaning should have remained the same, as indeed is the natural sense of the words, R. v. Surrey Assessment Committee (1948) 1 All ER 856, corroborated by at least one statute. [Parliamentary Commissioner Act, 1967, Section 12(1) defining 'person aggrieved' as the person 'who claims or is alleged' to have sustained injustice].
But in some cases the courts interpreted this apparently guidelines phrase as expressing a requirement of standing and treated it as meaning 'any person affected'. [In re: Ex. P. Sidebotham (1879) 14 Ch D 458]. Continuing further it is stated:
The root of the problem is that the common statutory formula contains no other provision about standing, but allows any person aggrieved to apply to the court. Judges have therefore felt that any question of standing must be resolved by interpreting these words restrictively. Since standing depends upon indefinable factors which vary from one case to another, the interpretations have become inconsistent.
The statutory remedy may be invoked by 'any person aggrieved'. This is the same phrase as is expressed in Bar Council of Maharashtra v. Dabholkar , dealing with the meaning of the words 'a person aggrieved', the Supreme Court observed as follows:
One of the meaning is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one 'a person aggrieved'. Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words 'a person aggrieved' is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights.
The Apex Court referred to the observation of Lord Denning in Attorney-General of Gambia v. Pierra Sarrn, JIE 1961 AC 617:
...The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.
In Jasbhai Motibhai Desai v. Roshan Kumar , the Supreme Court observed:
The expression 'aggrieved person' denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest and the nature and extent of the prejudice or injury suffered by him.
The Apex Court in that decision referred to the observations of James, L.J. in In re: Sidebotham (1880) 14 Ch D 458, which was referred to by Wade, in his book, which is to the following effect:
The words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something.
Referring to the state of affairs in the United States of America, the Supreme Court in the same judgment, in para 35, observed as follows:
Courts can intervene only where legal rights are invaded Chapman v. Sheridan Wyoming Coal Co. (1949) 338 US 621. 'Legal wrong' requires a judicially enforceable right and the touchstone to judiciability is injury to a legally protected right. A nominal or a highly speculative adverse effect, American Jurisprudence, Vol. 2d, Section 575, p. 334, Joint Anti Fascist Refugee Committee v. McGarth (1950) 341 US 123, on the interest or right of a person has been held to be insufficient to give him the 'standing to sue' for judicial review of administrative action.
4. In para 38, the tests have been laid down by the Apex Court. Though in the words of the Supreme Court those tests are not absolute and ultimate and their efficacy will vary according to the circumstances of the case including the statutory context in which the matter falls to be considered, the person claiming to be aggrieved must have a standing to complain of injury, actual or potential, to any statutory right or interest. He must be denied or deprived of a legal right. He must have sustained injury to any legally protected interest. It should wrongfully affect his title to summon. He should have been subjected to a legal wrong. He must suffer a legal grievance. He must have a legal peg for a justiciable claim to hang on.
In Thammamma v. Veera Reddy , the same principles are reiterated.
The earliest decision by the Supreme Court arose in British India Genl. Ins. Co. Ltd. v. Capt. Itbar Singh 1958-65 ACJ 1 (SC). The decision arose under the 1939 Act. Under the earlier Act, the insurer could avoid liability under Section 96(6) provided he had defences enumerated in Section 96(2) available to him. The Supreme Court held that no further ground of defence could be taken by the insurer other than those enumerated in Section 96(2). The defences available were:
(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a public service vehicle or a goods vehicle, or
(d) without side-car being attached, where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(c) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particulars.
(2-A) xxx xxx xxx (3) Where a certificate of insurance has been issued under Sub-section (4) of Section 95 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in Clause (b) of the Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95, be of no effect:
Provided that any sum paid by the insurer in or towards the discharge of any liability or any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person.
(4) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.
(5) xxx xxx xxx (6) No insurer to whom the notice referred to in Sub-section (2) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment as is referred to in Sub-section (1) otherwise than in the manner provided for in Sub-section (2).
It also required that the insurer had to be put on notice of the bringing of any such proceedings for compensation and the insurer would be entitled to be made a party thereto and to defend the action on any of the grounds set out already. Apart from the statute an insurer has no right to be made as a party to the action by the injured person against the insured causing the injury. Sub-section (2) of Section 96, however, gives him the right to be made a party to the suit and to defend it. The right, therefore, is created by statute and its content necessarily depends on the provisions of the statute. The Supreme Court in para 16 observed that the statute does not cause any hardship to the insurer. According to it:
First, the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defences open to the assured can then be urged by him and there is no other defence that he claims to be entitled to urge. He can thus avoid all hardship, if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do. Secondly, if he has been made to pay something which on the contract of the policy he was not bound to pay, he can under the proviso to Sub-section (3) and under Sub-section (4) recover it from the assured. It was said that the assured might be a man of straw and the insurer might not be able to recover anything from him. But the answer to that is that it is the insurer's bad luck. In such circumstances the injured person also would not have been able to recover the damages suffered by him from the assured, the person causing the injuries. The loss had to fall on someone and the statute has thought fit that it shall be borne by the insurer. That also seems to us to be equitable for the loss falls on the insurer in the course of his carrying on his business, a business out of which he makes profit and he could so arrange his business that in the net result he would never suffer a loss. On the other hand, if the loss fell on the injured person, it would be due to no fault of his; it would have been a loss suffered by him arising out of an incident in the happening of which he had no hand at all.
5. The decision of the Supreme Court in effect is that if the insurer has the liberty under the policy of insurance to take over the defences of the insured and if it did so before the Tribunal, since the appeal would be a continuation of the same, it would be entitled to file the appeal.
6. The position that an insurer, in cases where the owner remains ex parte or fails to contest the case, has to apply under Section 110-C (2-A) of Motor Vehicles Act to the court for permission to take over the defences of the insured and in case the in surer does not file any such application, all appeals filed by it independently on the merits of the case would not be maintainable, set down by a Bench of this court in New India Assurance Co. Ltd. v. D. Kamalam 1993 ACJ 1087 (Madras), has been approved by the Apex Court in Shankarayya v. United India Insurance Co. Ltd. , wherein it was held that the insurance company could be directed to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 of the new Act were satisfied and the insurance company obtained order in writing from the Tribunal and it should be a reasoned one. Otherwise, the insurance company could not have a wider defence on merits, than what was available to it by way of statutory defence.
7. A contrary view taken by the Bombay High Court by a Division Bench consisting of Justice C.S. Dharmadhikari and Mrs. Justice Sujata V. Manohar (as the learned Judge then was) in Oriental Fire & Genl. Ins. Co. Ltd. v. Rajrani Surendra kumar Sharma , cannot be stated to be correct law.
8. Dealing with the expression 'person aggrieved' a Division Bench of the Calcutta High Court in Kantilal & Bros. v. Ramarani Debi 1980 ACJ 501 (Calcutta), held that an appeal, by the owner of the offending car, against the quantum of compensation directed to be paid by the insurance company was not maintainable, as he was not imposed with any legal burden. So far as the insurance company was concerned, it was held by the Division Bench that it could not be allowed to change the quantum of compensation. In the opinion of the Division Bench, the appeal of the insurance company was not maintainable as it contained no ground available to it under Section 96(2) of the 1939 Act.
In New India Assurance Co. Ltd. v. Shakuntla Bai 1987 ACJ 224 (MP), a learned single judge of the Madhya Pradesh High Court (Gwalior Bench) held that unless a person was saddled with liability, in any manner, under Section 110-B, he would not be a 'person aggrieved', within the meaning of the terms employed in Section 110-D. The question arose whether a joint appeal by the owner, driver and the insurer of the offending vehicle against an award passed in favour of the claimant and where the liability to pay compensation was saddled on the insurer alone, was maintainable. It was held that the insurer could be heard only within the statutory parameters of Section 96(2), that is, to say it must have a legally permissible grievance.
In Nahar Singh v. Manohar Kumar , a learned single Judge of the Jammu and Kashmir High Court summarised the broad tests as to the person aggrieved. In that case primarily the judgment passed against the owner had made the insurance company liable. As the award did not direct him to pay any compensation and his interests were not affected directly and immediately, it was held that he was not a 'person aggrieved' and competent to maintain the appeal. On a perusal of the terms of the policy, learned Judge found that no right to contest stood reserved and no complaint of collusion between the claimant and the insured was also made. It, therefore, held that insurance company could challenge the quantum of compensation and the basis thereof and those grounds were extraneous to the grounds envisaged in Section 96(2).
9. The effect of the decision of the Apex Court in Chinnama George's case, , appears to be that the insurer cannot file an appeal on merits of the case whatever be the circumstances; even where leave had been obtained under Section 170 of the Motor Vehicles Act, 1988, before the Tribunal, unless there was a defence raised by them as available under Section 149(2). This would in effect give a go by to the earlier pronouncements of the Supreme Court in Narendra Kumar v. Yarenissa and Shankarayya v. United India Insurance Co. Ltd. .
In Narendra Kumar v. Yarenissa , decided by the Bench consisting of A.M. Ahmadi, C.J.I and Sujata V. Manohar, J., it was held that the tortfeasors in company with the insurer cannot maintain the appeal, but, after suitably amending the cause-title, the tortfeasors could maintain the appeal.
And in Shankarayya's case 1988 ACJ 513 (SC), it must be deemed to have been held that the appeal filed by the insurance company would be competent if it had obtained the right to contest the proceedings on merits under Section 170 of the Motor Vehicles Act, 1988.
In the latter case, the owner and the driver of the offending vehicles appeared before the Tribunal, but, did not file any written statement. The insurance company also did not seek permission under Section 170 for contesting the proceedings on merits and, therefore, the insurance company filed an appeal against the compensation awarded by the Tribunal and the amount of compensation reduced by the appellate court, it was rejected on the ground that as it had not obtained the right of contesting the proceedings on merits under Section 170, the appeal before the High Court was not maintainable. In para 4 it is observed as follows:
It clearly shows that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the Section are found to be satisfied and for that purpose the insurance company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined respondent No. 1, insurance company in the claim petition but that was done with a view to thrust the statutory liability on the insurance company on account of the contract of insurance. That was not an order of the court itself permitting the insurance company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, the respondent No. 1, insurance company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal.
10. The Supreme Court in Chinnama George's case , has not specifically adverted to the effect of Section 170 of the Motor Vehicles Act. However, the language in para 8 of the judgment, makes one to conclude that the insurer will have no right whatsoever, to file any appeal where any defence under Section 149(2) did not arise. Section 170 runs as follows:
170. Impleading insurer in certain cases.-
Where in the course of any inquiry, the Claims Tribunal is satisfied that-
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in Sub-Section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
11. In Konidala Jaya Bharati v. A. Chokkalingam 1998 ACJ 1363 (AP), the expression 'person aggrieved' came up for consideration. After referring to a number of decisions of the Apex Court and other courts, a Division Bench of the Andhra Pradesh High Court held that both the insurer and the insured were the persons aggrieved and that a joint appeal by the owner and the insurance company would be maintainable. The objection that the owner could not have preferred appeal because the amount awarded was covered by the insurance policy and the insurance company could not have filed appeal raising grounds not permissible under Section 96(2) and that it would be a misjoinder of cause of action was rejected by the Andhra Pradesh High Court. The Division Bench referred to the relevant provisions of the 1939 Act and also noticed that there would be serious problem in case if there was a collusion between the claimants and the person against whom the claim was made or the person against whom the claim was made had failed to contest the claim, the Tribunal might permit the insurance company to be made a party and contest the claim on all or any of the grounds that were available to the insured. One of the learned Judges has observed as follows:
From the judicial pronouncements of this court and other courts it is clear that it is the owner of the vehicle vicariously, for the acts of the driver, would be primarily liable to a third party and on the basis of the insurance policy taken by the owner such a liability is passed on to an insurer.. .Therefore, from this position of law, it is clear that it is the owner who is primarily liable for the compensation but the insurance company takes such liability on the basis of the policy, as indemnifier for and on behalf of such owner. Therefore, the owner is an aggrieved person primarily.
The award being passed against the owner and the insurance company with joint and several liability, both of them would be aggrieved and if they choose to file a joint appeal, such a joint appeal would be maintainable. If the owner is deemed to be not a person aggrieved on the ground that it is only the insurance company which would be ultimately liable to pay the same, the owner cannot prefer an appeal under the impression that the award amount is covered by the insurance policy and if the insurance company alone were to prefer an appeal and if it could succeed on the basis of the grounds mentioned under Section 96(2) of the Act, the award would become final. So far as the owner is concerned he would be put to great difficulty if he was to prefer an appeal thereafter, such an appeal would be barred by time. There may also arise a situation when a claimant may prefer an appeal and the compensation amount may stand enhanced so as to exceed the limit provided by the insurance policy and if the owner were not to prefer an appeal challenging the quantum of compensation, on the ground that the award had proceeded on unsustainable principles with the impression that the award amount was covered by the policy such owner would be saddled with additional liability. Situation may also arise when compensation might have been awarded by applying a wrong multiplier or there may be a case, compensation is awarded on a particular head but such a claim on that particular head is not sustainable. Compensation may also be awarded for pain and suffering in the case of instantaneous fatal cases, which cannot be sustained. Suppose the insurer is not in a position to challenge the award because the grounds provided under Section 96(2) were not available and the award were not to be challenged by the owner on the basis of its non-maintainability, the award would be illegal but would become final. If an illegal award is allowed to stand, the claimant would have an undue advantage of certain amount which he is not entitled to. Even if we take it that it is a beneficial legislation, it would not allow any person to have any illegal enrichment.
12. The earlier larger Bench of the Supreme Court in British India Genl. Ins. Co. Ltd. v. Captain Itbar Singh 1958-65 ACJ 1 (SC), has held that the insurer can maintain an appeal provided it had the liberty under the policy of insurance to take over the defences of the insured and if it did so before the Tribunal. Under the new Act, the insurer can contest the proceedings on merits, only if the conditions precedent mentioned in Section 170 of the new Act are satisfied and the insurance company obtained a reasoned order in writing from the Tribunal. [Shankarayya v. United India Insurance Co. Ltd. and Rita Devi v. New India Assurance Co. Ltd. ].
13. As per the decision in Yarenissa's case , the position is that a joint appeal by the insurer and the insured is competent only if there are defences available to the insurer under Section 149(2). However, this position appears to be illogical for the simple reason that the said defences would be in conflict with the interest of the insured. And the insured can maintain an appeal on grounds other than those mentioned in Section 149(2) only if the insurer is out of it. But Chinnama George's case, , holds that if the grounds mentioned in Section 149(2) are not there, the insurer cannot maintain an appeal either by itself or even in the company of the insured. The insured cannot also maintain the appeal as he cannot be deemed to be an aggrieved person in view of the indemnification by the insurer. Then what are the options in situations such as were contemplated in the decision of the Andhra Pradesh High Court in Konidala Jaya Bharati's case 1998 ACJ 1363 (AP), collusion, fraud, etc. May be in extraordinary cases, jurisdiction of the High Court can be invoked under Article 226 or 227 of the Constitution of India. In United India Insurance Co. Ltd. v. Rajendra Singh , such a power exercised by the High Court was approved by the Supreme Court. But then the direct decision in Chinnama George's case (supra), holding that the appeal by the insurer or the insured together, or individually to the exclusion of the other, would be insurmountable. The conflict has to be resolved only by the Supreme Court.
14. However, as things stand I am inclined to hold that the appeal by the insurer by itself or in the company of the owner is maintainable subject to certain conditions:
(1) The policy of insurance should provide for taking over the defences of the insured before the Tribunal.
(2) The Tribunal must grant leave by a reasoned order on being satisfied that there is collusion between the person making the claim and the person against whom the claim is made, or the person against whom the claim is made has failed to contest the claim. On this being done, the insurer will be impleaded as a party (if not already impleaded) and will have the right to contest the claim on all or any of the grounds available to the person against whom the claim has been made. But this is without prejudice to the provisions contained in Section 149(2) of the Act.
15. There is also some literature as to what would constitute collusion and whether the insured remaining ex parte without anything more would suffice. However, this query must be deemed to have been set at rest by the decision of the Supreme Court in Yarenissa's case .
16. Let us now deal with the individual cases. In none of the cases did the insurance company concerned apply for permission to contest the claim. Still treating the appeals as by the owners they are being disposed of.
C.M.A. No. 1162 of 1994:
17. The owner and the insurance company are the appellants. In an accident, involving the motor cycle, belonging to the appellant No. 1, driven by her husband one Rajasekaran and insured with the appellant No. 2 and the scooter belonging to the respondent No. 1-claimant which was insured with the respondent No. 2, on 30.3.1991, respondent No. 1 was seriously injured, resulting in fracture of the left leg and causing permanent disability. He made a claim for Rs. 3,00,000 in M.A.C.T.O.P. No. 40 of 1991, before Motor Accidents Claims Tribunal, Kuzhithurai. According to him, the accident was entirely due to the rash and negligent driving of the motor cycle by the appellant No. l's husband.
The respondent No. 1, at the time of the accident, was 39 years old and working as the Drawing teacher in Vellangadu Government High School on a salary of Rs. 2,426 per month. The various heads under which the claim was made were as follows:
(1) Loss of earnings from 30.3.1991 to 30.7.1991 Rs. 7,278 (2) Transport to hospital Rs. 5,000 (3) Others Rs. 12,200 (4) Compensation for continuing permanent disability Rs. 2,75,522 Pending the M.A.C.T.O.P., the motor cycle rider died. The respondent No. 2-appellant No. 1 herein remained ex pane. The appellant No. 2 filed a counter and opposed the claim. According to the case of the appellant No. 2, the accident happened only due to negligence of the respondent No. 1 that he was an inexperienced driver, that he drove the scooter in a rash and negligent manner dashed against the other motor cycle and that the appellant No. 2 was not liable to pay any amount. The appellant No. 2 further contended that the claim under the various heads was, in any event, excessive.
18. On his side, besides the respondent No. 1, two doctors were examined as PWs 2 and 3 and Exhs. P-1 to P-62 were marked. On the side of the appellants, there was no witness examined, nor was any document marked.
19. On the materials placed, the Tribunal found that the accident was entirely due to rash and negligent driving of the vehicle by the motor cycle driver, Rajasekaran. In coming to that conclusion, the Tribunal relied on Exhs. P-1 (F.I.R.), P-2 (the report of the Motor Vehicles Inspector), P-4 (Mahazar), P-40 (charge-sheet) and P-41 (sketch). According to the Tribunal, Exh. P-41 sketch, clearly showed that the motor cycle rider had not followed the traffic rules and had driven the vehicle negligently and at breakneck speed and dashed against the claimant-respondent No. 1. This finding by the Tribunal, in my view, cannot be taken exception to. The finding is confirmed.
20. As regards the quantum, the Tribunal as against a claim for Rs. 3,00,000 has awarded Rs. 1,11,952. From the exhibits and the oral evidence, the Tribunal found that the respondent No. 1 underwent treatment at various places for about six months and that he had suffered permanent disability. Though one of the doctors has given a certificate quantifying the permanent disability at 18 per cent, the other doctor has quantified it at 42 per cent. The Tribunal also found that out of three injuries, sustained by the claimant, the third injury, namely, fracture of left knee joint, was grievous. The Tribunal has fixed a sum of Rs. 1,00,000 towards pain and suffering and permanent disability. The Tribunal has also observed that after treatment the claimant had resumed his duties as Drawing teacher in the school and that he had not suffered loss of earnings. In my view this finding cannot be interfered with. The award of Rs. 1,00,000 under the various heads cannot also stated to be excessive.
21. As regards loss of earnings for a period of four months, i.e., from 30.3.1991 to 30.7.1991, the claimant had asked for Rs. 7,278. The Tribunal has disallowed the claim on the ground that he had been given salary during the period of absence and he had not lost any amount on this score. In my view, the Tribunal has overlooked that the leave that a person is entitled to can always be encashed if accumulated. The rejection of the claim under this head cannot be sustained. But, however, the claimant has not filed any appeal against the disallowance of his loss of earnings during those four months.
22. The other claims with regard to damage to the vehicle and damage to his belongings, as against claim for Rs. 12,200 the Tribunal has allowed Rs. 6,000, which cannot be stated to be erroneous.
23. Under medical expenses, the Tribunal has awarded amount on the basis of the bills and other receipts filed by the claimant, as Exhs. P-ll to P-35. The fixing of the amount by the Tribunal under this head is not erroneous.
24. The Tribunal has made a mistake in awarding interest at 15 per cent, which cannot be sustained. The appeal will stand allowed only with regard to interest and instead of 15 per cent the claimant would be entitled to 12 per cent interest per annum.
C.M.A. No. 1221 of 1994:
25. The owner of the vehicle involved in the accident and the insurer are the appellants in the civil miscellaneous appeal arising out of M.A.C.T.O.P. No. 22 of 1992 on the file of the Motor Accidents Claims Tribunal, Kancheepuram, filed by respondent Nos. 1 to 5 herein claiming compensation in a sum of Rs. 2,00,000 for the death of one Venkatesan in the accident which took place on 5.8.1991 at 3 p.m. near Eanathur Link Road (Bangalore to Madras).
26. The case of the claimants was as follows:
The deceased was travelling in the bus bearing registration No. TCB 3482 belonging to the then Pattukkottai Azhagiri Transport Corporation and because of rash and negligent driving of the vehicle by the driver, the accident occurred, resulting in Venkatesan's death. Venkatesan was the sole breadwinner of the family, he was aged 27 years at the time of his death and he was working as a driver in a rice mill earning Rs. 1,200 per month. The owner of the lorry, which dashed against the bus, as also the insurance company, who are the appellants herein, were made parties and also the drivers of the respective vehicles and the transport corporation.
27. The drivers and the owner of the lorry (the appellant No. 1 herein) remained ex parte.
28. The transport corporation which was impleaded as the respondent No. 4 herein filed a counter disputing the accident and also the age and income of the deceased.
29. The appellant No. 2 insurance company filed a counter to the effect that the police registered a case against the driver of the bus, that the driver of the lorry was not at all responsible for the accident and that the owner of the lorry or the insurance company was not liable to pay the compensation. The allegations in the petition regarding the age, income, etc., were also denied.
30. On the oral and documentary evidence the Tribunal found that the accident was due to negligence of the drivers of both the vehicles and both, the owner and the insurance company, were jointly liable to satisfy the claim.
31. As regards the income of the deceased, the Tribunal held that the deceased might have been earning Rs. 300 per month and that the said amount could be fixed as loss of income to the family per month. The Tribunal used a multiplier of 40.9 arrived at the loss of total income at Rs. 1,47,240. To this, the Tribunal added Rs. 7,760 towards the funeral expenses, Rs. 20,000 towards loss of love and affection, in all, Rs. 1,75,000 payable with interest at 12 per cent per annum. As against this, the present civil miscellaneous appeal has been filed.
32. It is contended by learned counsel for the appellants that in M.A.C.T.O.P. No. 244 of 1991 arising out of the same accident, the same Tribunal had held that the driver of the bus alone was to be blamed for the accident and the Tribunal erred in going back on its earlier finding. The learned counsel further contended that in any event the amount quantified was on the high side.
33. Learned counsel for the contesting respondents-claimants contended that so far as the respondents were concerned as long as they got the compensation it was immaterial as to who paid the compensation. The learned counsel further submitted that they were not parties to the earlier M.A.C.T.O.P. and any finding in the earlier M.A.C.T.O.P. would not be binding on them.
34. The learned counsel for the transport corporation submitted that at the time the earlier matter was decided, the Tribunal had proceeded merely on the basis of the first information report filed before the police and also the fact that the driver of the bus also had not been examined and according to learned counsel, by the same token the driver of the lorry also was not examined and the subsequent decision by the Tribunal, which is the subject-matter of the present appeal, had been reached on a proper appreciation of the materials on record and no exception could be taken to the same.
35. The mere fact that on an earlier occasion the Tribunal had taken a decision with regard to the negligence on the then available materials, would not make the subsequent decision erroneous. The fact remains that the drivers of both the vehicles were not examined before the Tribunal. One Arumugham had been examined as PW 2. He had travelled in the bus at the time of the accident and he had spoken to the fact that the truck, carrying a bulldozer machine, dashed against the bus and the accident occurred. The conductor, who was examined as RW 1, had stated that he did not know as to the object against which the bus dashed and only after hearing the loud noise he noticed as to what happened. The Tribunal has concluded that inasmuch as both the drivers had not been examined, inference had to be drawn under Section 114 of the Evidence Act and the drivers of both the vehicles had to be held to have been rash and negligent and that both were responsible for the accident. I do not find any infirmity in the conclusion thus reached by the Tribunal. The earlier decision by the Tribunal cannot, therefore, be pressed into service by the appellants.
36. As regards the income, the claim was that deceased was earning Rs. 1,200 as driver in a rice mill. But the same was not substantiated and the Tribunal worked out Rs. 300 as the monthly income of the deceased. In my view this Rs. 300 is a very low figure and the Tribunal ought to have fixed the amount at not less than Rs. 800. After deducting about Rs. 200 towards his personal expenses, the contribution by the deceased to the family should have been Rs. 600 per month. The multiplicand would be Rs. 7,200. The deceased was 27 years old and as per the Schedule to the Motor Vehicles Act, the multiplier to be used is 18. The loss of income would come to Rs. 1,29,000, to which we have to add Rs. 10,000 to the widow towards loss of consortium, Rs. 5,000 to each of the children and the parents, which would come to Rs. 20,000. Funeral expenses had been claimed at Rs. 7,760 and this figure is also not disputed. That amount can be confirmed. That would include transport also. The total comes to Rs. 1,66,760 and the Tribunal has awarded Rs. 1,75,000 which cannot be sustained. Consequently, the appeal will stand allowed and instead of Rs. 1,75,000, claimants would be entitled to Rs. 1,66,760 payable with interest at 12 per cent per annum and to be shared equally by the transport corporation and the appellants.
C.M.A. No. 1233 of 1994:
37. The owner of the vehicle and the insurance company are the appellants in the civil miscellaneous appeal arising out of M.A.C.T.O.P. No. 38 of 1988 on the file of the M.A.C.T., Vellore.
38. M.A.C.T.O.P. No. 38 of 1988 was filed by the respondents for compensation on account of death of their son one Narayanan on 2.6.1987 at 3.30 p.m. in an accident involving the vehicle belonging to the appellant No. 1. The claim was for Rs. 75,000. According to them, on that fateful day, their son was sitting on the carrier of a cycle on Vellore-Arcot Road near Perumurai village when the jeep No. TNJ 5066 belonging to the appellant No. 1 driven in a rash and negligent manner dashed against the cycle, as a result of which their son sustained grievous injuries and died on the spot. According to them, he was 26 years old at the time of the accident and earning Rs. 1,000 as mason.
39. Appellant No. 1 though appeared through counsel did not file any counter, while the appellant No. 2 has filed one counter and two additional counters disputing the involvement of the jeep in the accident and also contending that the jeep did not belong to the appellant No. 1, that the vehicle involved in the accident was some other vehicle, that the accident was only due to negligence of the deceased and that in the criminal proceedings (Criminal Case No. 260 of 1987), the driver of the jeep was acquitted and that the claim was liable to be dismissed.
40. The Tribunal accepted the case of the claimants and quantified the compensation at Rs. 33,000.
41. It is contended by the learned counsel for the appellants that the person who gave the first information report had not been examined, that the claimants had not established that TNJ 5066 jeep was involved in the accident at all and that as per the logbook, Exh. R-2, the vehicle was not in use. The learned counsel further submitted that as per Exh. R-1 the driver had been acquitted of the charge. The learned counsel further submitted that the compensation had been fixed on the high side.
42. The Tribunal took into consideration F.I.R., Exh. P-l, which was given by one Govindan who was injured in the accident. In the F.I.R., he had stated that on 2.6.1987 in the evening at 3.30 p.m. when the deceased Narayanan and himself, after taking tea in a shop went by cycle, the vehicle belonging to the appellant No. 1 came from behind and dashed against the cycle, resulting in the death of Narayanan. He had further stated that he admitted the deceased in Vellore Government Hospital and the vehicle without stopping had sped away towards Vellore.
43. The oral evidence of PW 1 and the documents filed on the side of claimants, clearly prove the case of the claimants. Exh. P-2 is the charge-sheet in which the driver of the jeep one Ramamoorthy had been implicated as the person responsible for the accident on account of his rash and negligent driving. The mere fact that the accused had been acquitted in the criminal court would not necessarily mean that he was not responsible for the accident, though his conviction on the other hand would have supported the case of the claimants. It is now well settled that the acquittal or discharge in a criminal case would not ipso facto exonerate the person/accused from his liability to answer the claim under the Motor Vehicles Act. Learned counsel for the appellants relied on the logbook which according to the appellants would show that the vehicle was not involved in the accident. According to RW 1, the logbook was maintained by his superior officer, but that superior officer had not been examined before the Tribunal. Moreover, it is seen from Exh. R-1 that the driver of the jeep was discharged as the witnesses were not present at the time the criminal case was taken up. He was discharged under Section 258 of Criminal Procedure Code. If really the jeep was not involved in the accident and Ramamoorthy had not driven the jeep, there was no reason as to why the police should implicate them in the criminal case.
44. For all the above reasons, I find that the conclusion reached by the Tribunal that it was only the vehicle belonging to the appellant No. 1, that was involved in the accident is correct. This finding that the accident was entirely due to rash and negligent driving of the vehicle by its driver Ramamoorthy is, therefore, confirmed.
45. As regards the quantum, the Tribunal fixed the amount at Rs. 33,000. The deceased was a bachelor, he was supporting his parents. Hence, the amount fixed at Rs. 33,000 cannot at all be stated to be on the high side.
46. For the above said reasons, the order of the Tribunal is confirmed. The civil miscellaneous appeal is dismissed.
C.M.A. No. 1136 of 1995 and Cross-objection:
47. The owner and the insurance company are the appellants. The respondent herein filed M.A.C.T.O.P. No. 868 of 1992 against the appellants claiming compensation in a sum of Rs. 1,75,000 for the injuries sustained by him in an accident involving the vehicle belonging to the appellant No. 1 and insured with the appellant No. 2 on 22.3.92. On that day, the respondent herein was crossing Waltax Road, Chennai, from west to east and almost reached the eastern side of the road. At that time, the van TNI 1499 belonging to the appellant No. 1 came from north to south at a very high speed driven in a rash and negligent manner, hit the respondent and knocked him down, resulting in grievous injury to him. The accident was entirely due to negligence of the driver of the van. At the time of the accident, the respondent was 7 years old and in the accident he sustained severe injuries in the head, leading to unconsciousness for several days. He suffered severe injury in the left leg knee, internal injury in hip and multiple, internal and external injuries all over the body. He was treated by the Chief Medical Officer, in Government General Hospital, Madras-3. He was an inpatient from 22.3.1992 till the filing of the petition on 26.3.1992. The claim was for, as already said, Rs. 1,00,000 under various heads. The main items under which the amounts were claimed are:
(1) Compensation for pain and suffering Rs. 42,000 (2) Compensation for continuing permanent disability Rs. 50,000 (3) Compensation for loss of earning power Rs. 75,000
48. Only the appellant No. 2 contested the claim while appellant No. 1 remained ex parte. The appellant No. 2 contended that the accident was not due to rash and negligent driving of the van by the driver, that as Waltax Road was a narrow road, it was not possible for the van to have been driven in a rash and negligent manner, that the respondent alone without observing the basic traffic rules negligently crossed the road, in between slow moving vehicles and the said van and that the driver on seeing the boy applied brakes but the boy came and hit the right side of the van and fell down. The counter also disputed the nature of injuries. According to the appellant No. 2 the injuries were simple and no disability or loss of earnings occurred. The claim was on the high side.
49. The Tribunal found that the accident was only due to rash and negligent driving of the vehicle belonging to the appellant No. 1 by its driver. The Tribunal relied on the conviction of the driver by the III Metropolitan Magistrate, Madras, where the driver admitted his guilt and paid Rs. 500 as penalty.
50. I do not find any infirmity in the conclusion reached by the Tribunal that the accident was only due to rash and negligent driving of the driver of the van. This finding is confirmed.
51. As regards the quantum, the disability certificate was issued by the doctor, marked as Exh. P-3. As per the disability certificate the extent of permanent disability is quantified at 45 per cent. The doctor, who had issued the disability certificate, had also given evidence as PW 2. The Tribunal fixed the amount for permanent disability at Rs. 45,000 which, in my view, cannot be stated to be on the high side.
52. Towards medical expenses, the Tribunal quantified it at Rs. 1,960 which was supported by bills and vouchers. To this, the Tribunal had added Rs. 4,000 towards nutritious food, Rs. 100 towards damage to clothing and Rs. 600 towards transport. These amounts cannot at all be stated to be exorbitant.
53. As regards pain and suffering, the Tribunal fixed it at Rs. 35,000, which in my view, cannot be sustained. A sum of Rs. 20,000 would alone be proper and adequate.
54. Towards loss of earning capacity, the Tribunal has awarded Rs. 60,000 which cannot also be supported. A sum of Rs. 20,000 under this head alone will be adequate.
55. The Tribunal has also awarded 15 per cent interest, which has got to be reduced to 12 per cent per annum.
56. Consequently, the civil miscellaneous appeal is allowed and the award of the Tribunal stands modified and instead of Rs. 1,46,600 payable with interest at 15 per cent, there will be an award for Rs. 91,660 payable with interest at 12 per cent per annum. In view of the discussion above, the cross-objection is dismissed.
C.M.A. No. 1616 of 1995:
57. The owner and the insurance company are the appellants in the civil miscellaneous appeal arising out of M.A.C.T.O.P. No. 764 of 1993 filed by respondent Nos. 1 to 3 herein, claiming compensation in a sum of Rs. 3,00,000 for the death caused to one Natana Sabapathy, the husband of the respondent No. 1 and father of respondent Nos. 2 and 3.
58. The motor accident took place on 24.8.2000 at 7 a.m. when the deceased, who was travelling in the bus belonging to the appellant No. 1 from Thuraiyur bus stand to Thuraiyur Government Hospital, got down from the bus at the Government Hospital bus stop through the front entrance, the bus took off suddenly at high speed, as a result of which the vehicle dashed against him and he fell down. The rear wheel of the bus ran over him, resulting in his instantaneous death. The deceased was working as peon in Central Bank of India, Trichy, earning Rs. 3,000 per month.
59. The appellant No. 2 contested the claim contending that it was only because of the negligence of the deceased that he died, that he jumped out from a moving bus and that the bus driver was not at all responsible for the accident.
60. Learned Tribunal, on the materials placed, found that the accident was entirely due to the rash and negligent driving of the vehicle by the driver. There was a case registered against the driver by Thuraiyur Police Station in C.R. No. 459 of 1992 under Section 304-A, Indian Penal Code. The driver pleaded guilty and paid a fine of Rs. 2,000. In the above circumstances, the Tribunal was perfectly justified in holding that the accident was entirely due to rash and negligent driving of the driver. This finding is, therefore, confirmed.
61. It is not disputed that the deceased was employed as a peon in the Central Bank of India. At the time of the accident he was 54 years old. The multiplier to be used is 11. After deducting Rs. 1,000 towards his personal expenses, he would have contributed Rs. 2,000 for the family upkeep. The total, towards loss of earnings, would come to Rs. 2,64,000, to which the amounts towards funeral expenses, loss of consortium, loss of love and affection have to be added. If the same is, done, the total amount payable to the claimants would far exceed the compensation awarded by the Claims Tribunal.
62. Consequently, I find no merits in the civil miscellaneous appeal and the same is dismissed. No costs.
C.M.A. No. 22 of 1996:
63. The owner and the insurance company are the appellants. The respondent No. 1 herein filed M.A.C.T.O.P. No. 970 of 1992 before II Additional District Judge, Trichy, claiming compensation in a sum of Rs. 5,00,000 for the injuries caused to her in an accident involving the vehicle belonging to the appellant No. 1 and the respondent No. 2 on 4.4.1992 at 1.20 a.m.
64. Her case was as follows:
On 3.4.1994 she was proceeding from Neyveli to Tirunelveli in the bus belonging to the respondent No. 2. When the vehicle was nearing Murukankudikaikatti village, the appellant No. l's lorry coming from the opposite direction dashed against the bus in which she was travelling, as a result of which she sustained injuries in her right hand and her right hand had to be amputated. She was an inpatient in Trivandrum Medical College Hospital from 20.4.1992 to 5.5.1992. As the hand was removed, she was fixed with an artificial limb, which required Rs. 30,000. She had already spent Rs. 50,000 on her treatment. At the time of filing the claim petition, she was still undergoing treatment. She was an expert in blood testing and she was working in Scan Hospital in Trivandrum. As her husband was in Neyveli, she left for Neyveli. At the time of accident, she was in search of a suitable job. As a result of the accident, the claimant was staying with her parents. Because of the loss of her right hand, she had not been able to fondle her child. She had suffered untold misery and agony. Even, normal chores she had not been able to do, she had suffered permanent disability. She was entitled to be paid Rs. 5,00,000. The accident was entirely due to rash and negligent driving of the drivers of both the vehicles.
65. The appellant No. 1 remained ex parte.
66. The appellant No. 2 insurance company contended that the accident was entirely due to rash and negligent driving of the driver of the transport corporation. The appellant No. 2 also disputed the claimant's age and income.
67. The respondent No. 3 transport corporation contended that the accident was not due to negligent driving of the driver of the bus. At the time the accident occurred, another bus belonging to the same transport corporation was coming behind this bus. At that time the lorry, belonging to the appellant No. 1, driven at a breakneck speed and in a negligent manner, was coming on the wrong side of the road. Seeing the lorry approaching from the opposite side, the driver of the bus turned the vehicle to the left side mud road and stopped the bus by applying the brakes. Even after that, the lorry came at a great speed, dashed against this bus and also dashed against the bus coming behind this bus and thereafter ran for some more distance and fell into the ditch near the road. In the accident, two passengers who were travelling in the bus, died and several others were injured. The accident was entirely due to rash and negligent driving of the driver of the lorry. In these circumstances, the transport corporation was not liable to pay any compensation. In any event the compensation claimed was excessive.
68. On the materials placed, the Tribunal found that the accident was entirely due to rash and negligent driving of the driver of the lorry. The Tribunal relied on the oral evidence of the driver of the bus and of the claimant, as also the first information report filed in this case. The Tribunal also took note of the fact that the driver of the lorry had not been examined in this case. I do not find that the conclusion reached by the Tribunal can be stated to be erroneous. This finding that the accident was only due to rash and negligent driving of the lorry by its driver is confirmed.
69. As regards the quantum, the Tribunal has awarded a sum of Rs. 2,52,000 as against the claim for Rs. 5,00,000. The medical bills totalled Rs. 27,222.53 and for fixing an artificial hand, the claimant had spent Rs. 3,001. For transportation, she had spent Rs. 1,163. The total comes to Rs. 31,386.53. Though proper vouchers had been produced, for these amounts, the Tribunal without assigning any reason has fixed the total claim under these three heads at Rs. 20,000. In my view, the Tribunal ought to have awarded the entire amount of Rs. 31,386.53. The Tribunal had also awarded Rs. 1,163 for expenses incurred by the claimant for the train travel from Trivandrum to Tirunelveli for the purpose of getting treatment. The Tribunal has rightly awarded this amount.
70. For pain and suffering the Tribunal has awarded Rs. 10,000 which can also be maintained. At the time of the accident, the claimant was 26 years old. Because of the loss of her right hand, the claimant had not been able to attend to her normal household work and she had engaged a servant paying Rs. 500 per month. The Tribunal found that the claimant was qualified to do blood testing, from the certificate produced by her and that there was every likelihood of her getting a job for blood testing. The Tribunal found that the loss on this score could be fixed at Rs. 500 per month and applying the multiplier of 40, arrived at Rs. 2,40,000, deducted 30 per cent and arrived at Rs. 1,68,000 as loss of income. To this, the Tribunal added Rs. 50,000 towards permanent disability which was quantified at 80 per cent. The ultimate figure was arrived at Rs. 2,52,164. The proper multiplier should have been 18 and the loss of earnings and money required for keeping a servant should have been fixed at a higher figure. If it had been done, the ultimate figure arrived at by the Tribunal cannot be stated to be unreasonable.
71. Consequently, the civil miscellaneous appeal fails and the award of the Tribunal is confirmed.
C.M.A. No. 103 of 1996:
72. The owner and the insurance company are the appellants in the civil miscellaneous appeal arising out of M.A.C.T.O.P. No. 1183 of 1991 on the file of the Motor Accidents Claims Tribunal, Salem.
73. One Vivekanandan died in an accident which occurred on 20.4.1991 at about 11.50 a.m. The vehicle which was involved in the accident belonged to the appellant No. 1 and was insured with the appellant No. 2. The parents were the claimants and they are the respondents in the appeal. At the time of the accident, the deceased was 24 years old and according to the claimants he was working as Accountant in Seven Sago Factories in and around Salem and earning Rs. 1,500 per month. The Tribunal quantified the loss of earnings for the period of 30 years at Rs. 2,60,000. To which, it added Rs. 10,000 towards pain and suffering and Rs. 30,000 for loss of earning power, the total reached was Rs. 3,00,000 and the respondents restricted the claim to Rs. 2,00,000.
74. The case was that the deceased was going on a bicycle on Attur-Kamarajar Road, keeping to his left side of the road on the date of the accident. The lorry bearing registration No. TNO 7130 was coming from behind the deceased, driven in a rash and negligent manner dashed against the deceased and he was shifted to the Government Hospital, Attur and he died there at 12.35 p.m. According to the claimants the accident was entirely due to negligent driving by the driver of the lorry.
75. The appellant No. 1 owner remained ex parte and appellant No. 2 insurance company resisted the claim contending that the lorry was being driven very slowly and carefully and it was only the deceased who was riding the cycle, came in the line of motion of the lorry. He attempted to cross the road unmindful of the traffic, resulting in the accident. The appellant No. 2 further disputed the income, educational qualification, age, etc. The appellant No. 2 also contended that the claimants were not dependent on the deceased as they had other children.
76. Learned Tribunal, on the materials placed, found that the accident was only due to rash and negligent driving of the lorry by the driver. In coming to the conclusion the Tribunal also relied on the outcome of the criminal proceedings against the lorry driver, wherein he pleaded guilty and paid the fine. This finding is based on adequate material and no interference is called for.
77. As regards the quantum, the Tribunal held that the claimants had not proved that the deceased was working in Seven Sago Factories and was earning Rs. 1,500. However, relying on the provisions of the new Act, the Tribunal fixed his annual income at Rs. 15,000 and applied a multiplier of 17, arrived at Rs. 2,44,800, deducted '/3rd and fixed the loss of earnings at Rs. 1,73,200 to which it added Rs. 5,000 towards pain and suffering between the time of the accident and the time of his death. The Tribunal made the mistake using the multiplier of 17. The parents were respectively aged 55 and 47 and the proper multiplier should have been 11. If 11 is used as multiplier and if we deduct Rs. 5,000 towards his personal expenses, his contribution to the family could be taken to be Rs. 10,000. At the time of the accident he was unmarried and it was very likely that he would have got married and his contribution to the parents would have come down. So we take about Rs. 6,000 per annum as the contribution by the deceased to his parents and if we use a multiplier of 11, the amount would come to Rs. 66,000 to which if we add Rs. 5,000 for pain and suffering, Rs. 2,000 towards funeral expenses, Rs. 1,000 towards transport and Rs. 10,000 to each of the parents, the total come to Rs. 94,000. That would have been the proper compensation payable to the claimants.
78. The Tribunal has fixed the interest at 9 per cent which is not correct. The claimants would be entitled to interest at 12 per cent per annum.
79. Consequently, the award will stand modified and instead of Rs. 1,68,200 the claimants would be entitled to Rs. 94,000 payable with interest at 12 per cent per annum.