Madras High Court
Thangammal vs Gopalakrishnan on 25 March, 2015
Bench: V.Dhanapalan, G.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 25.03.2015.
CORAM
THE HON'BLE MR.JUSTICE V.DHANAPALAN
AND
THE HON'BLE MR.JUSTICE G.CHOCKALINGAM
C.M.A.No.1269 of 2007
1. Thangammal
2. Minor Lavanya @ Lalitha
3. Minor Prabhakaran
4. Mariyayi Ammal .. Appellants
[Minor appellants 2 and 3 are represented by next friend and their mother Thangammal, the first appellant herein]
vs.
1. Gopalakrishnan
2. Mani
3. The National Insurance Company
Erode.
4. Mahalingam
5. The National Insurance Company,
Karur. .. Respondents
Civil Miscellaneous Appeal against the order dated 19.07.2001 in M.C.O.P.No.792 of 1998 on the file of the II Additional District Judge, Erode.
For appellants : Mr.V.Raghavachari
For R3 & R5 : Mr.J.Chandran
For R4 : No appearance.
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Date of reserving the judgment :- 12.01.2015
Date of Pronouncement :- 25.03.2015
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JUDGMENT
G.CHOCKALINGAM, J., Seeking enhancement of compensation that has been awarded by the learned II Additional District Judge, Erode in M.C.O.P.No.792 of 1998, wife, minor daughter, minor son and mother of the deceased Rajendran have come up with the present appeal.
2. According to the claimants, the deceased Rajendran was a vegetable merchant cum contractor and on 7.5.1997, at about 3.30 hours, he was travelling along with the goods, he procured for his business, in the Van bearing Registration No.TN 47 C 5955 which belonged to him, insured with the fifth respondent and driven by the fourth respondent and when the driver of the Van attempted to overtake a Lorry bearing Registration No.TA E 8600 belonging to the first respondent, insured with the third respondent and driven by the second respondent swerved the vehicle and thereby the deceased who was sitting in the cabin was crushed to death. According to the claimants, the accident occurred due to the rash and negligent driving of the second respondent. The claimants contend that the deceased was earning a sum of Rs.10,000/- per month and claimed a total compensation of Rs.24,00,000/=.
3. The claim was resisted by the third respondent-Insurance Company by contending that only the fourth respondent was responsible for the accident and the claim is also exorbitant.
4. The fifth respondent-Insurance Company also contested the claim by contending that no additional premium was paid and therefore, the legal heirs of the deceased are not entitled to claim any amount from the fifth respondent-Insurance Company and the claim is also exorbitant.
5. On the side of the claimants, three witnesses were examined as P.Ws.1 to 3 and 20 documents were marked as Exs.A.1 to A.20 and on the side of the respondents, one witness was examined as R.W.1 and five documents were marked as Exs.B.1 to B.5.
6. On analysing the oral and documentary evidence, the Court below found that the accident had occurred only due to the rash and negligent driving of the fourth respondent, but, there was no contract of insurer and insured with the fifth respondent. But, however fixed the compensation of Rs.50,000/= under section 140 of the Motor Vehicles Act payable by respondents 4 and 5. Aggrieved over the same, the present appeal has been filed by the claimants.
7. The learned counsel for the appellants / claimants would contend that the accident had occurred on account of rash and negligent driving of the Lorry, which came to the right side of the road resulting in the collision from behind. But, the Tribunal erroneously come to a conclusion that the driver of the Van alone was responsible for the accident and fixed the liability on the driver of the Van. The learned counsel further contended that since the deceased is the owner of the Van as also the owner of the goods and the insurance policies are also covered, for the above said liability, the Tribunal ought to have held that the fifth respondent-Insurance Company is also liable for the accident. Since there is negligence on the part of the driver of the Lorry as well as the driver of the Van, the liability has to be fixed on both the driver of the Lorry and the driver of the Van and the Tribunal ought to have granted compensation to the claimants, but the Tribunal erred in giving compensation only for the no fault liability alone. The learned counsel for the appellants / claimants further contended that the Tribunal has failed to consider that the judgment of the criminal Court in a criminal case would not bind the civil Court proceedings in claiming damages. Further, the Tribunal ought to have granted compensation considering the age and income of the deceased, but it failed to appreciate the documents filed to prove the income and age of the deceased. The learned counsel for the appellants further contended that the Tribunal ought to have granted sufficient compensation to the legal heirs of the deceased on the basis of their income. Under the said circumstances, the learned counsel prayed that the judgment and decree passed by the Tribunal has to be enhanced according to law.
8. Per contra, the learned counsel for the third respondent- Insurance Company would contend that the Tribunal, after considering the evidence both oral and documentary, has come to a correct conclusion that the accident had occurred due to the rash and negligent driving of the driver of the Van, in which the deceased travelled as the owner of the goods. Hence, the third respondent-Insurance Company is not liable to pay any compensation to the appellants / claimants. The learned counsel for the third respondent- Insurance Company would further contended that there is no negligence on the part of the driver of the Lorry and therefore, the third respondent-Insurance Company is not liable to pay any amount to the claimants. Hence, the learned counsel for the third respondent-Insurance Company prayed that the judgment of the Tribunal has to be confirmed and the appeal has to be dismissed.
9. We have given careful consideration to the submissions made by the learned counsel on either side and perused the materials available on record.
10. After hearing the elaborate arguments made on either side, the followings points arise for consideration in this appeal:-
1. Whether the accident had occurred due to the rash and negligent driving of the Van driver or Lorry driver or both?
2. Whether the Tribunal has correctly awarded the compensation or not?; and
3. What other reliefs that the claimants are entitled to?
11. In this case, it is an admitted fact that the deceased Rajendran is the owner of the vehicle viz., Van bearing Registration No.TN-47-C-5955 and the said Van was insured with the fifth respondent-Insurance company and at the time of accident, he was travelling in the said Van as owner of the goods. It is also an admitted fact that the appellants are the legal heirs of the deceased. It is admitted by both sides that the Lorry belongs to the first respondent which was driven by R.2 was insured with the third respondent-Insurance Company. In this case, the brother of the deceased, who was accompanied with the deceased at the time of accident, was examined as P.W.2. In the chief-examination, P.W.2 has deposed as follows:-
"ehd; rhiy tpgj;jpy; ,we;J nghd uhn$e;jpudpd; jk;gp/ vd; mz;zhUf;F brhe;jkhd yhhp o/vz;/47 rp/5559 I rpd;djhuhg[uj;jpy; ,Ue;J <nuhl;ow;F oiuth; kfhyp';fk; Xl;o te;jhh;/ ehd; eLtpy; cl;fhe;jpUe;njd;/ vd; rnfhjuh; ,lJ Xukhf cl;fhe;jpUe;jhh;/ yhhpapy; fha;fwp K:l;il ruf;Ffs; ,Ue;jd/ bkhlf;Fwpr;rpapy; ,Ue;J 5 tJ iky; mUnf tUk;nghJ oiuth; tz;oia Xl;o te;jhh;/ v';fSf;F Kd;g[ fUk;g[ yhhp xd;W ngha; bfhz;oUe;jJ/ ,ut[ 3/00 kzpahf ,Ue;jjhy; yhhpia Xth; nlf; bra;a oiuth; ok;iyl; bra;jhh;/ Muid moj;jhh;/ Kd;dhy; brd;w yhhp Kd;nd bry;y tHpbfhLj;jJ/ v';fs; oiuth; ntfj;ij mjpfhpj;J tyJgf;fk; vLj;J brd;whh;/ Kd;dhy; brd;w yhhp jpObud tyJ gf;fk; te;jJ/ mjdhy; Kd;dhy brd;w yhhpapd; gpd;gFjp eh';fs; brd;w thfdj;jpd; Kd; ,lJgf;fk; nkhjpaJ/ mjdhy; vd; mz;zd; btspna vLf;f Koahky; rpf;fpf;bfhz;lhh;/ rnfhjuUf;F fhy; kw;Wk; fhypy; gyj;j mogl;lJ/ tpgj;Jf;F Kd;dhy; brd;w yhhpfhuh; jhd; fhuzk;/ v';fs; oiuth; ftdkhf jhd; Xl;odhh;/ mtUf;F chpkk; cs;sJ/ mth; 10 tUlkhf vd;dplk; ntiy ghh;f;fpwhh;/ me;jf;fhy fl;lj;jpy; mth; ve;jtpjkhd tpgj;ija[k; Vw;gLj;jtpy;iy/ vd; mz;zid <nuhL muR kUj;Jtkidf;F bfhz;L te;J nrh;j;njhk;/ 6/00 kzpf;F vd; rnfhjuh; ,we;J tpl;lhh;/"
12. To contra the evidence of P.W.2, nobody was examined on the side of the respondents-Insurance Company. The driver of the Lorry or the driver of the Van were not examined on the side of the respondents-Insurance company. Hence, there is no reason to disbelieve the evidence of P.W.2, who travelled in the Van at the time of accident. Since the driver of the van admitted the offence and paid the fine amount, the criminal Court levied fine amount on the driver of the van. The above judgment of the criminal Court is not at all binding on the civil proceedings. In this case, eye-witness-P.W.2, who travelled in the Van, specifically spoken about the manner of the accident that at the time of accident, after giving all precautions only, the driver of the Van overtook the lorry. But, unexpectedly the driver of the Lorry swerved the lorry without giving any signal. Then only, the accident had occurred on the date of occurrence. Even in the petition itself, it is stated that the respondents 1 to 3 are added as respondents to avoid the technical objection. But in the same petition, it was specifically stated that due to the rash and negligent driving of the Lorry by its driver, the accident had happened. As there is no evidence to contra the evidence of P.Ws.1 and 2, we are of the considered view that both the driver of the Van viz., R.4 and also the driver of the Lorry viz., R.2 are equally liable for the accident. Hence, both the Insurance Company of the Van and also the Insurance Company of the Lorry are equally liable to pay compensation to the legal heirs of the deceased.
13. Further, in this case, P.W.2 has specifically deposed in his chief examination that during the time of accident, he and his brother viz., the deceased Rajendran were travelling in the Van to transport the vegetables to Erode. He has further deposed that he and his brother were vegetable Merchants. So the Tribunal is erred in coming to the conclusion that no goods were transported by the deceased during the time of accident and there is no reason to disbelieve the evidence of P.W.2. Hence, we are of the considered view that the deceased was travelled in the Van as owner of the goods during the time of accident.
14. It is admitted by both sides that the Van was insured with the fifth respondent-Insurance Company. Exs.A.3 and A.15 are the life insurance policies. On the side of the respondents, the proposal for policy is marked as Ex.B.1. Exs.A.15 and B.2 are same insurance policies. From the policies produced on the side of the appellants and the respondents, it is seen that Rs.1,245/- was paid as basic premium, Rs.50/- was paid as legal liability to passenger/NFPP, Rs.105/- was paid for employees, Rs.75/- was paid for third party property damage. Therefore, totally a sum of Rs.1,475/- was paid by the deceased Rajendran to the fifth respondent-Insurance Company. Hence, it is very clear from Exs.B.2 and A.15 that the fifth respondent-Insurance Company is liable to pay compensation amount to the NFPP in this case. The Lorry was insured with the third respondent-Insurance Company. Therefore, the respondents 3 and 5 are equally liable to pay the damages to the dependents of the deceased.
15. The Post-mortem certificate is marked as Ex.A.2, in which, the age of the deceased is marked as 40 years. There is no contra evidence to discard the same and the age of the deceased is fixed as 40 years at the time of accident. In this case, on the side of the appellants/claimants, they have produced the Income Tax Accounts for the year 1993-1994, which reads as follows:-
Trading Account for the year of 1993-1994 Income Account Agriculture Income A/c 52,800.00 House Rent Receipts A/c 6,000.00 Sale of Vegetables A/c 87,897.00 Van Hire Receipts A/c 89,820.00 Expenses Account Agriculture Expenses A/c 25,325.00 Bank Interest Paid A/c 6,137.00 Driver Salary & Bata Exp A/c 13,200.00 Fuel Consumption A/c 7,515.00 Loading & Unloading Expenses A/c 4,675.00 Miscellaneous Expenses A/c 2,177.00 Purchase of Vegetables A/c 47,510.00 Shop Rent Paid A/c 3,600.00 Shop Rent (Market) 5,315.00 Telephone Charges A/c 3,115.00 Traveling Expenses A/c 1,220.00 Van Maintenance A/c 9,270.00 Wages (Agriculture) A/c 5,950.00 Wages (Vegetables) A/c 7,200.00 Total 1,42,209.00 2,36,517.00 Net Profit 94,308.00
16. In this case, agricultural income and house rent income are continuously received by the appellants even after the death of the deceased. Hence, we are of the considered view that it would be appropriate to fix the income of the deceased at Rs.6,000/- per month. As per the principles of law laid down by the Honble Apex Court reported in (2009) 6 SCC 121 [Sarla Verma and others Vs. Delhi Transport Corporation and another], after deducting 1/3 amount towards personal expenses of the deceased, loss of contribution to the family is calculated at Rs.4,000/- per month. Total loss of dependency is calculated at (Rs.4,000/- x 12 = Rs.48,000/-) Rs.48,000/-. The age of the deceased is fixed as 40 years and as per the settled principles of law laid down in Sarla Verma case, the correct multiplier to be adopted is fixed as 15. In this case, the appellants have not claimed any amount towards loss of love and affection. Therefore, we are of the considered view that it would be appropriate to award a sum of Rs.30,000/- towards loss of consortium to the first petitioner / wife, who lost her husband and a sum of Rs.10,000/- each (Totally Rs.30,000/-) towards loss of love and affection to the appellants 2 to 4. Further, the Tribunal has not awarded any amount under the head of funeral funeral expenses. It would be appropriate to award a sum of Rs.5,000/- under the head of funeral expenses.
17. In the aforesaid circumstances of this case, we are of the considered view that respondent Nos.3 and 5 are equally liable to pay compensation to the appellants which is as follows:-
Sl.
No Heads Amount awarded by the Tribunal Amount awarded by this Court (1) Compensation Rs. 50,000.00
-(2)
Loss of Dependency
-
Rs. 7,20,000.00 (2) Loss of consortium to the 1st claimant / wife Rs. 30,000.00 (3) Loss of love & affection to claimants 2 to 4 Rs. 30,000.00 (6) Funeral Expenses Rs. 5,000.00 Total Rs. 50,000.00 Rs. 7,85,000.00
18. In the result, the Civil Miscellaneous Appeal is allowed in part and the compensation of Rs.50,000/- awarded by the Tribunal is enhanced to Rs.7,85,000.00. The enhanced compensation is payable with interest at 7.5% per annum. The enhanced compensation shall be apportioned amongst the claimants as per the ratio ordered by the Tribunal. No costs in this appeal.
19. Both the respondents 3 and 5/Insurance Company are directed to deposit the enhanced compensation amount equally along with accrued interest within a period of six weeks from the date of receipt of a copy of this judgment, after deducting the amount already deposited, if any. On such deposit, the claimants 1 and 4 are permitted to withdraw their share amount along with accrued interest. Since the claimants 2 and 3 are minors, their share shall be invested in any one of the nationalized banks till they attain majority and the first claimant / mother of the minor claimants is permitted to withdraw the accrued interest on the share of the minors once in three months from the bank directly for the maintenance of the minor claimants.
(V.D.P.,J.) (G.C.,J.) 25.03.2015.
Index: Yes Internet: Yes Jrl To
1.The National Insurance Company, Erode.
2.The National Insurance Company, Karur.
V.DHANAPALAN, J.
and G.CHOCKALINGAM, J.
Jrl P.D. JUDGMENT IN C.M.A.No.1269 of 2007 Delivered on 25.03.2015.