The New India Assurance Company Limited, Vs. 1.Rajammal - Court Judgment

SooperKanoon Citationsooperkanoon.com/1167729
CourtChennai High Court
Decided OnAug-30-2013
JudgeR.KARUPPIAH
AppellantThe New India Assurance Company Limited,
Respondent1.Rajammal
Excerpt:
before the madurai bench of madras high court dated:30. 08/2013 coram the honourable mr.justice r.karuppiah c.m.a.(md)no.1110 of 2013 and m.p.(md)no.3 of 2013 the new india assurance company limited, divisional office, no.66, w.b.road, tiruchirapalli - 620 008. .. appellant / 2nd respondent vs 1.rajammal 2.hema 3.minor anitha 4.vijayakumar .. respondents 1 to 4 / petitioners 1 to 4 5.r.saradha .. respondent no.5 / respondent no.1 *(r3 minor represented by r1) prayer this civil miscellaneous appeal is filed under section 173 of motor vehicles act, 1988, against the award and decree, dated 29.08.2012 made in m.c.o.p.no.215 of 2009 on the file of motor accidents claims tribunal (subordinate court) kulithalai. !for appellant ... mr.d.sivaraman ^for respondents ... mr.n.sudhagar nagaraj (r1 to r4) for respondent-5 ... no appearance :judgment this civil miscellaneous appeal is filed by the appellant insurance company, against the award and decree, dated 29.08.2012 made in m.c.o.p.no.215 of 2009 on the file of motor accidents claims tribunal (subordinate court) kulithalai.2. the respondents 1 to 4, who are claimants in the above said mcop, have filed a claim petition for compensation of rs.20,00,000/- for the death of one vijayan in the motor accident and in the claim petition it is stated that on 24.12.2008 at 12.45 p.m., the deceased was traveling in mahendra champion pickup van, bearing reg.no.tn-45-ab-3489 and the above said vehicle was driven by its driver from east to west in manaparai - dindigul main road near mullipadi branch road. at that time, the lorry bearing reg.no.tay-9297 was driven by its driver in a rash and negligent manner from west to east, dashed against the mahendra van. in the above said accident, the deceased was sustained grievous injuries and he died on the way to hospital. it is also averred in the petition that the accident was occurred only due to rash and negligent driving of the driver of the lorry and as against the above said driver of the lorry, criminal case in crime no.440 of 2008 has been registered by vaiyampatti police station. it is further stated that at the time of accident, the deceased was 20 years old and he was driver and earned rs.21,000/- per month. the claimants are mother, brother and sisters of the deceased claimed compensation from the owner and insurer of the vehicle viz., the first and second respondent in the above said o.p.3. the owner of the lorry i.e., the first respondent in the above said o.p. remained exparte.4. the appellant / 2nd respondent insurance company filed counter in which denied the manner of the accident alleged in the claim petition and stated that the driver of the vehicle viz., mahendra champion pick up light vehicle, have no driving licence at the time of accident and he drove the vehicle in a rash and negligent manner without knowing and violating the road traffic rules and dashed against the lorry and caused the above said accident and the driver of the offending vehicle was contributory negligence and therefore, the claim petition is bad for non-joinder of the above said driver and owner of the vehicle. it is further stated that at the time of accident, the lorry was driven by its driver without driving licence and it is violation of motor vehicles act and rules and also against the terms of insurance policy. further, no fitness certificate for the above said lorry at the time of accident and therefore, the appellant insurance company is not liable to pay compensation. it is further stated that the claimants should prove age, occupation, employment, monthly income of the deceased, etc., and also the quantum of compensation claimed under various heads are highly excessive.5. before the tribunal, on the side of the claimants examined 2 witnesses as p.ws.1 and 2 and marked 7 documents as exs.p1 to p3 and on the side of the appellant insurance company examined 3 witnesses as r.ws.1 to 3 and marked 4 documents as exs.r1 to r4.6. the tribunal has considered the above said oral and documentary evidence adduced on either side and finally held that the accident was occurred only due to rash and negligent driving of the driver of the lorry and further held that, since the above said lorry was inured with the appellant insurance company and the appellant insurance company failed to prove that at the time of accident the driver of the lorry is not having a valid driving licence by adducing satisfactory evidence, the appellant insurance company is liable to pay compensation on behalf of the owner of the lorry.7. with regard to quantum of compensation, the tribunal has taken the age of the mother of the deceased as 44, since the deceased was bachelor and taken the monthly income of the deceased as rs.4500/- and after deducting 1/3 towards personal and living expenses of the deceased, and adopted multiplier '14' and awarded a sum of rs.5,04,000/- for loss of income. the tribunal has also awarded rs.15,000/- for first clamant and rs.10,000/- for other claimants for love and affection; rs.5000/- for transportation and rs.5000/- for funeral expenses and totally awarded a sum of rs.5,59,000/- with 7.5% interest.8. aggrieved over the above said award and decree passed by the tribunal, the appellant / second respondent insurance company filed this civil miscellaneous appeal.9. with regard to negligence aspect, on the side of the claimants have examined p.ws.1 and 2 as eyewitness to the occurrence and also marked ex.p1 copy of fir; ex.p2 postmortem certificate; ex.p3 copy of charge sheet; ex.p4 m.v.report for lorry and ex.p5 m.v.report for mahendra van.10. a careful perusal of the above said oral and documentary evidence adduced on the side of the claimants clearly proved that the accident was occurred as stated in the claim petition. the owner of the vehicle remained exparte before the tribunal and on the side of the appellant / 2nd respondent insurance company has not examined any eyewitness to prove the negligence aspect and the witnesses examined by the appellant / insurance company only relating to driving licence of the driver of the lorry. therefore, the tribunal has correctly held that the accident was occurred only due to rash and negligent driving of the driver of the lorry.11. the main contention of the learned counsel appearing for the appellant is that the claimants have failed to prove that the driver of the lorry having valid driving licence at the time of accident. the first respondent / owner of the vehicle also remained exparte and the claimants not produced driving licence. in the above said circumstances, on the side of the insurance company has examined 3 witnesses as r.ws.1 to 3. r.w.3 insurance official filed investigation report. the learned counsel for the insurance company has pointed out that at the time of accident, the lorry driver has not having a valid driving licence, but the tribunal has wrongly held that the appellant insurance company has not discharged the burden of proof regarding the driving licence.12. the learned counsel appearing for the claimants admitted that driving licence has not been produced as document. in the above said circumstances, the appellant insurance company ought to have sent notice to the driver to produce driving licence or owner of the vehicle to produce driving licence then only the appellant insurance company discharged his burden. but, in the instant case, the appellant insurance company has not sent any notice to the owner of the vehicle or claimants to produce driving licence. anyhow, as submitted by the learned counsel appearing for the claimants, the insurance company is liable to pay entire award amount and recover the same from the owner of the vehicle, if proved that driver of the vehicle has not having a valid driving licence.13. the learned counsel for the insurance company submitted that the insurance company is taking steps to examine the motor vehicle inspector official to prove that the driver has no valid driving licence at the time of accident and therefore, they discharged their burden. but no reason has been assigned not summoning the driver or owner to produce the document. in the above said circumstances, the contention of the learned counsel for the appellant cannot be accepted. anyhow, the insurance company is directed to pay the amount and then recover the same by proving the above said contention.14. with regard to quantum of compensation, the learned counsel appearing for the appellant mainly submitted that the tribunal has deducted 1/3 for personal and living expenses of the deceased instead of 50%, since the deceased was a bachelor.15. the learned counsel appearing for the claimants submitted that the claimants are 4 in numbers and as per the decision of hon'ble apex court in sarla verma's case and also the latest decision of hon'ble apex court reported in 2013 (1) tn mac481(reshma kumari vs. madan mohan), the claimants are entitled to 1/3 deduction.16. in the instant case, admittedly, the mother of the deceased is widow and other claimants, who are brother and sisters also claimed compensation. in the above said circumstances, as per the settled principles of law laid down by the hon'ble apex court in the above said decisions, the claimants are entitled to 1/3 deduction and the tribunal has correctly deducted 1/3 towards personal and living expenses. on the side of the appellant, not seriously objected the award amount on other heads. further, the amount awarded on the others heads are reasonable and not exorbitant. therefore, the total quantum of compensation awarded by the tribunal is to be confirmed.17. in the result, the civil miscellaneous appeal is partly allowed and the award amount passed by the tribunal is confirmed and the appellant insurance company is directed to pay the entire compensation award amount to the claimants and then recover the same from the first respondent, as already observed. the claimants are permitted to withdraw their shares. no costs. consequently, connected miscellaneous petition is closed. mpk to the file of motor accidents claims tribunal (subordinate court) kulithalai.
Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

30. 08/2013 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH C.M.A.(MD)No.1110 of 2013 and M.P.(MD)No.3 of 2013 The New India Assurance Company Limited, Divisional Office, No.66, W.B.Road, Tiruchirapalli - 620 008. .. Appellant / 2nd Respondent Vs 1.Rajammal 2.Hema 3.Minor Anitha 4.Vijayakumar .. Respondents 1 to 4 / Petitioners 1 to 4 5.R.Saradha .. Respondent No.5 / Respondent No.1 *(R3 Minor Represented by R1) PRAYER This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Award and Decree, dated 29.08.2012 made in M.C.O.P.No.215 of 2009 on the file of Motor Accidents Claims Tribunal (Subordinate Court) Kulithalai. !For Appellant ... Mr.D.Sivaraman ^For Respondents ... Mr.N.Sudhagar Nagaraj (R1 to R4) For Respondent-5 ... No Appearance :JUDGMENT

This Civil Miscellaneous Appeal is filed by the appellant Insurance Company, against the Award and Decree, dated 29.08.2012 made in M.C.O.P.No.215 of 2009 on the file of Motor Accidents Claims Tribunal (Subordinate Court) Kulithalai.

2. The respondents 1 to 4, who are claimants in the above said MCOP, have filed a claim petition for compensation of Rs.20,00,000/- for the death of one Vijayan in the Motor Accident and in the claim petition it is stated that on 24.12.2008 at 12.45 p.m., the deceased was traveling in Mahendra Champion Pickup Van, bearing Reg.No.TN-45-AB-3489 and the above said vehicle was driven by its driver from east to west in Manaparai - Dindigul Main Road near Mullipadi Branch Road. At that time, the lorry bearing Reg.No.TAY-9297 was driven by its driver in a rash and negligent manner from west to east, dashed against the Mahendra Van. In the above said accident, the deceased was sustained grievous injuries and he died on the way to hospital. It is also averred in the petition that the accident was occurred only due to rash and negligent driving of the driver of the lorry and as against the above said driver of the lorry, criminal case in Crime No.440 of 2008 has been registered by Vaiyampatti Police Station. It is further stated that at the time of accident, the deceased was 20 years old and he was driver and earned Rs.21,000/- per month. The claimants are mother, brother and sisters of the deceased claimed compensation from the owner and insurer of the vehicle viz., the first and second respondent in the above said O.P.

3. The owner of the lorry i.e., the first respondent in the above said O.P. remained exparte.

4. The appellant / 2nd respondent Insurance Company filed counter in which denied the manner of the accident alleged in the claim petition and stated that the driver of the vehicle viz., Mahendra Champion Pick up Light vehicle, have no driving licence at the time of accident and he drove the vehicle in a rash and negligent manner without knowing and violating the road traffic rules and dashed against the lorry and caused the above said accident and the driver of the offending vehicle was contributory negligence and therefore, the claim petition is bad for non-joinder of the above said driver and owner of the vehicle. It is further stated that at the time of accident, the lorry was driven by its driver without driving licence and it is violation of Motor Vehicles Act and Rules and also against the terms of Insurance Policy. Further, no Fitness Certificate for the above said lorry at the time of accident and therefore, the appellant Insurance Company is not liable to pay compensation. It is further stated that the claimants should prove age, occupation, employment, monthly income of the deceased, etc., and also the quantum of compensation claimed under various heads are highly excessive.

5. Before the Tribunal, on the side of the claimants examined 2 witnesses as P.Ws.1 and 2 and marked 7 documents as Exs.P1 to P3 and on the side of the appellant Insurance Company examined 3 witnesses as R.Ws.1 to 3 and marked 4 documents as Exs.R1 to R4.

6. The Tribunal has considered the above said oral and documentary evidence adduced on either side and finally held that the accident was occurred only due to rash and negligent driving of the driver of the lorry and further held that, since the above said lorry was inured with the appellant Insurance Company and the appellant Insurance Company failed to prove that at the time of accident the driver of the lorry is not having a valid driving licence by adducing satisfactory evidence, the appellant Insurance Company is liable to pay compensation on behalf of the owner of the lorry.

7. With regard to quantum of compensation, the Tribunal has taken the age of the mother of the deceased as 44, since the deceased was bachelor and taken the monthly income of the deceased as Rs.4500/- and after deducting 1/3 towards personal and living expenses of the deceased, and adopted multiplier '14' and awarded a sum of Rs.5,04,000/- for loss of income. The Tribunal has also awarded Rs.15,000/- for first clamant and Rs.10,000/- for other claimants for love and affection; Rs.5000/- for transportation and Rs.5000/- for funeral expenses and totally awarded a sum of Rs.5,59,000/- with 7.5% interest.

8. Aggrieved over the above said award and decree passed by the Tribunal, the appellant / second respondent Insurance Company filed this Civil Miscellaneous Appeal.

9. With regard to negligence aspect, on the side of the claimants have examined P.Ws.1 and 2 as eyewitness to the occurrence and also marked Ex.P1 copy of FIR; Ex.P2 Postmortem Certificate; Ex.P3 copy of Charge sheet; Ex.P4 M.V.Report for lorry and Ex.P5 M.V.Report for Mahendra Van.

10. A careful perusal of the above said oral and documentary evidence adduced on the side of the claimants clearly proved that the accident was occurred as stated in the claim petition. The owner of the vehicle remained exparte before the Tribunal and on the side of the appellant / 2nd respondent Insurance Company has not examined any eyewitness to prove the negligence aspect and the witnesses examined by the appellant / Insurance Company only relating to driving licence of the driver of the lorry. Therefore, the Tribunal has correctly held that the accident was occurred only due to rash and negligent driving of the driver of the lorry.

11. The main contention of the learned counsel appearing for the appellant is that the claimants have failed to prove that the driver of the lorry having valid driving licence at the time of accident. The first respondent / owner of the vehicle also remained exparte and the claimants not produced driving licence. In the above said circumstances, on the side of the Insurance Company has examined 3 witnesses as R.Ws.1 to 3. R.W.3 Insurance Official filed investigation report. The learned counsel for the Insurance Company has pointed out that at the time of accident, the lorry driver has not having a valid driving licence, but the Tribunal has wrongly held that the appellant Insurance Company has not discharged the burden of proof regarding the driving licence.

12. The learned counsel appearing for the claimants admitted that driving licence has not been produced as document. In the above said circumstances, the appellant Insurance Company ought to have sent notice to the driver to produce driving licence or owner of the vehicle to produce driving licence then only the appellant Insurance Company discharged his burden. But, in the instant case, the appellant Insurance Company has not sent any notice to the owner of the vehicle or claimants to produce driving licence. Anyhow, as submitted by the learned counsel appearing for the claimants, the Insurance Company is liable to pay entire Award amount and recover the same from the owner of the vehicle, if proved that driver of the vehicle has not having a valid driving licence.

13. The learned counsel for the Insurance Company submitted that the Insurance Company is taking steps to examine the motor vehicle Inspector official to prove that the driver has no valid driving licence at the time of accident and therefore, they discharged their burden. But no reason has been assigned not summoning the driver or owner to produce the document. In the above said circumstances, the contention of the learned counsel for the appellant cannot be accepted. Anyhow, the Insurance Company is directed to pay the amount and then recover the same by proving the above said contention.

14. With regard to quantum of compensation, the learned counsel appearing for the appellant mainly submitted that the Tribunal has deducted 1/3 for personal and living expenses of the deceased instead of 50%, since the deceased was a bachelor.

15. The learned counsel appearing for the claimants submitted that the claimants are 4 in numbers and as per the decision of Hon'ble Apex Court in Sarla Verma's case and also the latest decision of Hon'ble Apex Court reported in 2013 (1) TN MAC481(Reshma Kumari Vs. Madan Mohan), the claimants are entitled to 1/3 deduction.

16. In the instant case, admittedly, the mother of the deceased is widow and other claimants, who are brother and sisters also claimed compensation. In the above said circumstances, as per the settled principles of law laid down by the Hon'ble Apex Court in the above said decisions, the claimants are entitled to 1/3 deduction and the Tribunal has correctly deducted 1/3 towards personal and living expenses. On the side of the appellant, not seriously objected the award amount on other heads. Further, the amount awarded on the others heads are reasonable and not exorbitant. Therefore, the total quantum of compensation awarded by the Tribunal is to be confirmed.

17. In the result, the Civil Miscellaneous Appeal is partly allowed and the Award amount passed by the Tribunal is confirmed and the appellant Insurance Company is directed to pay the entire compensation award amount to the claimants and then recover the same from the first respondent, as already observed. The claimants are permitted to withdraw their shares. No costs. Consequently, connected miscellaneous petition is closed. MPK To The file of Motor Accidents Claims Tribunal (Subordinate Court) Kulithalai.