The appellant/second respondent has filed this civil miscellaneous appeal No.1053 of 2005 against the decree and judgment dated 31.03.2004 made in MCOP No.796 of 1998 on the file of the Motor Accidents Claim Tribunal (Additional District Judge, Fast Track Cort No.2), Salem, awarding a compensation of Rs.1,29,500/- with interest at the rate of 9% from the date of filing the claim petition till date of payment of compensation.
2. Aggrieved by the said order, the appellant/United India Insurance Company Limited, Salem has filed the above appeal to set aside the order.
3. The short facts of the case are as follows;-
On 21.03.1998, the deceased Muthusamy was travelling in the Car bearing registration No.TN-27-A-0570, belonging to the first respondent, from Chennai to Salem. At about 4.00 a.m., when the car was proceeding near Madappattu, Ayyanar koil, on National Highways Road No.45 (Ulundurpet Taluk, Villupuram District), its driver, driving the car in a rash and negligent manner without observing the road traffic rules, dashed the car against the backside of a stopping lorry. In the result, the deceased Muthusamy sitting in the front seat of the Car died on the spot due to injuries sustained in neck, left eye brow and chin.
Deceased Muthusamy, was a driver cum Mechanic and he was earning Rs.3,000/- by doing private work and he was also a retired Government employee of the Public Works Department engaged as a jeep driver and mechanic, and was getting a monthly pension of Rs.2,100/- per month. His total monthly income was Rs.5,100/-
A case was registered against the driver of the car in Crime No.197 of 1998 under
Sections 279 and
337 and
304(A) of IPC by the Thiruvennai Nallur Police, Villupuram District.
As the first respondent is the owner of the car bearing registration No.TN-27-A-0570 and the second respondent is the insurer of the Car, both are liable jointly and separately to compensate the petitioners.
The first petitioner, the wife of the deceased, the second petitioner, the married daughter of the deceased and the third and fourth petitioners, who are the sons of the deceased have jointly filed the claim petition against the respondents seeking a compensation of Rs.5,00,000/-
4. The second respondent in his counter has resisted the claim and denied all the allegations made in the claim. It was submitted that the accident had happened only due to the act of the lorry driver, who was proceeding in front of the car. As the lorry had stopped suddenly, without any signal, the accident had happened. The owner of the lorry and its insurer are therefore a necessary party for proper adjudication and hence non joinder of the above parties makes the claim petition bad in law. Further, the second respondent has disputed the claim of Rs.2,00,000/- towards loss of earning, Rs.66,665/- towards partial loss of earning and Rs.3,57,165/- for loss of earning power. Since the deceased was not an earning member. Further, the age, income and occupation of the deceased was not admitted. As such, the second respondent prayed for dismissal of the petition.
5. The Motor Accidents Claim Tribunal framed three issues namely 1) Was the accident caused due to the negligence and high speed at which the car was driven, by its driver? 2) Are the petitioners entitled to receive the compensation as claimed in their petition? 3) To what other relief are the petitioners entitled to get?
6. During enquiry; on the petitioners' side, PW1 and PW2 gave evidence and six documents were marked as Ex.P1 to Ex.P6 in support of their claim. On the second respondents side, RW1 gave evidence and a document, was marked as Ex.R1, copy of insurance policy.
7. The third petitioner gave evidence as PW1 and in his evidence he has submitted that on 21.03.1998, while his father was returning from Chennai, the said accident had occurred near Ullundurpet Madappattu Village and that in the accident, his father died on the spot. Further, Ex.P1, the copy of first information report, Ex.P2-the postmorem report, Ex.P3-the motor vehicle inspectors report and Ex.P4-the rough sketch showing site of accident were marked as evidence, during his examination.
8. Further, PW2, the brother in law of the deceased was examined. In his evidence, it was stated that while he and the deceased were travelling in the said car from Chennai to Salem on 21.03.1998, nearing Ayyannar Temple near Ullundurpet, a lorry was stationary outside the temple and puja was being performed and the driver of the car, without seeing the lorry which was stationary, rammed against the backside of the lorry and so the deceased died on the spot. Subsequently, he had given a complaint to Thiruvannai Nallur Police Station and has submitted that the car driver was the cause for the accident.
9. The second respondent counsel had argued that the time of accident as alleged by the petitioners and time of accident as registered in the first information report are contradictory. Further, no documents as regards the findings of the criminal case registered by the police has been filed by the petitioners, and further it was submitted that the blame for the said accident should also be laid on the lorry. But, in the evidence of RW1, who was examined as witness for the second respondent, he has not declaimed the accident. Further, PW2, in his evidence, has clearly stated it was on account of the negligence and rash driving by the driver of his car, that the accident occurred. Further from the respondent side, no documents were marked or witnesses examined to refute the findings from the evidence of PW2 and from Ex.P1, the first information report. As such, the Tribunal decided the first issue, that the accident was caused only due to the negligence and high speed at which the driver of the Car had driven the Car.
10. From the evidence of PW1, it was ascertained that the age of the deceased was 64 and that he had retired as a Mechanic from the Public Works Department and that the first petitioner is his mother and that the second and fourth petitioners are his sister and brother and that due to the said accident, his mother had a paralytic attack on the side of her body and that the third and fourth petitioners are not employed. Further, a copy of legal heir certificate and copy of proof of deceased receiving pension were marked as Ex.P5 and Ex.P6.
11. From an examination of Ex.P2, the copy of postmortem report of the deceased, it was determined that the age of the deceased at the time of death was 65 years. From an examination of Ex.P6 the proof of deceased having received pension, it was established that the date of birth of deceased was 10.03.1934 and as such the age of the deceased was determined as 64 years.
12. From an examination of Ex.P6, it came to light that the deceased was receiving a monthly pension of Rs.486/-. PW1 in his evidence has submitted that his mother was receiving a family pension of Rs.2080/- per month. The learned counsel for the petitioners had submitted that because the petitioners were receiving pension, the claim amount should not be reduced. In support of this argument, he had cited a judgment reported in 2003 ACJ 1220.
13. In the above judgment, it has been stated that for computation of the monthly income of the deceased, the pension received by the deceased should not be deducted. But there has been no evidence or documentary proof for considering that the deceased was earning a sum of Rs.3,000/- per month in addition to his pension. But, the Tribunal, taking into account the fact that the deceased had been a mechanic and therefore had the ability to earn a sum of Rs.3,000/- per month, decided that his monthly earnings were Rs.3000 per month and deducting 1/3rd for the personal expenses of the deceased, took the net contribution of the deceased to his family as Rs.2,000/- per month. Then, an annual contribution of 24,000/- was arrived at and adopting a multiplier of 5, the total contribution of this family was taken as Rs.1,20,000/- Further, the first petitioner being the wife of deceased was awarded Rs.5,000/- and for consortium Rs.2,500/- was awarded. For funeral expenses, Rs.2,000/- was granted by Tribunal. In total, a sum of Rs.1,29,500/- was granted as compensation to the petitioners.
14. But in the evidence given by RW1, the Assistant Officer in the second respondent's firm it has been submitted that as per the policy issued to the first respondent i.e. Ex.R1, the premium for passengers travelling in the car, has not been paid and that only the basic premium has been collected from the first respondent. Even the premium for the driver was not paid. So, even if the said car was damaged, there is no need for the second respondent to pay for the damages and that the compensation can be paid only for third parties, who are not travelling in the said car. As such, the second respondent has contended that there is no necessity for them to pay compensation as the deceased was a passenger in the said car. If at all any compensation is to be given, it is only for the first respondent who can be held liable. In support of this claim, the learned counsel for the second respondent submitted citations in three judgments namely
1) 2003 ACJ 623 (United India Insurance Co.Ltd v. Celinamma), wherein in the head notes it is stated as follows;
"Motor Vehicles Act, 1939,
section 95(1)(b)(i) - Motor Insurance - Act policy - Private vehicle - Passenger risk - Gratuitous passenger - Liability of insurance company - Whether insurance company is liable for death of or injuries sustained by persons carried in a private vehicle gratuitously - Held:no. (2001 ACJ 2059 (SC) and 1998 ACJ 531 (SC) followed:2000 ACJ 1391(Kerala) overruled)"
"Motor Vehicles Act, 1939,
Section 95(1)(b)(ii) - Motor insurance - Act Policy - Goods vehicle - Passenger risk - Gratuitous passenger - Liability of insurance company - Whether insurance company is liable for death of or injuries sustained by persons carried in a goods vehicle gratuitously - Held:no (1999 ACJ 1(SC) followed).
"Quantum - Injury - Hip - Fracture of pelvic bone - Injured aged 40, agricultural labourer, earning Rs.25 per day whenever there was work - No disability certificate produced to show percentage of permanent disability - Tribunal found that injured can continue to do the work of agricultural labourer or work of a tapper and awarded Rs.21,575 - Award upheld in appeal."
2) 2004(1) TLNJ 121 (Kalavathy v. Annammal and others), wherein in the head notes it is stated as follows;
"Motor Vehicles Act(1988) and Rule 238 - Accident -goods vehicle - according to insurance policy no additional payment of premium was paid for non fair passenger - Prior to amendment of 1994 it was not necessary for insurer to insure against owner of goods or his authorised representative being carried in goods vehicle - owner of vehicle liable - Insurance Company not liable."
iii) 2001 ACJ 2019,
15. Considering the judgment cited by the learned counsel for the petitioners in 2004 91 CTC Page 284, Chennai High Court and on examination of the insurance policy i.e Ex.R1, as per the policy, it was permitted that 6 persons can travel in as passengers in the said car including the driver. Further, the car involved in the accident was not a commercial vehicle which can be let out for hire. Since, it was a private individual who has travelled in the said car, it cannot be sated that he was a passenger who has travelled without paying money. As the second respondent has not specifically stated about the fact that six passengers can travel in the said car and that for these six persons premium has not been recovered by them, the Tribunal decided that the second respondent is liable to pay compensation to the petitioners.
16. Further, the Tribunal directed the second respondent to deposit the above award of Rs.1,29,500/- with interest at the rate of 9% from the date of claim till date of payment of compensation, and apportioned the award of Rs.39,500/- to the first petitioner, and Rs.30,000/- each to the second, third and fourth petitioners, within one month. The apportioned amount has to be deposited in a Nationalsied bank in fixed deposit for three years and the petitioners are entitled to receive interest on the said deposit once in six months.
17. The learned counsel for the appellant in his appeal has argued that the deceased, being a passenger in his appeal has argued that, the deceased, being a passenger in a Car is not required to be covered under Ex.R1 policy (Act policy) and as such the learned Tribunal has erred in holding that the appellant is liable to pay compensation. No additional premium was collected by appellant. Further the learned Tribunal failed to note the ruling of the Supreme Court (Constitutional Bench) reported in 2002 SCW 259 and also another judgment reported in 2001 ACJ 2059. The learned Tribunal ought to have granted a right of recovery from the owner of the vehicle.
18. The learned counsel for the respondents argued that the Tribunal has come to the correct conclusion on the basis of Ex.R1, which is the insurance policy. As per insurance policy, the appellant/insurance company liable to pay compensation to the claimants which is statutory. Further, the learned Counsel argued that the Motor Accidents Claim Tribunal decision on the quantum of compensation is fair. The Tribunal has not committed any error in its order passed on the claim petition.
19. For the foregoing reasons and on consideration of the facts and circumstances of the case and perusal of the exhibits, which were marked by both sides before the Tribunal and after hearing arguments of learned counsel and citations referred by the Cousnels, the Court opines that an award of RS.1,29,500/- passed by the Motor Accidents Claim Tribunal/Additional District Judge, Salem in MCOP NO.796 of 1998 dated 31.03.2004, together with interest at the rate of 9% per annum from the date of filing of the petition till date of payment, is fair and reasonable. Regarding negligence, the Tribunal has come to a conclusion, on the basis of First Information Report and evidence of PW2, Arumugam, who travelled along with the deceased, that the driver of the Car was negligent. For loss of earning the Tribunal had awarded Rs.1,20,000/-. This has been calculated on the basis of the age of deceased and his monthly income which has been taken as Rs.2,000/- per month after deducting 1/3rd from his total monthly income and then adopting a multiplier of 5. As such, the Tribunal has awarded a sum of Rs.1,20,000/- which is correct. For funeral expenses, Rs.2000/- was granted by the Tribunal. The Tribunal had awarded Rs.5,000/- on the basis of the claimant being wife of the deceased, which is not pertinent. The Tribunal had awarded Rs.2,500/- as consortium to the wife of the deceased. This Consortium of Rs.2,500/- awarded is too low. Hence, the Court re-structures the amount granted under the above two head and awards it as one amount of Rs.7,500/- as consortium to the wife of the deceased.
20. Therefore, the Court could not find any error in the award granted by the Motor Accident Claims Tribunal, Salem in MCOP NO.796 of 1998 dated 31.03.2004 and as such is not warranted to interfere in the above order. Hence, the Court confirms, the award passed by the learned Motor Accident Claims Tribunal, Salem in MCOP No.796 of 1998 dated 31.03.2004.
21. When the above said appeal came before this Court on 15.02.2006, the Court permitted the claimants to withdraw 50% of the apportioned amount of their respective shares. As the accident happened in the year 1998,. It is open to the respondents/claimants to receive the balance amount lying to the credit of MCOP No.796 of 1998, on the file of the Motor Accidents Claims Tribunal/Additional District Judge, Fast Track Court No.II, Salem, by filing necessary payment out application in accordance with law.
22. In the result the civil miscellaneous appeal is dismissed and the award passed by the Motor Accident Claims Tribunal, Fast Track Court NO.II, Salem in MCOP NO.796 of 1998 is confirmed. Connected miscellaneous petition is closed. The parties are directed to bear their cost in this appeal.
09.10.2009 Index:Yes Internet:Yes JIKR To Additional District Judge Fast Track Court NO.II, Motor Accidents Claims Tribunal Salem.
C.S.KARNAN,J JIKR PRE DELIVERY JUDGMENT IN C.M.A.No.1053 of 2005 09.10.2009