| SooperKanoon Citation | sooperkanoon.com/965027 |
| Court | Chennai High Court |
| Decided On | Mar-08-2013 |
| Judge | C.S.KARNAN |
| Appellant | The New India Assurance Company Limited, |
| Respondent | 1.Tamilselvi |
08. 03/2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.544 of 2009 The New India Assurance Company Limited, Rep. by its Branch Manager, No.913, Catholic Centre, Main Road, Kovilpatti. ... Appellant Vs. 1.Tamilselvi 2.Sakthiraj 3.Minor Senraj, S/o.Perumal, 4.Thayammal 5.Mariyathangapushpam ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, to set-aside the decree and judgment dated 30.10.2008 made in M.C.O.P.No.2 of 2007, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kovilpati. !For Appellant ... M/s.B.Vijayakarthikeyan ^For Respondents... Mr.T.Selvakumaran for R-1, R-3 and R-4 Mr.M.Thirunavukkarasu for R-5 - - - :JUDGMENT The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.2 of 2007, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kovilpati.
2. The short facts of the case are as follows:- The petitioners, who are the wife, Chidren and mother of the (deceased) Perumal, have filed the claim in M.C.O.P.No.2 of 2007, claiming compensation of a sum of Rs.5,00,000/- from the respondents for the death of the said Perumal in a motor vehicle accident. It was submitted that on 11.05.2005, at about 05.30 a.m., when the (deceased) Perumal was travelling in the first respondent's load van bearing registration not TN-69-Z-7855, which was carrying a load of fish, and when the van was proceeding on the Kovilpatti-Sattur ain Road and nearing Nalli Vilakku, the driver of the van drove the van in a rash and negligent manner as a result of which, the van capsized and caused the accident. The (deceased) Perumal sustained severe injuries and was admitted at the Government Hospital, wherein he received first aid and subsequently he received treatment at Tirunelveli Medical College Hospital. But, in spite of treatment, the (deceased) Perumal succumbed to his injuries. At the time of accident, the (deceased) Perumal was aged 45 years and was working as a fish vendor and earning Rs.5,000/- per month. Hence, the petitioners have filed the claim against the first and second respondents, who are the owner and insurer of the van bearing registration not TN-69-Z-7855.
3. The second respondent, in his counter has submitted that the accident had occurred only due to overloading of passengers in the first respondent's van and that the van had capsized on this count. It was submitted that as the first respondent had breached the conditions laid down in the policy of insurance, the second respondent cannot be held liable to pay any compensation and the compensation should be paid only by the first respondent. The averments in the claim regarding age and income of the (deceased) Perumal was also not admitted. It was submitted that the claim was excessive.
4. The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz., "(i) Was the accident caused by the rash and negligent driving of the first respondent's van driver? (ii) Who is liable to pay compensation to the petitioners? (iii) What is the quantum of compensation, which the petitioners are entitled to get?" 5. On the petitioners side, two witnesses were examined and five documents were marked as Exs.P1 to P5, viz., Ex.P1-copy of F.I.R., Ex.P2-copy of postmortem report, Ex.P3-copy of Motor Vehicle Inspector's report, Ex.P4-copy of observation mahazar, Ex.P5-copy of charge sheet. On the respondent's side, one witness was examined and one document, viz., the copy of insurance policy was marked as Ex.R1.
6. P.W.1, Tamilselvi, 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 the exhibits listed as P1 to P5.
7. It is seen on scrutiny of Ex.P1, F.I.R., that a criminal case has been registered against the husband of the first respondent, who was driving the first respondent's van at the time of accident for his negligence and also for permitting a large number of persons to travel in the van. It is also seen that the police, after investigation, had filed the charge sheet against the same persons. It was also admitted that on the side of the petitioners that the first respondent's husband had driven the van at the time of accident. It is seen on scrutiny of Motor Vehicle Inspector's report marked as Ex.P3, that the accident had occurred due to mechanism failure in the said van. The petitioners have marked the copy of criminal Court judgment made by the Motor Accidents Claims Tribunal, Tirunelveli in other claims filed before it for the same accident. On scrutiny of the criminal Court judgment, no documentary evidence had been marked to show the weight of goods carried in the said van and as such, it was not proved that the accident had been caused due mechanism failure of the van or due to the negligence of the first respondent's husband, who had permitted a large number of persons to travel in the van.
8. The Tribunal, observed that no documentary evidence had been marked to show the weight of the goods carried in the van and that no documentary evidence had been marked to show that the weight of the goods carried in the van exceeded the load capacity of the van. Further, it is seen that the (deceased) Perumal had travelled in the said van as owner of the fish load carried in the van. Hence, the Tribunal on scrutiny of oral and documentary evidence opined that no inference can be drawn to hold that the accident had occurred due to mechanism failure of the van or due to negligence of the other passengers in the van. Hence, the Tribunal held that the accident had occurred due to the rash and negligent driving of the first respondent's van driver and held the second respondent, as the insurer of the van, liable to pay compensation to the petitioners.
9. Though P.W.1 had stated in her evidence that her husband was earning a sum of Rs.5,000/- per month, no documentary evidence had been marked to prove the claim. Hence, the Tribunal held that the notional income of the deceased could be taken only as Rs.3,000/- per month. The Tribunal on observing that the age of the deceased was 50 years as per Ex.P2, postmortem report, adopted a multiplier of '13' and awarded a sum of Rs.3,12,000/- as compensation under the head of 'loss of income' (3000 x 2/3 x 12 x 13); Rs.1,000/- was awarded towards transport expenses; Rs.5,000/- was awarded to each of the first, second, third and fourth petitioners as compensation under the head of 'loss of love and affection; Rs.10,000/- was awarded to each of the first, second, third and fourth petitioners under the head of mental agony sustained by the petitioners. Rs.2,500/- was awarded towards funeral expenses. In total, the Tribunal awarded a sum of Rs.3,75,500/- as compensation to the petitioners and directed the second respondent to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, with costs, within one month from the date of its orders.
10. Aggrieved by the award passed by the Tribunal, the second respondent / New India Assurance Company Limited, Kovilpatti has preferred the present appeal.
11. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that more than eight persons were travelling in the goods vehicle along with 1200 Kg of fish and in such circumstances, there is clear violation of policy conditions and therefore, the appellant / Insurance Company is no way liable to pay compensation. It was contended that the Tribunal failed to note that P.W.2 had stated in the cross- examination that 8 persons travelled in the mini van along with 1200 kg of fish. Moreover, the F.I.R. clearly reveal that more than eight persons travelled in the said vehicle at the time of accident. It was contended that the Tribunal failed to note that due to overload, the axis of the vehicle was cut down and thereby, the vehicle capsized and caused the accident. It was contended that the Motor Vehicle Inspector's report marked as Ex.P3, would reveal that the accident was due to mechanical failure. It was contended that the Tribunal failed to note that the husband of the respondent herein (owner of the vehicle) was charge sheeted by the police for overloading and therefore, the owner alone was responsible to pay compensation. It was contended that the Tribunal failed to note that the Insurance Company was not liable to pay compensation, when it was proved that the deceased travelled in the goods vehicle as a gratuitous passenger. Hence, it was prayed to dismiss the claim as against the appellant.
12. The learned counsel for the claimants has submitted that the deceased had travelled as a owner of goods (i.e., fish) and the deceased age was 45 years and he was earning Rs.5,000/- per month. The claimants are four in numbers and as such, the Tribunal ought to have deducted only 1/4th of the income of deceased for his personal expenses, but the Tribunal had deducted 1/3rd of the income. The Tribunal had not granted adequate compensation under the heads of loss of income, transport and funeral expenses.
13. On verifying 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 decisions arrived at regarding liability and quantum of compensation. Therefore, this court declines to interfere with the award passed by the Tribunal. As per the Court records, it is seen that this Court imposed a condition on the appellant / New India Assurance Company Limited to deposit the entire compensation amount and further, this Court permitted the claimants to withdraw 50% of the deposited amount.
14. Now, it is open to the claimants to withdraw their apportioned balance share amount with accrued interest thereon, lying in the credit of M.C.O.P.No.2 of 2007, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kovilpati, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals, made, if any, as per this Court's earlier order.
15. In the result, the above appeal is dismissed. Consequently, the order passed in M.C.O.P.No.2 of 2007, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kovilpati, dated 30.10.2008 is confirmed. There is no order as to costs. r n s To The Sub Court, Motor Accidents Claims Tribunal, Kovilpati.