The National Insurance Co. Ltd. vs Gowramma and Others

C.S. Karnan, J.—The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree,

dated 31.12.2008, made in M.C.O.P. No. 1154 of 2001, on the file of the Motor Accident Claims Tribunal, Principal District Court, Dharmapuri,

awarding a compensation of Rs. 4,15,000/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of

payment of compensation.

Aggrieved by the said Award and Decree, the appellant/second respondent, The National Insurance Co. Ltd., Branch Office, Dharmapuri-636

701, has filed the above appeal praying to set aside the award and decree passed by the Tribunal.

The short facts of the case are as follows:

On 13.11.2000, at 18.30 hours, when the (deceased) Elakkiyappa, aged about 45 years, was proceeding in his TVS50 motorcycle, on the

Athimugam to Berigai road, towards Berigai on the extreme left side mud portion of the road. A Tempo van bearing registration No. TN29

A9955, belonging to the first respondent and insured with the second respondent, was driven by its driver in a rash and negligent manner and

coming on the Berigai to Athimugam road, in the opposite direction, dashed against the TVS50 motorcycle and the petitioner. Due to the impact,

the deceased was thrown out of the vehicle and sustained fatal injuries and died on the spot.

Prior to the said accident, the (deceased) Elakkiyappa was selling building materials at Hosur and Bangalore and was earning a sum of Rs.

7,000/- per month as income. Hence, the petitioners, who are the legal heirs of the deceased have claimed a compensation of Rs. 7,00,000/- from

the respondents u/s 166 of the Motor Vehicles Act.

The first petitioner is the first wife of the deceased. The second petitioner is the second wife of the deceased. The fifth to ninth petitioners are the

children born to the deceased through the first wife and the tenth and eleventh petitioners are the children born to the deceased through the second

wife. During the pendency of the case, the third and fourth petitioners, who are the parents of the (deceased) Elakkiyappa were died, leaving

behind the remaining petitioners as the only legal heirs of the deceased.

Regarding the said accident, a criminal case has been registered at the Berigai Police Station in Crime No. 283/2000 as against the driver of the

van, under Sections 279 and 304A of I.P.C.

The first respondent remained exparte. The second respondent in his counter has admitted that the van bearing registration No. TN29 A9955

had been covered under a policy of insurance with them for the period from 03.05.2000 to 02.05.2001. It has also been admitted that the

accident took place on 13.11.2000 at 18.30 hours. But, the second respondent has not admitted the averments in the claim regarding the manner

of the said accident. It has been submitted that the van was driven carefully and slowly and that the accident occurred only due to the rash and

negligent manner of riding of the TVS50 motorcycle by the deceased. The second respondent has also denied the averments in the claim regarding

the age, income and occupation of the deceased. It has also been submitted that the driver of the van and the deceased had no valid and effective

driving licence at the time of the said accident. It has been submitted that as the owner and insurer of the TVS50 motorcycle have not been added

as necessary parties in the claim, the claim is bad for non-joinder of necessary parties. It was also stated that as the second petitioner has been

alleged as the second wife of the deceased, she is not a legal heir of the deceased. It was also submitted that the claim was also excessive and has

to be dismissed with costs.

The Motor Accident Claims Tribunal framed three issues for the consideration namely:

(i) Whether the accident took place due to the rash and negligent driving of the driver of the first respondent''s vehicle bearing registration No. TN

29A9955?

(ii)Whether the respondents are liable to pay compensation? If so, what is the quantum of compensation, the petitioners are entitled to get?

(iii)To what relief are the petitioners entitled to get?

On the petitioners'' side two witnesses were examined as PW1 and PW2 and three documents were marked as Exs.P1 to P3. On the

respondents'' side one witness was examined as RW1 and and one document was marked as Ex.R1.

The second petitioner was examined as PW1 and one Govindappan, eye witness, was examined as PW2. In the petition and in the evidence

of the PW2, it is stated that on 13.11.2000, while the deceased was riding on his TVS50 motorcycle from Berigai to Athimugam, the Tempo van

bearing registration No. TN29 A9955, belonging to the first respondent and insured with the second respondent, was driven by its driver in a rash

and negligent manner from Berigai to Athimugam and had dashed against the TVS50. It has been stated that the deceased was thrown out of his

vehicle in the impact and succumbed to the injuries. On the side of the second respondent, the RW1 was examined. In his cross-examination, he

had admitted that he is not an eye witness to the accident and that he deposed on the basis of the records. The RW1, has also admitted that a

criminal case has been registered only as against the driver of the first respondent by the Police, after investigation.

The learned Counsel for the second respondent contended that the accident had been caused due to the contributory negligence of the

deceased and relied on citation reported in 2008(1) TN MAC 366, National Insurance Co. Limited, Madurai v. P. Murugan and Ors. But, the

Tribunal, on considering that in the instant case it is not a ''head on collision'' held that the facts of the reported decision was totally different with

that of the instant case. As such, the Tribunal, on considering the evidence of the PW2, contents of the FIR marked as Ex.P1 and considering that

no contra evidence had been let in by the second respondent''s side to disprove the above exhibits and also taking into consideration that the driver

of the first respondent was not examined, held that the accident took place only due to the rash and negligent driving by the driver of the first

respondent''s vehicle and accordingly held the second respondent being insurer of the van liable to pay the compensation to the petitioners on

behalf of the first respondent.

In the evidence and in the petition, it has been stated that the deceased was selling building materials and earning a sum of Rs. 7,000/- per

month. But, the Tribunal, on considering that no proof has been produced on the side of the petitioners to establish that the deceased was selling

building mater5ials and that no purchase bills or copy of sales bills were produced before the Tribunal to establish the income of the deceased, held

that the monthly income of the deceased could be taken as Rs. 3,000/- only. After deducting 1/3rd share from this towards the personal expenses

of the deceased, the contribution to his family was assessed as Rs. 24,000/- per annum. The Tribunal taking the age of the deceased as 45 years

as was stated in the post-mortem report marked as Ex.P2, adopted a multiplier of 15 and assessed the compensation payable to the petitioners as

Rs. 24,000/- X 15 = Rs. 3,60,000/- and accordingly awarded this as compensation to the petitioners under the head of dependency. The Tribunal

further awarded a sum of Rs. 7,500/- each to the first and second petitioners under the head of loss of consortium. The Tribunal awarded a

compensation of Rs. 5,000/- each to the 5th to 11th petitioners, in total Rs. 35,000/- under the head of loss of love and affection. The Tribunal

also awarded a sum of Rs. 5,000/- towards funeral expenses. In total, the Tribunal awarded a sum of Rs. 4,15,000/- as compensation to the

petitioners. The Tribunal apportioned a sum of Rs. 67,500/- each to the first and second petitioners from and out of the award amount and also

apportioned a sum of Rs. 40,000/- each to the 5th to 11th petitioners.

The Tribunal directed the respondents to deposit the above compensation of Rs. 4,15,000/- together with interest at the rate of 9% per annum

from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P. No. 1154 of 2001, on the file of the

Motor Accident Claims Tribunal, Principal District Court, Dharmapuri, within a period of two months from the date of its Order. After the award

amount was remitted by the respondents, the apportioned share of the award with proportionate accrued interest, of the first, second, fifth and

sixth petitioners was to be deposited in a nationalised bank, as fixed deposit, for a period of three years. The apportioned share of the petitioners 7

to 11 was to be deposited in a nationalised bank, as fixed deposit, until they attain the age of a major. The mother and the next friend of the minor

petitioners 7 to 9 ie. the first petitioner was permitted to withdraw interest on the deposit of the minor petitioners 7, 8 and 9, once in three months

for the maintenance of the minor petitioners 7 to 9. The mother and next friend of the minor petitioners 10 and 11 was permitted to withdraw the

interest on the deposit of minor petitioners 10 and 11 once in three months for the maintenance of minor petitioners 10 and 11. the petitioners were

directed to pay the balance Court fee for the award amount within a period of one month. The Advocate fees was fixed at Rs. 11,150/- and the

respondents were directed to pay the cost of Rs. 14,684.50 to the petitioners.

Learned Counsel appearing for the appellant has contended in his appeal that the Tribunal ought to have held that the accident occurred solely

due to the rash and negligent act of the deceased and reduced the compensation. It was also pointed out that the findings arrived at by the Tribunal

shows that the assessment calculated has been made purely on its discretion rather than on the basis of either oral or documentary evidence

available on record, and as such is unrealistic and against well laid principles of law. Hence, the learned Counsel has prayed to set aside the award

and decree passed by the Tribunal. The learned Counsel appearing for the appellant argued that the rate of interest by the Tribunal was 9% per

annum, but on the date of granting the award the rate of interest prevailing was only 7.5% per annum. Further, the learned Counsel argued that the

claim petition has been filed u/s 166 of the Motor Vehicles Act and hence the award granted by the Tribunal adopting multiplier method for

assessment of compensation is incorrect. As such, the award granted by the Tribunal is excessive.

Learned Counsel appearing for the respondents argued that the claimants are 12 in numbers and all of them are depending on the deceased''s

income. The deceased was the only breadwinner of the family. If the claimants are more than 3 in number, the personal expenses of the deceased

should have been taken as only 1/5th. Further, the Tribunal''s fixing of the income of the deceased as Rs. 3,000/- per month is on a lower side. The

learned Counsel further argued that the deceased was in the business of selling building materials through, which the deceased had earned

considerable income. The Tribunal had failed to award compensation under the head of transport expenses. Further, the award of Rs. 4,15,000/-

granted by the Tribunal is on the lower side. As such, the learned Counsel pointed out that the appeal is not maintainable and has to be dismissed.

Considering the facts and circumstances of the case and scrutiny of the findings of the Tribunal and arguments advanced by the learned

Counsel appearing on either side, this Court is of the view that the award of Rs. 4,15,000/- granted by the Tribunal to the claimants is fair and

equitable.

Regarding the rate of interest fixed by the Tribunal at 9%, this Court is of the view that it is on the higher side. Considering that the claimants

are 9 in number and that the award has already been deposited after calculating 9% interest per annum on the award, this Court does not want to

interfere with the rate of interest considering the above two aspects. Hence, this Court confirms the Award and Decree, dated 31.12.2008, in

M.C.O.P. No. 1154 of 2001, passed by the Motor Accident Claims Tribunal, Principal District Court, Dharmapuri, as it is found to be fair and

equitable in the circumstance of the case.

On 03.08.2009, this Court imposed a condition on the appellant to deposit the entire compensation amount, into the credit of the M.C.O.P.

No. 1154 of 2001, on the file of the Motor Accident Claims Tribunal, Principal District Court, Dharmapuri, within a period of six weeks from the

date of its Order.

As the accident happened in the year 2000, it is open to the claimants to withdraw their apportioned share amount, with accrued interest

thereon, lying in the credit of the M.C.O.P. No. 1154 of 2001, on the file of the Motor Accident Claims Tribunal, Principal District Court,

Dharmapuri, after filing necessary payment out application in accordance with law, subject to deduction of withdrawals made, if any and further

subject to the minor claimants becoming majors.

In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 31.12.2008, made in M.C.O.P. No. 1154

of 2001, on the file of the Motor Accident Claims Tribunal, Principal District Court, Dharmapuri, is confirmed. Consequently, connected

miscellaneous petitions are closed. There shall be no order as to costs.