Madras High Court
New India Assurance Company Limited vs Mary Pushparani on 12 November, 2014
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.11.2014 CORAM THE HONOURABLE MRS.JUSTICE S.VIMALA C.M.A.(MD) No.1240 of 2012 and M.P.(MD) Nos.3 of 2012 and 1 of 2014 New India Assurance Company Limited, Rep. by its Branch Manager, Opposite to Anna Stadium, Pillars Gate, Balamore Road, Nagercoil. : Appellant/Respondent 3 Vs 1.Mary Pushparani 2.Minor Sahaya Vinci @ Mary Sahaya Vinci 3.Minor Sahaya Princy 4.Minor Remila Jessi 5.Minor Girigin Christopher: Respondents/Petitioners 6.A.Athikaran : Respondent/Respondent 1 7.Jegadeesh : Respondent/Respondent 2 Prayer: Appeal filed under Section 173 of Motor Vehicles Act, 1988, praying to set aside the judgment and decree passed by the I Additional Motor Accident Claims Tribunal, Nagercoil, in M.C.O.P.No.116 of 2009, dated 24.08.2011. !For Appellant : Mr.D.Sivaraman ^For Respondents : Mr.C.Sankar Prakash 1 to 5 For Respondent 6 : Mr.R.Devaraj For Respondent 7 : No appearance :JUDGMENT
The deceased Yesudhasan @ Joseph Dhasan, aged 48 years, employed as coolie, earning a sum of Rs.6,000/- per month, died in an accident that took place on 28.02.2007. The wife and children of the deceased filed a claim petition claiming a sum of Rs.10,00,000/- as compensation.
2.The Insurance Company disputed the claim on the ground that the deceased, who is a loadman, is not permitted to travel along with the goods and therefore, the Insurance Company is not liable to pay compensation.
3.The first respondent driver disputed the claim on the ground that despite the warning by the driver, the deceased himself has taken the decision to sit over the top of the haystack and therefore, the owner is not liable to pay compensation. In other words, it is the voluntary sufferings invited by the deceased himself for which nobody is liable to pay any compensation.
4.The Tribunal, on consideration of evidence adduced before it, came to the conclusion that the Insurance Company is liable to pay compensation. The compensation awarded was Rs.7,60,000/- and the break up details are as furnished hereunder:
Loss of income (6000x2/3x12x13) : Rs.6,24,000.00 Medical expenses : Rs. 69,000.00 Transport : Rs. 3,000.00 Nutrition : Rs. 3,000.00 Funeral expenses : Rs. 10,000.00 Consortium : Rs. 20,000.00 Loss of love and affection : Rs. 50,000.00 Total : Rs.7,79,000.00
5.While quantifying the compensation, the monthly income of the deceased was taken as Rs.6,000/- and deducting 1/3 towards personal expenses and adopting multiplier of 13, the loss of income was quantified.
6.The Insurance Company has filed this appeal challenging the liability to pay compensation as well as the quantum of compensation.
7.As per the facts placed before the Tribunal, the deceased was travelling over the load of haystack in the Tempo Traveller at the time of accident. Even though the driver has been added as one of the respondents, the driver was not examined before the Tribunal. The owner also remained ex parte before the Tribunal. Evidence has been adduced on the side of the claimants stating that there was no excessive load in the vehicle at the time of accident and the load was below the level of bar and therefore, the negligence cannot be attributed on the part of the deceased. When the initial burden has been discharged by the claimant, it is for the respondent to adduce evidence to show that the deceased himself was negligent. Neither the driver nor anybody on the side of the owner was examined before the Tribunal despite the defence taken in the counter that the driver did not chose to step into the box to prove the allegations levelled against the deceased. The driver represents the owner in the sense that he was in charge of the vehicle at the time of accident. It is not open to the driver to contend that despite his warning the deceased himself has chosen to sit over the haystack. In that event, he should not have taken the vehicle at all. Therefore, it is evident that the negligence is on the part of the driver, for which the owner is vicariously liable.
8.Under the Motor Vehicles Act, there is no total and complete bar for the loadman or the worker to travel along with the goods. The restriction imposed under the Motor Vehicles Act is to follow certain safety guidelines. It is not proved by the respondent/owner that the safety guidelines were followed while taking the deceased in the vehicle. Therefore, the fault is only on the part of the driver and consequently, on the owner of the vehicle.
9.So far as the quantum of compensation is concerned, it is the contention of the learned counsel for the claimants that the deceased was having four children to be maintained and the Tribunal is not justified in giving 1/3 deduction towards personal expenses of the deceased. When the dependants are more in number, the deceased was not expected to spend and in fact, he will not spend 1/3 towards his personal expenses. Therefore, 1/3 deduction ought not to have been made.
10.However, the notional income has been taken at Rs.6,000/- while it was less at that point of time. Therefore, the award passed is just and reasonable and neither more nor less. Under such circumstances, the quantum of compensation is confirmed.
11.Having given a finding that the owner is responsible for the negligence in causing the accident, the Insurance Company would be at liberty to recover the compensation from the owner of the vehicle. The finding that the Insurance Company is exclusively liable to pay compensation is set aside and inasmuch as there was a coverage of insurance policy, there is no total and complete violation of the provisions of the Motor Vehicles Act, the liability of the Insurance Company cannot be disputed to the entire extent. The Insurance Company will pay the compensation as ordered by the Tribunal with liberty to recover the same from the owner of the vehicle.
12.With the above modification, the Civil Miscellaneous Appeal stands disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.
12.11.2014 Index : Yes / No Internet : Yes / No srm To The I Additional Motor Accident Claims Tribunal, Nagercoil.
S.VIMALA, J.
srm C.M.A.(MD)No.1240 of 2012 12.11.2014