M/s. National Insurance Co., Ltd. vs J. Vijaya and Others

C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree dated 31.07.2007,

made in M.C.O.P. No. 1070 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court No. II),

Cuddalore. The short facts of the case are as follows:-

The claimants, who are the wife, children and mother of the deceased Jayaraman, had filed a claim petition in M.C.O.P. No. 1070 of 2003, on the

file of the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court No. II), Cuddalore, claiming a sum of Rs. 15,00,000/- as

compensation, from the respondents, for the death of the said Jayaraman, in a motor vehicle accident.

It was submitted that on 19.12.1999, at about 01.00 p.m., when the deceased was proceeding on his TVS50 motorcycle bearing registration

No. TN31 U1795, on Cuddalore-Chidambaram Road, near Siluvaipuram Village, the first respondent''s lorry bearing registration No. TN04

B7710, proceeding ahead of the TVS50 motorcycle, was suddenly stopped on the road, without giving any indication. As a result, the deceased

Jayaraman, who was riding the motorcycle, dashed it behind the lorry and due to which, the deceased Jayaraman had sustained grievous injuries

on his head and died on the spot. At the time of accident, the deceased was doing business and earning Rs. 9,000/- per month. Hence, the

claimants had filed the claim petition against the respondents, who are the owner and insurer of the lorry bearing registration No. TN04 B7710.

The second respondent Insurance Company, in their counter affidavit, had submitted that the claimants should prove that the driver of the first

respondent''s lorry had a valid driving licence and that the lorry was covered under a valid R.C., F.C., permit and policy of insurance. It was

submitted that the claimants should prove the age, income and occupation of the deceased and also prove that they are the legal heirs of the

deceased though documentary evidence. It was submitted that the accident had not been caused due to any rash and negligent driving, as alleged in

the claim. It was submitted that the claim was excessive. In the additional counter affidavit, it was submitted that the accident was caused only due

to the rash and negligent riding of TVS50 by the deceased, who had driven it at a high speed and dashed behind the stationed lorry.

The claimants, in their reply statement, had submitted that FIR had been lodged against the driver of the first respondent''s lorry for rash and

negligent driving based on the complaint given by one Elango at Chidambaram Taluk Police Station. It was submitted that the driver of the lorry

had driven at a high speed and in a rash and negligent manner and suddenly stopped by applying of brake without giving any indication, as a result

of which, the TVS50 proceeding behind it had dashed against the lorry.

On considering the averments of both sides, the Tribunal had framed two issues namely:

i. Due to whose negligence was the accident caused? and

ii. Whether the claimants are entitled to get any compensation? If so, what is the quantum?

On the claimants'' side four witnesses were examined as P.Ws. 1 to 4 and nine documents were marked as Exs. P1 to P9 namely copy of FIR,

copy of M.V.I''s report, copy of postmortem report, certificate issued by Proprietor of Bhuvanagiri Amudham Stores, copy of policy, copy of Tax

Card, copy of permit of lorry, copy of driving licence and copy of R.C., for lorry. On the respondents'' side one witness was examined as R.W. 1

and three documents were marked as Exs. R1 to R3 namely Ex. R1 investigation report, copy of insurance policy of lorry for the period from

29.09.1999 to 28.09.2000 and copy of final report.

P.W. 2 Elango, eye-witness of the accident, had adduced evidence, which is corroborative of the statements contained in FIR regarding manner

of accident. It is also seen that FIR had been registered against the first respondent''s lorry driver based on the complaint given by P.W. 2. He had

deposed that on 19.12.1999, when he was proceeding in his Fiat Car towards Chidambaram and when the car was near Siluvaipuram, he had

seen the lorry bearing registration No. TN04 B7710 going ahead of him and that the TVS50 bearing registration No. TN31 U1795 was

proceeding behind the said lorry. He deposed that the lorry going ahead of him had been stopped suddenly by applying of brakes, without giving

any indication or signal as a result of which TVS50 going behind the lorry had dashed against the lorry and that the deceased Jayaraman had

sustained grievous injuries and dashed on the spot.

P.W. 3 Venugopal had also adduced evidence that the accident had been caused by the rash and negligent driving by the driver of the tipper

lorry bearing registration No. TN04 B7710.

R.W. 1 Vinayagam, Assistant in the second respondent''s office, had adduced evidence that their firm had appointed an investigating officer

namely Balaraman to inquire into the accident and that he had stated in his report that the accident had been caused only due to the rash and

negligent driving by the deceased, who had ridden his motorcycle at a high speed and dashed it behind the stationed tipper lorry. He deposed that

the Chidambaram Taluk Police Station, after investigation, had filed the final report, wherein it had been mentioned that the case had been closed

as ''mistake of fact'' as it was found that the deceased motorcyclist had driven his motorcycle at a high speed and dashed it against the stationed

lorry. In support of his evidence, he had marked Exs. R2 and R3.

However, the Tribunal had observed that R.W. 1 had not stated whether the investigation officer had given details as to whether the police,

before concluding the case as mistake of fact, had sent notice to the concerned persons regarding their finding. Hence, the Tribunal, on scrutiny of

oral and documentary evidence, held that the accident had been caused by the rash and negligent driving of the driver of the first respondent''s lorry

and hence held that the second respondent, being the insurer of the first respondent''s lorry, liable to pay compensation to the claimants.

P.W. 1, wife of the deceased Jayaraman, had adduced evidence that her husband was aged 30 years. However, the Tribunal on scrutiny of

Ex. P3, had observed that the deceased was aged 35 years at the time of accident. P.W. 4, Sivaji, had adduced evidence that the deceased was

working as a Paddy Broker and used to give him 40 loads of paddy per year and that he used to pay him a commission of Rs. 5/- per bag. The

Tribunal, on scrutiny of evidence of P.W. 4 and Ex. P4, held that the notional income of the deceased could be taken as Rs. 3,000/- per month.

The Tribunal, on adopting a multiplier of 17 and after deducting 1/3rd of income of the deceased for his personal expenses, had awarded a sum of

Rs. 4,08,000/- as compensation to the claimants under the head of loss of income (3,000 X 2/3 X 12 X 17), Rs. 5,000/- was awarded to the first

claimant under the head of loss of consortium, Rs. 10,000/- was awarded to the claimants 2 to 5 under the head of loss of love and affection, Rs.

2,000/- was awarded for funeral expenses. In total, the Tribunal awarded a sum of Rs. 4,25,000/- as compensation to the claimants and directed

the second respondent to pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of

payment of compensation, with costs, within a period of one month, from the date of it''s order.

Aggrieved by the award passed by the Tribunal, the second respondent has preferred the present civil miscellaneous appeal.

The learned counsel appearing for the appellant has contended in the appeal that the Tribunal had failed to note that the deceased was guilty of

negligence, as he had driven his moped at a high speed and dashed it against the rear portion of the stationed lorry. It is contended that the Tribunal

had failed to note that the Police, after investigation, had concluded that the accident was caused due to negligence on the part of the deceased and

dropped further action by treating the FIR as mistake of facts. It is contended that the Tribunal erred in not appreciating Ex. R1 and evidence of

R.W. 1 properly. It is contended that the Tribunal failed to note that P.W. 2 had admitted that he was not awarded whether the accident could

have been avoided if the two wheeler was driven at a slow speed.

It is also contended that the Tribunal failed to note that if the deceased was proceeding at a distance of 10-15 feet behind the lorry, as per

evidence of P.W. 3, he could have applied brakes and stopped the mistake within five feet and as such the Tribunal erred in fixing the entire

negligence on the part of the lorry driver. It was contended that the award passed was excessive. Hence, it was prayed to set aside or modify the

award passed by the Tribunal.

The learned counsel appearing for the claimants has submitted that FIR had been registered against the driver of the lorry. The deceased was

aged 38 years and he was earning Rs. 9,000/- per month and the claimants are 5 in numbers and all are depending upon the income of the

deceased, who was the sole breadwinner of the family. The Tribunal had framed necessary issues and decided all issues against the driver and

insurance company. The Tribunal had not granted adequate compensation under the head of loss of love and affection, loss of consortium, loss of

earning and funeral expenses.

On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the

impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum

of compensation. This Court is of the further view that the criminal case had been registered against the driver of the lorry and that the deceased

was aged 38 years and that as the claimants are 5 in numbers, the quantum of compensation is not on the higher side. Hence, this Court does not

find enough force in the above appeal to allow it and as such this Court confirms the impugned award of the Tribunal.

This Court had already directed the appellant Insurance Company to deposit the entire award amount together with interest and entire costs,

less the amount already deposited, to the credit of M.C.O.P. No. 1070 of 2003, on the file of the Motor Accident Claims Tribunal, Additional

District Court (Fast Track Court No. II), Cuddalore.

Now, the major claimants are permitted to withdraw their apportioned share amount, with proportionate interest thereon, lying in the credit of

M.C.O.P. No. 1070 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court No. II), Cuddalore,

after filing a memo along with a copy of this Judgment.

Further, this Court directs the learned Additional District Judge, Motor Accident Claims Tribunal, (Fast Track Court No. II), Cuddalore, to

deposit the minors'' apportioned share amount in a nationalized bank, as fixed deposit, in the cumulative deposit scheme until such time the minors

attain the age of major and hand over the fixed deposit certificates to the mother of the minors. In the result, this civil miscellaneous appeal is

dismissed and the Judgment and decree dated 31.07.2007, made in M.C.O.P. No. 1070 of 2003, on the file of the Motor Accident Claims

Tribunal, Additional District Court (Fast Track Court No. II), Cuddalore, is confirmed. Consequently, connected miscellaneous petition is closed.

No costs.