National Insurance Co. Ltd. vs Mani, Pathmavathy and M. Sheik Davood

C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree dated 08.07.2008,

made in M.C.O.P. No. 1017 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. IV,

Coimbatore at Tiruppur. The short facts of the case are as follows:-

The claimants, who are the parents of the deceased Dhanapal, had filed a claim petition in M.C.O.P. No. 1017 of 2006, on the file of the Motor

Accident Claims Tribunal, Additional District Court, Fast Track Court No. IV, Coimbatore at Tiruppur, claiming compensation of a sum of Rs.

8,00,000/- from the respondents for the death of the said Dhanapal in a motor vehicle accident.

It was submitted that on 22.12.2005, at about 12.30 p.m., when the deceased Dhanapal was riding his bicycle, from west to east, on Tiruppur

to Mangalam Road and when he was near the Fruits Godown Bus Stop at Tiruppur, the first respondent''s lorry bearing registration No. TN51

3699, which was coming from west to east, on the same road and driven in a rash and negligent manner, dashed against the deceased Dhanapal.

As a result, the deceased Dhanapal had sustained grievous injuries all over his body. He was admitted at Government Hospital, Tiruppur. But, in

spite of medical treatment, the deceased succumbed to his injuries. Hence, the claimants had filed the claim petition against the respondents, who

are the owner and insurer of the lorry bearing registration No. TN51 3699.

The second respondent Insurance Company, in their counter statement, had submitted that the first respondent''s lorry had not been insured with

them at the time of the accident and that the claim was bad for non-joinder of the driver of the first respondent''s lorry as necessary party in the

claim. It was submitted that the claimants should prove that the first respondent''s lorry driver had a valid licence to drive the lorry at the time of

accident and also prove the age, income and occupation of the deceased through documentary evidence. It was submitted that the claim was

excessive.

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 compensation? If so, what is the quantum of compensation?

On the claimants'' side three witnesses were examined P.Ws. 1 to 3 and 11 documents were marked as Exs. P1 to P11 namely FIR, M.V.I''s

report, copy of postmortem report, death and legal heir certificate, salary certificate, power of attorney given to P.W. 3, copy of ID of P.W. 3,

appointment letter, copy of P.F. records and copy of attendance register pertaining to Dhanapal. On the respondents'' side one witness was

examined as R.W. 1 and two documents were marked as Exs. R1 and R2 namely copy of policy and letter sent by the second respondent to the

first respondent stating that policy had not been renewed.

P.W. 2 Muruganantham, eye-witness of the accident had adduced evidence that on the date of accident, he was near the site of accident and

that he had seen the deceased Dhanapal proceeding ahead of him and that the lorry bearing registration No. TN51 3699, which was coming in the

same direction and driven at a high speed and in a rash and negligent manner, had dashed against the said Dhanapal. He deposed further that he

had given a complaint regarding the accident at Tiruppur South Police Station, which had been marked as Ex. P1. The Tribunal, on observing that

the respondents had not let in any evidence to rebut the claim of P.W. 2 regarding manner of accident, held that the accident had been caused by

the rash and negligent driving by the driver of the first respondent''s lorry.

R.W. 1 Balasubramanian had adduced evidence that the first respondent''s lorry had been insured with them only upto 18.10.2005 and that the

policy had not been renewed subsequently and in support of his evidence he had marked Ex. R2. The Tribunal, on scrutiny of Ex. P2, had

observed that the driver of the first respondent''s lorry had a valid licence and that the vehicle was covered under a valid F.C., and policy at the

time of accident. Hence, the Tribunal, on scrutiny of oral and documentary evidence, held that the respondents are liable to pay compensation to

the claimants.

P.W. 1 had adduced evidence that his son (deceased) was working as a Tailor in Jamuna Impex and earning Rs. 2,990/- per month.

P.W. 3 Sampathkumar, Assistant in the Administrative Branch of Jamuna Impex, had also adduced evidence that the deceased Dhanapal

worked as a Tailor and was earning Rs. 2,990/- per month and in support of his evidence, he had marked Exs. P7 to P11. Hence, the Tribunal, on

taking the income of the deceased at Rs. 2,700/- per month and on adopting a multiplier of 15, as was relevant to the age of the mother of the

deceased Dhanapal (44 years) and after deducting 1/3rd of the income of the deceased for his personal expenses, awarded a sum of Rs.

3,24,000/- as compensation to the petitioners under the head of loss of income (2700 X 2/3 X 12 X 15), Rs. 5,000/- was awarded to the

claimants under the head of loss of love and affection, Rs. 2,000/- was awarded for transport expenses, Rs. 200/- was awarded for damage to the

clothes and Rs. 2,000/- was awarded for funeral expenses. In total, the Tribunal awarded a sum of Rs. 3,33,200/- as compensation to the

claimants and directed the second respondent to deposit 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 two months from the date of it''s order.

Aggrieved by the said Award, the Insurance Company has preferred the present civil miscellaneous appeal.

The learned counsel for the appellant has contended in the appeal that the Tribunal erred in fastening liability on the insurer in a case, where the

vehicle was not insured on the date of accident as per Ex. R1 and evidence of R.W. 1. It is contended that the Tribunal ought to have seen that the

insured had discharged the burden cast on them by producing the insurance policy mentioned in Column No. 16 of the claim and as such the

insurer ought to have been exonerated from any liability. It is contended that the award passed was excessive and hence it is prayed to set aside

the award passed by the Tribunal.

The highly competent counsel for the claimants has submitted that the deceased was aged about 22 years and earning Rs. 2,990/- per month,

as a tailor, at a private garment shop, at Tiruppur. The claimants, who are the parents of the deceased, have lost their only earning son in the said

accident. The Tribunal had not granted adequate compensation under the head of loss of love and affection and funeral expenses and loss of

earning. Further, FIR had been registered against the driver of the offending vehicle. The claimants had produced salary certificate and other

employment particulars and proved the deceased''s employment and salary. Therefore, the Tribunal had decided all the issues in a proper manner.

Hence, the very competent counsel expects the Court to dismiss the appeal.

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 view that the deceased, who was an earning person and aged about 22 years and therefore the quantum of

compensation is not on the higher side. Besides, it is seen that FIR had been registered against the driver of the offending vehicle. Therefore, the

Tribunal had decided all the issues in an appropriate manner.

This Court has already directed the appellant Insurance Company to deposit the entire compensation amount. Now, the claimants are at liberty

to withdraw their apportioned share amount, with accrued interest, as per the ratio fixed by the Tribunal, lying in the credit of M.C.O.P. No. 1017

of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. IV, Coimbatore at Tiruppur, after

filing a memo along with a copy of this Judgment. In the result, this civil miscellaneous appeal is dismissed and the Judgment and decree dated

08.07.2008, made in M.C.O.P. No. 1017 of 2006, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track

Court No. IV, Coimbatore at Tiruppur, is confirmed. Consequently, connected miscellaneous petitions are closed. There is no order as to costs.