Full Judgment
23. 04.2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.1139 of 2008 and C.M.A(MD) No.+1275 of 2008 and M.P.(MD).No.1 of 2008 The Branch Manager, National Insurance Company Limited, Guindy, Chennai - 32. .. Appellant in CMA.No.1139 of 2009 The Branch Manager, The Oriental Insurance Company Limited, Kovilpatti - 1. .. Appellant in CMA.No.1275 of 2008 vs 1.S.Williams 2.W.Anjali Ammal 3.M.Jothi .. Respondents in both C.M.A Nos.1139 of 2008 and 1275 o”
4. The Branch Manager, The Oriental Insurance Company Limited, Kovilpatti ..4th respondent in C.M.A.No.1139 o”
5. Muthuramalingam .. 5th respondent in C.M.A.No.1139 of 2009 and 4th respondent in C.M.A.No.1275 o”
6. The Branch Manager, National Insurance Company Limited, Guindy, Chennai - 32. .. 5th respondent in C.M.A.No.1275 of 2008 (4th respondent remained exparte before the lower Court) COMMON PRAYER Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the judgment and Decree dated 07.02.2008, passed in M.C.O.P.No.1 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court not I, Thoothukudi. !For Appellant .. Mr.K.Bhaskaran for CMA.No.1275 of 2008 Mr.C.R.Krishnamoorthy for CMA.No.1139 of 2009 ^For Respondent -- Mr.A.V.Arun for R1 and R2 in CMA.No.1275 of 2008 and 1139 of 2009 Mr.C.R.Krishnamoorthy for R5 for C.M.A.No.1275 of 2008 :JUDGMENT On 19.05.2003 at about 12.45 a.m., the driver John Felix had driven the Tata Sumo car bearing registration not TN-04M-4595, towards Thoothukdui, when the vehicle was nearing Keela Eral and at that point of time the vehicle bearing registration not TN-67Y-6377 had been driven by its driver in a rash and negligent manner and dashed against the Tata Sumo Car. The driver John Felix expired on the spot due to serious injuries, hence, the parents of the deceased claims a compensation against the owner of the two vehicles and the insurers i.e., a sum of Rs.6,00,000/-.
2. The 1st respondent viz., Jothi had filed a counter statement and refuted the claim petition. The respondent stated that he is the owner of the Tata Sumo car bearing registration not TN-04M-4595, the same has been insured with the 2nd respondent namely Oriental Insurance Company. The F.I.R has been registered against the vehicle driver who expired on the spot. The other vehicle is a van bearing registration not TN-67Y-6377 driven by its driver viz., Gurusamy who also expired on the spot. The respondent denied that the accident was caused by the driver in a rash and negligent manner. Further, the respondent denied the age, income and occupation of the deceased.
3. The 2nd respondent/Oriental Insurance Company filed a counter statement and resisted the claim petition. The respondent denied that the accident had been committed by the driver of the 1st respondent, further the Police had not proceeded with the Criminal case after registering the F.I.R, since both vehicle drivers had expired. Therefore, the 1st respondent driver is not only responsible for the whole accident. Further, as per vehicle permit 13 persons were allowed to travel instead of that 20 persons had travelled in the said car, therefore, the owner and driver had committed breach of conditions, hence, this respondent is not liable to pay compensation.
4. The 4th respondent/National Insurance Company had filed counter statement and denied the age, income and occupation of the deceased. The respondent denied that the 3rd respondent driver had committed the said accident in a rash and negligent manner and dashed against the Tata Sumo Car. The respondent further stated that the driver of the Tata Sumo Car carrying 25 passengers had caused the said accident. Therefore, the respondent is not liable to pay any compensation.
5. On considering the averments of all parties, the Tribunal had framed two issues: (1) Whether the accident caused by the 3rd respondent driver or both the drivers of the vehicles had jointly committed the said accident in a rash and negligent manner?; (2) Whether the claimants are entitled to receive compensation? On the side of the claimants, two witnesses were examined namely: PW.1- father of the deceased and PW.2-owner of the Tata Sumo Car bearing registration not TN-04H-4595 and seven documents were marked namely: Ex.P1-F.I.R; Ex.P2-Motor Vehicle Inspector's Report; Ex.P3-Post mortem report; Ex.P4-death certificate; Ex.P5-Legal heir certificate; Ex.P6-copy of the legal notice; Ex.P7-salary certificate. On the side of the respondents, two witnesses were examined and three documents were marked namely: (1) Policy copy pertaining to Mahindra Van bearing registration not TN-67Y-6377; (2) Investigation report; (3) Policy copy relating to Tata Sumo Car bearing registration not TN-04H-4595; (4) Another investigation report.
6. PW.1, had adduced evidence stating that his son John Felix had driven the 3rd respondent's Tata Sumo Car bearing registration not TN-04H-4595, on 19.05.2005, on the Madurai to Tuticorin Main Road, when at that time the 1st respondent's driver had driven the van bearing registration not TN-67Y-6377 in a rash and negligent manner and dashed against the Tata Sumo Car, as a result his son expired on the spot. PW.1, further stated that at the time of the accident his son aged about 25 years. PW.2, had adduced evidence stating that the deceased John Felix was a driver under him.
7. RW.1, had adduced evidence stating that he is an employee attached to the Oriental Insurance Company, he had adduced evidence stating that the 1st respondent's vehicle has been insured with his company. RW.2, had adduced evidence stating that the F.I.R had been registered against the 3rd respondent's driver. He further stated that the driver of the 3rd respondent was not possessing valid driving licence.
8. After considering the evidence of the witnesses, the Tribunal has concluded that the accident had been committed by the drivers of both vehicles in a rash and negligent manner and granted compensation a sum of Rs.4,68,896/- as compensation to the claimants with interest at the rate of 6% per annum payable by both the Insurance Companies on an equal basis. Against the said award and decree the Oriental Insurance company has filed an appeal in C.M.A.No.1275 of 2008 and the National Insurance Company filed in C.M.A.No.1139 of 2008. The learned counsel for the Oriental Insurance company submits that the learned Tribunal failed to consider the evidence of RW.1, which clearly reveals that the deceased had committed the said accident, as such he was tort feasor. Therefore, the Insurance Company is not liable to pay any compensation. In order to prove his compensation a F.I.R has been registered against the deceased John Felix. The learned counsel further submits that the quantum of compensation had not been assessed properly. As per the salary certificate, the deceased was drawing a salary of Rs.2,500/-, but the Tribunal had fixed the income of the deceased as Rs.4,000/-. Further the Tribunal had awarded compensation a sum of Rs.50,000/- which is on the higher side. The deceased was a bachelor as such 50% of the personal expenses of the deceased to be deducted, but the Tribunal had deducted 1/3rd.
9. The learned counsel for the National Insurance Company submits that PW.1 had adduced evidence stating that the 1st respondent driver had driven the van bearing registration not TN-67y-6377 had been driven by its driver in a rash and negligent manner and dashed against the Tata Sumo Car, as a result his son expired on the spot. Therefore, the Insurance Company is not liable to pay any compensation. The highly competent counsel further submitted that the claimant had claimed compensation against the owner and Oriental Insurance Company but the learned Tribunal had fashioned the liability equally. Actually, the appellant herein is only a formal party. As per the investigation report the Tata Sumo Car had carried 25 passengers, as such the deceased had lost his control and committed the said accident. The learned counsel further submits that the 50 liability fixed on the appellant on the basis of Motor vehicles Inspector's Report.
10. The highly competent counsel for the claimants contended that the accident took place in the middle of the road, the same was confirmed through Motor Vehicle Inspector's Report which reveals that both the vehicles front side had been damaged and the drivers of both vehicles had expired on the spot, therefore, the liability is fashioned on the Insurance Companies on an equal basis. The deceased age was 22 years and he was earning a sum of Rs.4,000/- per month including daily batta. The multiplier method to be adopted on the basis of the deceased's age or mother of the deceased's age, but the Tribunal assessed the compensation on the basis of the average of the parents of the deceased. The learned counsel further submits that the tribunal had not granted compensation under the head of transport. The award granted under the head of loss of earning and funeral expenses are on the lower side.
11. On verifying the facts and circumstances of the case and arguments advanced by the highly competent counsel on all sides and on perusing the impugned order of the Tribunal, this court does not find any shortcomings in the conclusion arrived at regarding negligence, liability and quantum of compensation. This Court's further view that as per records it is seen that the accident took place in the middle of the road and both the vehicle were damaged in the front side, as such there was a head on collusion. This Court's further view is that as per records it is seen that the deceased age is 22 years and he was on earning member as a driver who expired in the said accident. The parents of the deceased has lost their earning son, therefore the quantum of compensation is not on the higher side. As per this Court's records it is seen that this Court imposed a condition on the appellants to deposit the entire compensation amount with interest respectively of their shares.
12. Now, it is open to the claimants to withdraw their entire compensation amount, with accrued interest thereon, as per Tribunal findings lying in the credit of M.C.O.P.No.1 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court not I, Thoothukudi, after filing a memo, along with a copy of this order.
13. In the result, the above appeal in C.M.A.No.1275 of 2008, filed by the Oriental Insurance Company is dismissed. The Appeal in C.M.A.No.1139 of 2008, filed by the National Insurance Company are also dismissed. Consequently, the award and decree passed in M.C.O.P.No.1 of 2004, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court not I, Thoothukudi, dated 07.02.2008, is confirmed. Consequently, connected miscellaneous petition is closed. No costs. ub To 1.The Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court not I, Thoothukudi. 2.The Section Officer, VR Section, High Court, Madras.