THE HON'BLE DR. JUSTICE S.VIMALA Civil Miscellaneous Appeal No.2446 of 2016
3. Sumathi ... Appellants / claimants ..Vs..
1. Kumar @ Rajkumar
2. Mugunthan
3. United India Insurance Co. Ltd., JBM Building, Ramchand Square, Kothagiri Taluk, The Nilgiris District ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree, dated 20.06.2016, made in MCOP No.164 of 2013 on the file of the Motor Accident Claims Tribunal, Subordinate Court, Sathyamangalam at Erode District.
For Appellant : Mr. Ma.Pa.Thangavel For Respondents : Mr. T.Ravichandran, for R-3.
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J U D G M E N T
As against the claim made for a sum of Rs.15,00,000/-, award was passed for a sum of Rs.4,69,500/-, after deducting Rs.4,69,500/-, for contributory negligence, from out of Rs.9,39,000/-, to which the claimants are found entitled to.
1.1. The quantification of the compensation has been done taking the monthly income on a notional basis at Rs.6,000/- and deducting 1/3rd towards personal expenses, adopting multiplier of '18', loss of dependency has been ordered at Rs.8,64,000/-; awarding Rs.50,000/- towards loss of love and affection and Rs.25,000/- towards funeral expenses, the total amount of compensation has been quantified at Rs.9,39,000/-.
1.2. The son of the first claimant, by name, Kalidass, aged 21 years, a cleaner by profession, earning a sum of Rs.15,000/- per month, died in an accident, leaving behind the mother, second claimant and the sister, third claimant.
3. The claim was opposed by the Insurance Company on the contention that the accident occurred only on account of the negligence of the deceased himself, who drove the vehicle, without any driving licence. It is also contended that the vehicle belonging to the first respondent was also driven by a driver not having valid endorsement in his driving licence to drive Public Commercial Vehicle (Transport Vehicle); the Insurance company is not liable.
4. Challenging the finding on negligence and quantum of compensation, the claimants have filed this Appeal.
5. The learned counsel for the appellants submitted that: (a) there is no evidence to show that the deceased was not having the driving licence and the evidence available from the Motor Vehicle's Inspector's Report was that the driving licence was not available and not that there was no driving licence; (b) even assuming that there was no driving licence and no helmet, it is not shown that those factors were the contributory cause for the accident / cause for the accident and therefore, the finding on contributory negligence is unfounded and it is liable to be set-aside.
5.1. In support of the said contentions, the decisions reported in 2008 (3) CTC 605 (Sudhir Kumar Rana v. Surinder Singh & ors.) and (2014) 1 CTC 677 (Kattabomman Transport Ltd., v. Vellai Duraichi) are relied upon, whereunder it has been held as follows:-
“7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.
9. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.”
6. In order to appreciate the contentions of the appellants, it is necessary to consider the mode of accident.
6.1. According to the evidence, the jeep was coming from Aravelu to Patlog, which was 100 feet below from Aravel. The deceased had been travelling from Patlog to Aravelu, i.e., he was going upwards.
6.2. The accident had taken place in a hilly place. The vehicle driven by the first respondent was a broader and bigger one, compared to the two-wheeler driven by the deceased. When the vehicle comes down from the top, the view will be broader and better and for the driver who come up, the view will be limited. Therefore, the driver / the first respondent herein is expected to be more careful.
6.3. From the place of accident, one can infer that the deceased should have been negligent not to the extent of 50%, but to the lesser extent, i.e., 30%, having regard to the reasons stated above. Hence, the compensation payable is liable to be deducted by 30%.
7. So far as this case is concerned, there is no proof to show that the accident occurred only because of no licence / no helmet, but because the deceased did not follow the traffic regulations. Based on facts and circumstances, this Court fixes the liability to the extent of 30% on the part of the deceased.
7.1. The second contention is that the future prospects are not added, along with the monthly salary.
7.2. This contention is correct and this court has re-calculated the dependency, after adding towards 50% increase in future prospective increase in income.
8. The next contention is that the tribunal ought to have awarded Rs.3,00,000/- each towards loss of love and affection, as per the reported decision in 2016 (2) TNMAC 145 (DB) (Oriental Insurance v. Saraswathi).
8.1. In the said case, a sum of Rs.3,00,000/- to each of the claimant has been awarded on account of pain and sufferings and loss of love and affection. In the said decision, in paragraphs 10 and 11, it has been held as follows:-
“10. There is no contra material let in by the appellant Insurance Company before the Tribunal, whereas the claimants have clearly brought out as to how the deceased Ramanujam has come up in life the hard way which they have demonstrated beyond any pale of doubt. With regard to the earning capabilities of the deceased Ramanujam, after his discharge from Indian Army, he worked for Brakes India Limited. He was consecutively awarded cash incentives in recognition of his meritorious service by that company. After getting superannuated from Brakes India Limited, the deceased Ramanujam took up employment with Turbo Energy Limited. Even that company, handsomely rewarded the deceased by a cash incentive of Rs.36,000/-. After leaving the employment of Turbo Energy Limited, the deceased Ramanujam established a Manpower Supply Firm, for which, licence was granted by the competent authority incorporating the name of Ramanujam therein. Therefore, there is hardly any doubt with regard to the nature of work ethics and dedication to work which Ramanujam possessed as a characteristic element. It is so obvious that the discipline which he has imbibed while serving the Indian Army, has been made a character to stay with him forever. Ex.P.14 reflects the academic bent of mind of Ramanujam. At the age of 60, we find hardly anyone pursuing, a Doctoral Degree programme, after obtaining M.A., and M.Phil., Degrees from Madurai Kamaraj University. Whereas the deceased Ramanujam has pursued his Doctoral Degree and he seems to have submitted his Thesis for evaluation and he is waiting for a turn to undergo vivo-vice test to defend his Thesis. The first claimant, being a widow of the deceased Ramanujam, is the one who would have been impacted most due to the untimely death of the deceased Ramanujam. She lost her companionship, love and affection of the deceased. Therefore, awarding of Rs.3,00,000/- to her towards general compensation cannot be taken exception to.
11. That brings us to quantum of general damages to Rs.3,00,000/- awarded to the second claimant, who is the son of the deceased Ramanujam. It is the second claimant who lost the parental supervision and guidance due to the untimely death of the deceased Ramanujam. From a man of the experience of the deceased, if only he was alive, the second respondent would have surely received guidance more usefully than others. The deceased could have helped more than one way in shaping up the life of the second claimant. Looked at from this perspective, awarding Rs.3,00,000/- towards general compensation, we do not find it any exorbitant.”
8.2. However, the reasonable compensation ought to have been awarded, having regard to the lifestyle of the claimants, Rs.1,00,000/- each is awarded to claimants 1 and 2 / parents and Rs.25,000/- is awarded to third claimant / unmarried sister.
9. Thus, the total amount of compensation payable would be Rs.12,96,000/- (Rs.6,000/- + Rs.3,000/-) Rs.9,000/- x 12 x 18 x 2/3). Adding Rs.2,25,000/- towards loss of love and affection and Rs.25,000/- towards funeral expenses, the compensation payable would be Rs.15,10,000/-.
9.1. Deducting 30% towards contributory negligence of the deceased, the compensation payable is Rs.10,57,000/- (Rs.15,46,000/- (-) Rs.4,63,800).
9.2. Thus, the total amount of compensation payable would be Rs.10,82,200/-.
10. The learned counsel for the Insurance Company submitted that the first respondent also did not have a valid and effective driving licence and therefore, “pay and recover” order has to be passed, permitting the Insurance Company to pay the compensation, with liberty to recover it from the owner.
10.1. The Insurance Company did not discharge the burden of proof with reference to the non-possession of driving licence.
10.2. In the absence of a separate appeal or at least a cross- objection, it is not possible for this Court to consider the request. Therefore, the said contention is rejected.
11. In the result, the Appeal filed by claimants is partly- allowed. No costs. Consequently, the connected CMP is closed.
11.1. The amount of compensation, as ordered by this Court shall be deposited by the Insurance company / third respondent herein, less the amount already deposited (also less the period of condone delay in filing / representing the Appeal, if any), along with interest at 7.5% per annum, from the date of petition till the date of deposit, within a period of four weeks from the date of receipt of a copy of this judgment.
11.3. On such deposit being made, the claimants 1 and 2 / parents / appellants 1 and 2 / is permitted to withdraw a sum of Rs.4,50,000/- each, along with proportionate interest, and the third claimant / third appellant / unmarried sister is permitted to withdraw a sum of Rs.1,82,200/-, along with the proportionate interest. No costs. The deficit court fee shall be paid by the claimants before receivng the award amount.
01.06.2017 Index : Yes / No Web : Yes / No srk To
1. Motor Accident Claims Tribunal, Subordinate Court, Sathyamangalam at Erode District.
2. The Section Officer, V.R.Section, High Court, Madras
S.VIMALA, J.,
srk C.M.A.No.2446 of 2016 01.06.2017 http://www.judis.nic.in