This Civil Miscellaneous Appeal has been filed by the Appellant/The New India Assurance Company Ltd., against the award dated 17.01.2006 made in M.C.O.P.No.2 of 2002 on the file of the Motor Accidents Claims Tribunal, District Judge, Dindigul and praying to set aside the same.
2.This Civil Miscellaneous Appeal was dismissed on 17.04.2012, and the said order was set aside by this Court and the CMA is restored to file as per the order of this Court dated 27.10.2017 made in M.P.(MD)No.1 of 2013 in CMA(MD)No.651 of 2006.
On 14.11.1999 at about 01.00p.m., the respondents/claimants and the deceased were travelling in an auto bearing registration No.TN 59 J 1738, which was driven by its driver one G.Subbiah, in a rash and negligent manner from Dindigul to Madurai Road and near Chinnalapatti, when the said auto overtake a horse chariot. At that time a bus came in the opposite direction. Hence, the auto driver applied break suddenly and due to which, the auto capsized. Due to the said accident, first respondent's wife and the respondents 1 and 2 sustained grievous injuries. First respondent's wife namely Velankanni died. A case was registered before the Ambadurai Police Station in Crime No.495 of 1999 under
Sections 279,337 and
304(A) of I.P.C. Therefore, the respondents 1 and 2 filed a claim petition in MCOP. No.2 of 2002, before the Tribunal claiming a sum of Rs.2,00,000/- as compensation for the death of Velankanni.
4.The appellant/New India Assurance Company filed its counter affidavit and denied the manner of accident as alleged and stated that the auto involved in the accident was permitted to ply only in Kodai road panchayat area. But, the accident took place near Chinnalapatti, which amounts to violation of policy condition. Further, the auto driver had licence only to drive the light motor vehicle without badge. Therefore, the Insurance company is not liable to pay compensation.
5.Before the Tribunal, on the side of the claimants, one witness viz., P.W.1 was examined and eight documents viz., Ex.P.1 to Ex.P.8 were marked. On the side of the respondents, two witnesses viz., R.W.1 & R.W.2 were examined and three documents viz., Ex.R.1 to Ex.R.3 were marked.
6.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the learned counsel appearing on either side and also appreciating the evidence on record, awarded a sum of Rs.1,70,000/- as compensation for the death of Velankanni.
7.Aggrieved by the same the appellant/The New India Assurance Company Limited has filed the present appeal.
8.First respondent/first petitioner died. The third respondent/first respondent remained ex-parte before the Tribunal and before this Court. No appearance for the second respondent/second petitioner and also for the third respondent/ first respondent. Heard the learned counsel for the appellant and perused the materials available on record.
9.From perusal of the records, it seen that on 14.11.1999 at about 01.00 p.m., the respondents/claimants along with deceased Velankanni were travelling in an auto bearing registration No.TN 59 J 1738, which was driven by its driver in a rash and negligent manner from Dindigul to Madurai Road and near Chinnalapatti, the said auto overtook the horse chariot and at that time, on seeing the bus came in an opposite direction, the auto driver applied break suddenly, and hence, the auto capsized. Due to the accident, the respondents 1 and 2 and the deceased sustained grievous injuries. The first respondent's wife namely Velankanni died. A case was registered before the Ambadurai Police Station in Crime No.495 of 1999 under
Sections 279,337 and
304(A) of I.P.C and charge sheet was also filed. The said auto driver accepted his mistake and paid fine amount and the matter was closed.
10.The F.I.R was marked as Ex.P.1 and the Motor Vehicle Inspector's report was marked as Ex.P.3 charge sheet was marked as Ex.P.4, the order copy of the Judicial Magistrate Court was marked as Ex.P.5. Based on the oral and documentary evidences, the Tribunal came to the conclusion that the Auto driver was careless and because of his negligence, the accident had happened.
11.The appellant/second respondent has produced the witness Padmanaban, Senior Assistant of the Insurance company, who would submit that the said Auto bearing registration No. TN 59 J 1738 insured with his company had permit only to drive within Kodai Road Town Panchayat, but the accident occurred in Chinnalapatti area. Therefore, when there is a violation of policy condition, the Insurance company is not liable to pay compensation.
12.The witness R.W.2 Kumaravel, the Junior Assistant in Regional Transport Office, would submit that the Auto driver had only light motor vehicle permit license and he did not have any license to drive the auto. It is also accepted in the cross examination of R.W.2 that the distance between the kodai road and Chinnalapatti is fifteen(15)km. R.W.2 also stated that the auto driver belongs to Nilakottai Taluk and he is not aware of the fact whether the driver is having any valid badge from Vathalakundu Unit. The said stand taken by the said officer has to be taken to give benefit of doubt to the claimants. As per evidences of R.W.1 and R.W.2 the auto was insured with the second respondent Insurance company.
13. Ex.P.2 is the post-mortem report of the deceased Velankanni, which would show that at the time of accident the deceased was aged about 50 years. It is claimed that the deceased was a self-employee and earning a sum of Rs.2,500/- per month. But, no proof was filed for the same. Therefore, the Tribunal as per II schedule of Motor Vehicles Amendment Act 1994, fixed the income of the deceased at Rs.15,000/- per annum. Multiplier at ?11? was adopted. Accordingly, awarded Rs.1,65,000/- (15,000 x 11 = 1,65,000/-) as loss for the death of Velankanni and awarded a sum of Rs.5,000/- towards funeral expenses totalling a sum of Rs.1,70,000/-, which is reasonable.
14. It is seen that the auto driver had licence only to drive the light motor vehicle without badge. As per the decision of the Hon'ble Apex Court in Mukund Dewangan Vs.Oriental Insurance Company Limited, there is no requirement to obtain separate endorsement to drive transport vehicle, if the driver is holding licence to drive Light Motor Vehicle. Hence, there is no violation of policy condition. But, the auto driver himself accepted his negligence and paid fine amount. Moreover, the auto driver violated the permit condition. Hence, this Court fixes 30% liability on the owner of the auto.
15.As per Ex.P.6 legal heir certificate, the deceased has only one legal heir, who is the husband of the deceased namely, the first respondent/first petitioner. So, the first respondent/first petitioner is the eligible person to get compensation for the death of his deceased wife. As per memo filed by the appellant Insurance Company in USR.No.4667/17 dated 20.10.2017, first respondent herein (husband of the deceased Velankanni) died and the second respondent Minor Johnsirani, alone is the legal heir of deceased Jeorge. Petitions filed by Insurance Company mentioned January and Minor Johnsirani as D/o.Jeorge. From the perusal of typed set filed by the appellant herein, it is seen that the MCOP filed before the Tribunal as per claimants version, the name, father name and age of first claimant are ?January, son of George, aged about 55? second claimant are ?Minor Johnsirani, Daughter of January, aged about 10?. Moreover, the first claimant January deposed in his evidence that the second claimant Minor Johnsirani, is their foster daughter (tsh;g;g[ kfs; ) . Hence, it is seen that Minor Jhonsirani is the foster daughter of first respondent/first claimant and the deceased Velankanni.
16.This Court directs the appellant/New India Assurance Company to deposit the entire award amount with accrued interests and costs, if not already deposited, within a period of eight weeks from the date of receipt of a copy of this order. Thereafter, the Appellant/ Insurance company is entitled to recover 30% of the award amount from the owner of the vehicle/third respondent herein.
17. With the above modification, this Civil Miscellaneous Appeal is partly allowed and the Judgment and Decree dated 17.01.2006, made in M.C.O.P.No.2 of 2002 on the file of the Motor Accident Claims Tribunal, District Judge, Dindigul, is modified to the above effect. The second respondent/second claimant is permitted to withdraw the entire amount with accrued interest and costs, less the amount already withdraw by first respondent/first claimant, if any, on production of necessary proofs, regarding foster daughter of first respondent/first claimant and deceased Velankanni and her attaining majority, and also by filing necessary petition, before the Tribunal. No costs. Consequently, stay granted and made absolute in CMP.No.3657 of 2006is hereby vacated.
To
1.The Motor Accidents Claims, District Judge, Dindigul.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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