Madras High Court
The Branch Manager vs Vasantha on 4 April, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04/04/2013
CORAM
THE HON'BLE MR.JUSTICE C.S.KARNAN
C.M.A(MD) No.122 of 2006
The Branch Manager,
Oriental Insurance Company Limited,
Post Box No.23, Salai Road,
Lyola Building, First Floor,
Dindigul.
.. Appellant
vs
1.Vasantha
2.Parthasarathi
3.Suresh
4.K.Rajendran
.. Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle
Act, 1988, against the judgment and Decree dated 22.12.2004, passed in
M.C.O.P.No.809 of 2002, on the file of the Motor Accident Claims Tribunal,
Principal District Judge, Dindigul.
!For Appellant ... Mr.C.Ramachandran
^For Respondent ... Mr.M.S.Suresh Kumar
for R1 to R3
:JUDGMENT
The respondents herein/claimants have filed in M.C.O.P.No.809 of 2002, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Dindigul, against the appellant herein and owner, stating that the 1st claimant's husband viz., Ayyapillai was travelling on the mini lorry bearing registration No.TN-28E-8066, as loadman. While so, the driver of the mini lorry drove the lorry on the Pollachi to Meenkarai road, in a rash and negligent manner and at a high speed and crossed the speed breaker. As a result, the 1st claimant's husband had fallen down and died on the spot. Hence, the claim petition has been filed against the Insurance Company and owner and the claimant have claimed Rs.5,00,000/- with interest.
2. The Insurance Company had filed a counter statement and resisted the claim petition. The respondent stated that the deceased was travelling as an unauthorised passenger and fell down at the Railway bridge on Pollachi Meenakshi Road and had sustained injuries. The same contention has been disclosed in the F.I.R. The respondent further stated that as per Section 123, sub section (2) of the Motor Vehicle Act, travelling on top of the vehicle is prohibited. As such, the deceased had violated the conditions. Therefore, the Insurance Company is not liable to pay compensation. The respondent further denied the averments in the claim that the deceased was a loadman.
3. The Motor Accident Claims Tribunal framed two issues for consideration in the case name:
(1)Whether the accident occurred due to the rash and negligent driving of the driver of the lorry bearing registration No.TN-28E-8066, belonging to the 1st respondent and insured with the 2nd respondent?;
(2)Whether the petitioners are entitled to get compensation if so, what is the quantum of compensation amount?.
On the side of the claimants, the 1st claimant was examined as PW.1 and the eyewitness of the accident was examined as PW.2. On the side of the respondents, no one was examined and no document was marked. PW.1, had adduced evidence stating that she is the wife of the deceased and 2nd and 3rd claimants are the sons of the deceased. She deposed that on 19.07.2001, her husband was travelling, as a loadman, on the mini lorry bearing registration No.TN-28E-8066, from Natham to Pollachi. The driver of the mini lorry had driven the vehicle at a high speed and in a rash and negligent manner, without noticing the speed breaker on the road. As a result, her husband who was travelling on top of the Mango load on the vehicle, had fallen down and sustained injuries and succumbed to it. At the time of accident, her husband's age was 45 years and he was earning Rs.200/- per day.
4. PW.2, had adduced evidence that he was the cleaner of the said lorry and he had spoken on the same lines regarding the accident.
5. On considering the evidence of the witnesses and on perusing the documents made by PW.1, the Tribunal had come to a conclusion that the accident had occurred due to the rash and negligent driving of the 1st respondent's vehicle driver. Hence, the Tribunal had awarded compensation of a sum of Rs.2,90,000/- with interest at the rate of 9% per annum payable by the Insurance Company. The compensation amount comprises compensation of Rs.2,60,000/- towards loss of earning; Rs.15,000/- towards loss of consortium; Rs.10,000/- towards loss of love and affection; Rs.5,000/- towards funeral expenses.
6. Aggrieved by the said award and decree, the Insurance company has filed the above appeal. The highly competent counsel submits that as per F.I.R, the deceased was travelling as an unauthorised passenger. As per Section 123(2) of the Motor Vehicle Act, no person can travel a top of the vehicle. As per the contention of the claimants, the deceased was travelling on the top of the mini lorry. As such, the conditions laid down in the Motor Vehicle Act, had been violated by the deceased and therefore, the Insurance Company is not liable to pay compensation. The learned Tribunal, ought to have considered the F.I.R and decided the negligence on the part of the deceased. The learned counsel further submits that the deceased was an unauthorised passenger. Further, the claimants had stated that the deceased was a load man and have also stated that the deceased was a cleaner. As such, contradictory statements had been made by the claimants. Therefore, there is no prima facie case for awarding compensation. The highly competent counsel further submitted that the award has been passed without any proof of income of the deceased.
7. The learned counsel for the claimants contended that the offending vehicle namely, mini lorry was loaded with mangoes and that the deceased had travelled on top of the mangoes, as loadman, in order to unload the mangoes at the designated place. PW.2, was travelling in the cabin, as cleaner, and he had noticed the accident. The offending vehicle was insured with the appellant herein. The highly competent counsel further submits that the age of the deceased was 45 years as per the statement of the 1st claimant and on the basis of post mortem report. The deceased was earning Rs.200/- per day as loadman. All the claimants were depending upon the income of the deceased, who was the bread winner of the family. The Tribunal had not granted adequate compensation under the head of loss of income, loss of love and affection to the 2nd and 3rd claimants and for funeral expenses. Further, the Tribunal had not granted compensation under the head of transport expenses. Hence, the learned counsel entreats the Court to dismiss the appeal.
8. On verifying the factual matrix of the case and arguments advanced by the highly competent counsel, on either side and on perusing the impugned award of the Tribunal, this Court does not find any short comings in the conclusions arrived at regarding negligence, liability and quantum of compensation. This Court is of the view that the deceased was 45 years old and the dependents are 3 in numbers and that the F.I.R has been registered against the offending vehicle driver and the Insurance Policy was in force and that the deceased was travelling as loadman on top of the mango load in the lorry, as per the evidence of eyewitness of the PW.2, who was travelling as cleaner of the vehicle. Further, on the side of the respondents no one was examined and no documents were marked to establish the grounds raised by the Insurance Company. Hence, this appeal fails. As per this court records, it is seen that this Court imposed a condition on the appellant to deposit the entire compensation amount, with accrued interest.
9. Now, it is open to all the claimants to withdraw their apportioned share of the award amount, with accrued interest thereon, as per the ratio fixed by the Tribunal, lying in the credit of M.C.O.P.No.809 of 2002, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Dindigul, after filing a memo, along with a copy of this order.
10. In the result, the above appeal is dismissed. Consequently, the award and decree passed in M.C.O.P.No.809 of 2002, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Dindigul, dated 22.12.2004, is confirmed. No costs.
ub To
1.The Motor Accident Claims Tribunal, Principal District Judge, Dindigul.
2.The Section Officer, VR Section, High Court, Madras.