Madras High Court
The Branch Manager vs Paulchamy on 19 November, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19/11/2012 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1151 of 2007 The Branch Manager, The Oriental Insurance Co.Ltd., Post Box.No.3621, India Life Building, Trichy Road, Coimbatore - 641 018. .. Appellant Vs 1.Paulchamy 2.Natarajan, 3.Murugesan 4.Indirani 5.Gandhimthi 6.M/s.Rathinavel Subramanian Educational Trust, 242-P, Trichy Road, "Sulur", Coimbatore - 641 402. 7.N.Subbulakshmi .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award made in MCOP No.862 of 2003, dated 10.08.2006, on the file of the Motor Accidents Claims Tribunal, Additional District and Sessions Judge, (Fast Track Court), Dindigul. !For appellant ... Mr.K.Baskaran ^For respondents... Mr.P.Athimoola Pandian :JUDGMENT
The appellant/2nd respondent has preferred the present appeal in CMA No.1151 of 2007 against the award made in MCOP No.862 of 2003, dated 10.08.2006, on the file of the Motor Accidents Claims Tribunal, Additional District and Sessions Judge, (Fast Track Court), Dindigul.
2. The Short facts of the case are as follows:-
The petitioners, who are the legal heirs of the deceased Palanimalai, who died in a Motor Vehicle Accident, claimed compensation of a sum of Rs.2,00,000/- from the respondents 1 and 3 who are the owner's of the vehicles involved in the accident and from the respondents 2 and 4, who are the insurer of the offending vehicles. It was submitted that on 29.2.2000, at about 4.30p.m., when the deceased Palanimalai and other Co-workers were travelling in the 1st respondent's van bearing registration No. TN 01 H-8862 from RVS College to Sempatti, and when the Van was proceeding from North to South direction and nearing Ponmanthurai Kaluthai road intersection in the Dindigul - Trichy bye pass road, the driver of the 1st respondent drove his vehicle in a rash and negligent manner and at uncontrollable speed and tried to overtake another vehicle, which was going in front of the van. While so, another lorry bearing registration No.TDU 7787, came from the opposite direction. The driver of the 1st respondent could not control the speed of his vehicle and dashed against the above said Lorry. The (deceased) Palanimalai and other workers sustained fatal injuries and were taken to Govt. Head Quarters Hospital, Dindigul, where the (deceased) Palanimalai was admitted as inpatient. Inspite of best medical treatment given to him by the doctors, he died at hospital on 13.4.2000, due to the fatal injuries sustained by him. Hence, the petitioners, who are the legal heirs of the deceased have filed a claim for Rs.2 lakhs as against the respondents 1 to 4.
3. The 2nd respondent, in his counter has submitted that the vehicle insured with them has been registered as a goods Lorry and was permitted only to carry goods. As 14 passengers had travelled in the sand Lorry, the conditions laid down in the policy of insurance had been violated. The Age, income and occupation of the deceased was also not admitted. It was submitted that the accident was not caused by the driver of the 1st respondent. It was submitted that the claim was excessive. It was also submitted that the driver of the 1st respondent did not have a valid licence at the time of accident.
4. The Motor Accident Claims Tribunal cum Additional District and Sessions Judge (FTC), Dindigul, framed three issues for consideration namely;
1.Did the driver of the 1st respondent's vehicle have a valued licence or not?
2.Was the conditions laid in the policy violated and was the accident caused by the rash and negligent driving of driver of the 1st respondent? and
3.What is the quantum of compensation which the petitioners are entitled to get?
5. On the petitioners side, two witnesses were examined and six documents were marked as Ex.P1 to Ex.P6 namely Ex.P1, copy of the F.I.R dated 29.2.2000; Ex.P2, copy of Post mortem report of deceased Palanisamy dated 13.4.2000; Ex.P3, copy of Motor Vehicle Inspector's report dated 11.3.2000; Ex.P4, copy of Motor Vehicle Inspector's report dated 29.3.2000; Ex.P5, legal heir certificate and Ex.P6, copy of orders passed in MCOP.No.304 of 2002, on the file of the Sub- Court, Tiruppur. On the side of the 2nd respondent, one witness was examined and one document namely copy of Insurance policy of 1st respondent's vehicle was marked as Ex.R1.
6. PW2, had adduced evidence that on 29.02.2000, at about 3.30p.m. when he and Palanimalai and other workers at RVS estate were travelling from RVS College, in the 1st respondent's van bearing registration No. TN-01 H-8862, towards Sembatti and when the van was nearing the Ponmanthurai Junction on the Trichy Bye pass road, the 1st respondent's driver drove the van in a rash and negligent manner and high speed and tried to overtake a vehicle going ahead of it, without seeing the Lorry coming on the opposite side and hence dashed against the Lorry bearing registration No.TDU7787 and caused the accident. The learned Judge on scrutiny of evidence of PW2 and after perusal of motor vehicle inspector's report marked as P3 and P4 held that the accident had been caused by the rash and negligent driving of the 1st respondent's vehicle driver.
7.RW1 had adduced evidence that the 1st respondent's vehicle involved in the accident is a goods van and that the deceased Palanimalai who had travelled in the van was a gardener and not the load man in the said van. RW1 deposed that as 12 persons had travelled as gratuitous passengers in the said van, they had violated the conditions laid down in the policy of insurance and as such the 2nd respondent cannot be held liable to pay compensation.
8. It is seen from scrutiny of evidence of PW2, that a silk machine had been transported in the 1st respondent's vehicle from RVS College to Sembatti for the purpose of installing thesame at the estate house atSembatti. It is evident from the F.I.R that the deceased had gone in the van to load and unload the silk machine. The learned Judge observed that the deceased was a gardener, working under the 1st respondent and that on his instructions, he had travelled in the said van. As such, the learned Judge opined that he is to be treated as a representative of the 1st respondent and that he had travelled as a worker in order to assist the loading and unloading of the 1st respondent's silk machine. The learned Judge on observing that the Insurance coverage is extended to the workers of the 1st respondent and that as the 2nd respondent had also admitted that Insurance coverage is extended to one additional passenger, held that the 2nd respondent is liable to pay compensation to the petitioners. From the evidence of PW1, it is seen that the deceased was aged 50 years and that he was working as a gardener under the 1st respondent and earning Rs.3000/- per month. The learned Judge, on Scrutiny of oral and documentary evidence observed that the deceased age was 55 years and that his nominal income, as a gardener employed in the 1st respondent's college, could be taken as Rs.1500/- per month. Deducting 1/3rd for his personal expenses and adopting a multiplier of 11, the Tribunal assessed the loss of income to the petitioners as Rs.1,32,000 (1500x12x11x2/3). The tribunal further awarded a compensation of Rs.5,000/- towards funeral expenses and also awarded Rs.2,000/- for transport expenses incurred prior to death of deceased and awarded Rs.2,000/- for transport expenses incurred after the death of deceased. In total, the tribunal awarded a sum of Rs.1,41,000/- as compensation to the petitioners and apportioned of equally amongst the five petitioners and directed the 2nd respondent to pay the said sum together with interest at the rate of 7.5 % p.a from the date of filing the petition till date of deposit. The excess Court fee paid by the petitioners was to be refunded to them. The claim as against the 3rd and 4th respondents were dismissed. The 1st and 2nd respondents were also directed to pay costs of as Rs.6,769/- to the petitioners.
9. Aggrieved by the award passed by the tribunal, the 2nd respondent has preferred the present appeal. The learned counsel for the appellant has argued that the 6th respondent/1st respondent had violated the policy condition by permitting the passengers to be caused in a goods vehicle. It was pointed out that the claims tribunal failed to note that the deceased, who was a gardener cannot be termed as a load man, but he was admittedly a gratuitous passenger in the transport vehicle. It was pointed out that the premium has been paid for third party risk but no premium was paid for gratuitous passengers. It was contended that the Claims Tribunal erred in not placing reliance on the evidence of RW1 and Ex.R1 to hold that the appellant is not liable to pay compensation for passengers in the goods vehicle, more particularly when the vehicle is used contrary to the permit issued.
10. It was pointed out that the Claims Tribunal failed to note that, without any evidence and proof of age, the age of the deceased was fixed as 55 years. It was contended that the Claims Tribunal failed to note that the appellant cannot be made liable to pay compensation without additional premium being paid by the 6th respondent. It was pointed out that the Claims Tribunal failed to note that at any rate the exclusive vicarious liability of the 6th respondent, owner of the vehicle, cannot be allowed to escape and such liability cannot be fastened with the appellant herein in any manner. It was also pointed out that the Claims Tribunal failed to note that the respondents/Claimants did not examine any witness to prove the certified copy of the F.I.R. It was contended that the award was disproportionate and excessive.
11. The learned counsel for the claimant submitted that the deceased's age was 55 years and his monthly income was Rs.3,000/-, but the Tribunal had awarded Rs.1,41,000/- which is on the lower side. The claimants are 5 in numbers and as such the personal expenses of the deceased should have been taken as , instead of 1/3 of his income. The learned counsel further submitted that the appellant herein had not challenged the award granted in connected O.P. As such, the appellant cannot challenge the liability before this Court. The learned counsel further submitted that the premium has been remitted by the owner of the vehicle to the Insurance Company. As such, the Insurance Company is liable to pay compensation to the claimants.
12. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perused of the impugned award passed by the Tribunal, this Court does not find any discrepancy in the said order. Further, this Court directs the appellant to deposit the entire compensation amount with accrued interest thereon, on 09.10.2007. Subsequently, this Court permitted the claimants to withdraw 50% of the award amount. Now, this Court permits the claimants to withdraw the balance compensation amount, as apportioned by the Tribunal, lying in the credit of M.C.O.P.No.862 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Dindugal, after filing a memo, along with a copy of this order, subject to withdrawals made if any, as per this Court earlier order.
13. In the result, the above appeal is dismissed. Consequently, the award and decree passed in M.C.O.P.No.862 of 2003, on the file of Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Dindugal, dated 10.08.2006, is confirmed.
sms
1.The Motor Accidents Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Dindugal.
2.The Section Officer, VR Section, High Court, Madras.