Madras High Court
The New India Assurance Company Limited vs Varadi Lakshmi Devi on 7 April, 2014
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.04.2014 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.1248 of 2014 and M.P.No.1 of 2014 The New India Assurance Company Limited, Railway Station Road, Tirupathur, Vellore District. ... Appellant vs. 1.Varadi Lakshmi Devi 2.Minor Bicharan 3.T.Rajesh ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree, dated 27.06.2013 made in M.C.O.P.No.101 of 2012 on the file of Motor Accidents Claims Tribunal (Sub Judge), Vaniyambadi, Vellore District. For Appellant : Mr.R.Neethe Perumal J U D G M E N T
In the accident, which occurred on 31.01.2012, involving a lorry, bearing Registration No.TN-30S-9940, insured with New India Assurance Company Limited, Tirupathur, Vellore Disitrict, a 28 year old man died. He was stated to be the owner of cows and buffaloes and travelled along with the same, from Kadappa to Kerala, when the accident occurred. As per the version of legal representatives, wife and minor son, when the vehicle was proceeding to Kerala, near Kannigapuram Aminur Rahman Plantic Company, the driver of the said lorry asked the deceased to keep the buffaloes, transported in the vehicle, in order, and during that process, the owner of the buffaloes fell down from the vehicle. The rear wheel of the lorry ran over him and he sustained grievous injuries. On the way to the Hospital, he died. A case in Crime No.117 of 2012 has been registered against the driver of the lorry, bearing Registration No.TN-30S-9940, insured with the appellant Insurance Company. Legal representatives claimed compensation of Rs.20,00,000/-.
2.The Insurance Company has disputed the manner of accident. According to them, the deceased travelled as a gratuitous passenger. He did not travel in the lorry, as the owner of the lorry with Buffaloes. He travelled in the lorry, as a Coolie. He further submitted that the transportation of live animals in the lorry is an offence under Section 8 of the Prevention of Cruelty to Animals Act, 1958. Without prejudice to the above, they disputed the age, income and the quantum of compensation, claimed under various heads.
3.Before the Claims Tribunal, wife of the deceased examined herself as PW1 and reiterated the manner of accident. PW2 is an eye witness. Ex.P.1-First Information Report, Ex.P.2-Post-mortem report, Ex.P.3-Registration Certificate of lorry, Ex.P.4-Insurance Policy, Ex.P.5-Motor Vehicle Inspector's Report, Ex.P.6-Income Certificate, Ex.P.7-Death Certificate and Ex.P.8-Legal Heirship Certificate have been marked. RW1 is the Developmental Officer of the Company. Ex.R.1 is the Investigation Report.
4.On evaluation of pleadings and evidence, the Claims Tribunal held that the driver of the lorry, bearing Registration No.TN-30S-9940, insured with the appellant, was negligent, in causing the accident. By fixing the monthly income of the deceased at Rs.4,500/- and after deducting 1/3 towards the personal and living expenses of the deceased and by applying '17' multiplier, applicable to the age of the deceased, the Claims Tribunal has computed the loss of contribution to the family as Rs.6,00,000/- (3,000/- x 12 x 17). In addition to the above, the Claims Tribunal has awarded Rs.10,000/- for loss of consortium to the wife. A sum of Rs.10,000/- for loss of love and affection and Rs.5,000/- for funeral expenses has been awarded. Altogether, the Claims Tribunal has awarded Rs.6,37,000/- as compensation, with interest @7.5%, from the date of claim, till the date of realisation and further granted permission to recover the said amount from the owner of the lorry.
5.Being aggrieved by the finding fixing negligence on the driver of the lorry, bearing Registration No.TN-30S-9940 on the ground inter alia that the victim was not authorised to travel in a commercial goods carriage vehicle and that the insurance did not cover the risk of gratuitous passenger, who travelled in the vehicle, the Insurance Company has filed this appeal. It is the further contention that the transportation of cows and buffaloes in the lorry amounts to violation of Section 8 of the Prevention of Cruelty to Animals Act, 1958. Quantum of compensation is also challenged.
6.Heard the learned counsel for the appellant and perused the material available on record.
7.PW1, wife of the deceased, has not been witnessed the accident. Nevertheless, the oral testimony of PW1 is duly supported by PW2, eye witness and corroborated by Ex.P.1-First Information Report.
8.Per contra, perusal of the award shows that there is nothing to indicate that the Insurance Company had taken any steps to summon the driver of the offending vehicle, insured with them. The oral testimony of the respondents/claimants, as regards the manner of the accident, remains unshattered. In the absence of concrete material, this Court is not inclined to reverse the finding of the Claims Tribunal, fixing negligence on the driver of the lorry.
9.As per Section Section 2(12) of the Motor Vehicles Act, 1988, 'Goods' means, goods includes livestock, and anything ( other than equipment ordinarily used with the vehicle ) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle. Therefore, the contention that cows and buffaloes cannot be transported in a goods carriage vehicle, cannot be accepted.
10.It could be visualised that when buffaloes were transported in a lorry and when there is over crowding and long journey, there would be some disturbance. Transportation of animals, in a goods carriage vehicle, is not totally prohibited. A person travelling along with animals, would not have travelled in the midst of animals. When the vehicle is on road, there is every possibility of person moving closer to the edge of the vehicle and due to sudden jolt, falling down from the same. It is the case of the respondents/claimants that the rear wheel ran over the hip. Unless and until, the vehicle was moving, at a great speed, there is no such possibility. Visualising the manner of the accident, as deposed by PW1, wife of the deceased and PW2, eye witness, this Court is not inclined to accept the said contentions of the appellant Insurance Company. Transportation of buffaloes in the lorry, though claimed to be an offence, under Section 8 of the Act, this Court is not inclined to accept the same, in the light of the definition to the word, 'Goods' in Motor Vehicles Act. Admittedly, the lorry, bearing Registration No.TN-30S-9940, insured with the appellant, was a commercial goods vehicle. The case of the respondents that the deceased travelled in the lorry along with cows and buffaloes, as the owner, has been proved, and in the light of Section 147(1)(b) of the Motor Vehicles Act, 1988, the legal representatives of the deceased are entitled to compensation.
11.It is well settled in motor accident claims cases that finding regarding negligence is arrived at by the Claims Tribunal on the principles of preponderance of probabilities. Strict proof of evidence is not required like that of a criminal case. It is also well settled that adjudication of claims before the Motor Accident Claims Tribunal is summary in nature. In the light of the above, when no concrete rebuttal evidence has been adduced by the Insurance Company, expect the testimony of RW1, this Court is not inclined to interfere with the finding fixing, negligence on the driver of the vehicle. Perversity is not apparent warranting interference. Hence, the finding regarding negligence is confirmed.
12.In the light of the above discussion, the contentions of the appellant Insurance Company that the deceased travelled as a gratuitous passenger and therefore, the respondents/claimants are not entitled to get compensation, cannot be countenanced. Hence, liability fastened on the Insurance Company is sustained.
13.On the quantum of compensation, the Claims Tribunal has fixed the monthly income of the deceased as Rs.4,500/- on the basis of the decision in Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd., reported in 2011 (2) TNMAC 190 SC, wherein when a sum of Rs.4,500/- had been claimed as monthly wages of the deceased, stated to be a coolie and the claims tribunal has taken Rs.3,000/- for the purpose of computing the loss of contribution to the family. However, when the matter was taken on appeal, the Supreme Court having regard to the wages of a labourer, during the relevant period (2004 - between Rs.100 to Rs.150/- per day) found fault with the tribunal for reducing the claim from Rs.4,500/- to Rs.3,000/- and determined the income at Rs.4,500/-.
14.Following the decision of the Supreme Court in Sarla Verma and Others Vs. Delhi Transport Corporation, reported in 2009 ACJ 1298, the Claims Tribunal has deducted 1/3 towards the personal and living expenses of the deceased. At the time of accident, the age of the deceased was 28 years. The Claims Tribunal has applied '17' multiplier and computed the loss of contribution as Rs.6,12,000/-. Quantum of compensation awarded under the said head, cannot be said to be grossly excessive, warranting interference.
15.In the light of the decision and discussion, finding of the Claims Tribunal fixing negligence on the driver of the lorry bearing Registration No.TN-30S-9940, insured with the appellant Insurance Company and the liability fastened to pay compensation to the legal representatives of the deceased and then to recover from the insured, are sustained. The Civil Miscellaneous Appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
Consequent to the dismissal of the appeal, the appellant-Insurance Company is directed to deposit the award amount, with proportionate accrued interest and costs, less the statutory deposit, to the credit of M.C.O.P.No.101 of 2012 on the file of Motor Accidents Claims Tribunal (Sub Judge), Vaniyambadi, Vellore District, within a period of six weeks from the date of receipt of a copy of this order, if not deposited earlier. On such deposit, the 1st respondent/claimant is permitted to withdraw the share in the award amount, as apportioned by the Claims Tibunal, by making necessary applications. The share of the minor/2nd respondent shall be deposited in any one of the Nationalised Banks in fixed deposit, under the reinvestment scheme, initially for a period of three years. The interest accruing on the share of the minor/2nd respondent shall be paid to the 1st respondent/mother of the minor once in three months, till he attains majority. The appellant Insurance Company has already been liberty to recover the compensation amount from the insured.
07.04.2014 Index :Yes/No Internet :Yes/No mps To The Motor Accidents Claims Tribunal (Sub Judge), Vaniyambadi, Vellore District.
S. MANIKUMAR, J, mps C.M.A.No.1248 of 2014 and M.P.No.1 of 2014 07.04.2014