Madras High Court
National Insurance Company Limited vs Ganapathy on 16 October, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16/10/2012
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
C.M.A.(MD)No.831 of 2005
National Insurance Company Limited,
37C, S.N.High Road,
Opp. to Head Post Office,
Tirunelveli-1 ,
Through its Branch Manager, ... Appellant
Vs
1.Ganapathy
2.Velammal
3.Muthuraj
4.Minor Sumitha,
D/o.Ganapathy,
(Minor fourth respondent is
represented by her
father and guardian first respondent herein)
All are residing at
Door No.32, New Amman Koil Street,
Thachanallur, Tirunelveli.
5.A.Meeran Mydeen
6.United India Insurance Company Limited,
Through its Branch Manager,
Tenkasi ... Respondents
PRAYER
Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, to set-aside the order and decree dated 31.07.2004 passed in
M.C.O.P.No.1062 of 2000, on the file of the Additional District Court / Fast
Track Court-II, Tirunelveli.
!For Appellant ... Mr.S.Ramachandran
^For Respondents ... Mr.T.Selvakumaran for R-1 and R-4
- - -
:JUDGMENT
The appellant / third respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.1062 of 2000, on the file of the Additional District Court / Fast Track Court-II, Tirunelveli.
2. The short facts of the case are as follows:-
The petitioners, who are the parents, brother and minor sister of the (deceased) Kannan have filed the claim in M.C.O.P.No.1062 of 2000, claiming compensation of a sum of Rs.10,00,000/- from the respondents for the death of the said Kannan in a motor vehicle accident. It was submitted that on 05.07.2000, when the (deceased) Kannan was travelling as a passenger in the first respondent's tata sumo car bearing registration No.TN-59-F-8299 from Kutralam to Tirunelveli and at about 5.15 a.m., when the car was proceeding on the Tirunelveli-Kutralam main road and nearing Sitharbanallur, the third respondent's lorry bearing registration No.TCT-4889, which was coming on the opposite side and was driven by its driver in a rash and negligent manner, without putting on the dim/bright headlight indicator, dashed against the tata sumo car and caused the accident. As a result, the tata sumo car was forced under the front body of the lorry and was crushed. As a result, the (deceased), Kannan sustained grievous injuries all over his body and died on the spot. At the time of accident, the (deceased) was aged 26 years and was working at "Shanthi Sweel Stall", Tirunelveli Junction and earning Rs.3,600/- per month.
Hence, the petitioners have filed the claim against the respondents 1 to 3. The first and second respondents are the the owner and insurer of the vehicle bearing registration No.TCT-4889 and the third respondent is the insurer of the vehicle bearing registration No.TN-59-F-8299 and has been added only as a formal party.
3. The first respondent in his counter has denied the averments in the claim regarding age, income and occupation of the (deceased) Kannan as well as manner of accident. It was submitted that the petitioner should prove that the accident had been caused by the rash and negligent driving of the driver of the first respondent's vehicle through documentary evidence. It was submitted that the first respondent's lorry bearing registration No.TCT-4889 had been insured with the second respondent at the time of accident. It was submitted that the claim was excessive.
4. The second respondent in his counter has submitted that the petitioners should prove that they are the legal-heirs of the deceased and also that they are dependants of deceased through documentary evidence. The averments in the claim regarding age, income and occupation of the deceased was also not admitted. It was submitted that the petitioners should prove that the (deceased) had travelled in the vehicle bearing registration No.TN-59-F-8299 and that he died due to injuries sustained in the accident through documentary evidence. It was submitted that on the date of accident, the driver of the first respondent's lorry had driven it in a careful and cautious manner and that the owner and driver of the tata sumo van bearing registration No.TN-59-F-8299, had taken seven passengers in his car and had driven the van at a high speed and in a rash and negligent manner and caused the accident. It was submitted that the complaint regarding the accident had only been given by Alangulam who was the driver of the first respondent's lorry. It was submitted that the police, after investigation had submitted in their final report that the driver of the tata sumo van bearing registration No.TN-59-F-8299 had been rash and negligent in his driving the vehicle and that the proceeding as against the driver of the first respondent's vehicle has been dropped.
5. The third respondent / National Insurance Company in his counter has submitted that the vehicle bearing registration No.TN-59-F-8299 had been insured with them and that the owner of the vehicle was one Jayakannan as per the R.C. and F.C. of the vehicle. It was submitted that the said Jayakannan had a valid licence to drive the maxicab vehicle but as he did not have the endorsement on badge in his licence to drive the vehicle, the policy conditions of insurance had been violated and the third respondent is not liable to pay compensation. It was submitted that the police after investigation had found that the said Jayakannan had been under the influence of liquor while driving the vehicle and the doctor had also adduced evidence that the said Jayakannan had been under the influence of liquor while driving the vehicle and as such, the conditions of policy of insurance had been violated, the third respondent is not liable to pay compensation. It was submitted that only as the said Jayakannan had died in the accident, the criminal case filed against him had been dropped. As the said Jayakannan had died in the accident, the contract of policy of insurance had ended with this death. It was submitted that the petitioners should prove that they are the legal-heirs of the deceased. The averments in the claim regarding age, income and occupation of the (deceased) Kannan was also not admitted. It was submitted that the claim was excessive. It was submitted that the F.C. of the vehicle bearing registration No.TN-59-F-8299, was valid from 19.04.1999 to 18.04.2000 and that on the date of accident i.e., 05.07.2000, the vehicle was not covered under a valid F.C. and as such, the third respondent is not liable to pay compensation.
6. The Motor Accidents Claims Tribunal had framed four issues for consideration in the case, viz., "(i) Was the accident caused by the rash and negligent driving by the driver of the first respondent's tata sumo car bearing registration No.TN-59-F- 8299?
(ii) Was the accident caused by the rash and negligent driving by the driver of the third respondent's lorry bearing registration No.TCT-4889?
(iii) Did the driver of the tata sumo car bearing registration No.TN-59-F- 8299 have a valid licence to drive the vehicle and was he under the influence of liquor while driving the car and is the second respondent not liable to pay compensation? and
(iv) Are the petitioners entitled to get compensation? If so, what is the quantum and who is liable to pay compensation?"
7. In the same accident, five other claims had been filed by the petitioners in M.C.O.P.Nos.1015 of 2000, 919 of 2000, 1063 of 2000, 875 of 2000 and 384 of 2001, claiming compensation from the respondents for the death of the deceased passengers who had travelled in the car. On the request made by the counsels for their respective petitioners in the various claim through a joint memo, a joint trial was conducted and common evidence was recorded in M.C.O.P.No.1015 of 2000.
8. The petitioner in M.C.O.P.Nos.1015 of 2000, 875 of 2000, 919 of 2000, 1062 of 2000, 1063 of 2000 and 384 of 2001 viz., Gomathiammal, Pichayapillai, Namasivayam, Ganapathy, Velammal and M.Jayalakshmi were examined as P.W.1, P.W.3, P.W.4, P.W.6, P.W.7 and P.W.10 respectively. One Thiru.Maharajan was examined as P.W.2, one Durairaj was examined as P.W.5, one Thiru.Sivasubramanian was examined as P.W.8, One Murugan was examined as P.W.9, one Muniyandi was examined as P.W.11 and one Kannan was examined as P.W.12 and 17 documents were marked as Exs.P1 to P17, viz., Ex.P1-copy of F.I.R., Ex.P2- copy of Motor Vehicle Inspector's report, Ex.P3-copy of observation mahazr, Ex.P4-postmortem report of Sivaprakasam, Ex.P5-driving licence of B.Saravanan, Ex.P6-certificate showing that B.Saravanan had studied in Rural Development Office, Ex.P7-postmortem report of B.Saravanan, Ex.P8-postmortem report of Vallinayagam, Ex.P9-legal-heir certificate pertaining to Vellinayagam, Ex.P10- salary certificate of Saravanan, Ex.P11-postmortem report of Kannan, Ex.P12- postmortem report of Kutralingam, Ex.P13-salary certificate of Vallinayagam, Ex.P14-salary certificate of Sivaprakasam, Ex.P15-salary certificate of Kutralingam, Ex.P16-postmortem report of Jayakannan, Ex.P17-family ration card of P.W.9, K.Murugan. On the respondents side, six witnesses were examined and four documents were marked as Exs.R1 to R4, viz., Ex.R1-driving licence particulars of Jayakannan, Ex.R2-copy of insurance policy of vehicle bearing registration No.TN-59-F-8299, Ex.R3-copy of charge sheet and Ex.R4-rough sketch.
9. P.W.12, Kannan, the eyewitness of the accident had adduced evidence that the accident had been caused by the rash and negligent driving of the drivers of both the tatasumo car and lorry involved in the accident. On scrutiny of observation mahazar and rough sketch and motor vehicle inspector's report, it is seen that the accident had occurred due to a head on collision between the two vehicles.
10. The first petitioner in M.C.O.P.No.1015 of 2000, viz., Tmt.Gomathy was examined as P.W.1 and through her the copy of F.I.R., Motor Vehicle Inspector's report and observation mahazar was marked as Exs.P1, P2 and P3. On scrutiny of Ex.P2, it is seen that the accident had not occurred due to any mechanism failure of the vehicles involved in the accident. On scrutiny of Ex.R4, rough sketch and Ex.P1, F.I.R., it is seen that the accident had occurred due to the head on collision between the two vehicles and that due to the speed at which, the vehicles had collided, the front portion of the tata sumo car had gone under the lorry. It is seen on scrutiny of Ex.P2, that both the vehicles had been badly damaged.
11. P.W.2, Thiru.Murugan had adduced evidence that he had witnessed the accident as he was proceeding near the site of accident from west to east on his bicycle and that the lorry coming on the opposite direction was driven at a high speed and dashed against the tata sumo car, which was driven at a moderate speed. In support of his evidence, he had marked Ex.P16. However, he had admitted that he had not filed the complaint at the police station. He further stated that the lorry which was proceeding from east to west had been displaced to the left of the road on collision and that the tata sumo car, moving from west to east had also been displaced to the left of the road. He further stated that he had not gone near the place of accident after the collision. The Tribunal on observing that contradictory statements had been made by P.W.9 regarding manner of accident was not inclined to accept his evidence.
12. P.W.1, Muniyandi had adduced evidence that when P.W.9 and he were proceeding on their cycle from west to east, he had seen a lorry coming at a high speed and that it had collided with the tata sumo car which was proceeding at a slow speed. He had however stated that he witnessed the accident only after hearing a loud noise and that he had not seen the accident when it occurred. Hence, the Tribunal was not willing to accept the evidence of P.W.11.
13. P.W.12, Kannan had adduced evidence that he had witnessed the accident and that the accident had occurred due to a head on collision between the lorry and tata sumo car. On scrutiny of Ex.P1 and Ex.R4, it is seen that the accident had occurred due to head on collision between the vehicles. It is also seen that the F.I.R. had been filed against the driver of the car based on the complaint given by the lorry driver. On scrutiny of Ex.R3, it is seen that a criminal case had been filed against him and that as the driver of the car had died in the accident, the criminal case against him had abated. The Tribunal, on scrutiny of Exs.P1, P2, P3 and R4 and on scrutiny of evidence of P.W.12, held that the accident had been caused by the rash and negligent driving by the drivers of both the lorry and tata sumo car involved in the accident and attributed negligence equally amongst them for the cause of the accident. Hence, the Tribunal held that the second respondent i.e., United India Insurance Company being the insurer of the first respondent's lorry bearing registration No.TCT-4899, liable to pay half the compensation assessed.
14. R.W.1., Madasami had adduced evidence that the driver of the tata sumo van i.e., deceased Jayakannan was his son. From evidence of R.W.1, R.W.2 and R.W.3 and on scrutiny of Ex.R2, copy of policy marked through R.W.3, it is seen that the tata sumo car bearing registration No.TN-59-F-8299, is owned by the (deceased) Jayakannan. On scrutiny of evidence of R.W.4, and on scrutiny of Ex.R2, it is seen that the car had been driven by the deceased Jayakannan. On scrutiny of evidence of R.W.2 and Ex.R1, it is seen that the (deceased) Jayakannan had a valid licence to drive a heavy motor vehicle at the time of accident.
15. R.W.3, Chandiran, Assistant Administrative Officer of the third respondent's firm had adduced evidence that on investigation carried out by their investigation officer, it was found that the (deceased) Jayakannan, who was the driver of the tata sumo car did not have a valid badge endorsement in his licence and that the (deceased) Jayakannan was under the influence of liquor at the time of accident and as such, as the policy conditions of insurance had been violated, the third respondent is not liable to pay compensation.
16. R.W.2, K.Sundari, the junior assistant of R.T.O. Office, Tirunelveli had adduced evidence that the (deceased) Jayakannan had only a LMV licence and that for driving a tourist van, he should have a badge endorsement in his licence. However, she had stated that the owner of the van need not have a badge endorsement to drive the van. Hence, the Tribunal observed on scrutiny of evidence of R.W.2 that the contentions made on the side of the third respondent that they are not liable to pay compensation as the deceased did not have a badge endorsement were not acceptable. The Tribunal further observed on scrutiny of Ex.R2, that no specific mention had been made in the policy to show that the driver of the tourist car should have a badge endorsement to drive the vehicle.
17. R.W.4, Thiru.Manoharan, Inspector of Police had adduced evidence that the doctor who had conducted the postmortem of the (deceased) Jayakannan, had in his report stated that there was presence of ethene alcohol in his blood of the deceased and that he had driven the vehicle after consuming alcohol. He deposed that the police had stated in their final report that no action had been taken against the (deceased) Jayakannan, as he had died in the accident. However, the Tribunal on considering that the deceased had not been subjected to a breath test analysis or laboratory test and that no doctor had been examined to prove that the (deceased) had been in an inebriated condition at the time of accident, opined that just because there was trace of ethene alcohol in the blood of the (deceased) it could not be concluded that he was in a drunken state while driving the car at the time of accident and held that the contentions of the respondents that the (deceased) Jayakannan had been in a drunken state while driving the car had not been proved through documentary evidence.
18. Hence, the Tribunal on considering the oral and documentary evidence held that each of the second and third respondents, being the insurers of the lorry and tata sumo van involved in the accident are liable to pay half of the compensation assessed by them.
19. P.W.16, Thiru.Ganapathy, the first petitioner and father of the (deceased) Kannan had adduced evidence that at the time of accident, his son was aged 24 years and that he was working as a driver under one Paramasivam and earning Rs.4,000/- per month. On scrutiny of Ex.P11, it is seen that the deceased was aged 22 years at the time of accident. As no documentary evidence had been marked to prove the income of the deceased, the Tribunal held that the notional income of the deceased could only be taken as Rs.1,500/- per month. The Tribunal on adopting a multiplier of '17', awarded a sum of Rs.2,04,000/- as compensation to the petitioners under the head of 'loss of income' (Rs.1,500/- x 2/3 x 12 x 17); Rs.20,000/- was awarded to the petitioners under the head of 'loss of love and affection" and Rs.3,000/- was awarded for funeral expenses. In total, the Tribunal awarded a sum of Rs.2,27,000/- as compensation to the petitioners and directed the each of the second and third respondents to pay a sum of Rs.1,13,500/- as compensation to the petitioners, together with interest at the rate of 9% per annum from the date of filing the petition till date of payment of compensation, with costs, within 30 days from the date of its order.
20. Aggrieved by the award passed by the Tribunal, the second respondent / National Insurance Company Limited, Tirunelveli has preferred the present appeal.
21. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that Jayakannan, the driver cum owner of tourist taxi tata sumo bearing registration No.TN59-F-8299 had no valid and effective driving licence to drive the motor vehicle at the time of accident and that he was only having licence to drive light motor vehicles at the time of accident. It was also contended that the finding of the Tribunal that the said Jayakannan had not used the vehicle as a tourist taxi is not correct since it had miserably failed to note that the said Jayakannan was driving the vehicle carrying 6 persons in it and was returning from Kutralam to Tirunelveli. It was also contended that the Tribunal failed to see that as per Ex.R1, driving licence, the said Jayakannan had a licence only to drive light motor vehicles. It was also contended that the Tribunal failed to see from the evidence of R.W.4 that the said Jayakannan was driving the vehicle after consuming alcohol and as such, the policy conditions of insurance had been violated. It was contended that the Tribunal ought to have held that the appellant is entitled to recover the award amount from the third respondent herein, after the satisfaction of the award by the appellant to the claimants and ought to have granted the relief of pay and recover in favour of the appellant against the third respondent herein, in the award itself, without recourse to separate proceedings. Hence, it was prayed to set-aside the award passed by the Tribunal.
22. The learned counsel for the claimants argued that the vehicle bearing registration No.TN59-F-8299 was insured with the appellant Insurance Company and that the lorry had also been insured with the ninth respondent herein. In the said accident, two vehicles were involved and both the drivers of the vehicles had driven the vehicles in a reckless manner and therefore, the liability has been fixed equally on the part of the insurers of the vehicles. The learned counsel for the claimants further argued that the claimants are four in numbers and that they are depending upon the income of the deceased. The deceased's age was 26 years and he was employed at a Sweet Stall and earning Rs.3,600/- per month. The Tribunal had not granted adequate compensation under the heads of 'loss of love and affection, funeral expenses and transport expenses.
23. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived regarding negligence, liability and quantum of compensation. As per the evidence of R.W.2, the driver of the tata sumo car was not possessing a valid driving licence. However, it is seen that the car was insured with the appellant herein. Hence, this Court directs the appellant to pay his apportioned share of compensation amount as ordered by the Tribunal and recover it subsequently from the owner of the vehicle in the same proceedings.
24. As per records, it is seen that this Court had directed the appellant herein to deposit the apportioned share of the award amount. Now, it is open to the claimants to withdraw their apportioned share amount, with accrued interest thereon lying in the credit of M.C.O.P.No.1062 of 2000, on the file of the Additional District Court / Fast Track Court-II, Tirunelveli, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals, made by the claimants, as per this Court's earlier order.
25. In the result, the above appeal is dismissed with the above observations. Consequently, the order passed in M.C.O.P.No.1062 of 2000, on the file of the Additional District Court / Fast Track Court-II, Tirunelveli, dated 31.07.2004 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed.
r n s To The Additional District Court, Fast Track Court-II, Tirunelveli.