The appellant/second respondent has filed this civil miscellaneous appeal No.65 of 2005 against the decree and judgment passed by the Motor Accident Claims Tribunal, (Additional Subordinate Judge), Tindivanam in MCOP No.449 of 1994 awarding a compensation of Rs.70,700/-
2. Aggrieved by the said order, the appellant/United India Insurance Company Limited has filed the appeal.
3. The short facts of the case are as follows;
The first petitioner is the young and newly wedded wife of the deceased Govindhan. The second and third petitioners are the father and mother of the deceased.
On 22.07.1988, the deceased Govindhan and four other persons working as load man were travelling in the lorry bearing registration No. TDF 9981 and proceeding to Maduranthagam from South to North direction, at about 11.30 a.m. on the GST road near Salavathy village, the lorry, driven by its driver in a rash and negligent manner, suddenly turned turtle. Because of the accident, the deceased Govindhan fell down from the cabin and received fatal injuries and died on the spot. The accident occurred solely due to the rashness and negligence of the driver of the lorry.
The deceased was the only bread winner of his family consisting of his young newly wedded wife, his father and mother. the first respondent, who is the owner of the lorry and the second respondent being the insurer of the lorry are jointly and severally liable to pay compensation to the petitioners.
4. The petitioners prayed for compensation of Rs.2,00,000/- amended as per I.A.No.833 of 1999, dated 05.02.2001 with interest at 12% per annum from the date of accident till date of deposit from the respondents. The Olakkur Police Station registered a criminal case in Cr.No.201 of 1988 under
Section 304(A) of I.P.C.
5. The second respondent/United India Insurance Company, in its counter has submitted that the deceased was travelling as an unauthorised passenger and hence the first respondent and his driver had breached the terms and conditions of the policy and permit. Further it was submitted that the deceased was not a load man in the said lorry. Further all claims in the petition as regards age, income and occupation of the deceased and legal heirship of petitioners, were denied and hence the second respondent prayed for dismissal of the claim petition. Further, the original claim of claimant was only Rs.50,000/- but, the claimant has asked for enhancement claim of Rs.2,00,000/- without any rhyme or reason.
6. The learned Motor Accident Claims Tribunal examined two witnesses as PW1 and PW2 and marked two documents as Ex.P1 and Ex.P2. Ex.P1 is the first information report and Ex.P2 is the postmortem report. But, no one was examined on the side of the respondent, but a copy of the insurance policy was produced by the respondent side.
7. The Motor Accident Claims Tribunal, Tindivanam had framed two issues namely 1) Whether the first respondent's lorry driver is responsible for the accident and 2) If so, what is the quantum of compensation to be awarded to the claimants?
8. Two witnesses were examined. The first claimant is PW1 and the second witness is PW2-Mr.Ramados, who is an advocate, were examined. The first claimant, the wife of the deceased, adduced evidence that her husband Govindhan, was a load man and earned Rs.30/- per day. The deceased used to load salt bags from Marakkanam to other places. On 22.07.1988 at about 11.00 a.m., the deceased loaded the salt bags on the lorry and travelled in the lorry to Tindivanam, where he unloaded some salt bags. The rest of the salt bags were to be unloaded at Acharapakkam and Madurantagam. On the way to the said place, the lorry driver had driven the lorry with high speed and in a negligent manner and due to this, the door of the cabin had suddenly opened. In the result, the deceased Govindhan fell on the road and the back wheel of the lorry ran over him, the deceased died on the spot. The occurrence was witnessed by one Reddiar, who lodged a complaint with the Olakkur police station. The Olakkur Police registered a case in the said accident. The incident happened only due to rash and negligent driving of the driver of the first respondent lorry. While the lorry was being driven with high speed, all of a sudden the driver applied the brake and hence the accident happened. But, the same was denied by the respondent/insurance company by way of counter statement that the deceased was not a load man and that he was a gratuitous passenger. The Motor Accident Claims Tribunal considering both the oral and documentary evidence on both the side came to a conclusion that the lorry driver was responsible for the said accident.
9. The Motor Vehicle Claims Tribunal after deciding the negligence point in favour of the claimant had to decide on the question of compensation. In the evidence of PW1, it has been narrated that her husband Govindhan was 19 years old at the time of the accident. The marriage had taken place between the deceased and PW1 only 8 months before the date of accident. Further, the deceased was also doing business of buying and selling goats in addition to being a load man. In this way, he has been getting income and contributing money to the claimants. This is the real source of income for the deceased. This was adduced by PW1. The claimants initially claimed Rs.50,000/- as compensation against the respondent. Subsequently, they enhanced their claim to Rs.2,00,000/-. The same was claimed under the following head;
1) Transport to Hospital - Rs.1,000/-
2) Loss of life and pecuniary loss - Rs.1,47,000/-
3) For funeral expenses - Rs.2,000/-
4) Loss of consortium - Rs.10,000/-
5) Loss of dependancy to the 2nd and 3rd petitioners - Rs.47,000/- and they rounded of their claim to Rs.2,00,000/-.
10. PW2, one Mr.Ramadas, an advocate, practising at Tindivanam, had also made a complaint before the Olakkur Police Station and he had witnessed the said accident.
11. After considering the evidence, the Tribunal has come to a conclusion that the age of the deceased was 24 years and hence a multiplier of 17 was taken. His salary was taken as Rs.450/- per month, 1/3rd was deducted for personal expenses and 2/3rd were taken as contribution to his family. Taking above factors, loss of income was calculated as Rs.3600 X 17 = Rs.61,200/-. For funeral expenses Rs.2,500; for consortium Rs.2,000; For loss of estate Rs.5,000/-; In total Rs.70,700/- was awarded.
12. Further, the Tribunal ordered that the compensation amount is to be paid with interest at the rate of 9% from the date of filing the compensation petition till date of payment of compensation. Further, the Tribunal apportioned the award as under;-
1) Rs.30,700/- is to be paid to the first claimant;
2) Rs.20,000/- each is to be paid to the second and third claimants and further directed that the award amount shall be deposited in a nationalised bank for a period of three years. The accrued interest was permitted to be withdrawn by the claimants once in six months. The advocate fee was fixed at Rs.3,350/-.
13. The learned counsel for the appellant argued that the deceased was a gratuitous passenger and not a load man and as such, the claimants are not entitled to get compensation from the insurance company. The deceased was travelling in the lorry only as an unauthorised gratuitous passenger and this is in violation of the terms and policy conditions of insurance. The Tribunal has come to a conclusion that the deceased was earning Rs.30/- per day without any basis and that the deceased had worked for 15 days a month. The learned counsel for appellant further argued that the Motor Accident Claims Tribunal has wrongly come to a conclusion regarding negligence of driver and income of deceased. The learned counsel for the appellant cited a judgment reported in 2009(1) CTC (Branch Manager, United India Insurance Company Limited vs. Nagammal and Ors). The judgment is about Doctrine of 'pay and recover'.
14. In the impugned order passed by the learned Motor Accident Claims Tribunal in MCOP No.449 of 1994, the facts have not disclosed any order regarding 'pay and recover'. The Tribunal has not adopted that theory. As such, the above said citation is not covered in this case.
15. For the foregoing reasons and on the consideration of the facts and circumstances of the case, and arguments of the learned counsel, this Court is of the view that the loss of income calculated as Rs.61,200/- is correct and therefore, the same is confirmed by this Court. The funeral expenses awarded by the Tribunal was Rs.2,500/- is also confirmed. The Tribunal awarded Rs.2,000/- for consortium to the first petitioner. The Court feels that this is on the lower side and therefore, enhances the award under consortium to Rs.10,000/- as claimed in the compensation petition. Transport to hospital expenses claimed were Rs.1,000/- by the claimant. This was not considered by the Tribunal. This Court duly considered this and granted the amount of Rs.1,000/- under this head. The loss of estate of Rs.5,000/- awarded by the Tribunal is confirmed. Though the claimants have not claimed any compensation for mental agony, this Court on humanitarian grounds, grants a sum of Rs.10,000/- each to the claimants. Accordingly, this Court grants an enhanced award of Rs.1,09,700 to the claimants, as it is found to be equitable and fair.
16. The Court directs the appellant's insurance company to deposit the compensation amount of Rs.70,700/- together with 9% interest from the date of filing the claim petition till date of payment of compensation. Further, the appellant/United India Insurance Company should deposit the balance additional compensation of Rs.39,000/- to the credit of MCOP NO.449 of 1994, Subordinate Court, Tindivanam with interest at the rate of 7.5% from the date of filing the claim petition till the date of payment of compensation, subject to earlier deposit made, if any, by the insurance company, within a period of six weeks from the date of receipt of this order. When the appeal came before this Court on 11.04.2005, this Court directed the appellant/Insurance Company to deposit the entire amount into the credit of MCOP NO.449 of 2002. After deposit, the claimants were permitted to withdraw some amount as per this Court order dated 11.04.2005.
17. It is open to the respondents/claimants to receive the balance compensation amount lying to the credit of MCOP No.449 of 1994 on the file of Motor Accident Claims Tribunal, Subordinate Judge, Tindivanam, by filing necessary payment out application, in accordance with law, as the accident happened in the year 1988.
18. Resultingly, the civil miscellaneous appeal is modified in the above terms and the award passed by the Motor Accident Claims Tribunal, Subordinate Court, Tindivanam in MCOP NO.449 of 1994 is enhanced from Rs.70,700/- to Rs.1,09,700/-. The parties are directed to bear their cost in this appeal.
JIKR To The Subordinate Court Motor Accidents Claims Tribunal Dindivanam