Madras High Court
United India Insurance Co. Ltd. vs P. Jaya And Ors. on 8 December, 2005
Equivalent citations: II(2006)ACC730, 2006ACJ1503, 2006(1)CTC173
Author: S.R. Singharavelu
Bench: M. Karpagavinayagam, S.R. Singharavelu
JUDGMENT S.R. Singharavelu, J.
1. All the appeals arise out of a single accident and hence, this common judgment.
2. United India Insurance Company Limited is the appellant in all the appeals.
3. The brief case of the claimants is as follows:- In respect of an accident that took place on 31.01.2002 at 02.40 PM, in the Dharmapuri-Salem Main Road near the Erapatti Bus Stop, in which one Paramesivam and one Ramalingam died and one Ganesan @ Sundararaj sustained injuries, for which the legal representatives of Paramesivam filed M.C.O.P. No. 1337 of 2002 claimed Rs. 15 lakhs as compensation; legal representatives of Ramalingam filed MCOP. No. 1338 of 2002 claiming Rs. 20 lakhs as compensation; and Ganesan @ Sundararaj sought for a compensation of Rs. 6 lakhs in MCOP.1339 of 2002.
4. It is the case of the claimants that on 31.01.2002 at about 2.40 PM at the main road from Dharmapuri to Salem, the two deceased and the injured were travelling in a tempo bearing registration No. TN 27 L 6984 belonging to the first respondent and insured with the second respondent in the claim petitions. The driver of the tempo drove the vehicle in a rash and negligent manner. Near the bus stop at Erapatti, the driver of the tempo dashed against the lorry coming from the opposite direction bearing registration No. TAS 4747 belonging to the third respondent and insured with the fourth respondent. Regarding the accident, a case was registered against the driver of the tempo.
5. In MCOP. No. 1337 of 2002, the legal representatives of the deceased Paramesivam stated that at the time of accident, Paramesivam was aged about 40 years and he was doing garland business and was earning Rs. 8,500/- per month and he was the only bread winner of the family. As the sole bread winner died, the legal representatives claimed a compensation of Rs. 15 lakhs.
6. The legal representatives of the deceased Ramalingam in their petition in MCOP. No. 1338 of 2002 claimed that on account of the accident, the said Ramalingam sustained grievous injuries and he was admitted at Dharmapuri Government Hospital and despite treatment, he died. At the time of accident, he was aged about 33 years and he was a Contractor for flower decorating and making garlands and was earning Rs. 12,000/- per month. The family was depending upon his income as the survivors. So, they claimed the compensation of Rs. 20 lakhs.
7. Ganesan @ Sundararaj, who sustained grievous injuries on several parts of his body, was also taken immediately to the Government Hospital, Dharmapuri and thereafter, he was taken to S.K.S. Hospital at Salem for treatment. Due to this accident, he lost his right index finger and lacerated wound in the right side chin, right ear lobe, abrasions in the left foot and one cut injury in his right side neck. According to him, he had spent Rs. 35,000/- towards medical expenses. At the time of accident, he was aged 27 years. He was doing business in garland and was earning a sum of Rs. 7,500/- per month and his family was solely dependent of his income for survival. Due to injuries sustained by him, he could not continue his business properly. Therefore, he filed MCOP. No. 1339 of 2002 claiming Rs. 6 lakhs.
8. Respondents 1 and 3 were set ex parte in the trial court.
9. The 2nd respondent filed separate counter statement stating that they denied the age and income of the deceased and the injured. They travelled as non-fare paying passengers in a goods vehicle in violation of permit and insurance policy conditions. The Bajaj tempo bearing registration No. TN 27 L 6984 was not driven in a rash and negligent manner, resulting in accident. The accident occurred only due to the contributory negligence of the lorry bearing registration No. TAS 4747. The claimants are not entitled to the compensation as stated in the respective petitions. Respondents 1 and 2 are not liable jointly or severally to pay compensation as alleged.
10. The 4th respondent filed a counter stating that they denied the age, profession and income of the deceased and injured. The accident was occurred only due to the negligence of the 1st respondent and not the 3rd respondent. Hence, this respondent is the unnecessary party to these petitions and they are not liable to pay compensation as alleged.
11. Before the trial court, the claimant examined five witnesses including the injured as P.W.1 and marked Exs.A-1 to A-16. On the side of the respondents, two witnesses were examined and Exs.B-1 to B-3 were marked. On an analysis of the evidence of the injured witness, the Tribunal found that the accident took place due to the rash and negligent driving of the driver of the tempo bearing registration No. TN 27 L 6984. In O.P. No. 1337 of 2002, the Tribunal found that the deceased would have earned Rs. 3000/- per month. It comes to Rs. 36,000/- per annum. Holding that he would have contributed to the family 2/3rd of his income, it arrived at the annual income at Rs. 24,000/-. Taking his age as 40 and fixing the multiplier at 16, the Tribunal awarded Rs. 3,84,000/-. Accepting Ex.A-7 Ambulance receipt, it awarded Rs. 800/- for ambulance charges, Rs. 5,000/- towards cremation expenses, Rs. 10,000/- towards loss of love and affection and in all, awarded Rs. 3,99,800/-.
12. In O.P. No. 1338 of 2002, the Tribunal held that though it is stated that the deceased was earning Rs. 20,000/- per month, no document was filed in support of the same and therefore, fixed the monthly income of the deceased at Rs. 3,000/-. It comes to Rs. 36,000/- per annum. Holding that he would have contributed to the family 2/3rd of his income, it arrived at the annual income at Rs. 24,000/-. Taking his age as 33 and fixing the multiplier at 17, the Tribunal awarded Rs. 4,08,000/-. Accepting Ex.A-7 Ambulance receipt, it awarded Rs. 800/- for ambulance charges, Rs. 5,000/- towards cremation expenses, Rs. 10,000/- towards loss of love and affection and in all, awarded Rs. 4,23,800/-.
13. In O.P.1339 of 2002, the Tribunal, accepting the medical evidence that the injured had permanent pain on his back bone and he could not bend fully and he had no grip in his right hand, fixed the permanent disability at 35% and awarded Rs. 35,000/- towards permanent disability, Rs. 20,169/- towards medical expenses, for transport charges Rs. 1,000/-, for nutritious food Rs. 2,500/-, for pain and suffering Rs. 7,500/- and in all, awarded Rs. 66,169/-.
14. Heard the learned counsel for both sides.
15. There is no dispute regarding the finding that the accident took place due to the rash and negligent driving of the driver of the tempo bearing registration No. TN-27-L-6984. There is also no much dispute upon the quantum awarded. The only argument that was advanced on the side of the appellant Insurance Company was that the Insurance Company could not be made liable to pay the award amount in favour of the claimants, who are the gratuitous passengers in the goods vehicle.
16. In these cases, reliance was placed upon sub clause (i) of Clause (b) of sub-section (1) of section 147 of the Motor Vehicles Act, 1988, which relates to section 95(1)(b) of the old Act. In interpreting the above provision of law, a Division Bench of this Court held in New India Assurance Co. Ltd. v. Mrs. Rahamed and ten Ors. (2004(1) TNMAC (DB) 391 that when the provision makes a policy not statutorily required to cover the liability of death of a person being carried in the vehicle, there is an exception, in and by which, the statutory requirement of a policy was mandated if and when the vehicle in which the passengers were carried was for hire or reward or by reason or in pursuance of a contract of employment.
17. In a decision reported in Pramod Kumar Agrawal and Anr. v. Mushtari Begum and Ors. (2004 (Vol.3) ACJ 1903): 2005-2-L.W.1, the Honourable Apex Court after referring the decision in National Insurance Co. Ltd. v. Baljit Kaur , New India Assurance Co. Ltd. v. Asha Rani and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy , took a similar view as held in Baljit Kaur's case (cited supra).
18. In a decision reported in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. (2005(Vol.2) ACJ 721), the Honourable Apex Court after referring the decisions, viz.,
(i) National Insurance Co. Ltd. v. Ajit Kumar
(ii) Baljit Kaur's case(cited supra)
(iii) National Insurance Co. Ltd. v. Challa Bharathamma
(iv) National Insurance Co. Ltd. v. Chinnamma
(iv) New India Assurance Co. Ltd. v. Asha Rani)
(v) New India Assurance Co. Ltd. v. Satpal Singh
(vi) Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and
(vii) Pramod Kumar Agrawal v. Mushtari Begum , allowed the appeal preferred by the Insurance Company and has made it clear that the claimants/respondents will be entitled to recover the amount of compensation granted in their favour by the Tribunal from the owner of the vehicle.
19. In a decision reported in Baljit Kaur's case (cited supra), it was observed by the Honourable Supreme Court in the following words:
"The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect....
We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.
20. Following the decisions of the Supreme Court referred to above, we direct that the appellant Insurance Company is liable to pay the compensation amount to the claimants as awarded by the Tribunal and to recover the same from the owner in execution proceedings, without filing any suit therefor. Civil Miscellaneous Appeals are disposed of accordingly. No costs. Consequently, connected C.M.Ps. are closed.