Madras High Court
P. Marudhachalam vs K. Sridhar on 16 June, 2015
Author: N. Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.06.2015
CORAM
THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN
C.M.A. No. 2999 of 2010
&
M.P. No. 1 of 2015
1. P. Marudhachalam
2. M. Arunprakash
3. Arulpriya
4. M. Jayapriya ..Appellants
Vs.
1. K. Sridhar
2. G. Buvanesh
3. Bajaj Alliance General Insurance
Company Limited,
Pupils Park, III Floor,
Government Arts College Road,
Coimbatore 641 018. ..Respondents
Prayer: Civil Miscellaneous Appeal as against the judgment and decree dated 29.06.2010 passed in M.C.O.P. No. 104 of 2008 by the Motor Accidents Claims Tribunal (CJM) Coimbatore.
For Appellants :: Mr.P. Valliappan
For Respondents :: Mr.T. Murugamanickam for R1
Mr.S. Manohar for R3
J U D G M E N T
This Civil Miscellaneous Appeal has been preferred by the claimants aggrieved over the quantum of compensation awarded by the Tribunal to the tune of Rs. 3,49,000/- as well as fastening of liability on the driver and owner of the vehicle without ordering pay and recovery by the Tribunal in the claim petition filed by the appellants, for the death of one Muthulakshmi, aged about 50 years, alleged to be earning about 10,500/- per month by quarrying business and as lorry operator, in the accident, which occurred on 13.01.2007. In the claim petition, though the claimants stated that the deceased was earning a sum of Rs.10,500/- as monthly income, the Tribunal only took Rs.3000/- as monthly income and deducted one-third towards Personal Expenses and awarded a sum of Rs.3,12,000/- towards Loss of income, and together with other amounts, a sum of Rs.3,49,000/- was awarded as compensation.
2. Mr.Murugamanickam, learned counsel for the 1st respondent would submit that eventhough the 1st respondent gave the learner's licence to the counsel, who appeared for him before the Tribunal, he failed to mark the said document before the Trial Court. Therefore, he seeks leave of this Court to file a copy of the learner's licence by filing M.P. NO.1 of 2015 to receive the said document bearing TN 43/LL/6242 2006 dated 26.12.2006 issued by RTO Udagamandalam as additional evidence and mark as Ex-R5.
3. Heard the counsel, who are appearing for other parties, with regard to this aspect.
4. A perusal of the said document would reveal that it was issued by the appropriate authority and the name of the 1st respondent is reflected in the said document. The date of issuance of the licence is 26.6.2006 and it was valid for a period of 6 months, namely, on 25.07.2007, during which period the accident occurred. Therefore, the said document is necessary for determining the issue and under Order XLI Rule 27 CPC, this document is received as additional document and there can be no objection stating that it was not issued by the appropriate authority. Even otherwise, the document has been marked by consent and there cannot be any problem in receiving the document and look into the matter. Therefore, the said document is received and marked as Ex-R5 before this Court.
5. According to Mr.S. Valliappan, learned counsel for the appellants, the deceased was a contractor, earning a sum of Rs.10,500/- by quarry business and as lorry operator. Exs-P12 to P15 are the Income Tax Returns of the year 2004-2005, 2005-2006 and 2006-2007. However, the Tribunal fixed only Rs.3000/- as monthly income, which is applicable for a home maker. Hence, he seeks enhancement of compensation. He would further submit that the rider of the two-wheeler possessed only learner's driving licence and if at all, it would amount to violation of policy condition and therefore, pay and recovery should have been ordered.
6. Mr.S.Manohar, learned counsel for the 3rd respondent would submit that a two-wheeler rider, who is having only learner's licence should have been accompanied by an instructor while riding, as per Rule 3(b) of Central Motor Vehicle Rules, 1989 whereas in this case, the rider alone without being accompanied by an instructor was riding at the time of accident. Therefore, there is no liability on the part of the Insurance Company. Hence, the Tribunal rightly excluded the Insurance Company and he seeks confirmation of the said finding of the Tribunal. He would further submit that the amount awarded by the Tribunal is very fair and does not require any enhancement.
7. Mr. T. Murugamanickam, learned counsel for the 1st respondent- rider would submit that the 1st respondent was having learner's licence and possessing learner's driving licence is equivalent to possessing regular driving licence. The fastening of liability on the driver as well as the owner on the ground that the 1st respondent violated Rule 3(b) of Central Motor Vehicle Rules, 1989 is misplaced. He would submit that Rule 3(b) states that the learner should be accompanied by an Instructor, who is holding effective driving licence to drive the vehicle whereas an exception has been given in the provision stating that the rider should not carry any other person except the Instructor and by that, the Rule enables the licence holder to ride the vehicle alone. He would rely upon the judgment of a Division Bench of this Court rendered in M. Vetriselvan V High Court of Judicature at Madras represented by the Registrar reported in 2015 (1) LLN 168 to contend that the proper functioning of proviso is to except and deal with a case, which would otherwise fall within the general language of main enactment and its effect is confined to that case. Therefore, the proviso should be viewed as an exception to General Rule 3(b). Therefore, he seeks to fasten the liability on the Insurance Company to pay the compensation.
8. Heard the parties and perused the records.
9. As far as question of liability is concerned, much has been argued relying upon Rule 3(b) of Central Motor Vehicle Rules, 1989, which is extracted usefully as follows:
3. General:- The provisions of sub-section (1) of Section 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as -
a. ...
b. such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle: and
(c) ...
Provided that a person while receiving instructions or gaining experience in driving a motor cycle (with or without side-car attached) shall not carry any other person on the motor cycle except for the purpose and in the manner referred to in clause (b).
From the above, it is clear that the rider, who is holding learner's licence should be accompanied by an instructor holding effective driving licence to ride the vehicle and such instructor must sit inside the vehicle to control or stop the vehicle. To put it in other words, a person holding learner's licence cannot ride a vehicle without an instructor and that would be proper interpretation of the said Rule and there is no ambiguity or dispute with regard to the above interpretation.
10. The only dispute is with regard to the interpretation of the proviso to Rule 3(b) of Central Motor Vehicle Rules, 1989. According to Mr. T. Murugamanickam, the proviso is only an exception excepting the learner to ride the vehicle incidentally either without an instructor or any third party. Such interpretation is not sustainable. The proviso insists upon the instructor to be in the seat while learner rides the vehicle and prohibits any third party from riding along with the learner. No doubt, as rightly pointed out by Mr. Murugamanickam, the proviso can be made either to except or to qualify the Rule or provision, as held by the Honourable Supreme Court in M.S.M. Railway Company Limited V. Bezwada Municipality reported in AIR 1944 Privy Council 71; in Kedarnath Jute Manufacturing Company Limited V. Commercial Tax Officer, Calcutta and others reported in 1965 SCR (3) 626; Ishverlal Thakorelal Almaula V. Motibai Nagjibhai reported in 1966 1 SCR 367 and in S. Sundaram Pillai V. V.R. Pattabiraman reported in AIR 1985 SC 582, more particularly, in Kedarnath Jute Manufacturing Company Limited V. Commercial Tax Officer, Calcutta and others reported in 1965 3 SCR 626, wherein it has been held that, ...It is well-settled that the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso, would be within it....., but, whether the proviso allows an exception to be made or it qualifies the aforementioned Rule has to be seen by understanding the intention of the Legislature.
11. The intention of the Legislature namely, Motor Vehicles Act, is to see that the vehicles run properly so that accidents are prevented. Hence, a procedure has been contemplated as to how to get driving licence and learner's licence. There is difference between a Learner's Licence and a Regular Driving Licence.Only after proper testing, driving licence would be given whereas for learner's licence, there is no such requirement. Only to learn, the licence is given and an instructor is required to be always with the learner. Otherwise, the consequences will be dangerous as a learner may land in trouble by causing accidents endangering his life as well as others. Therefore, the said proviso should be strictly construed to qualify Rule 3(b), namely, to ride the vehicle only with an instructor and not otherwise. If any other interpretation is accepted, then it will go against the very intention of the Legislature. Further, even a perusal of the document marked before this Court as Ex-R5, at the instance of the 1st respondent, would reveal that there is prohibition for the learner to drive the vehicle without being accompanied by an instructor. Therefore, the contention of Mr.Murugamanickam, learned counsel for the 1st respondent cannot be accepted.
12. However, the Tribunal did not look into the matter in proper perspective and fastened the liability on the driver and the owner of the vehicle, namely, respondents 1 and 2 herein. Riding a vehicle without an instructor holding a learner's licence, would only amount to violation of policy condition. If there is violation of policy condition, it is well-settled that the Insurance Company should be directed to pay the amount and recover the same from the owner. Even if the Insurance Company is exonerated of the liability, pay and recovery direction is given only to see that third party victims are benefitted in time. In this case also, pay and recovery should have been ordered by the Tribunal. Since the same has not been ordered, this Court, for violation of policy condition, as noted in this case, directs that the amount, which is to be determined as compensation, has to be paid by the 3rd respondent Insurance Company and thereafter, recovered from the owner of the vehicle.
13. As far as quantum is concerned, the Tribunal took only a sum of Rs.3000/- as monthly income of the deceased. The said amount determined by the Tribunal is very low. Even in respect of an accident, which occurred in 1989, during a function organised by TISCO, at Jamshedpur, the Honourable Apex Court, fixed Rs.3000/- as monthly income for a home maker based on a report filed by Justice Chandrachud Commission appointed by the Honourable Apex Court to go into the said accident. Whereas in this case, the accident occurred on 13.01.2007 and almost 15 years have gone by and the value of money has gone down, the inflation rate and purchasing power have also increased. Therefore, determining monthly income at Rs.3000/- may not reflect the correct value. The Honourable Apex Court, in the judgment rendered in Syed Sadiq V. Divisional Manager, United India Insurance Co. Ltd reported in 2014 (1) TN MAC 459 (SC), took the monthly income of a vegetable vendor at Rs.6500/-, who got injured in an accident in the year 2008 and added 50% towards Future Prospects and determined the total monthly income at Rs.9750/-. Following the said judgment, this Court determines the monthly income of the deceased at Rs.6500/-. Since the deceased was aged about 50 years, 30% is required to be added towards Future Prospects. Therefore, total monthly income would be, Total Monthly Income :: Rs.6500 + 30% (Rs.6500/-) Rs.8450/-
Less:
One third deduction towards Personal Expenses :: Rs.8450/- () 1/3 (Rs.8450/-) Monthly Contribution of the deceased to her family :: Rs.5,633/-
As per the age of the deceased, the appropriate multiplier is 13. Applying the same, Loss of Income is calculated as follows:
Loss of Income :: Rs.5,633/- x 12 x 13 :: Rs.8,78,800/-
The Tribunal awarded only a sum of Rs.10,000/- towards Loss of Consortium to the 1st appellant. Following the judgment of the Honourable Apex Court in Rajesh and others V. Rajbir Singh and others reported in 2013 (3) CTC 883, a sum of Rs.1 lakh is awarded towards Loss of Consortium. Towards Loss of love and affection to appellants 2 to 4, only a sum of Rs.9000/- was awarded and therefore, this Court awards a sum of Rs.60,000/- totally to appellants 2 to 4 @ Rs.20,000/- each. The sum of Rs.4000/- awarded towards Transport Expenses and Funeral Expenses together is enhanced to Rs. 40,000/-. The sum of Rs.6000/- awarded towards Medical Expenses is confirmed. In all, a sum of Rs. 10,84,800/- rounded off to Rs. 11 lakhs is awarded as compensation together with interest @ 7.5% per annum.
14. The Insurance Company is directed to deposit the entire amount, as per the modified award passed by this Court, with interest and costs, before the Tribunal, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the appellants are permitted to withdraw their respective shares, as per the apportionment N. KIRUBAKARAN,J.
nv of the Tribunal, within a period of one week thereafter. The Insurance Company is at liberty to take steps to recover the amount deposited by them from the owner of the vehicle.
15. The Civil Miscellaneous Appeal is partly allowed enhancing the compensation from Rs.3,49,000/- to Rs. 10,84,800/- rounded off to Rs.11 lakhs together with interest @ 7.5% per annum. No costs. The appellants shall pay additional court-fee for the enhanced amount.
16.06.2015 nv To The MACT (CJM), Coimbatore.
C.M.A. No. 2999 of 2010