Madras High Court
The New India Assurance Company Limited vs Premavathi on 25 April, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25/04/2013
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
C.M.A.(MD)No.1070 of 2012 and
M.P.(MD)No.1 of 2012
The New India Assurance Company Limited,
Catholic Centre 903,
Main Road,
Kovilpatti. ... Appellant
Vs
1.Premavathi
2.Mahesh
3.K.Singaraj ... Respondents
(the third respondent was the
first respondent before the Tribunal
and he remained ex-parte before the Tribunal.
Hence, notice to the third respondent may be
dispensed with.
PRAYER
Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act,
to set-aside the award and decree dated 08.03.2012 in M.C.O.P.No.379 of 2010, on
the file of Principal District Judge, Motor Accidents Claims Tribunal,
Thoothukudi.
!For Appellant --- Mr.B.Vijay Karthikeyan
^For Respondents --- Mr.Thirugnanan for R-1 and R-2
Exparte (R-3)
:JUDGMENT
The short facts of the case are as follows:-
The claimants have filed claim petition in M.C.O.P.No.379 of 2010, on the file of Principal District Judge, Motor Accidents Claims Tribunal, Thoothukudi, against the owner and insurer and claiming a compensation of a sum of Rs.10,00,000/-, stating that on 28.07.2010, at about 3.45 p.m., when the first claimant's husband viz., Rathinam Asari was proceeding on his bicycle on the Ettaiyapuram Main Road, the first respondent's lorry bearing registration No.TN-04-H-4264, driven by the first respondent himself, in a rash and negligent manner had dashed against the said Rathinam Asari. As a result, the said Rathinam Asari had sustained grievous injuries and succumbed to the injuries at the Government Hospital, Thoothukudi.
2. The Insurance Company had filed counter statement and resisted claim petition. The respondent stated that actually the said vehicle was not involved in the said accident and the first respondent viz., owner of the vehicle connived with the claimants and claimed compensation since the vehicle had been insured with them. The averments in the claim regarding age, income and occupation of the deceased were denied.
3. On verifying the averments of both parties, the Tribunal had framed three issues, viz., "(i) Whether the accident had taken place due to the rash and negligent driving of the first respondent who is the owner-cum-driver of the said vehicle or due to any contributory negligence on the part of the deceased?
(ii) If the petitioners are entitled for compensation, from whom and how much amount they are entitled to?
(iii) To what relief?"
4. On the side of the claimants, the second claimant was examined as P.W.1 and seven documents were marked as Exs.P1 to P7, viz., Ex.P1-copy of first information report dated 28.07.2010, Ex.P2-inquest report dated 28.07.2010, Ex.P3-postmortem certificate, Ex.P4-A.I.R.copy, Ex.P5-policy copy, Ex.P6-driving licence and Ex.P7-registration with Industries and Commerce Department. On the side of the respondents, no witness was examined and no document was marked.
5. P.W.1 had adduced evidence that when he and his father were proceeding on the Ettaiapuram Main Road, on 28.07.2010, at about 4.p.m. on their separate bicycles, the first respondent had driven the lorry bearing registration No.TN-04-H-4264 in a rash and negligent manner, from behind and dashed against his father's cycle. In the result, his father had sustained grievous injuries and he was immediately taken to the Medical College Hospital, wherein the doctor had declared his father dead on arrival. P.W.1 further stated that his father was earning Rs.15,000/- per month by conducting welding and tinkering shop and he was aged about 62 years. The first claimant is his mother.
6. On verifying the documents marked by the claimants and on recording the evidence of P.W.1, the Tribunal had awarded a sum of Rs.5,16,500/- with interest at the rate of 7.5% per annum.
7. Aggrieved by the said award and decree, the Insurance Company has filed the above appeal.
8. The learned counsel for the appellant has contended that the age of the deceased was 62 years and the claimants were not depending upon the income of the deceased. Without income proof, the Tribunal had fixed the income of the deceased as Rs.9,000/- per month, which is an arbitrary decision. The learned counsel has further submitted that the F.I.R. had been lodged as an afterthought. Actually, the first respondent's lorry had not been involved in the said accident, but the first respondent connived with the claimants and claimed compensation in order to get wrongful gain since the vehicle has been insured with the appellant. The compensation amount of a sum of Rs.5,16,500/- is on the higher side as the claimant is aged about 62 years.
9. The learned counsel for the claimant has contended that the deceased was running a welding and tinkering shop and was earning Rs.15,000/- per month. In order to prove the income of the deceased, Ex.P7, registration certificate issued by the Industries and Commerce Department was marked. Therefore, ti was proved that the deceased was an earning member. The Tribunal had not granted adequate compensation under the heads of 'consortium' and 'funeral expenses'. The claimants are also entitled to receive compensation under the head of transport, but this was not considered by the Tribunal.
10. On considering 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 further view that the deceased was an earning member and he was running a welding and tinkering shop, which is evident from scrutiny of Ex.P7, registration certificate issued by the Industries and Commerce Department. Therefore, the quantum of compensation is not on the higher side. The Insurance Company raised a serious issue stating that the first respondent connived with the claimants in order to get wrongful gain by way of substituting his vehicle. In order to prove the same, no oral or documentary evidence had been let in by the Insurance Company and as such, this contention is rejected.
11. As per records, it is seen that this Court imposed a condition on the appellant on 12.09.2012, to deposit the entire compensation amount with interest. Now, this Court permits the claimants to withdraw their apportioned share amount with accrued interest thereon, as per ratio fixed by the Tribunal, lying in the credit of M.C.O.P.No.379 of 2010, on the file of Principal District Judge, Motor Accidents Claims Tribunal, Thoothukudi, after filing a Memo, along with a copy of this order.
12. In the result, the above appeal is dismissed. Consequently, the order passed in M.C.O.P.No.379 of 2010, on the file of Principal District Judge, Motor Accidents Claims Tribunal, Thoothukudi, dated 08.03.2012 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed.
rns To The Principal District Judge, Motor Accidents Claims Tribunal, Thoothukudi.