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BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
TIRUVANNAMALAI
(IN THE COURT OF THE SPECIAL SUB COURT,
TIRUVANNAMALAI)
PRESENT: THIRU.E.BAKTHAVACHALU, M.L., D.C.F.SC.,
Motor Accident Claims Tribunal Judge/
Special Sub Judge(MCOP),Tiruvannamalai.
Wednesday, this the 17th day of January 2018
M.C.O.P.No.695/13
1.Gowri
2.Shivasankari(Died)
3.Kamatchi
4.Minor Muthulakshmi
5.Minor Maladhi
(Minors 3 and 4 are represented by their Guardian/Mother/
1st petitioner Tmt.Gowri) ...Petitioners
/Vs/
1.Lawrance
2.The United India India Assurance Company
Limited, Vellore.
3.Deenadayalan ..Respondents
This petition came up before me for final hearing on 11.01.18 in
the presence of M/S. C.Subramanian, Counsel for the petitioners,
M/S.R.Selvaraj,Counsel for the 2nd respondent and M/S.Tr.M.Jayapalan,
Counsel for the 3rd respondent and the 1st respondent being called
absent and set exparte and upon hearing the arguments of both sides,
having stood over for consideration till this day, this court doth delivers
the following:
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ORDER
The petitioners filed this petition claiming a sum of Rs.7,50,000/
as compensation for the death of Tr.Ranganadhan Under Section 166
of Motor Vehicles Act, 1988 r/w Rule.3 of Tamil Nadu Motor Accident
Claims Tribunal Rules, 1989.
2) The Case of the petitioner in brief is as follows:
The deceased Tr.Ranganadhan was aged about 45 years and he was
working as Mason and also was traveling as a load man at the time of
accident. He was earning not less than Rs.200/ per day. On 28.3.12 at
about 12.30 hours the deceased was working as a load man in the Van
bearing Registration No. TN22J2670 and when the van was nearing
Melpappambadi Village at Tindivanam to Tiruvannamalai road, the
driver of the above said van drove the same in a rash and negligent
manner and capsized it. Due to this, the deceased sustained fatal
injuries. The deceased was taken to Government hospital,
Tiruvannamalai, where he died on the same day. The above said
accident occurred solely due to the rash and negligent driving of the
driver of the Van belongs to the first respondent.
3)The S.I. of Police,Nallanpillai Petral Police Station registered a
case in Cr. No.105/02 U/Sec. 279,337 and 304(A) IPC against the driver
of the Van. The 1 st petitioner is the wife, 2 to 5 petitioners are the
daughters of the deceased Tr Ranganadhan. During pendency of this
petition, the second petitioner died.Due to the death of Tr.Ranganadhan,
the 1st petitioner had lost her husband in her young age and 2 to 5
petitioners have lost their father and they suffered loss of income, love
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and affection and they became helpless. The Van involved in this
accident belongs to the 1st respondent. It was duly insured with the
second respondent at the time of accident. The 3 rd respondent is the
driver of the Van. Hence, the respondents 1 to 3 are jointly and
severally liable to pay a sum of Rs.7,50,000/as compensation with
interest as claimed by the petitioners. Thus, this petition.
4) The Counter filed by the 2nd respondent in brief is as
follows:
The petition is false, vexatious and not sustainable both on law and
on facts. This respondent denies and repudiates all such averments in the
petition except those which are expressly admitted. This respondent's
liability is subject to the terms and conditions of the policy condition. If
there is any violation of policy condition, this respondent is not liable to
pay compensation to the petitioners. The offending vehicle was not
insured with this respondent's Insurance company as Goods Carrying
vehicle and not as a passenger or persons carrying vehicle. The
deceased was not the owner of the vehicle at the time of alleged vehicle.
Carrying persons in the Goods vehicle itself is a violation of policy
conditions. This respondent is not liable to pay compensation to the
owner of the Goods traveled in the Van. At the time of accident, the
deceased was traveling as an unauthorized person in the vehicle. It is the
bounden duty of the petitioners to prove that the deceased traveled as
owner of the goods in the Van. The age and income of the deceased are
denied by this respondent. The petitioners are not the legal heirs of the
deceased. The compensation claimed by the petitioners are excessive
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and exorbitant. Thus, this petition is liable to be dismissed as against
this respondent.
5)The Points for consideration:
1 Whether the accident occurred due to rash or negligent
driving of the driver of the Van bearing Registration No.
TN22J2670?
2 Whether the petitioners are entitled to compensation? If so,
what shall be the quantum and from whom?
6) On the side of the petitioner, PW1 has been examined and
Ex.P1 to P7 have been marked. On the side of the respondents, RW1
and RW2 have been examined and Ex.R1 and Ex.R2 have been marked.
7)The 2nd respondent namely the Insurance Company has filed
an application U/S. 170 of M. V. Act and the same was allowed by
this court. Accordingly the 2nd respondent was permitted to take all the
defenses available to the 1st respondent.
8) Point No:1:
The petitioners say that on 28.3.12 at about 12.30 hours when the
deceased Tr.Ranganadhan was traveling in the van bearing Registration
No. TN22J2670 as loadman from Chennai towards Tiruvannamalai,
the driver of the said van drove the same in a rash and negligent manner
near Melpappampadi Village and capsized it. Due to this, the deceased
sustained fatal injuries and died. This accident took place due to the rash
and negligent act of the driver of the van according to the petitioners.
9) The first respondent is the owner of the van involved in this case
occurrence. The second respondent is the Insurer of the van. The 3 rd
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respondent is the driver the said van. The respondents 1 and 3 remained
exparte and they do no dispute the case of the petitioners. The second
respondent being the Insurer of the said van puts forth the contention
saying that in the said van about 32 persons traveled at the time of
accident and due to over load, the said van capsized. RW1 is the
Investigator appointed by the second respondent RW2 is the
Administrative Officer working in the second respondent's Company.
Both of them adduce evidence in line with the above contention of the
second respondent. But both RW1 and RW2 were not eye witnesses to
the occurrence. RW1 was appointed and paid by the second respondent.
Thus, RW1 could have submitted a report in favour of the second
respondent. Further the report submitted by the RW1 and marked as
Ex.R1 may be a biased one and it has no legal sanctity or authority.
Therefore, this tribunal do not accept the Ex.R1. Similarly, the evidence
of RW1 and RW2 are also inadmissible as they were not eye witnesses to
the occurrence. Thus, this tribunal reject the evidence of RW1 and RW2
and consequently the contention puts forth by the second respondent is
also rejected.
10)On the other hand, Tmt.Gowri, examined as PW1 adduces clear
evidence saying that herself and her husband namely the deceased
Tr.Ranganadhan were traveling in the van as loadman at the time of
accident. She says that her husband was working as a Mason and if he do
not find any masonry work, he used work as a load an in the van
belongs to the first respondent. In that way, the deceased traveled in the
Van on the date of this case occurrence as a loadman. PW1 says that on
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the date of the accident, when they were traveling in the said lorry from
Chennai towards Tiruvannamalai as load men, the driver of the said lorry
drove the same in a rash and negligent manner near Melpappampadi
Village and capsized it. She says that this case occurrence took place
solely due to the rash and negligent driving of the driver of the van. PW1
was cross examined by the counsel for the second respondent and she
withstood for the same. The evidence of PW1 is cogent, clear and
convincing. It is believable and acceptable. There is nothing to reject the
evidence of PW1. Hence, this court accept the evidence of PW1 with
regard to the manner of accident.
11)The evidence of PW1 is fully supported by the fact that the
Criminal Case in Cr.No.105/02 U/S. 279,337 and 304(A) IPC was
registered against the driver of the Van by the Sub Inspector of Police,
Nallanpillai Petral Police Station. Ex.P1, the First Information report
proves this. In the first Information report also it is clearly mentioned
that this case occurrence took place due to the rash and negligent driving
of the driver of the Van. In the circumstances, taking in to consideration,
the evidence of PW1, Ex.P1 and all other aspects discussed above, this
court hold that this case occurrence took place due to the rash and
negligent driving of the driver of the Van belongs to the first
respondent. Accordingly, this point is decided in favour of the
petitioners.
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12)Point No.2:
The first petitioner is the wife and 2 to 5 petitioners are the
daughters of the deceased. The 4 and 5 petitioners were minors at the
time of accident. The 2nd petitioner died during the pendency of this case.
The first petitioner was examined as PW1 adduces evidence saying that
herself and other petitioners were depending upon the income of the
deceased. PW1 was cross examined by the second respondent on this
aspect. She withstood for the same. Needless to say that the petitioners
being the wife and children of the deceased are the legal heirs of the
deceased. The evidence of PW1 is believable and acceptable in this
regard. Hence, this tribunal accept the evidence of PW1 and hold that
the petitioners being the legal heirs and the dependents of the deceased
are entitled to compensation.
13) The petitioners say that the age of the deceased at the time of
accident was 45 years. However, no documentary proof is produced to
prove the age of the deceased on the side of the petitioners. Even then, in
the Postmortem Report marked as Ex.P3, the age of the deceased is
assessed and mentioned as 48 years by the Medical Officer. In the
absence of acceptable documentary proof with regard to the age of the
deceased, the age mentioned in the Postmortem Certificate is taken as
the age of the deceased.
14) The petitioners say that the deceased was working as a Mason
at the time of accident and he used to work as a loadman in the first
respondent's Van, when he does not find any masonry work. PW1
adduces evidence in this regard. She was cross examined by the counsel
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for second respondent questioning the avocation of the deceased. She
withstood for the same. No documentary evidence could be expected to
the avocation of the deceased as a mason and as a load man. In fact, this
case occurrence itself took place when the deceased traveled in the first
respondent's lorry as a load man. The first respondent does not deny this.
The evidence of PW1 is believable and acceptable in this regard. Hence,
by accepting the evidence of PW1, this tribunal hold that the deceased
was working as a Mason and as a load man at the time of accident.
However, there is no clear proof for the total monthly income of the
deceased. Even then, as person as a mason and as a Load man could
very well earn a sum of Rs.5000/ per month at the time of accident i.e.,
in the year 2002. Considering that, this court fix the income of the
deceased notionally at Rs.5000/ per month.
15) While so, by following the judgment of the Hon'ble Supreme
Court of India in Sarala Verma's Case reported in 2009(2) TN MAC 1
(SC) and taking in to account that there were 5 persons depending
upon the income of the deceased, this court deducts 1/4th of the
monthly income of the deceased i.e., Rs.1,250/towards the personal
expenses of the deceased and accordingly fix the contribution of the
deceased to his family at Rs.3,750/per month(Rs.5000–
1,250=Rs.3,750/). Similarly by following the above judgment of the
Hon'ble Supreme Court of India, this court applies the multiplier of 13,
and awards a sum of Rs.5,85,000/ 3750x12x13=Rs.5,85,000/) as
compensation towards the loss of income of the petitioners.
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16)By following the judgment of the Hon'ble Supreme Court of
India reported in CDJ2017(SC)1220 National Insurance Company
Limited /Vs/Pranay Sethi and Others, this court awards a sum of
Rs.40,000/ for the loss of consortium to the first petitioner, a sum of
Rs.15,000/ as compensation for the loss of estate and a sum of
Rs.15,000/ as compensation towards the Funeral Expenses of the
deceased Tr.Ranganadhan. The 3rd petitioner being the daughter of the
deceased is awarded with a sum of Rs.35,000/ as compensation for the
loss of love and affection. The 4 and 5 minor petitioners being the
daughters of the deceased are awarded with a sum of Rs.50,000/ each
as compensation for the loss of love and affection.
17) In total the petitioners are awarded with a sum of
Rs.7,90,000/ as compensation under different heads mentioned below:
Sl.No. HEADS AMOUNT RS.
1 Loss of Income 5,85,000/
2 Loss of consortium to the 1st 40,000/
petitioner
3 Loss of Estate 15,000/
4 Funeral Expenses of 15,000/
Tr.Ranganadhan
5 Loss of love and affection of 35,000/
the 3rd petitioner
6 Loss of love and affection of the 1,00,000/
4 and 5 minor petitioners at
the rate of Rs.50,000/ each
Total 7,90,000/
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18) The vehicle involved in this case occurrence namely, the Van
bearing Registration No.TN22J2670 belongs to the first respondent
and it was duly insured with the 2 nd respondent on the date of accident.
As stated earlier, the second respondent puts forth the contention saying
that the deceased traveled in the van as Unauthorized passenger at the
time of accident. But there is no acceptable proof or evidence for the
same other than, the evidence of RW1 and RW2. The evidence of RW1
ad RW2 is not acceptable as they were not eye witnesses to the
occurrence. Further the evidence of PW1 clearly establish that the
deceased traveled in the Van only as a loadman at the time of accident.
Premium was paid to the load men to travel in the said Van as per
Ex.R2 , the policy. Ex.R2 also proves that the said van was duly insured
with the second respondent at the time of accident. The 3 rd respondent is
the driver of the said Van at the time of accident. Thus, 1 to 3
respondents are jointly and severally liable to pay the compensation to
the petitioners. Since the Van belongs to the first respondent is duly
insured with the second respondent, the second respondent is directed to
pay the compensation on behalf of 1 and 3 respondents.
19) In fine, for the forgoing reasons and discussions, this Tribunal
doth orders as follows:
1.The petition is partly allowed with proportionate costs.
2.The petitioners are awarded with a sum of Rs.7,90,000/(Rupees
Seven Lakhs and Ninety Thousand only) as compensation with interest at
the rate of 7.5% p.a from the date of petition till the date of deposit
along with costs.
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3.The 2nd respondent is directed to deposit the award amount with
interest and costs within two months from today in the Current Account
No.36047156527 of Special Sub Judge, "MACT", Tiruvannamalai, drawn
on State Bank of India, Tiruvannamalai Branch, IFSC Code SBI
N0000938 (Numerical), Br. Code. 00938) through RTGS or NEFT
method as held by the Hon'ble High Court, Madras in 2016(1) TN MAC
433 (The Oriental Insurance Company Limited, Kannur /Vs/ Rajesh
and 2 others).
4.The 1st petitioner is entitled to a sum of Rs.3,40,000/ with
proportionate interest and proportionate cost, the petitioners 3 to 5 are
entitled to a sum of Rs.1,50,000/ each with proportionate interest and
proportionate costs, out of the said award amount.
5.The petitioners 1 and 3 are directed to furnish their Bank
Accounts and other details as held in the judgment of the Hon'ble High
Court, Madras in 2016(1) TN MAC 433, but they failed to furnish
them. Hence the petitioners 1 and 3 are directed to furnish their Bank
Accounts and other details and on such furnishing of the Bank Accounts
and other details, the award amount with proportionate interest and
proportionate cost of the petitioners 1 and 3 are directed to be paid
to them by transferring them in to their Bank Accounts through
RTGS or NEFT method.
6.The compensation amounts awarded to the 4 and 5 minor
petitioners are directed to be invested in any Nationalized Bank till they
attain majority. The first petitioner as a Guardian is directed to open
Bank Accounts in the name of the minor petitioners 4 and 5 and on
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furnishing of the said Bank Accounts, the interest accrue in the
investment of the minor petitioners are ordered to be transferred to the
Bank Accounts of the respective minor petitioners once in 3 months
through RTGS or NEFT method for the maintenance of the minor
petitioners 4 and 5.
7.The petitioners shall pay the balance court fee within 15 days
from today. Failing which, they are not entitled to interest on the
award amount, from the date of default till paying the balance court fee.
8.The Advocate fee is fixed at Rs.14,900/.
Dictated by me to the StenoTypist directly, typed by her, corrected
and pronounced by me in open court on this the 17 th day of January
2018.
Special Sub Judge,
Motor Accident Claims Tribunal,
Tiruvannamalai.
Petitioners side Witnesses:
PW1:Tmt.Gowri
Respondent's side Witnesses:
RW1:Tr.Kumar
RW2:Tr.Tirumavalavan
Petitioners side Exhibits:
Ex.P1 29.3.02 True copy of the First Information Report
Ex.P2 Copy of Motor vehicles Inspector's Report
Ex.P3 Copy of Postmortem Certificate
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Ex.P4 Membership Card (TamilNadu Building
Construction Welfare Society)
Ex.P5 Copy of Ration Card
Ex.P6 Bonafide Certificate stands in the name of 2nd
petitioner.
Ex.P7 Bonafide Certificate stands in the name of P5
Respondent' side Exhibits:
Ex.R1 Investigation Report
Ex.R2 Xerox copy of Insurance Copy
Special Sub Judge,
Motor Accident Claims Tribunal,
Tiruvannamalai.
