Madras High Court
National Insurance Co. Ltd vs Subramani on 4 December, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 04.12.2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR CMA No.3122 of 2012 and M.P.No.1 of 2012 National Insurance Co. Ltd., Office at Vijay Plaza Building, 2nd Floor, C-32, Second Avenue, Anna Nagar, Chennai .. Appellant Vs. 1. Subramani 2. Sudha 3. Seetha 4. Muthugowtham 5. Sundararaman .. Respondents Prayer: Appeal under Section 173 of Motor Vehicles Act, 1988, against the Decree and Judgment passed by the Motor Accidents Claims Tribunal (II Additional District Court), Erode, made in M.C.O.P.No.4 of 2011 dated 11.06.2012. For Appellant : Mr.S.Vadivel JUDGMENT
Being aggrieved by the finding fastening liability, inspite of the specific plea that the rider of the offending vehicle bearing Regn.No.TN38A1886 insured with the appellant Insurance Company, did not possess a valid and effective driving licence at the time of accident and the quantum of compensation of Rs.5,75,000/- with interest at the rate of 7.5% per annum, awarded to the husband and two daughters, National Insurance Company Ltd., Chennai, has preferred this appeal.
2. Short facts leading to the appeal are as follows:
That on 23.09.2010 about 7.45pm, when the deceased Mallika and her daughter Seetha were walking from south to north direction, on Karur to Erode main road, and near Vadakku Valavu Soolai, at Malayampalayam, a car bearing Regn.No.TN38K1886 driven by its driver which came in the same direction hit the deceased behind. She was thrown out, sustained injuries and died on the spot. Legal representatives claimed that she was aged 41 years at the time of accident. She was stated to be a house wife and tailor and earned Rs.20,000/- per month. A case in Crime No.302 of 2010 under Sections 279 and 304 (A) IPC, registered against the driver of the car, was pending investigation at the time of filing of the claim petition. A sum of Rs.10,00,000/- has been claimed as compensation.
3. The National Insurance Company Ltd., Chennai, has disputed the manner of accident. They further submitted that the driver of the car did not have a valid and effective driving licence at the time of accident and that therefore they are not liable to pay compensation. Rule 3 of the Motor Vehicles Act, 1988, has been pressed into service. Without prejudice to the above, the company disputed the quantum of compensation claimed under various heads.
4. Before the claims tribunal, the driver of the car, has filed a counter affidavit contending inter alia that on the date of accident i.e., on 23.09.2010, he had a learner's licence. He has also taken a permanent licence on 28.09.2010. According to him, he was not negligent in causing the accident. It was the deceased who invited the accident by crossing the road suddenly, without noticing the car. He further submitted that since the vehicle was insured, the appellant Insurance Company only is liable to pay the compensation.
5. Before the claims tribunal, daughter of the deceased Seetha examined herself as PW1. Ex.P1, FIR, Ex.P2, Motor Vehicle Inspector's Report for the vehicle bearing Regn.No.TN38 K 1886, Ex.P3, Rough sketch, Ex.P4, Postmortem certificate, Ex.P5, copy of the charge sheet and Ex.P6, legal heir certificate have been filed on behalf of the respondents/claimants. RW1, is the driver of the car. RW2, is the person who accompanied him in the car. RW3, is the police officer, who investigated the crime. RW4, is the administrative officer. Ex.R1, Learner's licence, Exs.R2 and R3, Driving licences, Ex.R4, Insurance policy, have been filed on behalf of the Insurance Company.
6. Upon evaluation of the oral and documentary evidence, the claims tribunal held that the driver of the car bearing Regn.No.TN38K 1886 insured with the appellant company was negligent in causing the accident.
7. On the question of liability though, the appellant Insurance Company has examined RW2, the investigation officer, who charge sheeted the 1st respondent based on the complaint registered in FIR, Ex.P1, under Section 279 and 304-A IPC, the company also adduced evidence through RW4, an officer from their company.
8. As regards Learner's Licence and the liability fastened on the insurance company, let me consider some of the decisions.
(i) In Branch Manager, Oriental Insurance Company Ltd., v. S.Kadarshaw Rowther reported in 2004 (2) TNMAC 13 (DB), parents of the deceased claimed compensation. Resisting the claim, the Insurance Company took a plea that the driver of the vehicle, did not possess a valid licence and thus, violated the terms and conditions of the policy. It was also contended that the vehicle was stolen by some miscreants and they murdered the driver. However, he had a learner's licence (LLR) at the time of accident. RW.1, owner of the vehicle, had deposed that the deceased was not authorised or permitted to drive the car nor there was any acceptable evidence that the driver was prevented by the employer. In the abovesaid circumstances, having regard to the admitted plea that the deceased was having a LLR and placing reliance on a decision in National Insurance Company Ltd., v. Swaran Singh reported in 2004 (1) ACJ 1, a Division Bench of this Court [Hon'ble Mr. Justice P. Sathasivam and Hon'ble Mr. Justice S.R.Singharavelu] held that the Insurance Company cannot escape from its liability.
(ii). In Radhika Devi v. Vasantha reported in 2004 (2) TNMAC (DB) 567, a Division Bench of Kerala High Court considered a plea of the owner of the vehicle, as to whether the Insurance Company can avoid its liability, if the driver of the insured vehicle was having only LLR licence at the time of accident. After referring to the decision in Swaran Singh's case (cited supra), the Division Bench, at Paragraph 10, held that, "In view of the above recent Apex Court decision, we are of the view that the Insurance Company cannot avoid liability to the third party on the ground that the driver of the insured vehicles has got only a learner's licence at the time of accident and it cannot be stated that the owner has also committed breach of policy condition." In the above reported judgment, the Division Bench has directed that the amount deposited by the appellant as a condition for filing the appeal should be refunded, while issuing a further directions to the Insurance Company to pay the compensation to the accident victims.
(iii). In Mahamooda and others v. United India Insurance Company Ltd., reported in 2004 (13)SCC 684, the vehicle was driven by a person, having LLR and the Tribunal fixed the liability on the Insurance Company. Following Swaran Singh's case, a Two Judges Bench of the Supreme Court directed the appellant-Insurance Company to deposit the compensation with the Tribunal, if the Company had already withdrawn the amount, after the judgment of the High Court.
9. In the case on hand, evidence has been let in that RW2, who had accompanied the driver had a valid and effective driving licence and upon consideration of Ex.R1, learner's licence of the driver of the car and Ex.R3, Driving licence of the person accompanied him, the claims tribunal held that the insured viz., the owner of the vehicle was liable to pay compensation to the third party victim and having regard to the fact that the vehicle was insured at the time of accident, directed the insurer to indemnify him.
10. On the assessment of the quantum of compensation, in the absence of any birth extract or school certificate, tribunal taking into consideration the entry in Ex.P4, postmortem certificate has fixed the age of the deceased as 43 for the purpose of computing the loss of contribution to the family, which cannot be said to be manifestly illegal in the light of the decisions of this Court in the Managing Director, Tamilnadu State Transport Corporation, Madurai v. Mary [2005 (5) CTC 515].
11. On the aspect of determination of monthly income, though, the legal representatives, have claimed that the deceased as a tailor and by obtaining job orders from the textile units / companies, earned Rs.20,000/- per month, there was no supporting evidence. The accident has occurred on 23.09.2010. However, taking into consideration that even an agricultural labourer would earn a sum of Rs.3,000/- per month, determined the same for computing the loss of contribution to the family. However, the tribunal by observing that the deceased would have contributed the entire monthly income to the family, did not choose to deduct 1/3 towards her personal and living expenses and by applying '15' multiplier awarded Rs.5,40,000/- under the head loss of contribution to the family. In addition to the above, tribunal has awarded Rs.30,000/- under the head loss of love and affection and Rs.5,000/- for funeral expenses. Altogether, the tribunal has awarded Rs.5,75,000/- as compensation.
12. Though, Mr.Vadivel learned counsel for the appellant Insurance Company assailed the award on the ground that the claims tribunal has failed to consider that at the time of the accident, the driver of the car did not possess a regular driving licence and that he was not assisted by an expert, as contemplated under the provisions of the Motor Vehicles Act and that at the relevant time, 'L' board was not displayed in the vehicle and therefore, the appellant Insurance Company is not liable to indemnify the insurer, this Court is not inclined to accept the same, in view of the decisions stated supra. Further, perusal of the material on record shows that RW2, the person who accompanied the driver, had an effective and valid licence, Ex.R3. Merely because 'L' Board was not displayed in the vehicle involved in the accident, that would not entitle them to claim total exoneration or liability to indemnify the insurer. In the light of the above, the finding fastening liability on the insurance company cannot be said to be manifestly illegal and hence, the same is confirmed.
13. However, there is some force in the contention of the learned counsel for the appellant Insurance Company that the tribunal after determining the monthly income of the deceased at Rs.3,000/-, has not chosen to deduct 1/3 towards the personal and living expenses of the deceased and by observing that the entire amount would have been spent only for the family proceeded to compute the loss of contribution. In so far as, the estimate regarding loss of contribution to the family, from a house wife or mother, this Court deems it fit to consider a decision of the Supreme Court in Arun Kumar Agrawal & Anr. Vs. National Insurance Co. Ltd. & Ors., reported in 2010(9) SCC 218, wherein at paragraph Nos. paragraph Nos. 23 to 27, the Apex Court has held as follows:
"23. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean 2 etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.
24. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term `services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.
25. In Lata Wadhwa v. State of Bihar (supra), this Court considered the various issues raised in the writ petitions filed by the petitioners including the one relating to payment of compensation to the victims of fire accident which occurred on 3.3.1989 resulting in the death of 60 persons and injuries to 113. By an interim order dated 15.12.1993, this Court requested former 2 Chief Justice of India, Shri Justice Y.V. Chandrachud to look into various issues including the amount of compensation payable to the victims. Although, the petitioners filed objection to the report submitted by Shri Justice Y.V. Chandrachud, the Court overruled the same and accepted the report. On the issue of payment of compensation to housewife, the Court observed: So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs.12,000 per annum in cases of some and Rs.10,000 for others, appears to us to be grossly low. It is true that the claimants, who ought to have given data for determination of compensation, did not assist in any manner by providing the data for estimating the value of services rendered by such housewives. But even in the absence of such data and taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs.3000 per month and Rs.36,000 per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore, should be recalculated, taking the value of services rendered per annum to be Rs.36,000 and thereafter, applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs.50,000 instead of Rs.25,000 given under the Report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs.10,000 per annum and the multiplier applied is eight. Though, the multiplier applied is correct, but the values of services rendered at Rs.10,000 per annum, cannot be held to be just and, we, therefore, enhance the 2 same to Rs.20,000 per annum. In their case, therefore, the total amount of compensation should be redetermined, taking the value of services rendered at Rs.20,000 per annum and then after applying the multiplier, as already applied and thereafter, adding Rs.50,000 towards the conventional figure. (emphasis supplied)
26. The judgment of Lata Wadhwa's case was referred to with approval in M.S. Grewal and another v. Deep Chand Sood and others (2001) 8 SCC 151 for confirming the award of compensation of Rs.5 lacs in a case involving death of school children by drowning due to negligence of teachers of the school. In Municipal Corporation of Greater Bombay v. Laxman Iyer and another (2003) 8 SCC 731, a two-Judge Bench while deciding the issue of award of compensation under Sections 110-A and 110- B of the Motor Vehicles Act, 1939, referred to the judgments in Lata Wadhwa's case and M.S. Grewal's case.
27. In A. Rajam v. M. Manikya Reddy 1989 ACJ 542 (Andhra Pradesh HC), M. Jagannadha Rao, J. (as he then was) advocated giving of a wider meaning to the word `services' in cases relating to award of compensation to the dependents of a deceased wife/mother. Some of the observations made in that judgment are extracted below: The loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of 'services' to the family, if there was reasonable prospect of such services being rendered freely in 2 the future, but for the death. It must be remembered that any substitute to be so employed is not likely to be as economical as the housewife. Apart from the value of obtaining substituted services, the expense of giving accommodation or food to the substitute must also be computed. From this total must be deducted the expense the family would have otherwise been spending for the deceased housewife. While estimating the `services' of the housewife, a narrow meaning should not be given to the meaning of the word `services' but it should be construed broadly and one has to take into account the loss of `personal care and attention' by the deceased to her children, as a mother and to her husband, as a wife. The award is not diminished merely because some close relation like a grandmother is prepared to render voluntary services."
14. At paragraph No.32, the Apex Court further held that the gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of a housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs.15,000/- per annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependants of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok Chandra (supra), Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (supra) and also take guidance from the judgment in Lata Wadhwa's case.
15. On 14.11.1994, the legislature has thought it fit to prescribe the structured formula for the purpose of awarding compensation to a permanently disabled or the legal representatives of the deceased, as the case may be where negligence is not required to be pleaded or proved. The notional income fixed in the year 1994, for a non-earning member was just Rs.15,000/- per annum. Courts determine the monthly income of the injured or the deceased depending upon the evidence on record available in the case, when an application is filed under Section 166 of the Motor Vehicles Act and Section 163 A does not apply to cases where claims are filed under Section 166, but the structured formula is taken as the guidance for computing the loss of contribution to the bereaved family. In Lata Wadhwa case, the accident occurred on 03.03.1989. Income was determined at Rs.3,000/- for the wife / mother for computing the loss of contribution. In the case on hand, the accident has occurred on 23.09.2010. The value of services rendered by the wife / mother cannot be expected to be estimated at the same rate, even after 21 years. It is also to be noted that inspite of repeated directions of the Apex Court, the Legislature has not considered revising the notional income, fixed under the II schedule to Section 163 A of the Motor Vehicles Act.
16. In Arun Kumar Agrawal & Anr. Vs. National Insurance Co. Ltd. & Ors., reported in 2010(9) SCC 218, though the legal representatives claimed that the deceased earned Rs.50,000/- per month, by painting and handicrafts, the tribunal therein fixed the monthly income at Rs.5,000/- for computing the loss of contribution to the family and awarded Rs.6,00,000/- as compensation. But then, on appeal, the High Court reduced the same. When the correctness of the decision of the High Court was tested, the Supreme Court by considering various principles, The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), gratuitous services rendered by the wife / mother and also by observing that gender equality has to be maintained in assessing compensation for house wives, victims of road accident, restored the original compensation awarded by the claims tribunal.
17. Needless to say that in the absence of wife, one has to engage a housemaid to do the household work, like cooking, washing the clothes, and such other works and it is hard to find even a housemaid, willing to work for a monthly sum of just Rs.3,000/-. Again the services of the wife/mother is invaluable and it cannot be equated to that of the housemaid. As stated supra, in Lata Wadhwa's case when the accident occurred on 03.03.1989, the Apex Court, by fixing the income as Rs.3,000/- deducted 1/3 towards the personal and living expenses of the deceased, computed the loss of contribution. Considering the cost of living, wages fixed even for a labourer, under the minimum wages Act, the invaluable services of a wife/mother, inflation and other factors, the claims tribunal ought to have fixed the monthly income of the deceased at Rs.4,000/- and then deducted 1/3 for computing loss of contribution. In the light of the above, the monthly contribution taken as Rs.3,000/- without deduction for the purpose of computing loss of contribution to the family and consequently, arriving at a total compensation of Rs.5,75,000/- with interest at the rate of 7.5% per annum, cannot be said as a bonanza to the family, which has lost the wife / mother, whose services cannot be valued in terms of money. As the award has been challenged only on two grounds viz., liability to pay compensation and the quantum of compensation, both the issues are answered in the negative as against the appellant. The award of the tribunal is sustained. This Civil Miscellaneous Appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
18. Consequent to the dismissal of the appeal, the appellant Insurance company is directed to deposit the entire award amount with proportionate accrued interest and costs to the credit of MCOP No.4 of 2011 on the file of the MACT (II Additional District Court), Erode, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the respondents/claimants are permitted to withdraw the award amount, as apportioned by the tribunal, by making necessary applications.
Sd/ Asst.Registrar(AS) /true copy/ Sub Asst.Registrar ars To
1. Motor Accidents Claims Tribunal, II Additional District Court, Erode.
2. The Section Officer, VR Section, High Court, Madras.
+1cc to Mr.S.Vadivel, Advocate Sr 73488 TRM(CO) km/9.1.
CMA No.3122 of 2012