Madras High Court
New India Assurance Company Limited vs Smt.T.Krishnaveni on 8 April, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08 /04 /2013
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
C.M.A.(MD)No.1605 of 2007
New India Assurance Company Limited,
Through its Manager, Door No.913,
Catholic Centre,Main Road,
Kovilpatti. ... Appellant
Vs
1.Smt.T.Krishnaveni
2.Minor Selvi T.Arthi,
Late Thangapandi
3.Smt.Seethaiammal
4.K.Kobbian ... Respondents
(Minor 2nd respondent through her mother
and next friend T.Krishnaveni, the first respondent)
PRAYER
Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree dated 26.04.2007 passed in
M.A.C.O.P.No.1910 of 2005, on the file of the Motor Accidents Claims Tribunal,
Principal District Court, Madurai.
!For Appellant ... G.Prabhu Rajadurai
^For Respondents ... Mr.M.Subramanian for R-1 to R-3
Mr.T.Balamurugan for R-4
- - -
:JUDGMENT
The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.A.C.O.P.No.1910 of 2005, on the file of the Motor Accidents Claims Tribunal, Principal District Court, Madurai.
2. The short facts of the case are as follows:-
The petitioners, who are the wife, minor daughter and mother of the (deceased) Thangapandi have filed the claim in M.C.O.P.No.1910 of 2005, claiming compensation of a sum of Rs.7,00,000/- from the respondents for the death of the said Thangapandi in a motor vehicle accident. It was submitted that one Soundarapandi of Kottanampatti had hired the first respondent's lorry bearing registration No.TCZ-8053 on 27.05.2005, in order to deliver a load of rice, vegetables and other provisions at a place where on ear-piercing ceremony was to be held and that the (deceased) Suresh, the (deceased) Krishnan, the (deceased) Thangapandi and the (deceased) Radha @ Radhakrishnan had travelled as owner and loadman of the said goods. When they lorry was proceeding towards Pandi temple and at about 11 a.m., when the lorry was proceeding on the Kappalur byepass road and nearing Chekkampatti bridge, the driver of the lorry drove the lorry at a high speed and in a rash and negligent manner due to which, the back door of the lorry was opened and caused the accident. Asa result, all the four persons who had travelled in the vehicle, viz., Suresh, Krishnan, Thangapandi and Radha @ Radhakrishnan sustained grievous injuries and died on the spot. At the time of accident, the (deceased) Thagapandi was aged 23 years and was working at a banian company at Tiruppur and earning Rs.3,000/- per month. Hence, the petitioners have filed the claim against the first and second respondents, who are the owner and insurer of the lorry bearing registration No.TCZ-8053.
3. The first respondent, in his counter has submitted that the (deceased) persons had travelled as loadmen in his vehicle and that the accident had occurred only due to their negligence as they were seated in the top of the vehicle. It was submitted that the driver of the first respondent's vehicle drove the vehicle at a medium speed and in a careful manner and had not driven the vehicle in a rash and negligent manner, as alleged in the claim petition. It was submitted that as the first respondent's vehicle had been insured with the second respondent, only the second respondent can be held liable to pay compensation to the petitioners, if so decided by the Tribunal.
4. The second respondent in his counter has submitted that as per the policy conditions of insurance, only goods have to be carried in the first respondent's vehicle, but contrary to this, the first respondent had permitted gratuitous persons to travel as passengers in the said vehicle in order to attend an ear-piercing ceremony at Pandi temple. It was submitted that as per the F.I.R., and other records, 20 persons had travelled in the first respondent's vehicle and as such, the conditions laid down in the policy of insurance and the Motor Vehicles Act, the second respondent is not liable to pay any compensation. The averments in the claim regarding age, income and occupation of the (deceased) was also not admitted. It was submitted that the claim was excessive.
5. 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 by the driver of the first respondent's vehicle?
(ii) Are the respondents liable to pay compensation to the petitioners? and
(iii) Are the petitioners entitled to get compensation? If so, what is the quantum of compensation, which they are entitled to get?"
6. In the same accident, other claims in M.C.O.P.Nos.1908 of 2005, 1909 of 2005 and 1911 of 2005 had been filed by the legal-heirs of the deceased persons who had travelled in the first respondent's vehicle. Hence, on the request made by the counsels for their respective petitioners, in a joint memo, a joint trial was conducted and common evidence was recorded in M.C.O.P.No.1908 of 2005. The first petitioner in M.C.O.P.Nos.1908, 1909, 1910 and 1911 of 2005 were examined as P.W.1, P.W.2, P.W.3 and P.W.4 and one Manivasagam was examined as P.W.5 and 17 documents were marked as Exs.P1 to P17, viz., Ex.P1-copy of F.I.R., dated 27.05.2005, Ex.P2-copy of final report, Ex.P3-postmortem report of deceased Suresh dated 27.05.2005, Ex.P4-copy of family ration card pertaining to Suresh, Ex.P5-school transfer certificate of Suresh, Ex.P6-degree certificate of Suresh, Ex.P7-copy of postmortem report of deceased Krishnan dated 27.05.2005, Ex.P8-birth certificate of Krishnan, Ex.P9-school transfer certificate of Krishna, Ex.P10-copy of family ration card pertaining to Krishnan, Ex.P11-copy of postmortem report of (deceased) Thangapandi, Ex.P12- degree certificate of Thangapandi, Ex.P13-copy of family ration card pertaining to Thangapandi, Ex.P14-copy of postmortem report of Radha @ Radhakrishnan dated 27.05.2005, Ex.P15-copy of school transfer certificate of Radha, Ex.P16-copy of family ration card pertaining to Radha, Ex.P17-salary certificate of Radha dated 03.06.2003. On the respondent's side, one witness was examined and one document, viz., the policy was marked as Ex.R1.
7. P.W.5, Manivasagam, the eyewitness of the accident had adduced evidence that on 27.05.2005, he had also travelled in the first respondent's lorry as loadman, along with other loadmen with the (deceased) Radhakirshnan, Thangapandi, Suresh and Krishnan and that when the lorry was proceeding on the bye-pass road, the driver of the lorry drove the lorry in a rash and negligent manner without noticing the speed breaker on the road, due to which, the door of the lorry was opened and the four (deceased) loadmen had fallen on the ground and sustained injuries and died subsequently. He deposed that he had only sustained simple injuries.
8. P.W.1, the first petitioner, viz., Ponmalar had also adduced evidence which is corroborative of the statements made by P.W.5 regarding manner of accident and in support of her evidence, she had marked Exs.P1, F.I.R, Ex.P2- final report. On the respondent's side, no eyewitness of the accident had been examined to rebut the claim of the petitioners.
9. R.W.1, the Administrative Officer of the second respondent's firm had only adduced evidence that as per the policy conditions of insurance, only goods are permitted to be transported in the first respondent's vehicle and that as passengers had been permitted to travel in the vehicle, the first respondent had violated the policy conditions of insurance. Hence, the Tribunal, on scrutiny of the oral and documentary evidence, and on considering that the police after investigation had filed the final report against the first respondent's lorry held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's lorry.
10. R.W.1, Narayanan, employee of the second respondent's firm had adduced evidence that the first respondent's lorry had been covered a policy of insurance with them as per policy marked as Ex.R1. He deposed that the lorry was a goods vehicle and that only the agents or owner of goods transported in the lorry are permitted to travel in the lorry and that no passengers are permitted to travel in the lorry. He deposed that in the said accident, as 20 passengers had travelled as gratuitous passengers in the lorry, the first respondent had violated the policy conditions of insurance by permitting unauthorized persons to travel in his vehicle and as such, the second respondent cannot be held liable to pay compensation.
11. P.W.1, in her evidence had deposed that her husband had travelled as a loadman in the lorry, to facilitate loading and unloading of goods like plantain leaves, goats and provisions which were loaded in the lorry. P.W.2 had adduced evidence that the lorry owner, viz., Soundarapandi had employed her husband as a loadman in order to load and unload log wood, water and plantain leaf bundles, in the lorry at a place were an ear-piercing ceremony was to be performed. P.W.3 had adduced evidence that the owner of the lorry, Soundarapandi had employed her husband as a loadman, in order to load an unload goats, hens and other sridhana articles in the lorry, at a place, wherein an ear-piercing ceremony was to be performed. P.W.4 had adduced evidence that the owner of the lorry, Soundarpandi had employed his son as a loadman in his lorry in order to facilitate loading and unloading goats and hens and other articles at a place where an ear-piercing ceremony was to be performed.
12. Though it was contended on the side of the second respondent that 20 persons had travelled in the said vehicle, no independent eyewitness of the accident had been examined by them to prove the contentions. R.W.1, in his evidence had admitted that he is not an eyewitness of the accident and that the lorry owner had not been examined by them. He further stated that as per the policy conditions, six persons are permitted to travel as loadmen in the first respondent's vehicle and that they are liable to pay compensation as per the policy conditions. He had further admitted that he is not aware of any criminal case filed against the driver and owner of the first respondent's lorry to show that they had permitted unauthorized passengers to travel in the said lorry and that they had appointed an investigator to find out the about the facts. However, the Tribunal, observed that the investigator appointed by the second respondent, had not been examined by the respondent and that no investigation report had been marked.
13. The Tribunal, on considering the oral and documentary evidence held that the respondent had not proved their contentions that 20 passengers were travelling in the lorry at the time of accident. The Tribunal, on scrutiny of evidence of P.W.1 to P.W.5 held that the deceased persons had travelled as loadman in the first respondent's lorry and hence, held the second respondent being the insurer of the first respondent's vehicle liable to pay compensation to the petitioners.
14. On scrutiny of Ex.P12, mark sheet, it is seen that the deceased was aged 22 years at the time of accident. Though P.W.3 had adduced evidence that her husband was working at a banian factory at Tiruppur and earning Rs.3,000/- per month, no documentary evidence had been marked to prove this contention. Hence the Tribunal, on taking the notional income of the deceased at Rs.75/- per day, held the monthly income of the deceased was Rs.2,250/-. On deducting 1/3rd of income for his personal expenses, and on adopting a multiplier of '17', the Tribunal awarded a sum of Rs.3,06,000/- as compensation to the petitioners under the head of 'loss of income' (Rs.2,250 x 2/3 x 12 x
17); Rs.2,000/- was awarded towards funeral expenses and Rs.10,000/- was awarded to the first petitioner under the head of 'loss of consortium'. In total, the Tribunal awarded a sum of Rs.3,18,000/- as compensation to the petitioners and directed the second respondent to pay the said compensation to the petitioners and directed the second respondent to pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation, with costs, within four weeks from the date of its order.
15. Aggrieved by the award passed by the Tribunal, the second respondent / New India Assurance Company Limited, Kovilpatti, has preferred the present appeal.
16. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in holding that the deceased travelled in the said lorry, as a loadman, overlooking the statements in the F.I.R. and the charge sheet marked as Exs.P1 and P2. It was contended that the Tribunal failed to consider that the said lorry was hired not for carrying any goods, but to carry the passengers by one Soundarapandi for ferrying guests to a family function. It was contended that the Tribunal failed to consider that even assuming the deceased is a load man of the said Soundarapandi, the insurer is not liable to indemnify the owner of the lorry as there is no special premium paid for covering the loadmen. It was also contended that the Tribunal failed to consider that even in the case of travelling as owner of goods, a person is not allowed to travel in the place other than the cabin of the lorry. Hence, it was prayed to set-aside the award passed by the Tribunal.
17. The learned counsel for the claimants has submitted that the deceased was aged about 22 years and he was working at a knitting company at Tiruppur and earning Rs.3,000/- per month, but the Tribunal had taken the income of the deceased as only Rs.75/- per day. The learned counsel has further submitted that all the claimants are depending upon the income of the deceased, who was the breadwinner of the family. The first claimant is a young widow and the second claimant is a minor child aged one year. The Tribunal had not granted adequate compensation under the heads of 'loss of consortium', 'loss of love and affection' and 'funeral expenses'.
18. 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 at regarding negligence, liability and quantum of compensation. This Court is of the view that the first claimant is a young widow and the second claimant is one year old female child of the deceased. Therefore, the quantum of compensation granted is not on the higher side.
19. As per Court records, it is seen that this Court had imposed a condition on the appellant on 11.03.2008, to deposit the entire compensation amount with accrued interest and permitted the major claimants to withdraw 50% of their apportioned share amount.
20. Now, it is open to the first and third claimants to withdraw their balance apportioned share amount with accrued interest thereon lying in the credit of M.A.C.O.P.No.1910 of 2005, on the file of the Motor Accidents Claims Tribunal, Principal District Court, Madurai, after filing a Memo, along with a copy of this order. This Court directs the learned judge to deposit the minor's share amount with accrued interest thereon, in a nationalized bank, as fixed deposit in a cumulative deposit scheme till such time the minor attains the age of a major and hand over the fixed deposit certificate to the mother of the minor claimant.
21. In the result, the above appeal is dismissed with the above observations. Consequently, the order passed in M.A.C.O.P.No.1910 of 2005, on the file of the Motor Accidents Claims Tribunal, Principal District Court, Madurai, dated 26.04.2007 is confirmed. There is no order as to costs.
r n s To The Principal District Court, Motor Accidents Claims Tribunal, Madurai.