Madras High Court
The New India Assurance Co. Ltd vs P.Vinayagasundaram(Died) on 7 June, 2013
Author: T.Raja
Bench: T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/06/2013 CORAM : THE HONOURABLE MR.JUSTICE T.RAJA C.M.A.(MD).No.22 of 2009 and C.M.A.(MD).No. 1369 of 2012 C.M.A.(MD).No.22 of 2009 The New India Assurance Co. Ltd., Through its Branch Manager, No.480, Chekkalai Road, Karaikudi, Sivagangai District. .. Appellant Vs 1.P.Vinayagasundaram(died) 2.Pauline Jeyarani 3.Devipriya 4.S.Chellam .. Respondents C.M.A.No.1369 of 2012 1.P.Vinayagasundaram(died) 2.Pauline Jeyarani 3.Devipriya .. Appellants Vs 1.S.Chellam 2.The New India Assurance Co. Ltd., Through its Branch Manager, No.480, Chekkalai Road, Karaikudi, Sivagangai District. ... Respondents Appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the award dated 08.07.2008 made in MCOP No.321 of 2003 by the Motor Accident Claims Tribunal, District Judge, Sivagangai. In C.M.ANo.22 of 2009 !For appellant .. Mr.A.K.Baskara Pandian ^For R1 to R3 .. Mr.S.Srinivasa Raghavan For R4 .. Mr.M.Suri In C.M.ANo.1369 of 2012 For appellants .. Mr.S.Srinivasa Raghavan For R1 .. Mr.M.Suri For R2 .. Mr.A.K.Baskara Pandian :COMMON JUDGMENT
Being aggrieved by the award passed by the Motor Accident Claims Tribunal (District Judge), Sivagangai (in short "Tribunal"), in M.C.O.P.No.321 of 2003, dated 08.07.2008, the New India Assurance Company Limited as well as the parents of the deceased have filed the present appeals viz: C.M.A.Nos22 of 2009 and 1369 of 2012 respectively.
2. Background facts in a nutshell are as follows:
On 14.03.2001 at about 12.30 hours in Thekkoor Ulaganathan filed, while the deceased Alex Prasad was working as a loadman, the driver of the Tractor bearing Registration No.TN-63-B-9628 dumped the sand on the victim loadman and in that process, the deceased died as he was fully covered with sand. The appellants herein in C.M.A.No.1369 of 2012 are the claimants and they claimed a sum of Rs.4,00,000/- as compensation. The appellant-Insurance company in C.M.A.No.22 of 2009 resisted the claim. On the basis of the pleadings, the Tribunal framed the following issues:-
"1.Whether the petition mentioned accident occurred due to the rash and negligent driving of the Tractor bearing registration No.TN-63-B-9628, by the driver of that vehicle?
2.Whether the petitioners are entitled to claim compensation, if so, what is the quantum of compensation payable to the petitioners and from whom?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the Tractor belonging to the first respondent in C.M.ANo.1369 of 2012 and awarded a compensation of Rs.2,38,000/- with interest at 7.5% per annum from the date of the claim petition and the details of the same are as under:- Loss of dependency Rs.2,08,000/-
Funeral Expenses Rs. 5,000/-
Loss of love and affection Rs. 25,000/--
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Total... Rs.2,38,000/-
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Aggrieved by that award, the Insurance Company as well as the claimants of the deceased have filed the present appeals.
3. At the very outset, learned counsel appearing for the appellant/Insurance Company contended that the tractor was used for commercial purpose against the policy conditions, since as per the policy conditions, it should have been used for agricultural purpose. Further, by relying upon Ex.P1- FIR and Ex.R2-Insurance Policy, he contended that since the deceased was proceeding as cleaner in the tractor, he is not entitled to get any compensation, as no premium was paid to cover the risk of the cleaner. Thirdly, it was contended that the claimants filed an application before the Workmen Compensation Commission in W.C.No.228 of 2001 and the same was not pressed by them. But, suppressing this fact, they have filed MCOP before the Tribunal and the Tribunal also, without taking note of the earlier claim petition filed under the Workmen Compensation Act, allowed the claim petition ordering compensation. Finally, it was pleaded that the Tribunal has wrongly applied the multiplier of '13' and also has committed another error in fixing the monthly income of the deceased at Rs.2,000/-, when there was no document produced by the claimants to substantiate the deceased monthly income. With the above submissions, he pleaded for dismissal of the appeal filed by the claimants by allowing the appeal filed by the Insurance Company.
4. Per contra, learned counsel appearing for the claimants submitted that at the time of accident, the deceased was aged about 18 years and was serving as loadman. Therefore, the Tribunal ought to have adopted the multiplier of '15', but in contra, it has adopted the multiplier of '13'. Contending further, it was stated that the Tribunal has again committed another mistake in awarding a sum of Rs.25,000/- for loss of love and affection and Rs.5,000/- towards funeral expenses, which are insufficient. Further, it was submitted that when it was an admitted fact that the deceased was serving as a loadman, the Tribunal ought to have fixed the monthly income at Rs.4,000/- per month and thereby awarded a loss of dependency after deducting 1/3rd towards personal expenses. But, those formulas have not been properly followed by the tribunal while awarding the meagre compensation.
5. In support of his submission, he has also relied upon a judgment of the Apex Court in New India Assurance Company Limited v. Smt.Kalpana and others (2007 (1) TN MAC 1 (SC)) for a proposition that in the absence of definite material with regard to monthly income of the deceased, there is no impediment in fixing Rs.3,000/- as monthly income, after deducting personal expenses and thereby fixing the annual income at Rs.36,000/-. Regarding the loss of income, it was contended that when the deceased unfortunately died at the age of 35 years leaving behind his family members, a suitable compensation towards loss of income ought to have been granted in favor of the claimants. But, unfortunately, he pleaded, the Tribunal has failed to answer that crucial fact, instead, dismissed the claim petition as against the sister of the deceased holding that she was not a legal representative under the Motor Vehicles Act, hence, he pleaded for enhancement of compensation.
6. Heard the learned counsel appearing on either side and perused the materials available on record.
7. It is no doubt true that at the time of death, the deceased was working as a loadman and he was 18 years. The Evidence of P.W.2-Kannan, who was also working as a loadman along with deceased in that tractor, categorically stated that the driver of the tractor was responsible person for the accident, since the driver without taking care whether anybody was standing behind the tractor, used the hydralic for lifting the trailer attached to the tractor to offload the sand and only in that process, the deceased was covered by the sand. In Ex.P2- Post-mortem certificate relating to the deceased, it is categorically stated that the deceased appeared to have died due to asphyxia and injury to vital organ lungs and thereby, it is clear that the deceased died only because he was covered by the sand came down from the trailor at the time of accident. Therefore, from the above, it is clear that the Insurance Company is liable to pay the compensation.
8. With regard to the contention of the Insurance Company that the claimants while filing the claim petition suppressed the vital fact that they have filed an application before the Workmen Compensation Commission in W.C.No.228/2001, it is pertinent to note the statement of R.W.2-Karuppiah, Administrative Officer of the Insurance Company. During his examination, a copy of the policy relating to the tractor involved in the accident was marked as Ex.R2 and a copy of the petition in W.C.No.228/2001 filed by the claimants was marked as Ex.P3, which reveal that the above said claim petition was not pressed into service by the claimants. It is settled law that the claimants can seek compensation either before the Workmen Compensation Commission or under the Motor Vehicles Act. Therefore, the Insurance Company cannot contend before this Court that the claimants cannot file an application when their application filed before the Workmen Compensation Commission was not pressed by them.
9. Another contention of the Insurance Company that the deceased was working only as a cleaner in the tractor at the time of accident and no premium was paid to the cleaner under the policy of the above vehicle, hence, the Insurance Company is not entitled to pay any compensation to the deceased family does not carry any merit, for the reason that when the tractor was used for unloading the sand in the land belonging to the owner of the vehicle, it has to be construed that loading and unloading in the agricultural field by the tractor has to be a part of the agricultural work, more particularly, in the present case, since PW2-Kannan also stated that when the sand was unloaded in the Ulaganathan's field, the accident had occurred killing the victim, since he was covered by the sand.
10. While moving to the question of quantum of compensation, it may be mentioned that the Tribunal has fixed Rs.2,000/- as monthly income of the deceased in the absence of definite material to substantiate the claim of monthly income. Obviously, the claimants being poor parents, hailing from Village, they were not able to collect and produce the relevant documents to establish the monthly income of the deceased. However, the Tribunal by accepting the deposition made by P.W.2-Kannan, who was also co-loadman, came to the conclusion that they were employed by the owner of the tractor. Further, the Tribunal, by fixing Rs.2,000/- as monthly income, determined Rs.24,000/- as annual income and out the said amount, 1/3rd was deducted towards personal income of the deceased and thereby arrived the loss of dependence at Rs.16,000/- per annum. Such an approach of the Tribunal in fixing Rs.16,000/- as annual income has not been approved by the Apex Court nor by this Court. The Hon'ble Division Bench of this Court in Vellathai and another v. Tamil Nadu State Express Transport Corporation Limited (2012 (2) TN MAC 82 (DB)) has clearly held that Section 168 of the Motor Vehicles Act uses the word 'just compensation' and it should be ascertained in determining income. It is well settled that the compensation awarded by the Tribunal must be just compensation to mitigate the hardship that has been caused due to the death of the breadwinner of family, therefore, they are entitled to receive just compensation. In the present case, admittedly, the claimants-old parents having lost their son, had also lost the love and affection of the deceased son, therefore, although the claimants have not produced relevant documents to establish the monthly income of the deceased, there is no impediment for this Court to fix Rs.3,000/- as monthly income of the deceased. While fixing so, if 1/3rd is deducted from the said amount, then the annual income would be Rs.24,000/- per annum. With regard to multiplier, the Tribunal has adopted '13' by taking note of the age of the deceased as well as the parents, therefore, the same is hereby confirmed. Accordingly, a sum of Rs.3,12,000/- (24000 x 13) is awarded towards loss of dependency. For funeral expenses, the Tribunal awarded a compensation of Rs.5,000/-, which is very meagre amount, therefore, this Court is inclined to enhance the compensation from Rs.5,000/- to Rs.15,000/- towards funeral expenses. Similarly, the Tribunal has again committed another mistake in awarding a sum of Rs.25,000/- towards loss of love and affection. As I held above, the deceased was 18 years at the time of accident and the parents at their old age, lost their only son, who was the sole breadwinner of the family, therefore, this Court is inclined to award a sum of Rs.50,000/- towards loss of love and affection. The details of the modified compensation as per the above discussion are as under:-
Loss of dependency Rs.3,12,000/- Loss of love and affection Rs. 50,000/- Funeral Expenses Rs. 15,000/- -------------------- Total Rs.3,77,000/- _____________
Therefore, the claimants are entitled to the modified compensation of Rs.3,77,000/- as against the compensation of Rs.2,38,000/- awarded by the Tribunal.
11. In the above terms, the Civil Miscellaneous Appeal filed by the claimants in C.M.A.No.1369 of 2012 is allowed and the Civil Miscellaneous Appeal filed by the Insurance Company in C.M.A.No.22 of 2009 is dismissed. Consequently, the appellant-Insurance Company is directed to deposit the entire compensation amount of Rs.3,77,000/-, after deducting the amount, which was already paid by them as per the direction of this Court on 20.01.2009, along with accrued interest at 7.5% per annum to the credit of M.C.O.P.No.321 of 2003 within a period of twelve weeks from the date of receipt of a copy of this judgment. On such deposit, the Claimants are permitted to withdraw the entire compensation amount along with accrued interest. No Costs.
07.06.2013 rkm To
1.The Motor Accidents Claims Tribunal (District Court), Sivagangai.