Madras High Court
United India Insurance Co. Ltd. vs Sarasu And Ors. on 8 January, 2008
Author: P.P.S. Janarthana Raja
Bench: P.P.S. Janarthana Raja
JUDGMENT P.P.S. Janarthana Raja, J.
1. The Civil Miscellaneous Appeals are filed by the Insurance Company against the Judgment and Decree made in MCOP Nos. 467 of 1995 and 466 of 1995 dated 26.02.1998 on the file of the Motor Accidents Claims Tribunal (Sub Court), Tindivanam.
2. Background facts in a nutshell are as follows:
The deceased Elumalai and Selvaraj were engaged by one Ramu Naidu, who is the fifth respondent in CMA No. 735 of 1999 and fourth respondent in CMA No. 736 of 1999, as a labourer to load and unload the goods vehicle. Both the deceased were travelling in the said vehicle under the contract of the said Ramu Naidu. The vehicle was insured with the appellant/Insurance Company. On 16.02.1995 at about 06.00 p.m., both the deceased Elumalai and Selvaraj with other labourers loaded a trailer bearing New Registration No. 47-A-0809 (Old Registration No. TN-47-A-0799), attached to the tractor bearing Registration No. TNG-1307 at Se. Boothur Village, with boulders. Both the deceased also boarded the vehicle and the said tractor was proceeding towards Tiruvannamalai Town on 17.02.1995. At about 1.00 hours when the tractor was nearing Melpappambadi Village in the Tiruvannamalai to Tindivanam Road, the driver drove the tractor in a rash and negligent manner due to which the tractor rolled down on a slope and capsized. In the process, the boulders fell on both the deceased causing their death on the spot. The claimants in MCOP No. 467 of 1995 (CMA No. 735 of 1999) are wife, daughter, son and mother of the deceased Elumalai. The claimants in MCOP No. 466 of 1995 (CMA No. 736 of 1999) are daughter, two sons and the mother of the deceased Selvaraj. The claimants in both the appeals have claimed a sum of Rs. 3,00,000/- each, as compensation before the Tribunal. The appellant/Insurance Company resisted the claims. On pleadings, the Tribunal framed the following issues:
a) Whether the accident had occurred due to the rash and negligent driving of the driver of the tractor or not?
b) Whether the claimants are entitled to get any compensation or not? If so, what is the amount and from whom?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the tractor and awarded a compensation of Rs. 3,07,200/-, but restricted the same to Rs. 3,00,000/- on the ground that the claim itself was only for Rs. 3,00,000/-, with interest at 15% p.a. from the date of petition in respect of MCOP No. 467 of 1995 (CMA No. 735 of 1999) and Rs. 2,32,400/- with interest at 15% p.a. from the date of petition in respect of MCOP No. 466 of 1995 (CMA No. 736 of 1999). Aggrieved by the awards, the Insurance Company has filed the present appeals.
3. Learned Counsel appearing for the appellant/Insurance Company submitted that the tractor was used for non-agricultural purpose which is an violation of the policy condition and it is therefore, the Insurance Company is not liable to pay any compensation. Further it is submitted that the award granted by the Tribunal in these appeals are excessive and exorbitant, without basis and justification. It is therefore submitted that the common order passed by the Tribunal is not in accordance with law and the same has to be set aside.
4. When the matter came up on 06.12.2007 and 13.12.2007, there was no representation on behalf of the claimants. Even today, there is no representation on behalf of the claimants.
5. Heard the counsel. On the side of the claimants, witnesses P.W.1 to P.W.3 were examined and documents Ex.P1 to Ex.P3 were marked. On the side of the Insurance Company, no witnesses were examined and no documents were marked. P.W.1 is one Malarkodi, daughter of the deceased Selvaraj. P.W.2 is one Sarasu, wife of the deceased Elumalai. P.W.3 is one Dhandapani, driver of the tractor. Ex.P1 is the attested copy of First Information Report. Ex.P2 is the attested copy of the Post Mortem Report of the deceased Selvaraj. Ex.P3 is the attested copy of the Post Mortem report of the deceased Elumalai. The claimants have also given oral evidence that the accident had occurred only due to the rash and negligent driving of the driver of the tractor, P.W.3. P.W.3 has also given evidence that he also travelled along with the deceased Selvaraj and Elumalai. He further stated that the tractor was loaded with boulders and was going towards Tiruvannamalai. When it was proceeding in the new bridge, situated near Melpappambadi bridge, the tractor was unable to pull the load and due to the weight of the load, the tractor and the trailer capsized. In the process both the deceased died. An F.I.R. was also lodged with the Ananthapuram Police Station. Ex.P1 is the F.I.R. In the F.I.R. also it is clearly stated that the accident had occurred only due to the rash and negligent driving of the driver of the tractor. P.W.3, the driver of the tractor is also an eye-witness to the accident. The contention of the learned Counsel for the appellant is that the tractor was used not for agricultural purpose and it has been used only for non-agricultural purpose, which amounted to violation of the terms and conditions of the policy. It is therefore, submitted that the Insurance Company is not liable to pay any compensation. P.W.1-daughter of the deceased Selvaraj, in her evidence, stated that boulders were loaded only for the purpose of constructing a well for agricultural purpose. Hence the Tribunal was of the view that the tractor was used only for agricultural purpose on the ground that construction of a well is incidental to carrying on agricultural activities. It is also further stated by the Tribunal that the Insurance Company has not produced any material or evidence to substantiate that the tractor was used for non-agricultural purpose. The Tribunal correctly came to the conclusion that the tractor was used only for agricultural purpose and no compelling reason stated by the counsel for the appellant to take a different view. After considering these oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the tractor and the tractor was used only for agricultural purpose. The findings are based on valid materials and evidence and it is therefore confirmed.
6. CMA No. 735 of 1999 (MCOP No. 467 of 1995):
The deceased Elumalai was 32 years old at the time of accident. He was a load man and coolie. The claimants stated that the deceased was earning Rs. 3,000/- per month. P.W.2 is the wife of the deceased. In her evidence, she stated that the claimant was earning not less than Rs. 100/- per day. P.W.3 has also given evidence that the deceased was earning between Rs. 100/- to Rs. 150/- per day, but no documentary evidence produced in support of the claim. Therefore, the Tribunal was of the view that the deceased would have earned Rs. 100/- per day and calculated the monthly income at Rs. 2,400/- on the ground that the deceased would have been engaged as labourer for 24 days in a month. Out of the said amount, 1/3rd was deducted towards personal expenses of the deceased and the balance sum of Rs. 1,600/- was taken as the contribution of the deceased to the family and determined the annual income at Rs. 19,200/- (Rs. 1,600/- x 12). The age of the deceased was 32 years at the time of accident. The Post Mortem Report also indicates that the age of the deceased was 32 years. After considering the age of the deceased as well as the age of the wife, daughter, son and mother of the deceased, who were 27 years, 11 years, 10 years and 55 years at the time of accident, the Tribunal adopted the multiplier of 16 and determined the loss of income at Rs. 3,07,200/- (Rs. 19,200/- x 16). As the claim itself was Rs. 3,00,000/-, the Tribunal restricted the compensation to Rs. 3,00,000/-. The Tribunal has correctly determined the monthly as well as annual income and also adopted the correct multiplier. Further, the Tribunal has not awarded any amount towards conventional damages. Accordingly, the amount awarded by the Tribunal towards loss of income at Rs. 3,00,000/- is confirmed. The Tribunal has awarded interest at 15% p.a. from the date of petition, which is very excessive. Taking into consideration the facts and circumstances of the case, I feel that it would be appropriate and reasonable to reduce the interest from 15% p.a. to 7.5% interest p.a. Under the circumstances, the compensation awarded by the Tribunal at Rs. 3,00,000/- is confirmed, but the interest rate alone is modified to 7.5% p.a.
7. CMA No. 736 of 1999 (MCOP No. 466 of 1995):
The deceased Selvaraj was 45 years old at the time of accident. He was a load man and coolie. The claimants stated that the deceased was earning Rs. 3,000/- per month. P.W.3 has given evidence that the deceased was earning between Rs. 100/- to Rs. 150/- per day, but no documentary evidence produced in support of the claim. Therefore, the Tribunal was of the view that the deceased would have earned Rs. 100/- per day and calculated the monthly income at Rs. 2,400/- on the ground that the deceased would have been engaged as labourer for 24 days in a month. Out of the said amount, 1/3rd was deducted towards personal expenses of the deceased and the balance sum of Rs. 1,600/- was taken as the contribution of the deceased to the family and determined the annual income at Rs. 19,200/- (Rs. 1,600/- x 12). The age of the deceased was 45 years at the time of accident. But Post Mortem Report indicates that the age of the deceased was 48 years. After considering the age of the deceased as well as the age of the daughter, two sons and the mother of the deceased Selvaraj, who were 19 years, 16 years, 12 years and 65 years at the time of accident, the Tribunal adopted the multiplier of 12 and determined the loss of income at Rs. 2,30,400/- (Rs. 19,200/- x 12). The Tribunal has correctly determined the monthly as well as annual income and also adopted the correct multiplier. Further, the Tribunal has not awarded any amount towards conventional damages. Accordingly, the amount awarded by the Tribunal towards loss of income at Rs. 2,30,400/- is confirmed. The Tribunal has awarded a sum of Rs. 2,000/- towards funeral expenses, which is very reasonable and hence it is confirmed. The Tribunal has awarded interest at 15% p.a. from the date of petition, which is very excessive. Taking into consideration the facts and circumstances of the case, I feel that it would be appropriate and reasonable to reduce the interest from 15% p.a. to 7.5% interest p.a. Under the circumstances, the compensation awarded by the Tribunal at Rs. 2,32,400/- is confirmed, but the interest rate alone is modified to 7.5% p.a.
8. It is stated that the Insurance Company has deposited the entire award amount in both the appeals as per the order of this Court dated 24.06.1999. Therefore, the major claimants are permitted to withdraw their respective share. The share of the minors shall be invested in any Nationalised Bank proximate to the place of the resident of their respective guardian, for a period of three years and renewable thereafter till the minors attain majority. The respective guardian of the minors are permitted to withdraw the accrued interest once in three months. The Insurance Company is also permitted to withdraw the balance amount on making proper application.
9. The Civil Miscellaneous Appeals are disposed of accordingly. Consequently, C.M.P. Nos. 9003 and 9004 of 1999 are closed. No costs.