United India Insurance Company Limited vs Premalatha and Others

V. Dhanapalan, J.—Heard Mr. R. Srinivasan, learned counsel appearing for the appellant and Mr. Selvakumaran, learned counsel appearing for respondents 1 to 4/claimants.

The insurer preferred this appeal as against the award of the Motor Accidents Claims Tribunal/1st Additional District Judge, Tirunelveli in M.C.O.P. No. 822 of 2005, dated 25.07.2007, wherein as against the claim of Rs. 50 lakhs, a sum of Rs. 21,88,500/- has been awarded.

It was the averment of the claimants before the Tribunal that on 28.05.2004, while the deceased Perumal was walking in the left side of the Tirunelveli-Kanyakumari main road from Indira Nagar to Aralvoimozhi and was nearing to the Commercial Tax Check Post, the driver of the ambassador car, bearing Regn. No. T.S.C.0720, belonging to the first respondent, insured with the second respondent/Insurance Company, drove the same in a rash, reckless and negligent manner, at an uncontrollable speed, without sounding horn and without minding the rules of the road, came in the opposite direction and dashed on the deceased Perumal. As a result of the accident, the deceased was thrown away and he sustained grievous injuries on his head and other vital organs. Immediately, he was taken to Diraviam Hospital at Nagercoil and admitted as an inpatient. But, without responding to treatment, he died on 02.06.2004. On a complaint, a criminal case was registered against the driver of the ambassador car in Crime No. 331/2004 on the file of Aralvoimozhi Police Station. Claiming that the family had lost the support and care of the deceased Perumal, the claimants sought a sum of Rs. 50,00,000/- as compensation.

The Insurance Company resisted the claim petition before the Tribunal denying the insurance of the Ambassador car, belonging to the 1st respondent and contending that the claim of Rs. 50,00,000/- is highly excessive and baseless. Further, it is averred that the claimants are not the dependants of the deceased and the permanent residence of the claimants is also denied. Further, it is denied that the accident has happened due to the rash and negligent driving of the driver of the 1st respondent.

Before the Tribunal, on behalf of the claimants, two witnesses were examined and Exs. A1 to A11 were marked. The 1st claimant, viz. Premalatha was examined as P.W.1 and one Balakrishnan, who witnessed the accident was examined as P.W.2. On the side of the respondents, no one was examined. A copy of the bio-data of the deceased Perumal, the Certificate of History and Verification of Service, Pay-slip, a photo copy of Form-16, a photocopy of P.P.O extract in the name of Perumal were marked as Exs. B1 to B5, respectively.

The Tribunal, on evaluation of pleadings and evidence, found that the accident had occurred due to the rash and negligent driving of the driver of the first respondent in the claim petition and held him responsible for the accident and awarded a sum of Rs. 21,88,500/- as compensation with interest at the rate of 7.5% per annum. The compensation awarded by the Tribunal under different heads are as under:

The award of the Tribunal was apportioned to the claimants in the following manner.

Challenging the said award passed by the Tribunal, the Insurance Company is before this Court by way of this appeal.

The learned counsel for the appellant/Insurance Company would mainly question the liability of negligence fixed by the Tribunal on the driver of the Ambassador Car. He would further submit that the said vehicle was not insured with them. It is his further contention that the claimants have to prove their plea that they are permanently residing in the address mentioned in the petition.

On the other hand, learned counsel appearing for the respondents/claimants would submit that the Tribunal, after giving due consideration to the oral and documentary evidence placed on record, has fixed the liability of negligence on the part of the driver of the Ambassador Car.

We have given careful consideration to the submissions made by the learned counsel on either side and the materials placed on record.

Now, the questions which arise for consideration before this Court are

"(i) whether the Tribunal is right in fixing the liability of negligence on the driver of the Ambassador Car, which is insured with the appellant Insurance Company? And

(ii) whether the compensation awarded by the Tribunal is reasonable?"

Though the learned counsel for the appellant/Insurance Company has raised both the pleas of liability as well as quantum of compensation as the grounds to assail the impugned award, in the light of the oral and documentary evidence adduced before it like Ex. A.1/First Information Report, Wound Certificate in Ex. A.2, Motor Vehicle Inspector''s report in Ex. A.3, then, Observation Mahazar and Rough Sketch in Exs. A.4 and A.5 respectively, final report in Ex. A.6, the Family Survival Certificate of Perumal-Ex. A.7, Pay slip of Perumal-Ex. A.8, Form-16 of the Income Tax Department belonging to Peruaml-Ex. A.9 and medical bills for a sum of Rs. 45,820/-Ex. A.10 and the evidence of eye witness viz., P.W.2 and P.W.1/wife of the deceased, the Motor Accidents Claims Tribunal came to a clear conclusion by fixing the liability against the appellant/insurer.

From the above discussion, we hold that the liability of negligence fixed by the Tribunal on the driver of the Ambassador Car is correct and it does not warrant any interference by this Court.

13.(i) As regards the second question as to the quantum of compensation, the impugned claim was Rs. 50,00,000/- on the basis of the monthly income claimed at Rs. 38,496/-. Whereas the Tribunal has taken into account a sum of Rs. 20,000/-. To examine whether the income arrived at by the Tribunal is correct, it has been verified with the documents in Ex. A.8/salary slip and Ex. A.9/Form 16 of the Income Tax Department and the same Form 16 produced by the appellant before the Tribunal under Ex. B.4. P.W.1/wife of the deceased has deposed that her deceased husband was working as a Senior Winch Operator in New Mangalore Port Trust, a registered Cargo Handling Workers Administration Wing, Panambur and he was earning a sum of Rs. 38,946/- per month and it was claimed that the deceased was skillful and efficient in his work at that time and if at all the deceased did not meet the accident, upto 90 years, a clear promising future would be awaiting him. The accident took place in the month of May 2004 and therefore, the Tribunal has taken into consideration the salary of Rs. 35,218/- drawn at the relevant point of time, viz., in the month of April 2004. Considering the average salary, age of the deceased and Income Tax Return, the tribunal has fixed the monthly salary at Rs. 20,000/-.

13.(ii) Loss of dependency was calculated taking into account the income of the deceased based on two evidences, namely (i) Salary Slip in Ex. A.8, which has given a clear position that the deceased was drawing a salary of Rs. 38,946.34 p for the month of April 2004 and the accident took place on 28.05.2004 and subsequently, he died on 02.06.2004. ii) Form 16 of the deceased-Ex. A.9, issued by the Income Tax Department, reflects the salary for the year, which would come to Rs. 1,65,330/- and the tax paid on the income was Rs. 23,599/-, besides the oral evidence of P.W.1 and also Exs. B.3 and B.4. and in this regard, there was no contra evidence on the side of the appellant/Insurance Company.

13.(iii) In Ex. A.1/F.I.R., it has been indicated that the date of birth of the deceased is 02.05.1955. Therefore, the Tribunal has taken into account the age of the deceased at the time of accident as 49 years and applied 13 multiplier and arrived at the total compensation as to the pecuniary damages at [(Rs. 20,000 x 12 - 1/3) x 13= Rs. 1,60,000 x 13)] = Rs. 20,80,000/- and as to the non-pecuniary damages at Rs. 15,000/-, for loss of consortium, a sum of Rs. 15,000/- was granted and for love and affection, Rs. 20,000/- was awarded, for funeral and transport expenses of Rs. 2,500/- was given, for medical expenses Rs. 46,000/- was awarded as per the Bills under Ex. A.10 and then for mental agony and for sufferings, a sum of Rs. 10,000/- was ordered.

The respondents/claimants have not preferred any cross-appeal. Considering the nature of the accident, claim made and also the oral and documentary evidence, the tribunal has rightly concluded and computed the compensation for a sum of Rs. 21,88,500/-. Therefore, we have no hesitation to confirm the award of the tribunal and accordingly, it is confirmed in all respects.

In view of the above, this Civil Miscellaneous Appeal filed by the Insurance Company is dismissed. No costs. Consequently, connected M.P. No. 3 of 2010 is closed.