The Divisional Manager, The United India Insurance Co. Ltd. vs Vasantha, Tamizharasi, Saravanan and Balu

C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree dated 13.07.2005,

made in M.A.C.T.O.P. No. 52 of 2001, on the file of the Motor Accident Claims Tribunal (Principal District Court), Cuddalore. The short facts

of the case are as follows:-

The claimants, who are the wife and minor children of the deceased Alolam, had filed a claim petition in M.A.C.T.O.P. No. 52 of 2001, on the file

of the Motor Accident Claims Tribunal (Principal District Court), Cuddalore, claiming a sum of Rs. 4,00,000/- as compensation, from the

respondents, for the death of the said Alolam, in a motor vehicle accident.

It was submitted that on 29.10.1998, at about 03.45 a.m., when the deceased Alolam was travelling as a loadman in the first respondent''s lorry

bearing registration No. TDF 4377, which was proceeding from Panrutti to Kerala and when it was near Kattukottai near Sankar Sago Mill, the

driver of the lorry drove it in a rash and negligent manner and dashed it against a tractor bearing registration No. TN31 X0538. As a result, one

person died on the spot and the other loadmen including the deceased Alolam had sustained injuries. The deceased Alolam was admitted at

Government District Head Quarters Hospital, Cuddalore, wherein he took treatment as an inpatient for three months. Subsequently, he took

treatment at his native place, but in spite of treatment he died on 04.09.1999. At the time of accident, the deceased was working as a loadman and

earning Rs. 100/- per day. Hence, the claimants had filed the claim petition against the respondents, who are the owner and insurer of the lorry

bearing registration No. TDF 4377.

The second respondent Insurance Company, in their counter affidavit, had submitted that the first respondent''s lorry was covered under a valid

policy of insurance with them and that the said vehicle was covered by proper documents at the time of accident. It was submitted that the accident

took place only due to rash and negligent driving of the tractor bearing registration No. TN31 X0538 and as such the claim was bad for non-

joinder of the owner and insurer of the tractor as necessary parties in the claim. It was submitted that as the deceased was travelled as a gratuitous

passenger and not as a loadman as alleged in the claim, only the first respondent can be held liable to pay compensation to the claimants. It was

submitted that the claim was excessive. In their additional counter affidavit, it was submitted that the deceased Alolam sustained injuries on

29.10.1998 and had died only on 04.09.1999 and as such it is evident that his death was not caused due to injuries sustained by him in the

accident.

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

i. Whether the accident occurred due to the rash and negligent driving of the lorry belonging to the first respondent by the first respondent''s lorry

driver or due to the negligence of the tractor driver?

ii. Whether the lorry was insured with the second respondent and whether the vehicle was covered by proper insurance and other documents as

contemplated under the Motor Vehicles Act and whether the lorry driver had valid driving licence at the time of accident?

iii. Whether the deceased Alolam died due to the injuries sustained in the accident or due to some other cause? and

iv. Whether the petitioners are the legal heirs/dependants of the deceased Alolam, and if so, what should be the quantum of the compensation?

On the claimants'' side, the first claimant was examined as P.W. 1 and five documents were marked as Exs. P1 to P5 namely copy of FIR, O.P.

Chit, death certificate of deceased Alolam, Lalgi Scheme-Insurance settlement claim letter and photo copy of deceased Alolam case sheet

particulars. On the respondents'' side no witness was examined and no document was marked.

P.W. 1 had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of her

evidence, she had marked Exs. P1 to P5. On scrutiny of Ex. P1, it is seen that FIR had been registered against the driver of the first respondent''s

lorry by one Venkatesan, who was one of the loadmen in the first respondent''s lorry. The Tribunal observed that no evidence had been let in on

the respondents'' side to rebut the evidence of P.W. 1 and the averments made in the FIR regarding manner of accident.

The Tribunal, on scrutiny of FIR, observed that in the first column of FIR, the date of accident had been wrongly mentioned as 20.10.1998,

whereas in the body of FIR, it has been mentioned that the accident took place on 29.10.1998 at about 03.45 a.m. 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 the second respondent Insurance Company liable to pay compensation to the claimants.

On scrutiny of Ex. P2, it is seen that the deceased Alolam had sustained fracture of his left scapulae and admitted in the Hospital on 03.11.1998

and discharged on 05.11.1998. Ex. P3 would show that he died on 04.09.1999 i.e., about ten months after the accident. On scrutiny of Ex. P5, it

is seen that he had sustained injuries in the road traffic accident on 29.10.1998, while he was travelling as a loadman in the lorry. The Tribunal had

observed that there is no clinching medical evidence to show that he met with his death only due to the injuries sustained by him.

The Tribunal opined that the deceased had died due to his poverty and due to lack of medical care after the accident. The Tribunal further

observed that no evidence had been let in on the side of the second respondent to show that he had died due to some other cause. Hence, the

Tribunal, on observing that the deceased had also contributed negligence to his death by his failure to take proper medical care, held that the

contributory negligence of the deceased was 50% and held that the claimants are entitled to get 50% of the compensation assessed.

The Tribunal, on scrutiny of Ex. P2, observed that the deceased was aged 48 years at the time of his death. The Tribunal, on taking the

notional income of the deceased at Rs. 2,500/- per month and adopting a multiplier of 13, awarded a sum of Rs. 2,60,000/- as compensation

under the head of loss of income (2500 X 12 X 2/3 X 13), Rs. 10,000/- was awarded to the first claimant under the head of loss of consortium,

Rs. 10,000/- was awarded to the claimants under the head of loss of love and affection, Rs. 2,000/- was awarded for funeral expenses and Rs.

2,500/- was awarded for loss of estate. In total, the Tribunal had assessed the total compensation payable to the claimants at Rs. 2,84,500/-.

The Tribunal on deducting 50% of the compensation assessed for the contributory negligence of the deceased assessed the compensation

payable to the claimants as Rs. 1,42,250/- and rounded it to Rs. 1,50,000/- and directed the respondents to jointly and severally pay the said sum

together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, with costs,

within a period of three months from the date of it''s order.

Aggrieved by the award passed by the Tribunal, the second respondent Insurance Company has preferred the present civil miscellaneous

appeal.

The learned counsel appearing for the appellant has contended in the appeal that the Tribunal erred in awarding Rs. 1,50,000/- as

compensation and that it has failed to see that the deceased had died only after ten months from the date of accident and no proof had been let in

to show that the cause of death was only due to injuries sustained in the accident.

It is also contended that the Tribunal failed to see that the deceased was a gratuitous passenger in a lorry and that including him four others had

travelled in the lorry to go to Kerala as Coolies, apart from the driver and cleaner. It is also contended that the Tribunal failed to see that the

injuries suffered by the deceased namely fracture on scapula (shoulder blade) is not such a grievous injury, which could result in the death of the

deceased.

It is also contended that the Tribunal failed to see that the deceased was an inpatient at Hospital only for two days after the accident and he

died on 04.09.1999 i.e., ten months later. Hence, it is prayed to set aside the award passed by the Tribunal.

The learned counsel appearing for the claimants has submitted that the deceased had sustained shoulder and chest injuries and as such his vital

organs had been affected and it had culminated in his death. Before the accident, he was hale and healthy and involved as loadman and was aged

only 48 years. As such there was no possibility of natural death and it is evident that he had died only due to injuries sustained in the accident. He

had been hospitalized at Government Head Quarters Hospital, Cuddalore, for three months i.e., from 29.10.1998. Subsequently, he had died after

six months, while he was undergoing treatment as an inpatient. FIR had been registered against the driver of the offending vehicle. Further, Ex. P2

is the medical record, which clearly indicates that he underwent treatment as an outpatient also.

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. Further, this Court is of the view that the learned Judge had observed that due to the poverty of the deceased and due to lack of

medical care, he had met with his untimely death due to the accident. This Court is in concurrence with the same after observing that the deceased

is an illiterate labourer and living below poverty level. Hence, this Court confirms the award passed by the Tribunal.

This Court had already directed the appellant Insurance Company to deposit the entire award amount together with interest to the credit of

M.A.C.T.O.P. No. 52 of 2001, on the file of the Motor Accident Claims Tribunal (Principal District Court), Cuddalore.

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

M.A.C.T.O.P. No. 52 of 2001, on the file of the Motor Accident Claims Tribunal (Principal District Court), Cuddalore, 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 13.07.2005, made in

M.A.C.T.O.P. No. 52 of 2001, on the file of the Motor Accident Claims Tribunal (Principal District Court), Cuddalore, is confirmed.

Consequently, connected miscellaneous petition is closed. No costs.