Madras High Court
M/S.National Insurance Company ... vs Murugammal on 10 August, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10/08/2012
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
C.M.A.(MD)No.2219 of 2004
AND
C.M.P.(MD)No.13150 of 2004
M/s.National Insurance Company Limited,
Tuticorin. ... Appellant
Vs.
1.Murugammal
2.Minor Esakkimuthu
represented through
mother and guardian and next friend
of first respondent - Murugammal
Both are residing at
Akka Naickenpatti,
Ottapidaram Taluk,
Thoothukudi District.
3.Thangadurai
4.S.Rajakaniammal ... Respondents
(Respondents 3 and 4 are
set exparte in the lower Court)
PRAYER
Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree dated 29.06.2001 made in
M.C.O.P.No.229 of 1998, on the file of Motor Accidents Claims Tribunal,
Principal District Judge, Tutocorin.
!For Appellant .. Mr.N.Murugesan
^For Respondents .. Mr.D.Selvanayagam for R-1 and R-2
:JUDGMENT
The appellant / third respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.229 of 1998, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Tutocorin.
2. The short facts of the case are as follows:-
The petitioners, who are the wife and minor son of the (deceased) Ganesan have filed the claim in M.C.O.P.No.229 of 1998, claiming compensation of a sum of Rs.8,56,000/- from the respondents for the death of the said Ganesan in a motor vehicle accident. It was submitted that on 30.09.1997, when the (deceased) Ganesan was travelling as a loadman in the first respondent's lorry bearing registration No.TN-69-5228, which was loaded with stones and at 2.00 hours, when the lorry was proceeding from Meelakarai to Pudukottai and when it was near Meenakshipatti, the driver of the lorry drove the lorry at a high speed and in a rash and negligent manner, due to which, the tipper was activated and the (deceased) Ganesan fell down from the lorry and sustained bleeding injuries from his nose. He was immediately taken to the Government Headquarters Hospital, Tuticorin, where he was declared dead. At the time of his death, the deceased was aged 37 years and was getting a monthly income of Rs.3,000/- by way of salary and batta. Hence, the petitioners have filed the claim against the first, second and third respondents, who are the driver, owner and insurer of the lorry bearing registration No.TN-69-5228.
3. The third respondent in his counter has denied the averments in the claim regarding age, income, occupation of the deceased as well as the manner of accident. It was submitted that one of the persons sleeping inside the driver cabin in the lorry, unknowingly operated the tipper level resulting in the rising of the tipper and as a result, the deceased sustained injuries and died. It was submitted that the first respondent did not have a valid licence to drive the lorry at the time of accident and that his driving licence expired on 17.07.1997. It was submitted that the first respondent had renewed his licence only on 01.10.1997, i.e., after the accident and hence, this respondent is not liable to pay compensation. It was submitted that the claim was excessive.
4. The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz.,
(i) Whether the accident was caused by the rash and negligent driving by the first respondent?
(ii) Whether the first respondent was not having valid and effective driving licence at the time of accident, so as to exonerate the third respondent from its liability? and
(iii) Whether the petitioners are entitled to get compensation? If so, who is liable to pay compensation?"
5. On the petitioners side, two witnesses were examined and five documents were marked as Exs.P1 to P5, viz., Ex.P1-copy of F.I.R. dated 30.09.1997, Ex.P2-copy of charge sheet dated 01.10.1997, ExP3-copy of Motor Vehicle Inspector's report dated 30.09.1997, Ex.P4, copy of postmortem report dated 01.10.1997 and Ex.P5-copy of judgment in C.C.No.384 of 1997 of Judicial Magistrate Court, Srivaikuntam. On the respondent's side, one witness was examined and one document was marked as Ex.R1, viz., letter from the Regional Transport Officer, Tuticorin to this Court dated 12.04.2001.
6. P.W.2, the eyewitness of the accident had adduced evidence that since the vehicle was driven at a high speed, the tipper lifted of its own accord and the (deceased) Ganesan was thrown out on the road. He had further deposed that the (deceased) was employed as a loadman in the tipper lorry. On scrutiny of Ex.P1, F.I.R., it is seen that the complaint regarding the accident had been given by P.W.2. On scrutiny of Ex.P5, criminal Court judgment, it is seen that the driver of the tipper lorry had admitted his guilt and paid the fine. Hence, the Tribunal, on scrutiny of the oral and documentary evidence held that the accident had been caused by the rash and negligent driving by the first respondent.
7. R.W.1, had adduced evidence that the driving licence had been issued by their office to the first respondent, viz., Thangadurai and that it was valid till 17.07.1997 as per Ex.R1. He deposed that the licence had been received only on 01.10.1997. The Tribunal, on scrutiny of Ex.R1, observed that no details had been mentioned to show that the driving licence of the driver of the lorry had expired on 17.07.1997. The Tribunal, relying on the citations referred in 2000 ACJ 1223, held that the Insurance Company cannot be exonerated from its liability.
8. P.W.1 had adduced evidence that her husband was aged 37 years and was earning a sum of Rs.3,000/- per month. The Tribunal on observing that no documentary evidence had been marked to prove the income of the deceased held that the notional income of the deceased at Rs.50/- per day. Deducting Rs.15/- for his personal expenses, the Tribunal held that the monthly income contributed per day by the deceased to his family was Rs.1,050/-. On adopting a multiplier of '18', as was relevant to the age of the deceased (i.e., 37 years) as per Ex.P4, postmortem certificate, the Tribunal awarded a sum of Rs.2,26,800/- as compensation to the petitioners under the head of 'loss of income' (Rs.1,050 x 12 x 18); Rs.5,000/- was granted to the second petitioner under the head of 'loss of love and affection'; Rs.5,000/- was granted to the first petitioner under the head of 'loss of consortium'. In total, the Tribunal granted a sum of Rs.2,36,800/- as compensation to the petitioners and directed the 1 to 3 respondents to jointly and severally deposit the said compensation 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 two months from the date of its order.
9. Aggrieved by the award passed by the Tribunal, the third respondent / National Insurance Company Limited, Tuticorin has preferred the present appeal.
10. The learned counsel for the appellant has contended in his appeal that the Tribunal in view of the Supreme Court judgment ought to have noticed that the term "and is not disqualified" cannot be treated as a separate clause and the condition denotes that the driver must hold a valid and current licence and during the period of 5 years duration, he should not suffer any disqualification as contemplated under Sections 16, 19 and 20 of the Motor Vehicles Act. It was contended that the Tribunal failed to note that in case of an expired licence, the question of disqualification does not arise. Hence, it was prayed to set-aside the award passed against the appellant.
11. The learned counsel for the claimant submits that the age of the deceased was 37 years and he was a loadman and earning Rs.3,000/- per month. The Tribunal had not granted adequate compensation under the head of 'loss of earning, loss of consortium and loss of love and affection. The Tribunal had fixed the income of the deceased as Rs.1,050/- per month, which is on the lower side.
12. On verifying the facts and circumstances of the case and on hearing the 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 said award regarding negligence, liability and quantum of compensation. This Court is of the further view that from the evidence of respondents, it is seen that the licence of the offending vehicle driver had expired on 17.07.1997. Therefore, the driver did not possess a valid driving licence at the time of accident. The learned counsel for the Insurance Company submitted that the entire compensation amount had already deposited. As such, the Insurance Company is at liberty to recover the said amount from the owner of the vehicle.
13. 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.229 of 1998, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Tutocorin, after filing a Memo, along with a copy of this order. If the second claimant had not attained the age of major, then the first claimant ,i.e, the mother of the minor is permitted to withdraw the said amount, on behalf of the minor.
14. In the result, the above appeal is dismissed with the above observations. Consequently, the order made in M.C.O.P.No.229 of 1998, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Tutocorin, dated 29.06.2001 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed.
r n s To The Principal District Judge, Motor Accidents Claims Tribunal, Tutocorin.