Madras High Court
Asirvatham And Ors. vs G. Chandrasekaran And Anr. on 28 July, 2006
Equivalent citations: 2007ACJ657
Author: Chitra Venkataraman
Bench: Chitra Venkataraman
JUDGMENT Chitra Venkataraman, J.
1. Civil Miscellaneous Appeal No. 1285 of 1998 has been preferred by the claimants and Civil Miscellaneous Appeal No. 1989 of 2000 has been preferred by the owner of the lorry.
2. The claimants are the parents, unmarried sisters and brothers of the deceased. It is stated that at the time of accident, the deceased was 21 years old and he was working as sugarcane cutter. Apart from that, when there was no employment in sugarcane factory, he was also working as a mason.
3. It is seen that the accident occurred on 13.12.1990. When the deceased by name Lazer was trying to cross the road, a lorry bearing registration No. TN 23-Z 2022 came in a rash and negligent manner and dashed against the said Lazer and he died. For the death of Lazer, the claimants made a petition claiming a sum of Rs. 1,45,000 as compensation.
4. Before the Tribunal, Sebastian, PW 2, was examined as an eyewitness. In his evidence, he deposed that while he was walking in Sholingar Road, the deceased was proceeding before him and a lorry, which came from the opposite side, dashed against the deceased Lazer and he died there itself. He has also stated that the deceased was working along with him for nearly four years.
5. The defence of the lorry owner is that the accident was not due to rash and negligent driving of the driver. However, from the evidence of PW 2, the eyewitness, the Tribunal has come to the conclusion that the lorry was driven in a rash and negligent manner. It is argued by the owner of the lorry that the vehicle was insured with the insurance company for the period from 11.7.1990 to 10.7.1991 and to prove the same, the policy was marked as Exh. D 4.
6. As regards the question of compensation, the Tribunal came to the conclusion that the driver of the vehicle has got the licence to drive the vehicle. However, the licence that he has possessed is for driving heavy passenger vehicle and not for driving heavy goods vehicle and hence, there is a breach of the terms of the insurance and as such, the insurance company was not liable to bear the compensation payable by the owner of the vehicle.
7. Before the Tribunal, the insurance company placed reliance on the decisions reported in E. Enjanadevi v. Arumugham 1983 ACJ 625 (Madras); Ambujam v. Hindustan Ideal Insurance Co. 1981 ACJ 175 (Madras); Rajinder Singh Jasbir Singh v. Urmil 1987 ACJ 35 (P&H) : 1992 ACJ 175 (Sic); M. Sammamma v. Syed Kaja Maunuddin ; Mariya-yee v. M. Basheer and Manohar Jamatmal Sindhi v. Ranguba ; for exonerating them from the liability. On a perusal of the decisions, the Tribunal came to the conclusion that the insurance company has to be exonerated considering the fact that the lorry driver had licence only for heavy passenger vehicle and not heavy goods vehicle.
8. As regards the quantum of compensation, it is submitted that the deceased Lazer was working as a sugarcane cutter and was earning a sum of Rs. 45 per day and when he was not employed therein, he was working as mason and was earning Rs. 47 per day. To prove the same, the father of the deceased was examined as PW 1. PW 2, the eyewitness and a coworker also stated that the deceased was working as a sugarcane cutter for the past four years along with him and was earning a sum of Rs. 45 per day. The evidence of PW 2 with reference to the earnings of Lazer was not controverted by the other side. However, in the absence of any other evidence to substantiate the claim, the Tribunal rejected the plea of the claimants that Lazer received a sum of Rs. 1,350 per month and came to the conclusion that the deceased would have earned a sum of Rs. 600 per month and after deducting a sum of Rs. 250 for his personal expenditure, arrived at a sum of Rs. 350 towards his monthly contribution to the family. The Tribunal adopted the multiplier 16 and arrived at the compensation for a sum of Rs. 67,200. Claimant Nos. 1 and 2 are parents, 3 and 4 are sisters and 5 and 6 are brothers of the deceased. Petitioner No. 6 was a minor and that the entire family was running based on the earnings of the deceased. Consequently, the Tribunal held that the claimants are entitled to a total compensation of Rs. 67,200.
9. Learned Counsel appearing for the claimants-appellants in C.M.A. No. 1285 of 1998 submitted that the amount awarded by the Tribunal at Rs. 350 per month towards contribution to his family, is very low. Even for non-earning member, the Act prescribes the minimum earning at Rs. 15,000 per year. He has also pointed out that as the deceased was working as a sugarcane cutter and mason, the contribution to his family may be fixed by adopting the multiplier of 16, the claimants deserved to be granted a total compensation of Rs. 1,45,000.
10. I find merit in the contention of the learned Counsel for claimants as in the case of non-earning member, the minimum for non-earning member prescribed is the sum of Rs. 15,000. While adopting the same, I find that the contention of the claimants has to be accepted. As regards the adoption of multiplier at 16, considering the fact that the deceased was aged about 21 years old and not married and taking into consideration the facts and circumstances of the case, the claimants are entitled to a compensation fixed at Rs. 1,000 p.m. after giving reduction of 1/3rd for his personal expenditure multiplied by 10.
11. Apart from this, the claimants are entitled for conventional charges under the heads of funeral expenses at Rs. 1,500, loss of love and affection at Rs. 10,000 and loss to estate at Rs. 2,000. Hence taking the sum of Rs. 1,20,000 towards the contribution to his family, to meet the ends of justice, the claimants are entitled to a total compensation of a sum of Rs. 1,33,500. It is made clear that in view of the Supreme Court decision in the case of Kaushnuma Begum v. New India Assurance Co. Ltd. , the interest payable on the amount awarded by the Tribunal at Rs. 67,200 shall be at 9 per cent and as far as the amount enhanced, the claimants are entitled to the interest at 71/2 per cent from the date of order of the Tribunal.
12. As regards the appeal filed by the owner of the lorry in C.M.A. No. 1989 of 2000 during the course of argument, learned Counsel appearing for the owner of the lorry submitted that the insurance company should not be exonerated from the claim as per the decision reported in the case of New India Assurance Co. Ltd. v. R. Jayalakshmi , wherein it has been held that the driver having a licence to drive a heavy passenger vehicle is entitled to be covered under the policy to drive heavy goods vehicle.
13. However, learned Counsel appearing for the insurance company submitted that driving of the heavy passenger vehicle by a person who does not possess a licence for the same would be a breach of Section 3 of Motor Vehicles Act and he has placed reliance on the Division Bench judgment of this Court in the case of Kumar v. National Insurance Co. Ltd. , wherein it has been held as follows:
(4) ...The driving licence which the driver is required to hold when the motor vehicle is used in a public place is the licence to drive the particular type of vehicle and not merely the licence to drive any other type of vehicle. The classification of vehicles in the Act is such that though the heavy passenger vehicle as also the heavy goods vehicle are transport vehicles, nevertheless they form distinct categories and the licence which a person intending to drive these vehicles is required to obtain a licence issued with reference to the particular class of vehicle. A licence issued which permits the driving of a heavy passenger vehicle is not a licence issued for the purpose of driving a heavy goods vehicle. Even though it may appear that a person, who knows how to operate the controls of a heavy motor vehicle and has been driving a heavy vehicle which carries passengers, would have the necessary skill to drive a heavy goods vehicle, the driving of the heavy goods vehicle by a person who does not possess a licence which enables him to drive that type of vehicle would be a breach of Section 3 of the Motor Vehicles Act....
14. In the light of the above decision of this court, I do not find any merit in the claim of the owner of the vehicle. Learned Counsel appearing for the owner of the lorry further prayed that there be a direction to the insurance company to make the payment. I do not find any merit in the plea of the appellant in C.M.A. No. 1989 of 2000. It may be seen as a fact that the insurance company has been exonerated as they were not liable to deposit any amount.
15. Learned Counsel for the appellant lorry owner in C.M.A. No. 1989 of 2000 made a reference to a decision of Sampath, J. reported in the case of New India Assurance Co. Ltd. v. R. Jayalakshmi and Govardhan, J. in the case of Maduraiveeran v. Subburaj . However, in the light of the decision of a Division Bench of this Court considering this issue itself, I do not find any merit in the submission of the learned Counsel for the appellant.
16. Consequently, the claimants' appeal is allowed in part to the modification as stated above and the appeal preferred by the owner of the lorry in C.M.A. No. 1989 of 2000 stands dismissed. However, there will be no order as to costs.