Madras High Court
The Branch Manager vs The Manager on 22 April, 2014
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 22.04.2014 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.No.844 of 2014 M.P.No.1 of 2014 The Branch Manager, United India Insurance Co. Ltd., Branch Office, No.5-B/II, SBI Upstairs, Salem Road, Rasipuram 637 408. ... Appellant v. 1.Annamalai 2.Thilagam 3.Minor Gomathi 4.Minor Kokila 5.S.Senappan 6.S.Sivaprakasam Respondents The Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act against the award & Decree dated 07.03.2012 made in M.C.O.P.No.72 of 2010, on the file of the Motor Accidents Claims Tribunal (Additional District Judge), Krishnagiri. For Appellant : Mr.Kabir Das JUDGMENT
Parents and sisters, who have lost a 22 year old member of the family, in the accident, which occurred on 27.12.2008, due to electrocution, when he accidently contacted a live electric wire, while attempting to take a diesel can, from the top of the tipper lorry, bearing Registration No.TN 30 AB 4695, owned by the 6th respondent herein, and insured with the appellant-Insurance Company, have claimed compensation of Rs.8,00,000/-. He was stated to be a cleaner.
2. The owner of the tipper lorry, remained absent.
3. The appellant-Insurance Company has denied the averments made in the claim petition, contending inter alia that the place of accident does not come within the definition of public place, as per the provisions of the Motor Vehicles Act, 1988 and hence, the claim petition is not maintainable. They further submitted that the accident occurred, due to the negligence of the deceased, who climbed to the top of the cabin of the lorry, without the consent of the lorry driver and thus, invited the accident. Thus, they have disputed their liability to pay compensation. Without prejudice to the above, they disputed the age, avocation, income of the deceased and the quantum of compensation claimed under various heads.
4. Before the Claims Tribunal, father of the deceased examined himself as PW.1 and reiterated the manner of accident. Ex.P1 FIR, Ex.P2 Post-Mortem Certificate, Ex.P3 Notice sent by the claimant to the Respondents 5 and 6 herein, Exs.P4 and P5 Acknowledgment Cards and Ex.P6 Insurance Policy, have been marked on the side of the respondents/claimants. On behalf of the appellant-Insurance Company, two witnesses have been marked. RW.1 is an official of the Insurance Company and RW.2 is the driver of the tipper lorry. Ex.R1 Insurance Policy has been marked.
5. On evaluation of pleadings and evidence and having regard to the fact that the claim has been filed under Section 163-A r/w. Section 167 of the Motor Vehicles Act, the Claims Tribunal observed that there was no need to advert to the aspect of negligence. The owner of the tipper lorry, insured with the appellant-Insurance Company, involved in the accident, in his counter affidavit, has stated that due to electric shock, son of the respondents/claimants, died. According to him, the deceased climbed to the top of the cabin of the lorry, without the consent of the lorry driver and thus, invited the accident. But the lorry driver, examined as RW.2, has deposed that the deceased was not a cleaner, and climbed to the top of the cabin, on his own accord, without his consent and knowledge. After considering the oral and documentary evidence and following the decision of this Court in National Insurance Company Ltd., Neyveli v. William Jenifer reported in 2007 (1) TNMAC 332 (DB), the Claims Tribunal held that the accident spot was a public place and hence, the provisions of the Motor Vehicles Act, are applicable to the facts of this case.
6. On the basis of the entry made in Ex.P2 Post-Mortem Certificate, the Tribunal has fixed the age of the deceased as 20 years. Having regard to the wages, at the time of accident, the Claims Tribunal has fixed the monthly income as Rs.3,300/- and thereafter, following a decision of this Court in Managing Director, TNSTC v. Lakshmanan and others reported in 2010 (1) TNMAC 155, deducted 1/3rd towards the personal and living expenses of the deceased. After applying '18' multiplier, the Claims Tribunal has awarded Rs.4,75,000/- for loss of dependency. That apart, the Claims Tribunal has awarded Rs.42,000/- towards loss of love and affection and Rs.5,000/- for funeral expenses. Altogether, the Claims Tribunal has awarded Rs.5,34,000/- with interest, at the rate of 6% per annum, from the date of claim, till the date of realisation.
7. Assailing the finding, fixing liability to pay compensation, Mr.Kabirdas, learned counsel for the appellant-Insurance Company submitted that the Tribunal has failed to consider that the deceased was not a cleaner, in the insured lorry and when the said fact has been admitted by PW.1, father of the deceased, in his cross-examination, the Claims Tribunal ought not to have fastened liability on the appellant-Insurance Company. He further submitted that the Claims Tribunal has failed to appreciate the evidence of RW.2, driver of the lorry, who has deposed that the deceased climbed to the top of the cabin, without his instructions and thus, invited the accident.
Heard the learned counsel for the parties and perused the materials available on record.
8. Before this Court, learned counsel for the appellant fairly submitted that maintainability of the claim petition, has not been challenged, on the grounds that the accident did not occur in a public place. Both electrocution and death are admitted. As per the claim petition, the deceased was employed as a cleaner, in a lorry owned by Mr.S.Sivaprakasam, 2nd respondent in the claim petition. It is stated that the owner of the lorry has filed a counter affidavit, stating that the deceased climbed to the top of the lorry, without the consent of the lorry driver and thus, invited the accident. The said counter affidavit has not been enclosed in the typed of papers, filed along with the present appeal. RW.2, driver of the lorry, has also stated that the deceased climbed to the top of the lorry, without his consent.
9. The claim petition has been filed under Section 163-A of the Motor Vehicles Act. From the evidence of RW.2, driver of the Tipper lorry and Ex.R1 Insurance Policy, the Claims Tribunal has recorded that when the deceased was standing on the top of the cabin and when it was moving, he came in contact with a livewire and electrocuted. Since the Tipper lorry, insured with the appellant-Insurance Company, was involved in the accident and having regard to the fact that the application has been filed under Section 163-A of the Motor Vehicles Act, the Claims Tribunal did not go into the aspect of negligence. In the light of the above provision, this Court does not find fault with the Tribunal.
10. The only contention, which remains to be considered is whether, the respondents should be denied, payment of compensation, for the death of a 22 year old man, in the accident, on the sole ground that during the course of cross-examination, PW.1, father of the deceased, has deposed that the deceased had worked under one Mr.Dam Rathinakumar, owner of poclain vehicle. In the claim petition, he has stated that his son was employed as a cleaner in the Tipper lorry, bearing Registration No.TN 30 AB 4695, owned by the 6th respondent herein and insured with the appellant-Insurance Company.
11. As stated supra, though the 2nd respondent has filed a counter affidavit, before the Claims Tribunal, contending inter alia, that the deceased died due to electric shock, while climbing to the top of the cabin, copy of the counter affidavit has not been enclosed in the typed set of papers. Even from the counter affidavit filed by the appellant-Insurance Company, it could be deduced that the vehicle, bearing registration No.TN 30 AB 4695, was engaged in bringing soil, for levelling the field. It is further stated that at the levelling area, overhead electric lines existed and while unloading the soil, the vehicle was moving front and back. During that time, when the vehicle was moving, to get the fuel can, the deceased had climbed to the top of the cabin of the vehicle and thus, came in contact with a livewire, due to which, he was electrocuted and died.
12. Thus, even the appellant-Insurance Company has admitted the manner of accident. Poclain vehicle is normally used to remove soil and load a tipper lorry. Tipper lorries, would be operated, for transportation of soil or any other mineral. The consignment transported is unloaded at different places. In the case on hand, the tipper lorry has been used for levelling the field and while unloading and levelling, movement of the vehicle, would be there. At that time, the deceased had climbed to the top of the vehicle and got electrocuted.
13. Admittedly, death has occurred, when the tipper lorry was used. Nowhere, in the averments, poclain vehicle has come into picture, except in the cross-examination of PW.1. It could be due to an inadvertent statement. Even RW.1, driver of the lorry, who has deposed that the deceased was not a cleaner, has not explained, as to how, a third party, could have been allowed to climb to the top of the cabin, when it was moving. If the deceased was not a cleaner of the vehicle, involved in the accident, why should he go to the top of the vehicle, to get the diesel can? Therefore, from the evidence, available on record, it could be deduced that unless the driver had instructed him to get the diesel can, the deceased would not have made an attempt to fetch the same. A stranger may not know, where the diesel can was kept and without the instructions of RW.1, driver, who knew the requirement, there would not have been a possibility, for a third party, to climb to the top of the vehicle. Therefore, this Court is not inclined to accept the version of the driver. Death has occurred and the involvement of the vehicle, insured with the Company, is not disputed.
14. In the light of discussion, this Court is of the view that the deceased, who had worked as a cleaner in the tipper lorry, got electrocuted and died. Consequently, the legal representatives of the deceased, are entitled to claim compensation from both the insured and the insurer, appellant-Insurance Company.
15. A sum of Rs.2,200/- alone has been taken into consideration for the purpose of computing the loss of contribution of the family. There are four members in the family. Though the quantum of compensation is assailed on the ground that the Claims Tribunal ought to have deducted 50% towards the personal and living expenses of the deceased, this Court is not inclined to accept the said contention, for the reason that the income fixed by the Claims Tribunal for a cleaner, in the year 2008, is very less.
16. At this juncture, this Court deems it fit to consider a decision of the Apex Court in Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd., reported in 2011 (2) TNMAC 190 SC, wherein, a sum of Rs.4,500/- has been claimed as monthly wages for the deceased, stated to be a coolie. The claims tribunal has taken Rs.3,000/- for the purpose of computing the loss of contribution to the family. However, when the matter was taken up on appeal, the Supreme Court having regard to the wages of a labourer, during the relevant period (2004 - between Rs.100 to Rs.150/- per day) found fault with the tribunal for reducing the claim from Rs.4,500/- to Rs.3,000/- and determined the income at Rs.4,500/-.
17. Even for a labourer, in the year 2004, the Supreme Court has taken the monthly income as Rs.4,500/- for the purpose of computing the loss of contribution to the family. It is well known that tipper lorries are frequently used for transporting soil and other building materials. Contribution of Rs.2,200/- to the family, comprising of four members, in the year 2008, is not on the higher side, which is about 70% per day.
18. As per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation reported in 2009(2) TNMAC 1, the Claims Tribunal ought to have deducted 1/4th towards the personal and living expenses of the deceased, which has not been done. As against the loss of love and affection, the Claims Tribunal has awarded Rs.42,000/-. Rs.5,000/- has been awarded for Funeral Expenses. But no compensation has been awarded towards transportation and conventional damages. Considering the inadequate compensation towards Funeral expenses, failure to award any compensation for transportation and damages to the clothes and of the fact that the Claims Tribunal has not applied 1/4th deduction, this Court is not inclined to interfere with the overall quantum of compensation awarded to the respondents/claimants.
19. For the abovesaid reasons, the finding fastening liability on the appellant-Company to pay compensation and the quantum of compensation, are sustained. In the result, the Civil Miscellaneous Appeal is dismissed. The appellant-Insurance Company is directed to deposit the entire award amount, if not already deposited, with proportionate accrued interests and costs, to the credit of M.C.O.P.No.72 of 2010, on the file of the Motor Accidents Claims S. MANIKUMAR, J.
skm Tribunal (Additional District Judge), Krishnagiri, within a period of four weeks from the date of receipt of a copy of this order, if not made already. On such deposit being made, the respondents/claimants are permitted to withdraw the same, by making necessary applications before the Tribunal. No costs. Consequently, the connected Miscellaneous Petition is closed.
22.04.2014 skm To The Motor Accidents Claims Tribunal (Additional District Judge), Krishnagiri.
C.M.A.No.844 of 2014