Madras High Court
National Insurance Company Limited vs Thangam on 8 March, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/03/2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.220 of 2008 & M.P(MD)No.3 of 2008 National Insurance Company Limited, Rep. by its Branch Manager, Post Box No.112, North Car Street, Nagercoil, Kanyakumari District. ... Appellant Vs. 1.Thangam 2.Johnson 3.Jeyakumar 4.Narayanan 5.Kanagaraj 6.Mohanraj ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the award dated 12.10.2006 made in M.C.O.P.No.52 of 2001, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kuzhithurai. !For Appellant ... Mr.A.K.Baskarapandian ^For Respondents... Mr.C.Selvadoss for R-1 Mr.Belmont S.Swamy for r-2 No appearance for R-3 to R-6 - - - :JUDGMENT
The appellant / third respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.52 of 2001, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kuzhithurai.
2. The short facts of the case are as follows:-
The petitioners, who are the mother and brother of the (deceased) Rajesh Kumar have filed the claim in M.C.O.P.No.52 of 2001, claiming compensation of a sum of Rs.7,00,000/- from the respondents for the death of the said Rajesh Kumar in a motor vehicle accident. It was submitted that the (deceased) was working as a cleaner in the Mahendra van belonging to one Nelson of Thiruvattur, Kanyakumari District and whenever there was leave or vacancy, the deceased worked as a cleaner in the lorry belonging to the first respondent. At the time of death, the deceased was employed as a cleaner in the first respondent's lorry bearing registration No.KLU-614 and had treavelled in the lorry, which had carried a consignment to Thoothukudi. After off loading the consignment, the second respondent, i.e., the driver of the lorry and the deceased had approached Gomathi Lorry Booking Office, Thoothukudi on 03.05.2001 at about 8 a.m., in order to take load while returning to Marthandam. The Gomathi Lorry Booking Office arranged for a salt load to be taken in the said lorry from Sree Meenakshi Self Works (P) Ltd., near Urani Ottaveedu. Since the loading of the salt would take a few hours for completion, the deceased and the second respondent were waiting there from about 8 a.m., onwards. At about 12.30 pm., when the deceased was giving signal to the lorry driver to move the lorry backwards, in the said salt factory, the second respondent moved the lorry in reverse, rashly and negligently and at a high speed and in the result, the lorry dashed against the head, chest and ribs of the deceased and caused his death. The second respondent immediately misled the few persons available in the salt factory as if the deceased was sleeping under the lorry at the time of accident, tampered the evidence and took the body of the deceased in the lorry stating that he is taking him to the hospital. But, the second respondent drove the lorry through the Thoothukudi South Police Station and Government Medical College Hospital Road to Pudukkottai about 18 kms away from the place of occurrence, and attempted to secretly dispose of the body of the deceased and to create a circumstance as if the deceased had gone out of the lorry for some other employment without informing him and thereby tried to conceal the accident. Due to blood oozing from the lorry on the road, the people suspected him and made attempts to nab the second respondent due to which it became impossible for him to dispose the body of the deceased secretly and so he left the lorry with the body of the deceased on the road at Pudukkottai and escaped from there. The second respondent failed to inform the accident to Police or Gomathy Lorry Service or any other person. Hence, the petitioners have filed the claim against the first, second, third and fourth respondents. The first, second and third respondents are the owner, driver and insurer of the lorry bearing registration No.KLU-614 and the fourth respondent is impleaded herein since the insurance policy for vehicle is existing in his name.
3. The third respondent, in his counter has denied the averments in the claim regarding manner of accident. It was submitted that the petitioners are trying to build up a case to show that the deceased had died in an accident in order to get compensation and that the first and second respondents have colluded with the petitioners in order to set up a claim. It was submitted that the contentions in the claim that the deceased sustained injuries in his head and chest is not probable especially when the lorry is being taken on reverse. The averments in the claim regarding age, income and occupation of the deceased was also not admitted. It was submitted that the second respondent did not have a valid driving licence at the time of accident. It was submitted that there is no mention in the claim regarding criminal case filed in the alleged accident. In its additional counter it was submitted that the third petitioner who had been added as a necessary party, i.e, the father of the deceased is only a legal-heir of the deceased and not dependent on the income of the deceased. It was submitted that at the time of accident, the person who was the owner of the vehicle had not insured the vehicle with the third respondent. It was submitted that only the fourth respondent is the owner of the vehicle and that he had not intimated the details to the third respondent and had violated the conditions of insurance policy. It was submitted that when the ownership change of vehicle was effected no additional premium was paid to cover the risk of employees. Hence, it was prayed to dismiss the claim against the third respondent.
4. The first and second respondents in their counter have submitted that the deceased was not employed as a cleaner in either the Mahendra van or the lorry. It was submitted that the deceased had not worked anywhere for long stretch of time. It was submitted that the accident occurred due to the negligence of the deceased. It was submitted that as the father of the deceased had not been added as a necessary party in the claim, it renders the claim bad. It was submitted that the lorry had been covered under a comprehensive policy of insurance with the third respondent and that the second respondent had a valid driving licence at the time of accident and as such, only the third respondent could be held liable to pay compensation, if so assessed by the Tribunal.
5. On the petitioner's side, seven witnesses were examined and fifteen documents were marked as Exs.P1 to P15, viz., Ex.P1-driving licence of Rajesh Kumar, Ex.P2-copy of F.I.R., dated 03.05.2001, Ex.P3-copy of postmortem report dated 03.05.2001, Ex.P4-death certificate of Rajesh Kumar dated 21.05.2001, Ex.P5-copy of Motor Vehicle Inspector's report dated 08.05.2001, Ex.P6-copy of Criminal Court judgment made by Judicial Magistrate-I, Thoothukudi in C.C.No.133 of 2002, Ex.P7-settlement deed given in favour of Thangam by Muthusamy, Ex.P8-Land Tax receipts in the name of Thangam dated 02.11.1998, Ex.P9-house tax receipts in the name of Thangam dated 20.02.1998, Ex.P10-T.C. of Rajesh Kumar, Ex.P11-copy of family ration card of Tahngam, Ex.P12-copy of charge sheet dated 22.05.2001, Exs.P13 and P14-certificate issued by St. Marys Senior Secondary School dated 28.02.2003, Ex.P15-postmortem report dated 17.05.2001. On the respondent's side, two witnesses were examined and no document was marked.
6. The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz., "(i) Was the accident caused by the rash and negligent driving of the second respondent?
(ii) Are the first petitioner, five and sixth respondents entitled to get compensation? If so, who is liable to pay compensation?and
(iii) What is the quantum of compensation which the petitioner and 5th and 6th respondents entitled to get?"
7. P.W.1, the mother of the deceased had adduced evidence that the accident had occurred at 12 a.m., on 03.05.2001 at Sri Meenakshikulam at Thoothukudi and that her son, the (deceased) Rajeshkumar had travelled on the lorry bearing registration No.KLU-614 only on the day preceding the accident, as a cleaner, and that she was intimated of the death of her son on the night of 03.05.2001. She further deposed that her eldest son and some other workers had gone to the accident site and recovered the body. She deposed that her son was not in the habit of sleeping on grass and that she had come to understand that the accident had been caused by the negligence of the second respondent.
8. P.W.2, Thiru Arumugaraj, the eyewitness of the accident had adduced evidence that on 03.05.2001, at about 12.30 p.m., in the afternoon, when he had loaded the goods on one lorry and had then signalled the first respondent's lorry to come forward, the deceased cleaner of the first respondent's lorry had asked the second respondent to take the lorry in reverse and that as the second respondent, i.e, the driver of the lorry had taken the lorry on reverse at a high speed, the (deceased) cleaner who was standing behind it tripped while keeping his feet on a brick and fell down under the rear wheel of the lorry and the rear left tyre of the lorry ran over the (deceased) cleaner's head. On the alarm raised by the persons standing there, the lorry driver had stopped the vehicle and the (deceased) cleaner was lifted and it was found that he was still alive. He deposed that the (deceased) cleaner was taken to the hospital. He further deposed that he had been questioned by the police and that he was also represented as a witness in the charge sheet and in support of his evidence, he had marked Ex.P12, charge sheet. He deposed that the accident had been caused by the negligence of the second respondent.
9. The Tribunal, on scrutiny of Ex.P2, F.I.R. observed that the criminal case has been filed against the second respondent. On scrutiny of Ex.P6, the criminal Court judgment, it is seen that the second respondent has admitted his guilt and paid the fine. Hence, the Tribunal held that the accident had been caused by the rashness and negligence of the second respondent.
10. P.W.1 had further adduced evidence that she is not married the fifth respondent and that when she was 16 years old, the fifth respondent had kidnapped her and that she gave birth to two sons through him, and that the two sons are the second petitioner and the deceased Rajeshkumar. She deposed that after the birth of Rajeshkumar, the fifth respondent issued to come home drunk everyday and beat her demanding her to get sreedhana from her parents and that he had driven her out of the house, when her son, Rajeshkumar was five years old. She deposed that the fifth respondent had not taken any care of her or her children and that her father had given her a gift of five cents of land. She deposed that she was living in the land gifted by her father and that she had only brought up the deceased Rajesh Kumar and the second petitioner with the assistance of her father. She deposed that she is not employed anywhere and that the fifth respondent had not spoken to her or given any money for her family expenses and that the fifth respondent had also not taken any monetary help from the deceased Rajesh Kumar. She deposed that the fifth respondent was not dependent on the (deceased) Rajesh Kumar. She deposed that she and the second petitioner were dependants on the income of the (deceased) Rajesh Kumar and that only she and the second petitioner is entitled to get compensation and that the fifth respondent is not entitled to get any compensation.
11. The fifth respondent was examined as R.W.1 R.W.1 had deposed in his evidence that he and the first petitioner was living separately for the last 12 years and that he had started to live alone as the first petitioner's behavior was not correct. He deposed that he is the father of two sons born through the first petitioner and that the (deceased) Rajesh Kumar was his second son. He deposed that he had only educated his sons and that due to fractures sustained in his leg through a fall, he is not able to walk properly. He is living under the support of his children after they have grown up and that he had not experiences any problem with his children so far. He deposed that when the (deceased) Rajesh Kumar was alive, he used to given him money for his personal expenses and that as he is not able to any work due to fracture sustained in his leg, he is also entitled to get compensation for the death of his son Rajesh Kumar.
12. The sixth respondent was examined as R.W.2. R.W.2 had adduced evidence that the fifth respondent is his father and that during the death of his brother Rajesh Kumar, his father had worked at Kerala. He deposed that his mother and father had been living separately for the past 10 years and that he did not have any objection in his father being given 1/3rd of the compensation payable to them.
13. P.W.3, Thiru.Mariadass, the Headmaster of the school, where the (deceased) had studied adduced evidence that the deceased Rajesh Kumar was admitted in their school in 6th Standard in the year 1992 and that at the time of joining, only his mother had signed all the relevant admission forms. He further deposed that the mother of the deceased had only collected the transfer certificate of her deceased son and in support of his evidence, he had marked Ex.P13, transfer certificate.
14. P.W.4, Thiru.Sumalayyan, the teacher at St.Mary's Primary School had adduced evidence that the (deceased) Rajesh Kumar was admitted in their school in the first standard in the year 1987 and that his mother had signed all the relevant forms at the time of his admission. In support of his evidence, he had marked the certificate issued by the headmaster of his school as Ex.P14.
15. P.W.5, Tms.Julies, Village Panchayat President had adduced evidence that she is acquainted with the family of Thangam, i.e., the petitioner for the past 10 years and that the said Thangam was living with her parents. She deposed that her parents had gifted her some property and that they were living in the house built in that property. She deposed that the parents of Thangam had taken care of the (deceased) Rajesh Kumar right from his birth and that only Thangam had arranged for education of her son, i.e., the deceased Rajesh Kumar, at School.
16. P.W.6 had adduced evidence that the first petitioner and her sons were living in her parents home for the last 17 years and that she had separated from her husband about 9 years prior to the death of the said Rajeshkumar. He deposed that Thangam is living in a house built on the property gifted by her parents and that only Thangam had arranged for admission of her son, the (deceased) Rajeshkumar at School and that the parents of Thangam had also looked after the welfare of the said Rajeshkumar.
17. Though R.W.1 had stated in his evidence that he could produce documentary proof of his marriage with Thangam, he has failed to produce the marriage registration form and had also stated that he does not know the date on which the marriage took place. Further, the Tribunal observed that R.W.1, in his cross-examination had admitted that he has been working as a coolie for the past 30 years. The Tribunal observed that though R.W.1 had stated in his chief examination that he had fractured his leg and sustained disability, he had not produced any documentary evidence to show that he had taken any medical treatment and that he is not able to do any work at present due to his alleged disability. Though R.W.1 had adduced evidence that his deceased son had extended monetary help to him, he had not produced any documentary evidence to back this claim. Further, the Tribunal observed that R.W.2, in his cross-examination had stated that his father had been working as a coolie in Kerala. Further, R.W.2 had admitted in his cross-examination that he was aged 21 years when his brother died and that he was working as a cleaner in a lorry. Hence, the Tribunal, on scrutiny of the oral and documentary evidence, held that only the first petitioner is entitled to get compensation for the death of her son and that the fifth and sixth respondents are not entitled to get any compensation, as they are the dependants of the deceased Rajesh Kumar.
18. The Tribunal, on considering that the second respondent had worked as an employee in the first respondent's lorry and on considering that the first respondent's lorry had been insured with the third respondent at the time of accident, held the first and third respondents are jointly and severally liable to pay compensation to the petitioner.
19. The Tribunal, on holding that the notional income of the deceased as Rs.3,000/- per month and deducting 1/3rd of this for his personal expenses and adopting a multiplier of '16', as was relevant to the age of the mother of the deceased (38 years), awarded a sum of Rs.3,84,000/- as compensation to the petitioner under the head of 'loss of income' (Rs.3,000 x 2/3 x 12 x 16); Rs.10,000/- was awarded as compensation under the head of 'loss of love and affection' and Rs.5,000/- was awarded towards funeral expenses. In total, the Tribunal awarded a sum of Rs.3,99,000/- as compensation to the petitioner and directed the third respondent, to pay the said sum, on behalf of the first respondent, together with interest at the rate of 12% per annum from the date of filing the petition till the date of payment of compensation, within two months from the date of its order.
20. Aggrieved by the award passed by the Tribunal, the third respondent / National Insurance Company Limited has preferred the present appeal.
21. The learned counsel for the appellant / National Insurance Company has contended in his appeal that the Tribunal erred in fixing the monthly income of the deceased as Rs.3,000/- per month, without any evidence on record. It was also contended that the multiplier of '16' adopted by the Tribunal was improper and that the award of Rs.3,84,000/- granted under the head of 'loss of income' was excessive. It was contended that the interest of 12% awarded by the Tribunal was also excessive. Hence, it was prayed to set-aside award passed by the Tribunal.
22. The highly competent counsel for the claimant argued that as per evidence of both sides, the claimant and her husband had been living separately for more than 10 years and as such, the husband and wife relationship had been automatically cancelled. The second respondent is aged 21 years and who is a cleaner and earning sufficient income. As such, he was not depending on the income of the deceased. The highly competent counsel has further submitted that the first claimant is in a deserted condition since her husband had deserted her 10 years ago and that the first claimant alone is dependant on the income of the deceased. The quantum of compensation of a sum of Rs.3,99,000/- is on the lower side. The Tribunal had not granted sufficient compensation to the claimant. The Tribunal had rightly decided the negligence and the person entitled to receive compensation.
23. On verifying the facts and circumstances of the case and arguments advanced by the highly competent counsels on either side, and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding liability and quantum of compensation. This Court is of the further view that the Tribunal had opined that the first claimant and her husband had separated and both were living separately for more than 10 years. As such, it is seen that the father of the deceased had not extended any support to his wife and children. Therefore, it is evident that the husband of the first claimant had not been a dutiful husband and a dutiful father to the deceased. The same has been confirmed by the evidence of the headmaster of the school, wherein the (deceased) was admitted by the first claimant, to educate the (deceased). Therefore, this Court is not inclined to interfere with the impugned order.
24. As per Court records, it is seen that the appellant / National Insurance Company had deposited the entire compensation amount and the claimant was permitted to withdraw 50% of the award amount. Now, this Court permits the claimant, viz., Mrs.Thangam to withdraw the balance compensation amount with accrued interest thereon lying in the credit of M.C.O.P.No.52 of 2001, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kuzhithurai, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals, as per this Court's earlier order.
25. In the result, the above appeal is dismissed. Consequently, the order passed in M.C.O.P.No.52 of 2001, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kuzhithurai, dated 12.10.2006 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed.
r n s To The Sub Court, Motor Accidents Claims Tribunal, Kuzhithurai.