Madras High Court
National Insurance Company Limited vs Pichaiah Pillai on 16 October, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/10/2012 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.828 of 2005 National Insurance Company Limited, Branch Office, S.N.High Road, Tirunelveli Junction, Through its Branch Manager, ... Appellant Vs. 1.Pichaiah Pillai 2.Tmt.Murugammal 3.Meenakshi 4.Maadasamy 5.A.Meeran Mydeen 6.United India Insurance Company Limited, Divisional Officer, Door No.1, Old Post Office Road, Palayamkottai, Tirunelveli-2, through its Branch Manager. ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, to set-aside the order and decree dated 31.07.2004 passed in M.C.O.P.No.875 of 2000, on the file of the Additional District Court / Fast Track Court-II, Tirunelveli. !For Appellant ... Mr.S.Ramachandran ^For Respondents ... Mr.T.Selvakumaran for R-1 and R-3 - - - :JUDGMENT
The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.875 of 2000, on the file of the Additional District Court / Fast Track Court-II, Tirunelveli.
2. The short facts of the case are as follows:-
The petitioners, who are the parents and sister of the (deceased) Saravanan have filed the claim in M.C.O.P.No.875 of 2000, claiming compensation of a sum of Rs.5,00,000/- from the respondents for the death of the said Saravanan in a motor vehicle accident. It was submitted that on 05.07.2000, when the (deceased) Saravanan was travelling as a passenger in the first respondent's tata sumo car bearing registration No.TN-59-F-8299 from Kutralam to Tirunelveli and at about 5.15 a.m., when the car was proceeding on the Tirunelveli-Kutralam main road and nearing Sitharbanallur, the driver of the car drove it at a high speed and in a rash and negligent manner without switching the dim/bright head lamp indicator and proceeded on the south side of the east west road and dashed the car against the third respondent's lorry bearing registration No.TCT-4889, which was coming on the opposite side and was also driven by its driver without putting on the dim/bright headlight indicator. As a result, the tata sumo car was forced under the front body of the lorry and was crushed. As a result, the (deceased), Saravanan sustained grievous injuries all over his body and died on the spot. At the time of accident, the (deceased) was aged 27 years and was working as a driver at "Akil Electronics" at Tirunelveli Junction and earning Rs.2,500/- per month. Hence, the petitioners have filed the claim against the respondents 1 to 4. The first and second respondents are the owner and insurer of the tata sumo car bearing registration No.TN-59-F-8299, and the third and fourth respondents are the owner and insurer of the lorry bearing registration No.TCT-4889.
3. The first respondent, in his counter has submitted that the tata sumo car bearing registration No.TN-59-F-8299, was owned by his son, Thiru.Jayakannan, who had expired in the said accident. It was submitted that the first respondent being the father of the deceased Jayakannan cannot be considered legal-heir of the deceased as per Hindu Succession Act. The averments in the claim that the accident was caused by the rash and negligent driving of the (deceased) Jayakannan was not admitted. It was submitted that the accident had been caused by the rash and negligent driving by the driver of the third respondent's lorry bearing registration No.TCT-4889 and that taking advantage of the death of the (deceased) Jayakannan in the accident, a false case has been foisted against the said Jayakannan. The averments in the claim regarding age and income of the (deceased) Saravanan was also not admitted. It was submitted that as the tata sumo car had been insured with the second respondent and as the insured had expired in the said accident, only the second respondent is liable to pay compensation, if so decided by the Tribunal.
4. The second respondent, in his counter has submitted that the driver of the 'tata sumo' car i.e., (deceased) Jayakannan had a valid licence to drive the maxi cab vehicle, but did not have the requisite endorsement or badge to drive such a vehicle and as such, the second respondent is not liable to pay compensation. The averments in the claim that the (deceased) Vallinayagam was driving the vehicle at the time of accident was not admitted. It was submitted that as the driver of the tata sumo car, viz., Jayakannan had driven the car, after consuming liquor, the said Vallinayagam had been shown as the driver of the car, in order to get compensation from the Insurance Company. It was submitted that as the driver cum owner of the tata sumo car had driven it, after consuming liquor, the conditions laid out in the Motor Vehicles Act, Section 185 had been violated and as such, the second respondent is not liable to pay compensation. It was submitted that as the father of the deceased Jayakannan was not the legal-heir of Jayakannan as per Hindu Succession Act and as the contract of policy of insurance had expired on the death of the owner of the car, viz., Jayakannan, the second respondent cannot be held liable to pay any compensation. The averments in the claim regarding age, income and occupation of (deceased) Saravanan was also not admitted. It was submitted that the petitioners should prove that they are the legal-heirs of the deceased through documentary evidence. The second respondent in his additional counter has submitted that the tata sumo car bearing registration No.TN-59-F-8299 was covered under a valid F.C. from 19.04.1999 to 18.04.2000 and that on the date of accident i.e, 05.07.2000, it was not covered under a valid F.C. It was submitted that as the (deceased) Jayakannan had driven the tata suo car, without a valid licence, from 19.04.2000 upto the date of occurrence of accident, he had violated the conditions laid down in the Motor Vehicles Act as well as the conditions of policy of insurance and as such, the second respondent is not liable to pay any compensation. It was submitted that the claim was excessive.
5. The third respondent, in his counter has denied the averments in the claim regarding age, income and occupation of (deceased) Vallinayagam. It was also submitted that the petitioner should prove that the accident had occurred only due to negligence of the third respondent's vehicle driver through documentary evidence. It was submitted that the claim was excessive.
6. The fourth respondent, in his counter has submitted that the petitioners should prove the age, income and occupation of the (deceased) Vallinayagam and also prove that they are the legal-heirs of the deceased through documentary evidence. It was also submitted that the petitioners should prove that the (deceased) Vallinayagam had travelled as a passenger in the tata sumo car bearing registration No.TN-59-F-8299 and that he had sustained injuries in the said accident and died subsequently. It was submitted that the accident had been caused by the rash and negligent driving of the tata sumo car by its driver and not due to any negligent driving on the part of the driver of the third respondent's lorry, as alleged. It was submitted that all the seven persons, including the driver, who had travelled in the tata sumo car had died in the accident and that the police after investigation had found that the accident had been caused by the rash and negligent driving of the said Jayakannan and that the criminal case had been dropped as the said Jayakannan had died in the said accident.
7. The Motor Accidents Claims Tribunal had framed four issues for consideration in the case, viz., "(i) Was the accident caused by the rash and negligent driving by the driver of the first respondent's tata sumo car bearing registration No.TN-59-F- 8299?
(ii) Was the accident caused by the rash and negligent driving by the driver of the third respondent's lorry bearing registration No.TCT-4889?
(iii) Did the driver of the tata sumo car bearing registration No.TN-59-F- 8299 have a valid licence to drive the vehicle and was he under the influence of liquor while driving the car and is the second respondent not liable to pay compensation? and
(iv) Are the petitioners entitled to get compensation? If so, what is the quantum and who is liable to pay compensation?"
8. In the same accident, five other claims had been filed by the petitioners in M.C.O.P.Nos.1015 of 2000, 919 of 2000, 1062 of 2000, 1063 of 2000 and 384 of 2001, claiming compensation from the respondents for the death of the deceased passengers who had travelled in the car. On the request made by the counsels for their respective petitioners in the various claim through a joint memo, a joint trial was conducted and common evidence was recorded in M.C.O.P.No.1015 of 2000.
9. The petitioner in M.C.O.P.Nos.1015 of 2000, 875 of 2000, 919 of 2000, 1062 of 2000, 1063 of 2000 and 384 of 2001 viz., Gomathiammal, Pichayapillai, Namasivayam, Ganapathy, Velammal and M.Jayalakshmi were examined as P.W.1, P.W.3, P.W.4, P.W.6, P.W.7 and P.W.10 respectively. One Thiru.Maharajan was examined as P.W.2, one Durairaj was examined as P.W.5, one Thiru.Sivasubramanian was examined as P.W.8, One Murugan was examined as P.W.9, one Muniyandi was examined as P.W.11 and one Kannan was examined as P.W.12 and 17 documents were marked as Exs.P1 to P17, viz., Ex.P1-copy of F.I.R., Ex.P2- copy of Motor Vehicle Inspector's report, Ex.P3-copy of observation mahazr, Ex.P4-postmortem report of Sivaprakasam, Ex.P5-driving licence of B.Saravanan, Ex.P6-certificate showing that B.Saravanan had studied in Rural Development Office, Ex.P7-postmortem report of B.Saravanan, Ex.P8-postmortem report of Vallinayagam, Ex.P9-legal-heir certificate pertaining to Vellinayagam, Ex.P10- salary certificate of Saravanan, Ex.P11-postmortem report of Kannan, Ex.P12- postmortem report of Kutralingam, Ex.P13-salary certificate of Vallinayagam, Ex.P14-salary certificate of Sivaprakasam, Ex.P15-salary certificate of Kutralingam, Ex.P16-postmortem report of Jayakannan, Ex.P17-family ration card of P.W.9, K.Murugan. On the respondents side, six witnesses were examined and four documents were marked as Exs.R1 to R4, viz., Ex.R1-driving licence particulars of Jayakannan, Ex.R2-copy of insurance policy of vehicle bearing registration No.TN-59-F-8299, Ex.R3-copy of charge sheet and Ex.R4-rough sketch.
10. P.W.12, Kannan, the eyewitness of the accident had adduced evidence that the accident had been caused by the rash and negligent driving of the drivers of both the tatasumo car and lorry involved in the accident. On scrutiny of observation mahazar and rough sketch and motor vehicle inspector's report, it is seen that the accident had occurred due to a head on collision between the two vehicles.
11. The first petitioner in M.C.O.P.No.1015 of 2000, viz., Tmt.Gomathy was examined as P.W.1 and through her the copy of F.I.R., Motor Vehicle Inspector's report and observation mahazar was marked as Exs.P1, P2 and P3. On scrutiny of Ex.P2, it is seen that the accident had not occurred due to any mechanism failure of the vehicles involved in the accident. On scrutiny of Ex.R4, rough sketch and Ex.P1, F.I.R., it is seen that the accident had occurred due to the head on collision between the two vehicles and that due to the speed at which, the vehicles had collided, the front portion of the tata sumo car had gone under the lorry. It is seen on scrutiny of Ex.P2, that both the vehicles had been badly damaged.
12. P.W.2, Thiru.Murugan had adduced evidence that he had witnessed the accident as he was proceeding near the site of accident from west to east on his bicycle and that the lorry coming on the opposite direction was driven at a high speed and dashed against the tata sumo car, which was driven at a moderate speed. In support of his evidence, he had marked Ex.P16. However, he had admitted that he had not filed the complaint at the police station. He further stated that the lorry which was proceeding from east to west had been displaced to the left of the road on collision and that the tata sumo car, moving from west to east had also been displaced to the left of the road. He further stated that he had not gone near the place of accident after the collision. The Tribunal on observing that contradictory statements had been made by P.W.9 regarding manner of accident was not inclined to accept his evidence.
13. P.W.1, Muniyandi had adduced evidence that when P.W.9 and he were proceeding on their cycle from west to east, he had seen a lorry coming at a high speed and that it had collided with the tata sumo car which was proceeding at a slow speed. He had however stated that he witnessed the accident only after hearing a loud noise and that he had not seen the accident when it occurred. Hence, the Tribunal was not willing to accept the evidence of P.W.11.
14. P.W.12, Kannan had adduced evidence that he had witnessed the accident and that the accident had occurred due to a head on collision between the lorry and tata sumo car. On scrutiny of Ex.P1 and Ex.R4, it is seen that the accident had occurred due to head on collision between the vehicles. It is also seen that the F.I.R. had been filed against the driver of the car based on the complaint given by the lorry driver. On scrutiny of Ex.R3, it is seen that a criminal case had been filed against him and that as the driver of the car had died in the accident, the criminal case against him had abated. The Tribunal, on scrutiny of Exs.P1, P2, P3 and R4 and on scrutiny of evidence of P.W.12, held that the accident had been caused by the rash and negligent driving by the drivers of both the lorry and tata sumo car involved in the accident and attributed negligence equally amongst them for the cause of the accident. Hence, the Tribunal held the fourth respondent i.e., United India Insurance Company, being the insurer of the third respondent's lorry bearing registration No.TCT- 4889, liable to pay half the compensation assessed.
15. R.W.1., Madasami had adduced evidence that the driver of the tata sumo van i.e., deceased Jayakannan was his son. From evidence of R.W.1, R.W.2 and R.W.3 and on scrutiny of Ex.R2, copy of policy marked through R.W.3, it is seen that the tata sumo car bearing registration No.TN-59-F-8299, is owned by the (deceased) Jayakannan. On scrutiny of evidence of R.W.4, and on scrutiny of Ex.R2, it is seen that the car had been driven by the deceased Jayakannan. On scrutiny of evidence of R.W.2 and Ex.R1, it is seen that the (deceased) Jayakannan had a valid licence to drive a heavy motor vehicle at the time of accident.
16. R.W.3, Chandiran, Assistant Administrative Officer of the second respondent's firm had adduced evidence that on investigation carried out by their investigation officer, it was found that the (deceased) Jayakannan, who was the driver of the tata sumo car did not have a valid badge endorsement in his licence and that the (deceased) Jayakannan was under the influence of liquor at the time of accident and as such, as the policy conditions of insurance had been violated, the second respondent is not liable to pay compensation.
17. R.W.2, K.Sundari, the junior assistant of R.T.O. Office, Tirunelveli had adduced evidence that the (deceased) Jayakannan had only a LMV licence and that for driving a tourist van, he should have a badge endorsement in his licence. However, she had stated that the owner of the van need not have a badge endorsement to drive the van. Hence, the Tribunal observed on scrutiny of evidence of R.W.2 that the contentions made on the side of the second respondent that they are not liable to pay compensation as the deceased did not have a badge endorsement were not acceptable. The Tribunal further observed on scrutiny of Ex.R2, that no specific mention had been made in the policy to show that the driver of the tourist car should have a badge endorsement to drive the vehicle.
18. R.W.4, Thiru.Manoharan, Inspector of Police had adduced evidence that the doctor who had conducted the postmortem of the (deceased) Jayakannan, had in his report stated that there was presence of ethene alcohol in his blood of the deceased and that he had driven the vehicle after consuming alcohol. He deposed that the police had stated in their final report that no action had been taken against the (deceased) Jayakannan, as he had died in the accident. However, the Tribunal on considering that the deceased had not been subjected to a breath test analysis or laboratory test and that no doctor had been examined to prove that the (deceased) had been in an inebriated condition at the time of accident, opined that just because there was trace of ethene alcohol in the blood of the (deceased) it could not be concluded that he was in a drunken state while driving the car at the time of accident and held that the contentions of the respondents that the (deceased) Jayakannan had been in a drunken state while driving the car had not been proved through documentary evidence.
19. Hence, the Tribunal on considering the oral and documentary evidence held that each of the second and fourth respondents, being the insurers of the first and third respondents vehicles are liable to pay half of the compensation assessed by them.
20. P.W.3, the first petitioner had adduced evidence that at the time of accident, his son was aged 30 years and that he was working as a driver at "Akil Electronics", Tirunelveli and earning Rs.2,500/- per month. On scrutiny of Ex.P7, it is seen that the deceased was aged 27 years at the time of accident. On scrutiny of Ex.P5 and Ex.P6, it is seen that the (deceased) had a valid driving licence. P.W.5, Thiru.M.Durairaj, the Proprietor of "Akil Electronics" ha adduced evidence that the deceased was working in his firm as a driver and earning Rs.2,500/- per month and a daily batta of Rs.10/- was paid to him. He deposed that the deceased had been working under him for three years and in spite of his evidence, he had marked Ex.P10, salary certificate. Hence, the Tribunal held that the notional income of the deceased could only be taken as Rs.2,000/- per month. The Tribunal, on adopting a multiplier of '18', as was relevant to the age of the petitioner (27 years), awarded a sum of Rs.2,88,000/- as compensation to the petitioners under the head of 'loss of income' (Rs.2,000/- x 2/3 x 12 x 18); Rs.7,000/- was awarded to each of the first, second and third petitioners under the head of 'loss of love and affection' and Rs.3,000/- was awarded for funeral expenses. In total, the Tribunal awarded a sum of Rs.3,12,000/- as compensation to the petitioners and directed each of the second and fourth respondents to pay a sum of Rs.1,56,000/- as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the petition till date of payment of compensation, with costs, within 30 days from the date of its order.
21. Aggrieved by the award passed by the Tribunal, the second respondent / National Insurance Company Limited, Tirunelveli has preferred the present appeal.
22. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that Jayakannan, the driver cum owner of tourist taxi tata sumo bearing registration No.TN59-F-8299 had no valid and effective driving licence to drive the motor vehicle at the time of accident and that he was only having licence to drive light motor vehicles at the time of accident. It was also contended that the finding of the Tribunal that the said Jayakannan had not used the vehicle as a tourist taxi is not correct since it had miserably failed to note that the said Jayakannan was driving the vehicle carrying 6 persons in it and was returning from Kutralam to Tirunelveli. It was also contended that the Tribunal failed to see that as per Ex.R1, driving licence, the said Jayakannan had a licence only to drive light motor vehicles. It was also contended that the Tribunal failed to see from the evidence of R.W.4 that the said Jayakannan was driving the vehicle after consuming alcohol and as such, the policy conditions of insurance had been violated. It was contended that the Tribunal ought to have held that the appellant is entitled to recover the award amount from the third respondent herein, after the satisfaction of the award by the appellant to the claimants and ought to have granted the relief of pay and recover in favour of the appellant against the third respondent herein, in the award itself, without recourse to separate proceedings. Hence, it was prayed to set-aside the award passed by the Tribunal.
23. The learned counsel for the claimants argued that the vehicle bearing registration No.TN59-F-8299 was insured with the appellant Insurance Company and that the lorry had also been insured with the sixth respondent herein. In the said accident, two vehicles were involved and both the drivers of the vehicles had driven the vehicles in a reckless manner and therefore, the liability has been fixed equally on the part of the insurers of the vehicles. He further submits the claimants that the deceased was aged 27 years and was working as a driver in a private concern and that the claimants were depending upon the income of the deceased. The Tribunal had not granted adequate compensation.
24. On verifying 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 regarding negligence, liability and quantum of compensation. As per the evidence of R.W.2, the driver of the tata sumo car was not possessing a valid driving licence. However, it is seen that the car was insured with the appellant herein. Hence, this Court directs the appellant to pay his apportioned share of compensation amount as ordered by the Tribunal and recover it subsequently from the owner of the vehicle in the same proceedings.
25. As per records, it is seen that this Court had directed the appellant herein to deposit the apportioned share of the award amount. Now, it is open to the claimants to withdraw their apportioned share amount, with accrued interest thereon lying in the credit of M.C.O.P.No.875 of 2000, on the file of the Additional District Court / Fast Track Court-II, Tirunelveli, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals, made by the claimants, as per this Court's earlier order.
26. In the result, the above appeal is dismissed with the above observations. Consequently, the order passed in M.C.O.P.No.875 of 2000, on the file of the Additional District Court / Fast Track Court-II, Tirunelveli, dated 31.07.2004 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed.
r n s To The Additional District Court, Fast Track Court-II, Tirunelveli