M/S.United India Insurance Company Limited, Vs. 1.Chinnathai - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169146
CourtChennai High Court
Decided OnAug-05-2013
JudgeC.S.KARNAN
AppellantM/S.United India Insurance Company Limited,
Respondent1.Chinnathai
Excerpt:
before the madurai bench of madras high court dated:05. 08/2013 coram the honourable mr.justice c.s.karnan c.m.a.(md)no.841 of 2004 and m.p.(md)no.4998 of 2004 m/s.united india insurance company limited, kovilpatti. ... appellant vs. 1.chinnathai 2.s.r.pasupathi (r-2 set exparte in lower court) 3.tamil nadu state transport corporation, madurai division-iii ltd.,, nagercoil, through its managing director. ... respondents prayer civil miscellaneous appeal is filed under section 173 of the motor vehicles act, against the judgment and decree dated 21.09.2001 made in m.c.o.p.no.104 of 2000, on the file of the motor accidents claims tribunal, subordinate judge, sankarankovil. !for appellant ... mr.k.s.narasimhan ^for respondents ... no appearance for r-1 r-2 (exparte) mr.s.c.herold singh for r-3 - - - :judgment the appellant / third respondent has preferred the present appeal against the judgment and decree passed in m.c.o.p.no.104 of 2000, on the file of the motor accidents claims tribunal, subordinate judge, sankarankovil.2. the short facts of the case are as follows:- the petitioner, who is the wife of the (deceased) paramasivan has filed the claim in m.c.o.p.no.104 of 2000, claiming compensation of a sum of rs.2,00,000/- from the respondents for the death of the said paramasivan in a motor vehicle accident. it was submitted that on 15.08.1997, when the (deceased) was travelling in the first respondent's van bearing registration no.tn-69-1373, along with others in order to go to kattaramkulam and at about 9 p.m., when the van was proceeding on the tirunelveli-kovilpatti road and near tamil nadu electricity board colony, the driver of the van drove it in a rash and negligent manner, on the middle of the road and dashed it against the second respondent's bus bearing registration no.tn-74-n-0540, which was coming in the opposite direction and which was also driven by its driver in a rash and negligent manner. as a result, the van capsized on the western side of the road. it was submitted that the accident was due to the rash and negligent driving by the drivers of both the vehicles. as a result, the (deceased) sustained grievous injuries and died. several other passengers also sustained injuries and some of them died. at the time of accident, the deceased was aged 50 years and he was working as an agriculturist and earning rs.4,000/- per month. hence, the petitioner has filed the claim against the respondents 1 to 3. the first and third respondents are the owner and insurer of the van bearing registration no.tn-69-1373 and the second respondent is the tnstc ltd., nagercoil.3. the second respondent in his counter has submitted that the driver of the van had driven it in a rash and negligent manner and that on seeing the vehicle, the driver of the bus had stopped the bus, on the extreme left of the road, but in spite of it, the driver of the van had dashed it against the bus, as a result of which, the van capsized on the western side of the road. it was submitted that the accident was caused only due to negligence of the van driver and that the driver of the second respondent is in no way responsible for the accident. it was submitted that the claim was excessive.4. the third respondent, in his counter has also submitted that the driver of the van had driven the van with due diligence and that the driver of the bus had driven the bus in a rash and negligent manner and dashed the bus against the van causing death of many persons and injuring some. it was submitted that about 40 persons had travelled in the first respondent's van, which is a goods vehicle which is in contravention of the policy and permit conditions. it was submitted that the accident happened due to overloading of the van as the first respondent had allowed his driver to carry 40 persons in his vehicle. it was submitted that as the first respondent had permitted the driver, who had no valid driving licence and as such, the third respondent cannot be held liable to pay compensation. it was submitted that the claim was excessive.5. in the same accident, other claim petitions have been filed by the injured persons and by the legal-heirs of the (deceased) persons, who had travelled in the van, claiming compensation from the same respondents. on the request made by the counsels for their respective petitioners in the various claims through a joint memo, joint trial was conducted and common evidence was recorded in m.c.o.p.no.103 of 2000 and common judgment was passed.6. the motor accidents claims tribunal had framed four issues for consideration in the case, viz., ".(i) whether the accident had occurred due to the contributory negligence of the drivers of the first and second respondent's vehicle?. (ii) whether the petitioners are entitled to get compensation?. if so, what is the quantum?. (iii) who is liable to pay compensation?. and (iv) to what relief are they entitled to get?.".7. on the petitioners side, six witnesses were examined and ten documents were marked as exs.p1 to p10, viz., ex.p1-certified copy of first information report dated 15.08.1997, ex.p2-certified copy of postmortem certificate dated 16.08.1997, ex.p3-certified copy of observation mahazar, dated 16.08.1997, ex.p4-certified copy of rough sketch dated 15.08.1997, ex.p5- certified copy of motor vehicle inspector report, ex.p6- certified copy of charge sheet, dated 21.12.1997, ex.p7-certified copy of postmortem certificate dated 16.08.1997, ex.p8-certified copy of postmortem certificate dated 21.08.1997, ex.p9-certified copy of postmortem certificate dated 16.08.1997, ex.p10-certified copy of wound certificate dated 15.08.1997. on the side of the respondents, two witnesses were examined and one document, viz., schedule notice from united india insurance company limited was marked as ex.r1.8. the fourth petitioner in m.c.o.p.no.103 of 2000 was examined as p.w.1., the first petitioner in m.c.o.p.no.102 of 2000 was examined as p.w.2, the petitioner in m.c.o.p.no.104 of 2000 was examined as p.w.3, the first petitioner in m.c.o.p.no.96 of 2000 was examined as p.w.4, the petitioner in m.c.o.p.no.80 of 2000 was examined as p.w.5. and one mariappan, an independent witness was examined as p.w.6. p.w.1 to p.w.6 had categorically deposed that the driver of the van had driven the vehicle in a rash and negligent manner on the middle of the road. they further deposed that the driver of the bus belonging to the second respondent also had driven the vehicle in a rash and negligent manner on the middle of the road. they deposed that both the drivers are equally responsible for the accident.9. on scrutiny of ex.p4, rough sketch, it is seen that the accident had taken place in the middle of the road, which is a national highway road. on scrutiny of ex.p5, it is seen that the accident had not been caused due to any mechanism failure of the vehicles involved in the accident and that the accident had been caused by the head-on collision of the vehicles. hence, the tribunal on scrutiny of evidence of p.w.1 to p.w.6 and on scrutiny of exs.p4 and p5, held that both the drivers of the first and second respondent's vehicle had equally contributed negligence for the occurrence of the accident.10. on scrutiny of ex.p8, it is seen that the deceased was aged 50 years. the tribunal, on holding the notional income of the deceased as rs.2,000/- per month and on adopting a multiplier of '10' and deducting 1/3rd of the income of the deceased for his personal expenses, awarded a sum of rs.1,60,000/- as compensation to the petitioner under the head of 'loss of income' (rs.2,000/- x 2/3 x 12 x 10); rs.2,000/- was awarded for funeral expenses and rs.2,500/- was awarded for loss of estate and rs.5,000/- was awarded for loss of consortium. in total, the tribunal awarded a sum of rs.1,70,000/- as compensation to the petitioner.11. the tribunal, on opining that the accident had happened due to rash and negligent driving on the part of the first respondent's van was not inclined to accept the contention of the third respondent that the accident had occurred due to overloading of the van. on scrutiny of ex.p2, the tribunal observed that the driver of the van had not been charged from driving the vehicle without a licence. the tribunal observed that no acceptable evidence had been let in on the third respondent's side to establish that the driver of the first respondent was not having a valid licence at the time of accident. hence, the tribunal held that the second respondent should pay half the compensation assessed and that the first and third respondents are jointly and severally liable to pay the other half of the compensation assessed. the tribunal further directed the respondents 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 payment of compensation, with costs, within three months from the date of its order.12. aggrieved by the award passed by the tribunal, the third respondent / united india insurance company limited, kovilpatti has preferred the present appeal.13. the learned counsel for the appellant has contended in his appeal that the tribunal failed to note that the goods carriage which was engaged by 50 persons to attend the 238 anniversary of azhagumuthukon at kattankulam and as such, no liability can be fastened either under section 147 of motor vehicles act or under the terms of the policy it was contended that as the claimants as well as the owner joined together in committing the violation of policy and permit conditions, none of them are entitled to claim any relief against the appellant. it was also contended that the tribunal erred in holding that the driver of the goods vehicle was also equally guilty, without noticing that in earlier cases, the driver of the bus alone was held guilty and that the transport corporation was alone held liable to pay compensation. hence, it was prayed to set-aside the award as against the appellant.14. on considering the facts and circumstances of the case and arguments advanced by the learned counsel for the appellant and on perusing the impugned award of the tribunal, this court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. this court is of the further view that the appellant herein had not challenged the connected award and decree and therefore, the negligence and liability issues are not maintainable in the instant case. regarding the quantum of compensation, it is evidence that the deceased was aged about 50 years and he was involved in the agricultural operation as a coolie and that the wife of the deceased is in a deserted condition since she had lost her earning husband. hence, this court confirms the award passed by the tribunal.15. as per court records, it is seen that the appellant had already deposited their liability amount. now, the claimant is at liberty to withdraw the entire compensation amount, with accrued interest thereon, lying in the credit of m.c.o.p.no.104 of 2000, on the file of the motor accidents claims tribunal, subordinate judge, sankarankovil, after filing a memo, along with a copy of this order.16. in the result, the appeal is dismissed. consequently, the order passed in m.c.o.p.no.104 of 2000, on the file of the motor accidents claims tribunal, subordinate judge, sankarankovil, dated 21.09.2001 is confirmed. there is no order as to costs. connected miscellaneous petition is closed. r n s to the subordinate judge, motor accidents claims tribunal, sankarankovil. 
Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

05. 08/2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.841 of 2004 and M.P.(MD)No.4998 of 2004 M/s.United India Insurance Company Limited, Kovilpatti. ... Appellant Vs. 1.Chinnathai 2.S.R.Pasupathi (R-2 set exparte in lower Court) 3.Tamil Nadu State Transport Corporation, Madurai Division-III Ltd.,, Nagercoil, Through its Managing Director. ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 21.09.2001 made in M.C.O.P.No.104 of 2000, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Sankarankovil. !For Appellant ... Mr.K.S.Narasimhan ^For Respondents ... No appearance for R-1 R-2 (Exparte) Mr.S.C.Herold Singh for R-3 - - - :JUDGMENT

The appellant / third respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.104 of 2000, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Sankarankovil.

2. The short facts of the case are as follows:- The petitioner, who is the wife of the (deceased) Paramasivan has filed the claim in M.C.O.P.No.104 of 2000, claiming compensation of a sum of Rs.2,00,000/- from the respondents for the death of the said Paramasivan in a motor vehicle accident. It was submitted that on 15.08.1997, when the (deceased) was travelling in the first respondent's van bearing registration No.TN-69-1373, along with others in order to go to Kattaramkulam and at about 9 p.m., when the van was proceeding on the Tirunelveli-Kovilpatti Road and near Tamil Nadu electricity Board Colony, the driver of the van drove it in a rash and negligent manner, on the middle of the road and dashed it against the second respondent's bus bearing registration No.TN-74-N-0540, which was coming in the opposite direction and which was also driven by its driver in a rash and negligent manner. As a result, the van capsized on the western side of the road. It was submitted that the accident was due to the rash and negligent driving by the drivers of both the vehicles. As a result, the (deceased) sustained grievous injuries and died. Several other passengers also sustained injuries and some of them died. At the time of accident, the deceased was aged 50 years and he was working as an agriculturist and earning Rs.4,000/- per month. Hence, the petitioner has filed the claim against the respondents 1 to 3. The first and third respondents are the owner and insurer of the van bearing registration No.TN-69-1373 and the second respondent is the TNSTC Ltd., Nagercoil.

3. The second respondent in his counter has submitted that the driver of the van had driven it in a rash and negligent manner and that on seeing the vehicle, the driver of the bus had stopped the bus, on the extreme left of the road, but in spite of it, the driver of the van had dashed it against the bus, as a result of which, the van capsized on the western side of the road. It was submitted that the accident was caused only due to negligence of the van driver and that the driver of the second respondent is in no way responsible for the accident. It was submitted that the claim was excessive.

4. The third respondent, in his counter has also submitted that the driver of the van had driven the van with due diligence and that the driver of the bus had driven the bus in a rash and negligent manner and dashed the bus against the van causing death of many persons and injuring some. It was submitted that about 40 persons had travelled in the first respondent's van, which is a goods vehicle which is in contravention of the policy and permit conditions. It was submitted that the accident happened due to overloading of the van as the first respondent had allowed his driver to carry 40 persons in his vehicle. It was submitted that as the first respondent had permitted the driver, who had no valid driving licence and as such, the third respondent cannot be held liable to pay compensation. It was submitted that the claim was excessive.

5. In the same accident, other claim petitions have been filed by the injured persons and by the legal-heirs of the (deceased) persons, who had travelled in the van, claiming compensation from the same respondents. On the request made by the counsels for their respective petitioners in the various claims through a joint memo, joint trial was conducted and common evidence was recorded in M.C.O.P.No.103 of 2000 and common judgment was passed.

6. The Motor Accidents Claims Tribunal had framed four issues for consideration in the case, viz., ".(i) Whether the accident had occurred due to the contributory negligence of the drivers of the first and second respondent's vehicle?. (ii) Whether the petitioners are entitled to get compensation?. If so, what is the quantum?. (iii) Who is liable to pay compensation?. and (iv) To what relief are they entitled to get?.".

7. On the petitioners side, six witnesses were examined and ten documents were marked as Exs.P1 to P10, viz., Ex.P1-certified copy of First Information Report dated 15.08.1997, Ex.P2-certified copy of postmortem certificate dated 16.08.1997, Ex.P3-certified copy of observation mahazar, dated 16.08.1997, Ex.P4-certified copy of rough sketch dated 15.08.1997, Ex.P5- certified copy of Motor Vehicle Inspector report, Ex.P6- certified copy of charge sheet, dated 21.12.1997, Ex.P7-certified copy of postmortem certificate dated 16.08.1997, Ex.P8-certified copy of postmortem certificate dated 21.08.1997, Ex.P9-certified copy of postmortem certificate dated 16.08.1997, Ex.P10-certified copy of wound certificate dated 15.08.1997. On the side of the respondents, two witnesses were examined and one document, viz., schedule notice from United India Insurance Company Limited was marked as Ex.R1.

8. The fourth petitioner in M.C.O.P.No.103 of 2000 was examined as P.W.1., the first petitioner in M.C.O.P.No.102 of 2000 was examined as P.W.2, the petitioner in M.C.O.P.No.104 of 2000 was examined as P.W.3, the first petitioner in M.C.O.P.No.96 of 2000 was examined as P.W.4, the petitioner in M.C.O.P.No.80 of 2000 was examined as P.W.5. and one Mariappan, an independent witness was examined as P.W.6. P.W.1 to P.W.6 had categorically deposed that the driver of the van had driven the vehicle in a rash and negligent manner on the middle of the road. They further deposed that the driver of the bus belonging to the second respondent also had driven the vehicle in a rash and negligent manner on the middle of the road. They deposed that both the drivers are equally responsible for the accident.

9. On scrutiny of Ex.P4, rough sketch, it is seen that the accident had taken place in the middle of the road, which is a National Highway Road. On scrutiny of Ex.P5, it is seen that the accident had not been caused due to any mechanism failure of the vehicles involved in the accident and that the accident had been caused by the head-on collision of the vehicles. Hence, the Tribunal on scrutiny of evidence of P.W.1 to P.W.6 and on scrutiny of Exs.P4 and P5, held that both the drivers of the first and second respondent's vehicle had equally contributed negligence for the occurrence of the accident.

10. On scrutiny of Ex.P8, it is seen that the deceased was aged 50 years. The Tribunal, on holding the notional income of the deceased as Rs.2,000/- per month and on adopting a multiplier of '10' and deducting 1/3rd of the income of the deceased for his personal expenses, awarded a sum of Rs.1,60,000/- as compensation to the petitioner under the head of 'loss of income' (Rs.2,000/- x 2/3 x 12 x 10); Rs.2,000/- was awarded for funeral expenses and Rs.2,500/- was awarded for loss of estate and Rs.5,000/- was awarded for loss of consortium. In total, the Tribunal awarded a sum of Rs.1,70,000/- as compensation to the petitioner.

11. The Tribunal, on opining that the accident had happened due to rash and negligent driving on the part of the first respondent's van was not inclined to accept the contention of the third respondent that the accident had occurred due to overloading of the van. On scrutiny of Ex.P2, the Tribunal observed that the driver of the van had not been charged from driving the vehicle without a licence. The Tribunal observed that no acceptable evidence had been let in on the third respondent's side to establish that the driver of the first respondent was not having a valid licence at the time of accident. Hence, the Tribunal held that the second respondent should pay half the compensation assessed and that the first and third respondents are jointly and severally liable to pay the other half of the compensation assessed. The Tribunal further directed the respondents 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 payment of compensation, with costs, within three months from the date of its order.

12. Aggrieved by the award passed by the Tribunal, the third respondent / United India Insurance Company Limited, Kovilpatti has preferred the present appeal.

13. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that the goods carriage which was engaged by 50 persons to attend the 238 Anniversary of Azhagumuthukon at Kattankulam and as such, no liability can be fastened either under Section 147 of Motor Vehicles Act or under the terms of the policy It was contended that as the claimants as well as the owner joined together in committing the violation of policy and permit conditions, none of them are entitled to claim any relief against the appellant. It was also contended that the Tribunal erred in holding that the driver of the goods vehicle was also equally guilty, without noticing that in earlier cases, the driver of the bus alone was held guilty and that the transport Corporation was alone held liable to pay compensation. Hence, it was prayed to set-aside the award as against the appellant.

14. On considering the facts and circumstances of the case and arguments advanced by the learned counsel for the appellant and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. This Court is of the further view that the appellant herein had not challenged the connected award and decree and therefore, the negligence and liability issues are not maintainable in the instant case. Regarding the quantum of compensation, it is evidence that the deceased was aged about 50 years and he was involved in the agricultural operation as a coolie and that the wife of the deceased is in a deserted condition since she had lost her earning husband. Hence, this Court confirms the award passed by the Tribunal.

15. As per Court records, it is seen that the appellant had already deposited their liability amount. Now, the claimant is at liberty to withdraw the entire compensation amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.104 of 2000, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Sankarankovil, after filing a Memo, along with a copy of this order.

16. In the result, the appeal is dismissed. Consequently, the order passed in M.C.O.P.No.104 of 2000, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Sankarankovil, dated 21.09.2001 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed. r n s To The Subordinate Judge, Motor Accidents Claims Tribunal, Sankarankovil.