The New India Assurance Company Limited vs Ruby and Others

C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.

No. 32 of 2003, on the file of Motor Accidents Claims Tribunal, Ranipettai. The short facts of the case are as follows:-

The petitioners who are the parents and sisters of the deceased Anandhakumar have filed the claim in M.C.O.P. No. 32 of 2003, claiming

compensation of a sum of Rs. 10,00,000/- from the respondents for the death of the said Anandhakumar, in a motor vehicle accident. It was

submitted that on 22.01.2003, at about 2.55 p.m., when the (deceased) was travelling in the lorry bearing registration No. TAV-1499, along with

others and when the lorry was proceeding on the Katpadi to Gudiyatham Main Road and near Vikramasimedu, from east to west, the first

respondent''s van bearing registration No. TN-25-X-3597, coming on the same road in the opposite direction and driven at a high speed and in a

rash and negligent manner by its driver, dashed against the lorry and caused the accident. As a result, the (deceased) and 3 others sustained

grievous injuries and died on the spot. At the time of accident, the deceased was aged 19 years and was working as a tailor and earning Rs.

5,000/- per month. Hence, the petitioners have filed the claim against the respondents 1 to 6. The first and second respondents are the owner and

insurer of the van bearing registration No. TN-25-X-3597 and the third and fourth respondents are the owner and insurer of the lorry bearing

registration No. TAV-1499. The fifth and sixth respondents are the legal-heirs of the (deceased) third respondent.

The second respondent in his counter has denied the averments in the claim regarding age, income, occupation of the deceased as well as

manner of accident. It was submitted that the accident had been caused only by the rash and negligent driving of the driver of the lorry. It was

submitted that the lorry was registered as a goods vehicle and that as the driver of the lorry had permitted some persons to travel as passengers in

the said lorry, the policy conditions of insurance had been violated and as such, only the third and fourth respondents are liable to pay

compensation and the second respondent cannot be held liable to pay compensation. It was submitted that the claim was excessive.

The fourth respondent, in his counter has submitted that the petitioners should prove the age, income, occupation of the deceased, nature of

injuries sustained and also prove that they are the legal-heirs of the (deceased) through documentary evidence. It was submitted that as passengers

were carried in the third respondent''s lorry which was a goods vehicle, the policy conditions of insurance had been violated and as such, the fourth

respondent is not liable to pay compensation. It was submitted that the criminal case has been filed only against the driver of the van for rash and

negligent driving. It was submitted that the claim is bad for non-joinder of the driver of the first respondent''s van as necessary party. It was

submitted that contributory negligence has to be attributed to the (deceased) as well, who had travelled as a passenger in the third respondent''s

goods lorry. It was submitted that the claim was excessive.

The fifth and sixth respondents in their counter have submitted that as the petitioners, in their claim, had mentioned that the accident had been

caused by the rash and negligent driving of the first respondent''s van driver, the respondents 3 to 6 are not liable to pay any compensation. It was

submitted that as the third respondent''s lorry had been covered under a valid R.C., F.C. and permit at the time of accident and as the third

respondent''s vehicle had been insured with the fourth respondent at the time of accident, only the fourth respondent is liable to pay compensation,

to the petitioners, if so decided by the Tribunal.

The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz.,

(i) Was the accident caused by the rash and negligent driving by the driver of the first respondent''s van or was it caused by the rash and negligent

driving by the driver of the third respondent''s lorry? Which of the respondents is liable to pay compensation?

(ii) Are the petitioners entitled to get compensation? If so, what is the quantum of compensation which they are entitled to get?

On the petitioners side, two witnesses were examined and eight documents were marked as Exs. P1 to P8, viz., Ex. P1-copy of F.I.R., Ex. P2-

copy of postmortem report, Ex. P3-copy of Motor Vehicle Inspector''s report of lorry bearing registration No. TAV-1499, Ex. P4-copy of

Motor Vehicle Inspector''s report of van bearing registration No. TN-25-X-3597, Ex. P5-copy of charge sheet, Ex. P6-copy of insurance policy

for van bearing registration No. TAV-1499, Ex. P7-copy of insurance policy for lorry bearing registration No. TN-25-X-3597, Ex. P8-legal-heir

certificate.

On the respondent''s side, four witnesses were examined and four documents were marked as Exs. R1 to R4, viz., Ex. R1-copy of insurance

policy for van bearing registration No. TN-25-X-3597, Ex. R2-investigation report of investigation officer of second respondent, Ex. R3-copy of

insurance policy for lorry bearing registration No. TAV-1499, Ex. R4-investigation report of investigation officer of the fourth respondent.

P.W. 1, Smt. Ruby, the first petitioner herein had adduced evidence that the (deceased) Anandhakumar was her son. She adduced evidence

which is corroborative of the statements made by her in the claim regarding manner of accident and in support of her evidence, she had marked

Exs. P1 to P8.

P.W. 2, Thiru. Ramu, who was a passenger in the third respondent''s lorry and eyewitness of the accident had adduced evidence that on

22.01.2003, at about 2.55 p.m., when he was travelling in the third respondent''s lorry bearing registration No. TAV-1499 which was carrying 25

passengers, the deceased Chakrapani, William Lawrence, Anandan, Yesu and when the vehicle was proceeding on the Vellore-Gudiyatham Main

Road and nearing Vikramasimedu next to K.V. Kuppam, the first respondent''s van bearing registration No. TN-25-X-3597, coming in the

opposite direction and driven at a high speed and in a rash and negligent manner by its driver dashed against the rear right side of the lorry and as a

result, the door of the lorry was torn apart and four of the passengers, who were standing next to the door of the lorry had fallen down and the van

had run over them resulting in instantaneous death to three of them and that the other injured person succumbed while being taken to the hospital.

He deposed that he had given the complaint regarding the accident to Latheri Police Station and deposed that the accident had been caused by the

rash and negligent driving of the van driver.

R.W. 1, Thiru. Kesavan had adduced evidence that the van bearing registration No. TN-25-X-3597, had been insured with them and that the

accident had occurred only due to the negligence of the driver of the lorry bearing registration No. TAV-1499. He deposed that the deceased

persons, had travelled on the back of the lorry and on top of the cabin of the lorry, which were also carrying some bulls. He deposed that the van

bearing registration No. TN-25-X-3597 had dashed against the right side of the lorry bearing registration No. TAV-1499 and that due to the

accident, the right side body of both the vehicles had been damaged. He further deposed that the four persons who had travelled on the cabin of

the lorry had been hit by a tamarind tree branch and had fallen down and that they had not been run over by the van, as alleged. He deposed that

as the deceased persons had travelled as gratuitous passengers in the lorry, which was registered as a goods lorry, only the third and fourth

respondents are liable to pay compensation. In support of his evidence, he had marked Ex. R1.

R.W. 2, Thiru. Kumar, the Investigating Officer of the second respondent''s firm had adduced evidence that as per the investigation carried out

by him, he had found that 15 to 20 persons had travelled on top of the lorry and that 25 persons in all had travelled in the lorry. He deposed that

when the lorry was near Vikramasimedu Village, the persons who were travelling on the top of the cabin had been hit by a tamarind tree branch

and had fallen down from the lorry. The driver of the lorry, in order to avert the accident had swerved his vehicle to the right of the road and

consequently dashed the lorry against the van. He deposed that the accident had been caused only by negligence of the lorry driver and not due to

any negligence on the part of the van driver.

R.W. 3, Thiru. Raghu, the Senior Assistant in the fourth respondent''s firm had adduced evidence that as the accident had been caused by the

rash and negligent driving of the first respondent''s van, the fourth respondent is not liable to pay compensation. He deposed that as the driver of

the van had admitted his guilt and paid the fine before the criminal Court, the fourth respondent is not a necessary party in the claim. He further

deposed that as the lorry insured with them was a goods vehicle and as 20 persons had travelled as passengers in the goods lorry, the policy

conditions of insurance had been violated and as such, the fourth respondent is not liable to pay compensation and only the first and second

respondents are liable to pay compensation and in support of his evidence, he had marked Ex. R3.

R.W. 4, Thiru. Pugayenthi, the Investigation Officer of the fourth respondent''s firm had adduced evidence that he had carried out the

investigation regarding the accident and had found that 25 persons had travelled on the top of the cabin of the lorry bearing registration No. TN-

25-X-3597, in order to witness manjuvirattu. He deposed that the lorry was registered as a goods lorry and that passengers are not allowed to

travel in it. He deposed that as the van bearing registration No. TN-25-X-3597, had collided with the lorry, the lorry had capsized and three

persons had died on the spot and some others sustained injuries. He deposed that the police after investigation had found that the accident was

caused by the rash and negligent driving of the van driver and taken action against him.

The Tribunal observed that no eyewitnesses had been examined on the side of the second respondent to prove that the accident had occurred

due to negligence of the lorry driver. The Tribunal, on considering that the police after investigation had filed the charge sheet against the van driver

was not inclined to accept the version of accident based on the Motor Vehicle Inspector''s Report and postmortem report. Hence, the Tribunal on

scrutiny of evidence of P.W. 2 and on scrutiny of oral and documentary evidence held that the accident had been caused by the rash and negligent

driving by the driver of the first respondent''s van and hence held the second respondent, being the insurer of the van liable to pay compensation.

The Tribunal, on observing that passengers had travelled in the third respondent''s goods lorry, held that the fourth respondent is not liable to pay

compensation and hence, dismissed the claim against the fourth respondent.

P.W. 1 had further adduced evidence that when her son died in the accident, her age was 35 years and that her husband''s age was 45 years.

She deposed that the third and fourth petitioners are her daughters and that the third petitioner has married. She deposed that her son was aged 19

years and was working as a tailor and earning Rs. 150/- to Rs. 200/- per day. On scrutiny of Ex. P2, it is seen that the deceased was 19 years.

The Tribunal, on observing that as the third and fourth petitioners are not the legal-heirs of the deceased they are not entitled to get compensation.

The Tribunal on observing that no documentary evidence had been marked to prove that the deceased was earning Rs. 5,000/- per month, held

the notional income of the deceased was Rs. 3,000/- per month. The Tribunal, on adopting a multiplier of ''15'', as was relevant to the average of

the father and mother of the deceased, (40 + 45/2 = 42 1/2 years) and on deducting 1/3rd of the income of the deceased for his personal

expenses, awarded a sum of Rs. 3,60,000/- as compensation to the petitioners under the head of ''loss of income; Rs. 15,000/- was warded as

compensation under the head of ''loss of love and affection; Rs. 5,000/- was awarded for funeral expenses. In total, the Tribunal awarded a sum of

Rs. 3,80,000/- as compensation to the petitioners 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 date of deposit of compensation, with costs, within one month from the date of its order. The

claim against the respondents 4 to 6 were dismissed.

Aggrieved by the award passed by the Tribunal, the second respondent/New India Assurance Company Limited, Vellore has preferred the

present appeal.

The learned counsel for the appellant has contended in his appeal that the Tribunal failed to appreciate that the accident was caused only due

to rash and negligent driving of the lorry bearing registration No. TAV-1499, in which the deceased and several others were travelling, along with

their bullocks for manjuvirattu. It was contended that the Tribunal failed to appreciate that the lorry bearing registration No. TAV-1499 was

carrying several persons, along with live bullocks and the deceased and others were travelling on the roof of the cabin and they were hit by a

tamarind tree and fell on the road, as a result of which, they were run over by the mini lorry bearing registration No. TN-25-X-3597, as the driver

of the van could not anticipate such falling of people from the lorry bearing registration No. TAV-1499. It was contended that the Tribunal erred in

rejecting evidence of R.W. 1 and R.W. 2 and in rejecting Exs. R1 and R2, viz., insurance policy and investigation report. It was contended that as

the accident was due to body contact of the vehicles on a highway, the Tribunal ought to have held that the deceased as well as the drivers of both

the vehicles are equally responsible for the accident and ought to have apportioned the liability between the parties equally. It was contended that

the Tribunal ought to have seen that the accident could have been averted if the deceased did not travel on the roof of the cabin and had the driver

of the lorry in which the deceased was travelling drove the vehicle carefully looking for the protruding branches of the trees on the way. It was

contended that the income of the deceased fixed at Rs. 3,500/- was erroneous as it had been done without any basis. It was contended that the

award passed was excessive and hence, it was prayed to set-aside the award.

The learned counsel for the claimants/respondents argued that the F.I.R. has been registered against the offending vehicle driver. The said

vehicle has been insured with the appellant herein. Further, the driver of the offending vehicle has been punished before the Court of law for his

negligent driving. At the time of accident, the deceased was aged 19 years and he was a tailor by profession and was earning Rs. 5,000/- per

month. The claimants are two in numbers, who are the parents and all are depending on the income of the deceased. The deceased was travelling

on the lorry with three others. Therefore, the quantum of compensation has been decided on the basis of documentary evidence.

On considering 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 age of the deceased was 19 years and the claimants are two in numbers, who are

depending on the income of the deceased. Besides this, the Tribunal had decided the issue regarding negligence and liability on the basis of F.I.R.,

charge sheet and insurance policy. Hence, this Court is not inclined to entertain the appeal.

As per Court records, it is seen that the entire compensation amount has been deposited by the appellant/Insurance Company and the

claimants were permitted to withdraw 50% of their apportioned share amount with proportionate interest thereon. Now, it is open to the claimants

to withdraw their balance apportioned share amount with interest therein lying in the credit of M.C.O.P. No. 32 of 2003, on the file of Motor

Accidents Claims Tribunal, Ranipettai, after filing a Memo, along with a copy of this order. In the result, the above appeal is dismissed.

Consequently, the order passed in M.C.O.P. No. 32 of 2003, on the file of Motor Accidents Claims Tribunal, Ranipettai, dated 08.09.2006 is

confirmed. There is no order as to costs.