This Civil Miscellaneous Appeal has been filed by the appellant- Insurance Company against the award dated 26.08.2008 passed in M.C.O.P.No.82 of 2006 by the Motor Accident Claims Tribunal ? Additional District Judge/Fast Track Court, Pudukkottai.
2. Nutshell facts necessary for the disposal of this appeal, are as follows:
2.1. The appellant-Insurance Company is the second respondent in M.C.O.P.No.82 of 2006 on the file of the Motor Accident Claims Tribunal ? Additional District Court/Fast Track Court, Pudukkottai. The respondents 1 to 3 filed the claim petition claiming compensation for the death of one Muthukumar @ Muthu, husband of the first respondent, father of the second respondent and son of the third respondent.
2.2. According to the respondents 1 to 3, on 12.11.2004 at 05.00 p.m., one Muthukumar @ Muthu, aged 33 years, doing fish business, was travelling in a mini lorry bearing Registration No.TN-49-V-1199 belonging to the fourth respondent insured with the appellant-Insurance Company on Pudukkottai ? Thirumayam main road. The driver of the said mini lorry drove the vehicle in a rash and negligent manner and dashed against a two wheeler bearing Registration No.TN-55-H-1432 and caused the accident, due to which, the said Muthukumar @ Muthu sustained injuries all over his body and while he was taking to hospital, died.
2.3. At the time of the accident, the deceased was aged 33 years and was a fish vendor and earning a sum of Rs.10,000/- (Rupees Ten Thousand only). The respondents 1 to 3 are the dependents of the deceased and therefore, they claimed a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only).
2.4. The appellant-Insurance Company filed a counter statement denying all the averments made in the claim petition and submitted that the accident did not occur due to the rash and negligent driving of the driver of the mini lorry, but the rider of the two wheeler rode the two wheeler in a rash and negligent manner and invited the accident and that the rider of the two wheeler did not possess a valid driving licence. Further, it is stated that the respondents 1 to 3 did not implead the owner and insurer of the two wheeler. Therefore, the appellant-Insurance Company is not liable to pay any compensation to the respondents 1 to 3.
2.5. The persons travelled in the said two wheeler also sustained injuries and they also filed two claim petitions in M.C.O.P.Nos.92 and 497 of 2005 on the file of the Motor Accident Claims Tribunal ? Additional District Court/Fast Track Court, Pudukkottai.
2.6. All the claim petitions were heard together and a joint trial was also held.
2.7. Before the Tribunal, P.W.1 to P.W.7 were examined and Exs.P.1 to P.46 were marked on the side of the claimants in all the claim petitions. On behalf of the respondents in all the claim petitions, R.W.1 and R.W.2 were examined and Exs.R.1 and R.2 were marked.
2.8. The Tribunal, considering the pleadings, oral and documentary evidence, came to the conclusion that the accident occurred only due to the rash and negligent driving of the driver of the mini lorry and that the appellant-Insurance Company failed to prove that more number of passengers than the permitted limit were travelling in the mini lorry at the time of the accident and considering the claim of the respondents 1 to 3, awarded a sum of Rs.2,84,000/- (Rupees Two Lakhs and Eighty Four Thousand only). Against the same, the appellant-Insurance Company has filed the present appeal.
3. The learned Counsel for the appellant-Insurance Company contended that the Tribunal failed to consider the fact that only the rider of the two wheeler was responsible for the accident and in any event, the Tribunal ought to have fixed contributory negligence on the rider of the two wheeler as he was not having a valid driving licence at the time of the accident and further that the deceased was an unauthorised passenger and moreover, the owner of the two wheeler as well as the insurer of the two wheeler were also not impleaded.
4. He further contended that the Tribunal ought to have fixed contributory negligence on the rider of the two wheeler also and that the deceased was an unauthorised passenger in the mini lorry as he travelled in the mini lorry in violation of the permit conditions and therefore, the appellant-Insurance Company is not liable to pay any compensation to the respondents 1 to 3.
5. Per contra, the learned Counsel for the respondents 1 to 3/claimants contended that the deceased was a fish vendor and he travelled as owner of the goods in the mini lorry and that the appellant-Insurance Company failed to prove that there is any violation of permit or policy conditions and further that R.W.1 and R.W.2 admitted that the fourth respondent herein has paid premium for non-fair passengers also.
6. Heard the learned Counsel for the appellant-Insurance Company and the learned Counsel for the respondents 1 to 3/claimants and perused the materials available on record. During the pendency of this appeal, the third respondent/mother of the deceased died.
7. From the materials available on record, it is seen that the appellant-Insurance Company has failed to prove that the deceased travelled in the mini lorry in violation of the permit and policy conditions. Though the appellant-Insurance Company has contended that at the time of accident, eight persons travelled in the mini lorry, the appellant-Insurance Company miserably failed to prove and substantiate its claim.
8. The Tribunal, based on the evidence of P.W.1 and P.W.3 and also filing of Ex.P.31 ? F.I.R against the driver of the mini lorry; Ex.P.32 ? Motor Vehicle Inspector's report; Ex.P.33 ? charge sheet and Ex.P.35 ? Sketch, rightly came to the conclusion that the accident occurred only due to the rash and negligent driving of the driver of the mini lorry belonging to the fourth respondent insured with the appellant-Insurance Company and hence, the said finding of the Tribunal based on evidence, cannot be interfered with.
9. With regard to the compensation, the Tribunal, in the absence of any materials on record to prove the income of the deceased, rightly fixed the annual income of the deceased at Rs.24,000/- (Rupees Twenty Four Thousand only) and taking into consideration the age of the deceased as 38 based on Ex.P.34 ? post-mortem report, applied multiplier 16 and arrived at a sum of Rs.3,84,000/- (Rupees Three Lakhs and Eighty Four Thousand only) and after deducting 1/3rd amount, determined the loss of income at Rs.2,56,000/- (Rupees Two Lakhs and Fifty Six Thousand only), which, in the opinion of this Court, warrants no interference and accordingly, the same is confirmed.
10. Similarly, the amounts awarded under the other heads, viz., a sum of Rs.14,000/- (Rupees Fourteen Thousand only) towards loss of consortium; a sum of Rs.10,000/- (Rupees Ten Thousand only) towards loss of love and affection and a sum of Rs.4,000/- (Rupees Four Thousand only) towards funeral expenses, are reasonable and they are also confirmed.
11. The rate of interest awarded by the Tribunal at 7.5% per annum remains unaltered.
12. In the result,
(i) This Civil Miscellaneous Appeal is dismissed, confirming the award dated 26.08.2008 made in M.C.O.P.No.82 of 2006 by the Motor Accident Claims Tribunal ? Additional District Judge/Fast Track Court, Pudukkottai;
(ii) The respondents 1 and 2/claimants 1 and 2 are entitled to the above compensation as per the apportionment made by the Tribunal;
(iii) Since it is reported that the third respondent/mother of the deceased died pendency of this appeal, the respondents 1 and 2 are entitled to the respective share of the third respondent/mother of the deceased equally;
(iv) The first respondent/wife of the deceased is directed to submit her Savings Bank Account Details along with the copies of their passbooks to the Tribunal forthwith;
(v) The appellant-Insurance Company is directed to deposit the entire award amount along with accrued interest and costs, less the amount deposited, if any, to the credit of M.C.O.P.No.82 of 2006 on the file of the Motor Accident Claims Tribunal ? Additional District Judge/Fast Track Court, Pudukkottai, within a period of eight weeks from the date of receipt of a copy of this judgment;
(vi) On such deposit, the Tribunal is directed to transfer the respective share amount of the first respondent/wife of the deceased to her Personal Savings Bank Account Number, through RTGS/NEFT system, within a period of two weeks thereafter;
(vii) Insofar as the respective share of the minor second respondent/minor daughter of the deceased is concerned, the Tribunal is directed to deposit the same in Fixed Deposit in any one of the nationalised banks under the renewable scheme till she attains majority and the first respondent/mother of the minor claimant is permitted to withdraw the interest accrued thereon once in three months for the welfare of the minor claimant.
(viii) In the facts and circumstances of the case, there shall be no order as to costs.
To
1.The Motor Accident Claims Tribunal - cum ?
Additional District Court/Fast Track Court, Pudukkottai.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai..