Madras High Court
M/S.National Insurance Co. Ltd vs Thangamani on 17 October, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/10/2012 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.149 of 2001 M/s.National Insurance Co. Ltd. Karaikkudi, rep. by Branch Manager. .. Appellant vs 1.Thangamani 2.Minor Selvi 3.Minor Pandy 4.Minor Karthick (Minors 2 to 4, rep. by Guardian & Mother Thangamani - 1st Respondent) 5.Nagamani 6.Vijayasundaram 7.Kalaiselvi 8.Parthiban 9.Elango 10.Sreekumar .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Judgment and Decree dated 31.08.1999 made in M.C.O.P.No.243 of 1997, on the file of the Motor Accidents Claims Tribunal, (Principal District Judge), Pudukkottai. !For Appellant ... Mr.K.S.Narasimhan ^For Respondents ... Mr.A.L.Ganthimathi (for R1) Mr.Senthil (for R5 to R9) R10 - Died :JUDGMENT
The appellant / 2nd respondent has preferred the appeal in C.M.A.(MD)No.243 of 2001, against the judgment and decree passed in M.C.O.P.No.243 of 1997, on the file of the Motor Accidents Claims Tribunal, (Principal District Judge), Pudukkottai.
2.The short facts of the case are as follows:
The petitioners, who are the wife and minor children of the deceased Sivalingam have filed the claim in M.C.O.P.No.243 of 1997, claiming compensation of a sum of Rs.7,00,000/- from the respondents for the death of the said Sivalingam in a Motor Vehicle Accident. It was submitted that on 17.12.1996, at about 08.15 p.m., when the deceased was travelling as a passenger in the 1st respondent's van from K.Pudhupatti, as owner of Groundnuts and when the vehicle was proceeding on the Aranthangi-Karaikudi road and near the Kallur-Thekkur diversion road, the driver of the van drove it at a high speed and in a rash and negligent manner, due to which the deceased who was in the backside of the van was thrown out of the vehicle and sustained severe head injuries and died on the spot. Hence, the petitioners have filed the claim against the respondents 1 to
8. The 1st and 2nd respondents are the owner and insurer of the van. As the 1st respondent had died during the pendency of the claim, the respondents 3 to 8, who are the legal heirs of the 1st respondent had been impleaded as necessary parties.
3.The 1st respondent in his counter submitted before his death and which was adopted by the respondents 3 to 8 had stated that the accident had occurred only due to the negligence of the (deceased) Sivalingam. It was submitted that the 1st respondent's van had been insured with the 2nd respondent at the time of accident. It was submitted that the claim was excessive.
4.The 2nd respondent, in his counter has submitted that the driver of the 1st respondent's vehicle had driven it in a careful and cautious manner and that the accident had been caused due to negligence of the deceased, who had fallen down from it. It was submitted that the F.I.R. had been lodged after a delay. It was submitted that the petitioners should prove that the driver of the 1st respondent's vehicle had a valid licence to drive the van and that had a valid permit to be driven as a goods carrier.
5.The Motor Accidents Claims Tribunal framed an issue namely: Due to whose negligence was the accident caused?
6.PW1, the 1st petitioner had adduced evidence that the deceased was her husband and that the 2nd, 3rd and 4th petitioners are his children. She deposed that the deceased was aged 32 years at the time of accident and was working in the Groundnut mill owned by one M.M.Ganesan. She further adduced evidence which is corroborative of statements made in the claim regarding manner of accident and in support of her evidence, she had marked Ex.P1 to Ex.P3 namely Ex.P1-Copy of F.I.R.; Ex.P2-Copy of postmortem report; and Ex.P3-Copy of Motor Vehicle Inspector's report.
7.PW2 Mahalingam, the eyewitness of the accident had adduced evidence that on 17.12.1996, at about 08.00 p.m., he had seen the vehicle bearing Registration No.TAW-2400, being driven on the Thekkur diversion road and that the accident was caused as the driver had driven the vehicle at a high speed and had not seen the speed breaker on the road. He deposed that the (deceased) had sustained injuries and died on the spot.
8.On scrutiny of Ex.P1, it is seen that the complaint regarding the accident had been given by PW1. On the respondents' side, two witnesses were examined and six documents were marked as Ex.R1 to Ex.R6 namely Ex.R1-Insurance Policy of 1st respondent's vehicle; Ex.R2-Investigation report of Investigation Officer of 2nd respondent; Ex.R3-Copy of notice sent by 2nd respondent to 1st respondent and his driver; Ex.R4-Returned cover showing that the 1st respondent had died; Ex.R5-Acknowledgment card showing receipt of R3 by the driver of the 1st respondent's vehicle; and Ex.R6-Copy of driving licence.
9.RW1 Bhuvaneswari, the Assistant in the R.T.O. office at Karaikudi had adduced evidence that the driver of the 1st respondent's vehicle had a Light Motor Vehicle licence to drive the vehicle and that he did not have requisite badge endorsement on his licence to drive a transport vehicle on the date of accident i.e. 17.12.1996 and in support of her evidence she had marked X1-Copy of extract of driving licence register pertaining to the driver of the 1st respondent's vehicle. She deposed that a person having a Light Motor Vehicle licence can drive a mini lorry, if he is the owner of the lorry and drives it for his own use.
10.RW2 K.Sankaranarayanan, the Assistant in the Regional Office of the 2nd respondent at Madurai had adduced evidence that as per the Investigation conducted by this Investigation Officer, it was found that the driver of the 1st respondent did not have a valid driving licence to drive the vehicle and that the notice sent by them to the 1st respondent had been referred as the 1st respondent had died and that the notice had been served on the driver of the 1st respondent and in support of his evidence he had marked Exhibits R1 to R5.
11.The Tribunal, on considering that the driver of the 1st respondent's van had not been examined to rebut the claim of the petitioners regarding manner of accident and on scrutiny of Exhibits P1 to P3 and evidence of PW2 held that the accident had been caused by the rash and negligent driving of the mini van by the driver of the 1st respondent's vehicle. The Tribunal, on observing that the driver of the van had a Light Motor Vehicle licence and on relying on judgment reported in 1998-2-LW page 161, Madras High Court, held that he had the requisite licence to drive a mini van and hence held the 2nd respondent, being the insurer of the 1st respondent's vehicle liable to pay compensation.
12.The Tribunal, on observing that the deceased was aged 32 years at the time of accident and on holding that the contribution by the deceased to his family could be taken as Rs.500/- per month and on adopting a multiplier of 17, awarded a sum of Rs.1,02,000/- (500X17X12) as compensation under the head of loss of income; Rs.5,000/- was awarded to the 1st petitioner under the head of loss of consortium; Rs.10,000/- was awarded to each of the 2nd, 3rd and 4th petitioners under the head of loss of love and affection; and Rs.2,000/- was awarded for funeral expenses. In total, the Tribunal awarded a sum of Rs.1,29,000/- as compensation to the petitioners and directed the respondents to jointly or severally deposit the said sum together with interest at the rate of 12% per annum from the date of filing the petition till date of deposit, with costs, within a period of two months from the date of its order.
13.Aggrieved by the award passed by the Tribunal, the 2nd respondent / National Insurance Company Limited, Karaikudi has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note the evidence of RW1, who had stated that the driver Elango did not have a valid driving licence to drive the mini van, which is a transport vehicle and failed to note the type and character of the vehicle from Ex.P3-Motor Vehicle Inspector's report. It was contended that the Tribunal erred in following the ruling reported in 1998 2 LW page 161, which is not applicable to the facts of this case. It was contended that the Tribunal ought to have exonerated the insurer from the liability and ought to have held the owner liable to pay the award. Hence, it was prayed to set aside the award passed by the Tribunal.
14.The learned counsel for the claimants argued that the F.I.R. has been registered against the driver of the van and the Motor Vehicle Inspector's report discloses that the vehicle was in a fit condition to be operated on the public road. The deceased was travelling along with his goods namely Groundnuts. The vehicle was insured with the Insurance Company. The compensation amount had not been granted adequately to the claimants, who are young widow and minor children of the deceased.
15.On verifying the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the Tribunal, this Court does not find any lapse in the findings regarding negligence, liability and quantum of compensation. However, the driver of the offending vehicle was not possessing valid driving licence to operate the said van since he was possessing only a Light Motor Vehicle licence. Further, there was no badge endorsement on his licence as per evidence of RW1, who was attached to the R.T.O. as Assistant. Therefore, this Court permits the Insurance Company to recover the said amount from the owner of the vehicle. As per the records, it is seen that the entire compensation amount has been already deposited and the claimants were also permitted to withdraw 50% of the deposited amount. While totalling the compensation, the Tribunal has calculated the total compensation as Rs.1,29,000/- instead of Rs.1,39,000/-. Therefore, this Court is directed the appellant to deposit the difference compensation of Rs.10,000/- with interest at the rate of 7.5% per annum from the date of claim petition, till date of payment of compensation, within a period of four weeks from the date of receipt of a copy of this order. After such deposit, the 1st claimant is permitted to withdraw the said amount from the trial Court.
16.Now, it is open to the claimants to withdraw the balance compensation amount with accrued interest thereon, lying in the credit of M.C.O.P.No.243 of 1997, on the file of the Motor Accident Claims Tribunal, (Principal District Judge), Pudukkottai, after filing a memo along with a copy of this order.
17.In the result, the above appeal is dismissed. Consequently, the award and decree passed in M.C.O.P.No.243 of 1997, on the file of Motor Accidents Claims Tribunal, (Principal District Judge), Pudukkottai, dated 31.08.1999, is confirmed. No costs.
vs To
1.The Motor Accidents Claims Tribunal, Principal District Judge, Pudukkottai.
2.The Section Officer, VR Section, High Court, Madras.