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

SooperKanoon Citationsooperkanoon.com/1169159
CourtChennai High Court
Decided OnAug-05-2013
JudgeC.S.KARNAN
AppellantM/S.United India Insurance Company Limited,
Respondent1.Gomathi
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.840 of 2004 and m.p.(md)no.4997 of 2004 m/s.united india insurance company limited, kovilpatti. ... appellant vs. 1.gomathi 2.sakthivel 3.mariappan 4.senthur pandian 5.s.r.pasupathi (r-5 set exparte in lower court) 6.tamil nadu state transport corporation, madurai division-iii, 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.103 of 2000, on the file of the motor accidents claims tribunal, subordinate judge, sankarankovil. !for appellant ... mr.k.s.narasimhan ^for respondents ... mr.k.swamidurai for r-1 to r-4 r-5 (exparte) mr.s.c.herold singh for r-6 - - - :judgment the appellant / third respondent has preferred the present appeal against the judgment and decree passed in m.c.o.p.no.103 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 petitioners, who are the daughter and sons of the (deceased) annamalai konar, have filed the claim in m.c.o.p.no.103 of 2000, claiming compensation of a sum of rs.1,50,000/- from the respondents for the death of the said annamalai konar 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 62 years and was an agriculturist and earning rs.3,000/- per month. hence, the petitioners have 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.p2, it is seen that the deceased was aged 62 years at the time of accident. as no documentary evidence had been marked to prove the income of the deceased, the tribunal held that the notional income of the deceased was rs.2,000/- per month. the tribunal, on adopting a multiplier of '6' awarded a sum of rs.96,000/- as compensation to the petitioners under the head of 'loss of income' (rs.2,000/- x 2/3 x 12 x 6); r.2,000/- was awarded for funeral expenses and rs.2,500/- was awarded for loss of estate. in total, the tribunal assessed the compensation as rs.1,00,500/- and after rounding it off, awarded a sum of rs.1,00,000/- as compensation to the petitioners.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. the learned counsel for the claimants contended that the deceased was aged 62 years and he was involved in the agricultural operation and earning rs.3,000/- per month. all the four claimants are children of the deceased. further, in the connected claim petition, viz., m.c.o.p.no.96 and 104, award had been passed. in order to execute the award, the respective claimants/decree holders have filed two separate execution petitions. in the e.p.proceedings, the appellant/insurance company had deposited the entire award amount with interest. therefore, the appellant cannot challenge the liability before this court. further, the tribunal had not granted adequate compensation under all the relevant heads, viz., loss of earning, loss of love and affection and funeral expenses.15. on considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side 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 tribunal had passed common award in five claim petitions. out of the five awards, only three appeals had been preferred by the insurance company. therefore, the question of negligence and liability does not arise in the instant case. this court is of the further view that the compensation of rs.1,00,000/- awarded is not on the higher side as the claimant was involved in the agricultural operations as a coolie and is seen from evidence of p.w.1. therefore, this court is not inclined to entertain the above appeal.16. therefore, this court directs the appellant to deposit their liability amount with accrued interest thereon, if not deposited already, before the tribunal, within a period of four weeks from the date of receipt of a copy of this order. after such deposit being made, it is open to the claimant to withdraw their apportioned share amount with accrued interest thereon lying in the credit of m.c.o.p.no.103 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.17. in the result, the appeal is dismissed. consequently, the order passed in m.c.o.p.no.103 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.840 of 2004 and M.P.(MD)No.4997 of 2004 M/s.United India Insurance Company Limited, Kovilpatti. ... Appellant Vs. 1.Gomathi 2.Sakthivel 3.Mariappan 4.Senthur Pandian 5.S.R.Pasupathi (R-5 set exparte in lower Court) 6.Tamil Nadu State Transport Corporation, Madurai Division-III, 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.103 of 2000, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Sankarankovil. !For Appellant ... Mr.K.S.Narasimhan ^For Respondents ... Mr.K.Swamidurai for R-1 to R-4 R-5 (Exparte) Mr.S.C.Herold Singh for R-6 - - - :JUDGMENT

The appellant / third respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.103 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 petitioners, who are the daughter and sons of the (deceased) Annamalai Konar, have filed the claim in M.C.O.P.No.103 of 2000, claiming compensation of a sum of Rs.1,50,000/- from the respondents for the death of the said Annamalai Konar 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 62 years and was an agriculturist and earning Rs.3,000/- per month. Hence, the petitioners have 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.P2, it is seen that the deceased was aged 62 years at the time of accident. As no documentary evidence had been marked to prove the income of the deceased, the Tribunal held that the notional income of the deceased was Rs.2,000/- per month. The Tribunal, on adopting a multiplier of '6' awarded a sum of Rs.96,000/- as compensation to the petitioners under the head of 'loss of income' (Rs.2,000/- x 2/3 x 12 x 6); R.2,000/- was awarded for funeral expenses and Rs.2,500/- was awarded for loss of estate. In total, the Tribunal assessed the compensation as Rs.1,00,500/- and after rounding it off, awarded a sum of Rs.1,00,000/- as compensation to the petitioners.

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. The learned counsel for the claimants contended that the deceased was aged 62 years and he was involved in the agricultural operation and earning Rs.3,000/- per month. All the four claimants are children of the deceased. Further, in the connected claim petition, viz., M.C.O.P.No.96 and 104, award had been passed. In order to execute the award, the respective claimants/decree holders have filed two separate execution petitions. In the E.P.Proceedings, the appellant/Insurance Company had deposited the entire award amount with interest. Therefore, the appellant cannot challenge the liability before this Court. Further, the Tribunal had not granted adequate compensation under all the relevant heads, viz., loss of earning, loss of love and affection and funeral expenses.

15. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side 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 Tribunal had passed common award in five claim petitions. Out of the five awards, only three appeals had been preferred by the Insurance Company. Therefore, the question of negligence and liability does not arise in the instant case. This Court is of the further view that the compensation of Rs.1,00,000/- awarded is not on the higher side as the claimant was involved in the agricultural operations as a coolie and is seen from evidence of P.W.1. Therefore, this Court is not inclined to entertain the above appeal.

16. Therefore, this Court directs the appellant to deposit their liability amount with accrued interest thereon, if not deposited already, before the Tribunal, within a period of four weeks from the date of receipt of a copy of this order. After such deposit being made, it is open to the claimant to withdraw their apportioned share amount with accrued interest thereon lying in the credit of M.C.O.P.No.103 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.

17. In the result, the appeal is dismissed. Consequently, the order passed in M.C.O.P.No.103 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.