Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
08. 03/2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.1376 of 2009 & M.P.(MD)No.1 o”
1. Dhanalkshmi 2.Minor Sangeetha D/o.Kandasamy, 14, Nalli Gounder Layout, Uthukuli Road, Pollachi, Coimbatore District. 3.S.Rajan 4.Saroja ... Appellants Vs. 1.S.Selvam 2.The Manager, United India Insurance Company Limited, P.B.No.2, Pollachi, Coimbatore District. ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the order of the Motor Accidents Claims Tribunal, Subordinate Court, Palani made in M.C.O.P.No.858 of 1996, dated 17.11.2003. !For Appellants ... Mr.T.Lenin Kumar ^For Respondents... No appearance - - - :JUDGMENT The appellants / petitioners have preferred the present appeal against the judgment and decree passed in M.C.O.P.No.858 of 1996, on the file of Motor Accidents Claims Tribunal, Subordinate Court, Palani.
2. The short facts of the case are as follows:- The petitioners, who are wife, minor child and parents of the deceased Kandaswamy have filed the claim in M.C.O.P.No.856 of 1996, claiming compensation of a sum of Rs.2,00,000/- from the respondents for the death of the said Kandaswamy in a motor vehicle accident. It was submitted that the deceased Kandaswamy was working as a cleaner of the first respondent's lorry bearing registration not TCI-91. On 16.02.1994, when the (deceased) Kandaswamy was travelling along with two others in the lorry after the lorry was loaded at Kerala, and when it was nearing Ottanchathiram Market Bye-pass road, the driver of the lorry, viz., Selvam stopped the lorry in front of South Indian Timber Department. The driver of the lorry instructed Kandaswamy to untie the tarpalin on the lorry. When the deceased Kandaswamy was in the act of removing the tarpalin placed on the top of the lorry, the said Selvam, in order to park the lorry near the entrance of the department, started the lorry without noticing that the (deceased) Kandaswamy was on the top of the lorry. As a result, the (deceased) Kandaswamy lost his balance and fell down. He sustained injuries all over his body and he was initially admitted at the Christian Hospital and subsequently took treatment at Pollachi Government Hospital. Thereafter, he was admitted at Coimbatore Headquarters Hospital and received treatment till 17.10.1994, but in spite of treatment, the (deceased) Kandaswamy succumbed to his injuries. Hence, the petitioners have filed the claim against the first and second respondent,s who are the owner and insurer of the lorry bearing registration not TCI-91.
3. The second respondent, in his counter has submitted that the accident had not occurred due to any negligence on the part of the first respondent's lorry driver and had occurred due to the negligence of the deceased. It was submitted that the petitioners should prove that the first respondent's lorry had been covered under a valid policy of insurance and that the driver of the lorry had a driving licence to drive the lorry through documentary evidence. It was submitted that the petitioners should prove that they are the legal-heirs of the deceased Kandaswamy and that they are dependants on the income of the deceased through documentary evidence. It was submitted that the claim was excessive.
4. The Motor Accidents Claims Tribunal had framed three issues for determination in the case, viz., (i) Was the accident caused by the negligence of the driver of the first respondent's lorry bearing registration not TCI-91? (ii) Whether the respondents are liable to pay compensation to the petitioners? and (iii) What is the quantum of compensation which the petitioner is entitled to get?" 5. On the petitioners side, two witnesses were examined and eighteen documents were marked as Exs.P1 to P18, viz, Ex.P1-copy of F.I.R., dated 16.02.1994, Ex.P2-letter dated 31.01.2003 sent by Christian Hospital, Ottanchathiram to the Police Station informing admission of (deceased) Kandaswamy at their hospital; Ex.P3-discharge summary issued at Christian Hospital, Ottanchathiram, Ex.P4-O.P.chit issued to (deceased) Kandaswamy at Pollachi Government Hospital, Ex.P5-certificate showing dated 15.02.1994, showing admission of (deceased) Kandaswamy at Pondicherry Government Hospital, Ex.P6-disability certificate issued at Pondicherry Government Hospital, Ex.P7- receipt showing payment of money of Chennai Lab, Ex.P8-blood test report issued at Pollachi blood test centre, Ex.P9-copy of permit of first respondent's lorry, Ex.P10-receipt showing payment of medical expenses incurred at Sakthi poly clinic, Pollachi dated 12.10.1994, Ex.P11-death certificate dated 12.10.1994, Ex.P12-birth certificate showing date of birth of second petitioner, Ex.P13-copy of insurance policy of first respondent's vehicle, Ex.P14-driving licence of driver of first respondent's lorry, Ex.P15-receipt showing payment made at Christian Hospital, Ottanchathiram, Ex.P16-copy of old and new family ration card in the income of the first petitioner, Ex.P17-letter sent by Civil Assistant Surgeon in Chennai to the Regional Rehabilitation Officer, at Coimbatore dated 19.04.1994, Ex.P18-receipts showing payment towards medical treatment at hospital. On the respondents side, two witnesses were examined and three documents were marked as Exs.R1, R2 and R3, viz., Ex.R1-copy of insurance policy, Ex.R2-letter sent by Motor Vehicle Inspector, Palani to Sub Court, showing that driving licence of the driver of the first respondent's vehicle had been renewed and that validity of licence extends from 30.03.1992 to 29.03.1995, Ex.R3-copy of insurance policy of the first respondent's lorry involved in the accident.
6. P.W.1, the wife of the deceased had adduced evidence which is corroborative of the statements made by her in the claim and in support of her evidence, she had marked Exs.P1 to P18. On scrutiny of Ex.P1, F.I.R., it is seen that a criminal case has been filed against the driver of the first respondent's lorry. It is seen that no witness had been examined on the part of the first respondent to show that the accident had not occurred due to any negligence on the part of his vehicle driver. The Tribunal on observing that the first respondent had been set ex-parte and on considering the oral and documentary evidence held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's lorry.
7. From the evidence of R.W.1 and R.W.2, i.e, Bhaskaran and Palaniappan of the second respondent's side, it is seen that the first respondent's lorry bearing registration not TCI-91 had been insured with the second respondent and that the policy is an 'Act' policy wherein compensation was payable only for the injuries sustained by the third parties or for the death of third parties in a motor vehicle accident and that it is not applicable for the driver or cleaner employed in the lorry. Further, it was submitted that no premium had been paid to extend coverage to cleaner or driver in the said lorry and as such, the petitioners are not entitled to get any compensation from the second respondent for the death of the said Kandasamy.
8. It was contended on the petitioners side that even if the rules and conditions laid down on the policy of insurance had been violated, the second respondent being the insurer of lorry should satisfy the award compensation granted by the Tribunal and then recover the same from the first respondent. The Tribunal, however, observed that the deceased Kandaswamy being the cleaner of the lorry can be considered only as an employee of the first respondent and cannot be termed as a 'third party'. The Tribunal, on scrutiny of Ex.R2, observed that the first respondent had not produced any documentary evidence to show that premium had been paid to extend coverage of insurance to the cleaner of his vehicle, i.e., the deceased Kandasamy. Hence, the Tribunal, on considering that the deceased Kandaswamy cannot be termed as a third party as he had been employed as a cleaner under the first respondent and on observing that no premium had been paid to extend insurance coverage to cover the risk of the deceased Kandaswamy held that the second respondent is not liable to pay any compensation and that only the first respondent is liable to pay compensation to the petitioners.
9. The Tribunal, on holding the notional income of the deceased as Rs.2,000/- per month and after deducting 1/3rd of his income for his personal expenses and adopting a multiplier of '17', as was relevant to his age (22 years) at the time of accident, awarded a compensation of a sum of Rs.2,72,000/- to the petitioners under the head of 'loss of income' (Rs.2000 x 2/3 x 12 x 17); Rs.2,000/- was awarded towards funeral expenses and Rs.5,000/- under the head of 'loss of love and affection'. In total, the Tribunal awarded a sum of Rs.2,79,000/- as compensation to the petitioners and directed the first respondent to deposit the said sum together with interest at the rate of 9% per annum from the date of filing the petition till date of deposit, with costs, within one month from the date of its order.
10. Not being satisfied with the order passed by the Tribunal, the petitioners have preferred the present appeal.
11. The learned counsel for the appellant has contended in his appeal that the findings of the Tribunal that the owner of the lorry is liable to pay the award amount, since the policy is an 'Act policy' is against the provisions of Workmen's Compensation Act, because as per Section 4 of the Workmen's Compensation Act, the Insurance Company is having statutory liability to pay compensation to the cleaner and driver for their fatal injury. It was contended that the Tribunal ought to have held that the accident took place during the course of employment and hence, the Insurance Company is liable to pay compensation under Section 4 of the Workmen's Compensation Act and hence, it was prayed to set-aside the order of the Court below. The highly competent counsel for the appellant has submitted that the second claimant was aged about nine months at the time of accident. All the claimants are depending upon the income of the deceased. Now, the aged parents of the deceased and young widow of the deceased and infant of the deceased are living without any support for their livelihood.
12. On verifying the facts and circumstances of the case and arguments advanced by the highly competent counsel for the appellant and on perusing the award of the Tribunal, this court is of the view that the income of the deceased fixed as Rs.2,000/- per month, who was the cleaner of the offending lorry, is on the lower side. Therefore, this Court fixed the income of the deceased as Rs.3,000/- per month and reassesses the compensation as follows:- Rs.4,08,000/- is awarded under the head of 'loss of income' (Rs.3,000 x 2/3 x 12 x 17); Rs.10,000/- is awarded under the head of 'loss of consortium to the first claimant; Rs.15,000/- is awarded under the head of 'loss of love and affection to the second claimant, who is the nine month old female child and Rs.5,000/- is awarded to each of the third and fourth claimants under the head of 'loss of love and affection; Rs.5,000/- is awarded towards funeral expenses and Rs.2,000/- is awarded under the head of transport expenses. In total, this Court awards Rs.4,50,000/- as compensation to the claimants. After deducting initial compensation of a sum of Rs.2,79,000/-, this Court awards Rs.1,71,000/- as additional compensation to the claimants. The amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation. The first claimant is apportioned a sum of Rs.31,000/- with interest, the second claimant, i.e., minor child of the deceased is apportioned a sum of Rs.90,000/- with interest and each of the third and fourth claimants are entitled to receive Rs.25,000/- with interest as mentioned by this Court. The final order has been passed after serving notice on the insurance company. As such, the order is not prejudiced to the United India Insurance Company. Therefore, this Court directs the second respondent / United India Insurance Company to deposit the entire compensation amount, with accrued interest thereon, within a period of four weeks from the date of receipt of a copy of this order. This Court further directs the second respondent / Insurance Company to pay the initial compensation also as per Tribunal order, a sum of Rs.2,79,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation.
13. After such a deposit being made, the first, third and fourth claimants are permitted to withdraw their apportioned share amount with accrued interest lying n the credit of M.C.O.P.No.858 of 1996, on the file of Motor Accidents Claims Tribunal, Subordinate Court, Palani, after filing a Memo, along with a copy of this order. This Court directs the learned Subordinate Judge, Motor Accidents Claims Tribunal, Palani, to deposit the apportioned share amount of the minor second claimant, with interest, in a nationalized bank, as fixed deposit, under a cumulative deposit scheme, till such time the minor attains the age of a major and hand over the fixed deposit certificate to the mother of the minor claimant. This direction of this court should be carried out, if it is found that the minor had still not attained the age of a major. If the minor had already attained the age of a major, she is allowed to withdraw her apportioned share amount.
14. In the result, the above appeal is partly allowed. Consequently, the order passed in M.C.O.P.No.858 of 1996, on the file of Motor Accidents Claims Tribunal, Subordinate Court, Palani, dated 17.11.2003 is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed. r n s To The Subordinate Court, Motor Accidents Claims Tribunal, Palani.