This Civil Miscellaneous Appeal has been filed by the appellants/claimants against the judgment and decree made in M.A.C.O.P.No.494 of 2001, dated 09.11.2005 on the file of the Motor Accident Claims Tribunal, (Sub Court), Palani.
2.The case of the claimants is that on 09.04.2001 around 1.30 p.m when the deceased person went to one Palanichamy garden, which is situated near Poolampatti Village for carrying 30 bags of corn in a Van bearing Registration No.TN-41-2626, the driver of the van negligently and rashly drove the said vehicle and diverted the van to another route, the said van fell down into 30 feet well. In that accident, the deceased Perumal died due to severe injuries on his back side of the head and others sustained injuries. Hence, the appellants/claimants filed claim petition claiming a sum of Rs.10,00,000/- as compensation.
3.The third respondent/Oriental Insurance Company Limited, has filed counter-affidavit denying all the averments stated in the claim petition. It is contended that the claimants have to prove that the driver of the van had valid license at the time of accident and they have not violated the policy condition. Only 3 persons should travel in the cabin of the vehicle. But the deceased along with three others, totally 4 persons travelled in the cabin of the LMV Goods Carrier vehicle at the time of accident. This is pure violation of policy condition and the Motor Vehicles Act. Therefore, the third respondent/Oriental India Insurance Company is not liable to pay compensation to the appellants/claimants and hence, prayed for dismissal of the claim petition.
4.Before the Tribunal, on the side of the claimants, one witness viz., P.W.1 was examined and seven documents viz., Exs.P.1 to P.7 were marked and on the side of the respondents, neither any witness was examined nor any document was marked to prove their contentions.
5.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the counsel for the appellants and respondents and also appreciating the evidence on record, directed the first and second respondents to pay a sum of Rs.3,58,400/- with 6% interest per annum as compensation to the appellants/claimants.
6.Against the award, the appellants/claimants filed the present appeal for enhancement of compensation.
7.Heard the learned counsel appearing on both sides and perused the materials available on record.
8.The learned counsel for the appellants submitted that the Tribunal erred in law holding that the appellants are entitled to a sum of Rs.3,58,400/- towards compensation based on the notional income of Rs.80/- per day, especially when the deceased was earning sum of Rs.3,500/- as loadman and therefore, the Judgment of the Tribunal requires modification.
9. The learned counsel further submitted that the Tribunal failed to consider the documents marked as Ex.P1 to P.7, before arriving at the amount towards compensation. The Tribunal failed to see that even though there was violation of policy condition, the learned Judge ought to have directed the third respondent/ Insurance Company to pay the compensation to the claimants and recover the same from the second respondent in a separate proceedings as per the Judgment of the Hon'ble Supreme Court. The learned Tribunal erred in holding that the third respondent is not liable to pay compensation to the claimants, even though the policy covered the driver, cleaner and four coolies, the third respondent not disputed about policy for the coolies.
10.Perusal of the F.I.R and the evidence of P.W.1 would clearly show that the death caused only due to the negligent driving of the first respondent. The motor vehicle inspector report also would show that the accident was not due to mechanical default or repair and the deceased person died due to the injury sustained. Charge sheet and the order of the Judicial Magistrate No.I, Dindigul, Ex.P5 would confirm that the driver has admitted his crime and paid the fine amount, which clearly shows that the said accident had occurred only due to the rash and negligent act of the first respondent. The Tribunal also came to the conclusion that the accident occurred only due to the act of the first respondent and this Court also agrees with the same. But, no evidence was produced to show that at the time of accident, the deceased has earned a sum of Rs.3500/- per month. In the absence of any evidence to show that the deceased has earned a sum of Rs.3500/- per month, the Tribunal has rightly fixed Rs.80/- as daily wages and arrived income at Rs.2,400/- per month. After deducting Rs.800/- towards his personal expenses, fixed a sum of Rs.1600/- as monthly income and arrived at Rs.19,200/- as income per year and taking the age of the deceased as 35 years at the time of accident, as per postmortem report and by applying Multiplier 17 arrived at Rs.3,26,400/- for loss of income to the claimants. The Tribunal also awarded a sum of Rs.10,000/- for loss of consortium; Rs.5000/- each for loss of love and affection; Rs.2000/- for cremation. In total, Rs.3,58,400/- with 6% interest has been awarded as compensation by the Tribunal. There is no illegality or infirmity in the award passed by the Tribunal.
11.As per the guideline of R.B.I, this Court is of the view that 7.5% interest has to be awarded as interest. Except the enhancement of rate of interest, the compensation awarded by the Tribunal is confirmed.
12.In the result, this Civil Miscellaneous Appeal is partly allowed. The third respondent/Oriental India Insurance Company is directed to deposit the entire award amount along with interest at the rate of 7.5% per annum from the date of petition till the date of realization and also with proportionate costs, less the amount already deposited if any, to the credit of M.A.C.O.P.No.494 of 2001, dated 09.11.2005 on the file of the Motor Accident Claims Tribunal, (Sub Court), Palani, within a period of eight weeks from the date of receipt of a copy of this order and on such deposit being made, the first and second appellants/claimants are permitted to withdraw their respective shares as apportioned by the Tribunal with interest at 7.5% p.a. and costs, after filing formal petition. The minor appellants/claimants are permitted to withdraw their respective shares, as apportioned by the Tribunal, with proportionate interest at 7.5% p.a. if they attained majority, by filing necessary proof and application to that effect. The third respondent/Oriental Insurance Company can recover the amount deposited from the owner of the vehicle by initiating separate proceedings. No costs.
To
1.The Motor Accident Claims Tribunal, (Sub Court), Palani.
2.The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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