Madras High Court
Royal Sundaram Alliance vs T. Selvarani on 29 July, 2015
Author: V.M. Velumani
Bench: V.M. Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.07.2015
CORAM
THE HONOURABLE MS.JUSTICE V.M. VELUMANI
C.M.A.(MD) No. 90 of 2013 and
M.P.(MD).No.1 of 2013
Royal Sundaram Alliance
Insurance Company Limited,
through its Manager,
Nos.45 and 46 Whites Road,
Chennai ? 600 01 ... Appellant
Vs.
1. T. Selvarani
2. M. Dhanush Fernando
3. Antoniammal
4. S. Antony Xavier
5. M/s. Mountain Spinning Mills Limited,
No.97/1, Kootudankadu,
Mangalakiri Post,
Tuticorin Taluk, Tuticorin District
6. National Insurance Company Limited,
Through its Branch Manager,
Branch No.I, 175-A, Great Cotton Road,
Tuticorin ? 628 001
(R4 and R5 are given up and no notice
need be served on them) .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act to set aside the fair and decreetal order dated 26.11.2010 and
made in MCOP.No.105 of 2010 on the file of Motor Accident Claims Tribunal /
Additional District Court / Fast Track Court-II), Tuticorin.
!For Appellant : Mr.S. Srinivasa Raghavan
^For R1 to R3 : No appearance
For R4 and R5 : Given up
For R6 : Mr. J.S. Murali
:J U D G M E N T
The Civil Miscellaneous Appeal is filed against the fair and decreetal order dated 26.11.2010, passed in MCOP.No.105 of 2010, on the file of Motor Accident Claims Tribunal / Additional District Court / Fast Track Court-II, Tuticorin.
2. The appellant, Insurance Company is the second respondent in MCOP.No.105 of 2010. The respondents 1 to 3 are the petitioners / claimants. The fourth respondent is owner of the Van involved in the accident, and the appellant is the insurer. The fifth respondent is the owner of other vehicle, involved in the accident and the sixth respondent is the Insurance Company of the said vehicle.
3. The respondents 1 to 3 claimed a sum of Rs.21,00,000/- as compensation, before the Motor Accident Claims Tribunal / Additional District Court / Fast Track Court-II, Tuticorin. The Tribunal, by order dated 26.11.2010, awarded compensation of Rs.6,39,500/- together with interest and directed the appellant and fourth respondent to pay jointly or severally the said sum, to the claimants. Against the said order, the present appeal has been filed by the appellant / Royal Sundaram Alliance Insurance Company Limited.
4. The facts of the case are as follows:-
(a) The deceased was a load man in the employment of fourth respondent. On 01.10.2009, he was travelling as a load man, in the load van, belonging to the fourth respondent. The driver of the van was driving the van in a rash and negligent manner. At about 7.00 p.m, near Maravanmadam Bishop Caldwel College, in order to overtake another vehicle, without noticing the vehicle coming in the opposite direction, hit against the vehicle belonging to the fifth respondent. In the said accident, the deceased and others sustained grievous injuries. The deceased was taken to Government Medical College Hospital, Tuticorin, wherein the Doctor reported that deceased was brought dead. The accident took place only due to rash and negligent driving by the driver of the load van, belonging to the fourth respondent. A criminal case was registered against the said driver at Pudukkottai Police Station in Crime No.413 of 2009.
(b) The respondents 1 to 3 filed MCOP.No.105 of 2010, claiming a sum of Rs.21,00,000/- as compensation, against the fourth respondent and appellant. The respondents 5 and 6 were impleaded as formal parties.
(c) The respondents 4 and 5 remained ex parte, before the Tribunal.
(d) The appellant filed counter statement denying their liability to pay compensation. The deceased travelled in the goods carriage vehicle as un-authorised passenger, in violation of terms of policy. The accident took place only due to rash and negligent driving by the driver of the fifth respondent. The fifth respondent using his influence gave a false complaint and First Information Report has been lodged against the driver of the fourth respondent. The respondents 5 and 6 are alone liable to pay compensation, if any ordered by Tribunal . The appellant also stated that the respondents 1 to 3 must prove the age and income of the deceased and also must prove that the load van of fourth respondent, was insured with the appellant, at the time of accident and that the driver of the fourth respondent had a valid driving licence at the time of accident. They have also stated that the claim under various heads are excessive.
(e) The sixth respondent in his counter stated that the accident took place only due to rash and negligent driving by driver of the load van of fourth respondent and prayed for dismissal of MCOP against the respondents 5 and 6.
(f) Before the Tribunal, the first respondent was examined as PW.1 and one Nanthagopala Krishnan, eye witness of the accident was examined as PW.2 and six documents were marked as Exs.A1 to A6. The fourth respondent examined himself as RW.1 and one Kamanathan, Executive Legal Officer of the appellant was examined as RW.2 and marked 7 documents as Exs.R1 to R7.
(g) The Tribunal considering the pleadings and evidence came to the conclusion that the accident took place only due to rash and negligent driving by driver of the load van belonging to the fourth respondent, the deceased travelled as a load man of fourth respondent and covered as per Policy, insured by the appellant and held that the appellant and fourth respondent are jointly liable to pay compensation of Rs.6,39,500/-. Against the said order, the present appeal is filed.
5. The learned counsel for the appellant contended that:-
(I) the deceased was an un-authorised passenger and was not covered under the Policy, as per Section 147 of Motor Vehicles Act.
(ii) the contention of the respondents 1 to 3 with regard to the rash and negligent driving by the driver of fourth respondent and evidence of fourth respondent with regard to nature of travel by deceased, are concocted story.
(iii) no document was produced to show that the deceased travelled as a load man and respondents 1 and 4 are interested persons and their evidence cannot be taken in to account to decide the nature of travel by deceased. No independent witness was examined.
(iv) the fourth respondent, in his evidence, admitted that the accident took place while the van was returning after goods were un-loaded. This makes it clear that, at the time of accident the deceased was not a load man.
6. The learned counsel for the sixth respondent contended that the respondents 5 and 6 are not necessary parties and prayed for dismissal of Civil Miscellaneous Appeal against the respondents 5 and 6.
7. I have carefully perused the materials available on record and considered the arguments of counsel for both sides.
8. The points for consideration in this appeal are:-
(i) Whether the accident took place due to rash and negligent driving by the driver of the fourth respondent or rash and negligent driving by the driver of the fifth respondent?
(ii) Whether the deceased was an un-authorised passenger or whether he travelled as load man of fourth respondent?
(iii) Whether the appellant is liable to pay compensation?
(iv) Whether the compensation awarded by Tribunal is just and proper?
Point No. I
9. Before the Tribunal, the first respondent, who was examined as PW.1 deposed as stated in the claim petition. The respondents 1 to 3 examined one Nanthagopala Krishnan as PW.2, who witnessed the accident. According to PW2, the accident took place due to rash and negligent driving by driver of fourth respondent. Ex.P1 is the copy of First Information Report. The complaint was given to concerned Police Station against the driver of the fourth respondent.
10. The learned counsel for the appellant contended that the accident took place only due to rash and negligent driving by the driver of the fifth respondent, who used his influence and lodged false complaint against the driver of fourth respondent. This contention was considered and rejected by the Tribunal, on the ground that fourth respondent did not object to the complaint given against his driver and did not bring to the notice to the higher police officials, the registration of First Information Report, based on the false complaint. The appellant and fourth respondent have not let in any contra evidence to that of evidence of PW.1 and PW.2. Except PW.2, no other eye witness, was examined and no material was placed before the Tribunal to disprove the evidence of PW.2. In view of evidence of PW.1 and PW.2 and Ex.P1 and as fourth respondent did not object to the complaint against his driver, I answer point no.i that the accident took place only due to rash and negligent driving by driver of fourth respondent.
Point No. ii and iii
11. The respondents 1 to 3 stated that the deceased travelled as load man at the time of accident. The appellant disputed this fact this and alleged that the deceased was an un-authorised passenger, not covered by the Policy and hence, the appellant is not liable to pay any compensation. The first respondent, who was examined as PW.1, has stated that her deceased husband was a load man and he travelled as a load man at the time of accident.
12. The fourth respondent did not file any counter statement denying this averments. But, he gave evidence as RW.1. In his evidence, he admitted that the deceased travelled as load man. He deposed that the load man was returning, after un-loading the material. The appellant did not let in any contra evidence. RW.2, Executive Legal Officer admitted that as per Ex.R5, Policy, load man is also covered under the Policy. In view of the evidence of PW.1, RW.1 and RW.2, the contention of the appellant that the deceased was an un-authorised passenger, as the van was returning empty after un-loading the material is un acceptable.
13. The points no.ii and iii answered accordingly.
Point No. IV
14. The respondents 1 to 3 claimed a sum of Rs.21,00,000/- as compensation for death of deceased. According to the respondents 1 to 3, the deceased was aged about 27 years and was earning a sum of Rs.13,000/- per month as load man. They have not produced any documentary evidence to substantiate their claim that the deceased was earning a sum of Rs.13,000/- per month. The fourth respondent who in his evidence stated that the deceased was a load man, did not produce any document to show income of the deceased is Rs.13,000/- per month. Therefore, the Tribunal as per the ratio in the judgment reported in 2010(1) TNMAC 434 (Subbayammala and others Vs. Saminathan and others) fixed the notional income of deceased at Rs.3,000/- per month, after deducting 1/3rd for his personal expenses. In Ex.P2 ? Postmortem report, the age of the deceased was shown as 25 years. The Tribunal fixing the age of the deceased as 25 years applied multiplier of 17 as per II Schedule of Motor Vehicles Act.
15. As per the Judgment reported in 2009(2) TNMAC 1(SC) (Smt. Sarla Verma Vs. Delhi Transport Corporation and other) the correct multiplier is
16. The Tribunal is not correct in applying multiplier 17. Therefore, loss of income arrived at Rs.3000 x 12 x 17 = Rs.6,12,000/- by applying multiplier '17' is excessive. The quantum of compensation for loss of income is Rs.3,000/-x12x16= Rs.5,76,000/-.
16. The respondents 1 to 3 did not file any appeal and they have not filed any cross objection for enhancement of compensation.
17. This Court considering the facts and circumstances of the case, can invoke provisions of Order 41 Rule 33 of CPC and enhance the compensation awarded. In the present case, in view of the fact that, the first respondent lost her husband, at an young age, she is entitled to reasonable amounts as compensation, for loss of consortium. Similarly, respondents 2 and 3, parents of the deceased are deprived of loss of love and affection of their son at their old age. The Compensation awarded by the Tribunal under these heads are to meagre. Hence, I am invoking Order 41 Rule 33 of CPC, to enhance the compensation for loss of consortium to first respondent and for loss of love and affection to the respondents 2 and 3.
18. The Tribunal awarded a sum of Rs.15,000/- for loss of consortium. This is very meager amount. The compensation awarded by the Tribunal for loss of consortium is enhanced to a sum of Rs.1,00,000/-. Further, a sum of Rs.10,000/- awarded to the respondents 2 and 3 for loss of love and affection, is hereby enhanced to Rs.25,000/- each.
19. In all other aspects, the amount awarded by the Tribunal is hereby confirmed. Therefore, the award of the Tribunal is enhanced from Rs. 6,39,500/- to Rs.7,28,500/- in the following manner:-
S.No Description Amount awarded by Tribunal Amount awarded by this Court Award confirmed or enhanced or granted 1 Loss of income 6,12,000.00 5,76,000.00 Reduced by Rs.36,000/-2
Loss of love and affection to R2 and R3 10,000.00 50,000.00 Enhanced by Rs.40,000/-3
Loss of consortium to R1 15,000.00 1,00,000.00 Enhanced by Rs.85,000/-4
Funeral expenses 2,500.00 2,500.00 Confirmed Total 6,39,500.00 7,28,500.00 Enhanced by Rs.89,000/-
20. The award of interest at the rate of 7.5% per annum remains un- altered.
21. The appellant is directed to deposit the said amount viz., Rs.7,28,500/- with interest @ 7.5% p.a. from the date of petition on Rs.6,39,500/- and on the enhanced amount from the date of this order, till the date of deposit, less the amount, if any already deposited, within a period of eight weeks from the date of receipt of a copy of this Judgment to the credit of MCOP.No.105/2010, on the file of Additional District Cum-FTC No. II, Tuticorin. On such deposit being made, the first respondent would be entitled to Rs.3,68,750/- and the respondents 2 and 3 would be entitled to Rs.1,79,875/- each with respective proportionate accrued interest and costs, less the amount, if any, already withdrawn.
22. The civil miscellaneous appeal is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed..
To The Motor Accident Claims Tribunal / Additional District Judge / Fast Track Court-II, MACT, Tuticorin..