of the Case:
According to the claimants, when the deceased was travelling as a pillion rider in a TVS XL moped bearing registration No.TN 72 A 6114 along with his uncle, who was riding the moped, a Lorry bearing registration number T.N.74 Y 9590 came in a rash and negligent manner without blowing any horn and hit against the TVS XL. As a result of which, the deceased and the rider of the vehicle was thrown out of the vehicle and sustained injuries and immediately the deceased was taken to TVMC Hospital at Palayamkottai. But subsequently he succumbed to the grevious injuries. Hence, the claimants filed an application in M.C.O.P.No.450 of 2011 on the file of the Motor Accidents Claims Tribunal /(Principal District Court), Tirunelveli.
6.The second respondent filed counter affidavit and denied the averments made in the claim petition. The first respondent was remained ex parte.
7.According to the second respondent, the first respondent without any valid driving licence, allowed the driver to drive the vehicle in the public. Therefore, the act of the first respondent was in violation of policy condition. Hence, the second respondent/Insurance Company had no contractual obligation to fulfil the liability of the first respondent and therefore, prayed for the dismissal of the Claim Petition.
8. Before the Tribunal, on the side of the claimants P.Ws.1 and 2 were examined and seven documents were marked as Exs.P.1 to P.7. On the side of the respondents, R.Ws.1 and 2 were examined and four documents were marked as Exs.R.1 to R.4.
9.After considering the oral and documentary evidence, the Tribunal came to the conclusion that accident occurred due to rash and negligent driving by the driver of the lorry and the driver of the lorry did not possess valid driving licence. The lorry was insured with the appellant / Insurance Company. But, the terms of insurance policy was violated. However, in view of violation of policy condition, applying the principle of pay and recovery, the Tribunal awarded a sum of Rs.3,05,000/- as compensation with 7.5% interest per annum to the claimants and directed the Insurance Company to pay at the first instance and recover the said amount from the owner of the lorry.
10.Aggrieved by the said award, the appellants in C.M.A.(MD)No.1402 of 2013, who are claimants and the appellant in C.M.A(MD)No.1665 of 2013, who is the second respondent/Insurance Company have filed these appeals.
11.Since already pay and recovery has been ordered by the Court below, the learned counsel for the appellant Insurance Company would fairly submit that the award of the lower Court may be confirmed, but pay and recovery has to be effected by following the judgment in ORIENTAL INSURANCE COMPANY LIMITED V. NANJAPPAN AND OTHERS reported in 2004(2) CTC 464, wherein the mode of recovery has been clearly dealt in paragraph 8 of the judgment, which reads as follows:-
?Therefore, while setting aside the judgment of the High Court, we direct in terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no orders as to costs.
Appeal disposed of accordingly.?
12.The learned counsel for the claimants submitted that the amount awarded by the Tribunal under various heads are on lower side and considering the age of the deceased the compensation awarded by the Tribunal may be enhanced.
13.Heard the submissions made on either side and perused the materials available on record.
14.Keeping the submissions made by the learned counsel for the appellant/Insurance Company and following the above Judgment, this Court confirms the order of the Tribunal, in respect of pay and recovery.
15.As far as quantum of compensation is concerned, considering the submissions made on both sides, I am of the view that since the deceased was a four years old child at the time of accident, his annual notional income shall be taken as Rs.15,000/- and if 15 multiplier is adopted, it works out to Rs.15,000 x 15 = Rs.2,25,000/- for loss of income.
16.Further, a sum of Rs.5,000/- (Rupees Ten Thousand only) was awarded by the Tribunal towards funeral expenses, which is on the lower side, and hence it is enhanced to a sum of Rs.20,000/- (Rupees Twenty Thousand Only).
17.The learned Judge has not awarded any amount for loss of love and affection and transportation. Though the love and affection of the parents cannot be measured and portrayed in a clear terms of money, for love and affection, it is just and proper to award a sum of Rs.75,000/- each (totally a sum of Rs.1,50,000/-). In the circumstance, a sum of Rs.10,000/- is awarded towards transportation.
18.Considering the fact that already, an amount has been awarded towards loss of income, the compensation of Rs.75,000/- awarded towards pecuniary loss and Rs.75,000/- awarded towards loss of future prospects, are deleted.
19.The rate of interest awarded by the Tribunal at 7.5% per annum is confirmed.
20.In view of the settled position of law, this Court modifies the award of the Tribunal by enhancing the compensation, as below:- S.No Description Amount awarded by Tribunal (Rs.) Amount awarded by this Court (Rs.) Award confirmed or enhanced or granted
1. Loss of Income 1,50,000 2,25,000 enhanced
2. Loss of love and affection
-
1,50,000 granted
3. For transportation
-
10,000 granted
4. For funeral expenses 5,000 20,000 enhanced
5. For pecuniary loss 75,000
-
deleted
6. For loss of future prospects 75,000
-
deleted Total 3,05,000 4,05,000 By enhancing a sum of Rs.1,00,000/-
21. In the result,
(i) This Civil Miscellaneous Appeal in C.M.A(MD)No.1402 of 2013 is allowed, enhancing the award of the Tribunal from Rs.3,05,000/- (Rupees Three Lakhs and Five Thousand Only) to a sum of Rs.4,05,000/- (Rupees Four Lakhs and Five Thousand Only). No costs.
(ii)The claimants are entitled to a sum of Rs.4,05,000/- along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs, as apportioned by the Tribunal.
(iii)The Claimants are directed to submit their Savings Bank Account Details along with the copies of their passbooks to the Tribunal forthwith;
(iv)The appellant/Insurance Company is directed to pay the award amount of Rs.4,05,000/- (Rupees Four Lakhs and Five Thousand Only) with accrued interests and costs, at the first instance and then, recover the same from the owner of the vehicle/first respondent. The appellant/Insurance Company shall deposit the award amount before the Tribunal within a period of eight weeks from the date of receipt of a copy of this judgment and in the later stage, the appellant/Insurance Company is entitled to recover the same from the owner of the lorry/first respondent, by way of Execution Petition, without actually filing a suit as held by Hon'ble Apex Court in the judgment reported in 2004(2)CTC 464 (Oriental Insurance Co., Ltd., vs. Shri Nanjappan and others);
(v) The claimants are directed to pay the additional Court Fees, if any, within a period of two weeks from the date of receipt of a copy of this judgment; and
(vi) On such payment of Additional Court fees, if any, by the claimants, the Tribunal is directed to transfer the entire award amount along with accrued interest and costs directly to the respective Personal Savings Bank Account Numbers of the Claimants, through RTGS/NEFT system, after getting their Account Details, within a period of two weeks thereafter;
22.In view of the judgment passed in C.M.A(MD)No.1402 of 2013, C.M.A(MD)No.1665 of 2013 is dismissed. No costs.
To,
1.The Motor Accidents Claims Tribunal/ (Principal District Court), Tirunelveli.
2.The Branch Manager, The National Insurance Company Ltd., Second Floor,No.92, Devarpuram Road, Tuticorin.
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.