IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2010 Coram: THE HONOURABLE MR. JUSTICE C.S.KARNAN C.M.A.No.620 of 2006 M/S. United India Insurance Company Limited, No.13-A, Netaji Road, Cuddalore-1. ..Appellant/2nd Respondent vs. 1.Pushpavalli 2.Minor Veeraselvan 3.Minor Palaniammal 4.Minor Selvakumar 5.Thavadammal 6.N.Ramamoorthy ..Respondents/Petitioners & 1st Respondent Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, against the award and decree dated 24.03.2005 made in M.A.C.T.O.P.No.75 of 2000, on the file of the Motor Accident Claims Tribunal (Sub-Court) Panruti. For Appellant : Mr. J.Jayendrakrishnan For Respondents : Mr. J.Rajamohan for RR1 to 5 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/United India Insurance Company, against the award and decree passed by the Motor Accident Claims Tribunal (Sub-Court) Panruti in M.A.C.T.O.P.No.75 of 2000, dated 24.03.2005, for awarding a compensation of Rs.3,15,000/- together with the interest at the rate of 9% per annum, from the date of filing the claim petition till the date of payment of compensation. 2. Aggrieved by the said award and decree, passed by the Tribunal in M.A.C.T.O.P.No.75 of 2000, dated 24.03.2005, the appellant//United India Insurance Company has filed the above appeal praying to scale down the said compensation of Rs.3,15,000/-. https://hcservices.ecourts.gov.in/hcservices/ 3. The short facts of the case are as follows: The first claimant is the wife of the deceased, the second, third and fourth claimants are children of the deceased and fifth claimant is the mother of the deceased. On 24.02.2000, the deceased and others were went to Tindivanam Town Crusher for loading blue metal in the First respondents Lorry Reg. No. TN 31A8766 when the deceased and others were proceeding from south to north in Tindivanam N.H.Road near Then Bazaar, G.S.T.Road at about 13.00 hours, the accident had happened. The first respondent's driver drove the lorry TATA 1612 in a high speed in a rash and negligent manner without observing the traffic rules. Because of it the lorry suddenly swerved to the right side of the road and dashed against the palm tree and capsized. As a result of the accident, the deceased and three others had died on the spot and the others had sustained injuries. The deceased body was taken to the Government Hospital, Tindivanam. The deceased was the only breadwinner of his family. The petitioners are depending upon the sole income of the deceased and they have no other sources of income. The petitioners are living in very bad circumstances and they are unable to meet even their livelihood. If the accident had not happened the deceased would have lived for another 40 years. The minor petitioners lost not only their father but also their bright future. The first respondent is the owner of the lorry bearing registration No.TN 31A8766 and the second respondent is the insurer of the said lorry, so, both of them are vicariously liable to pay compensation to the petitioners. In these circumstances, the petitioners are praying to pass an award against the respondents jointly and severally for a sum of Rs. 5,00,000/-. 4. The counter statement filed by the second respondent Insurance company opposed the claim petition as follows: "1.The petition filed by the petitioner is false, vexatious and it is not maintainable either in law or on facts and therefore, it has got to be dismissed in limini. 2.The respondent denies all the averments contained in the petition except those that are specifically admitted by him hereunder. 3.The averments contained in the Col.No.23 are not true and correct. The first respondent driver did not drive the vehicle in a rash and negligent manner as stated in the petition. 4.This respondent does not admit that the vehicle was driven rashly and negligently at the time of the accident. The vehicle under reference was driven within https://hcservices.ecourts.gov.in/hcservices/ the prescribed speed limits and also cautiously. The driver of the lorry TN 31A8766 was adhering to all traffic rules and regulations and it cannot be believed at any stretch of imagination, that the accident occurred due to the rash and negligent act of the driver of the first respondent. 5.This respondent does not admit that the petitioner has sustained grievous injuries and the petitioner is put into strict proof of the same. 6.It is not admitted that the petitioner is suffering from any permanent disability. 7.The averments in respect of of the age, income and occupation of the petitioner is not true. The petitioner is put to strict proof of the same. 8.This respondent does not admit that the petitioner allegation regarding the amount of compensation claimed in Col.No.23 and Col.No.21-A, para 11. The petitioner is put into strict proof of the same. 9.This respondent submits that the petitioner who travelled in the first respondent lorry was only a gratuitous passenger. In such events, the petitioner is an unauthorised traveller in the said lorry and the petitioner is not entitled to any compensation, as against the insurance company. If at all the petitioner is entitled to any, then only as against the owner of the lorry who had permitted the unauthorised traveller (petitioner), since the first respondent has violated the permit and policy conditions. 10.The petitioner is put into strict proof that the petitioner was travelling in the said lorry at the time of the accident. Further this respondent submits that the petitioner is an agriculturist, he is neither owner of the goods nor a loading-man. So the petitioner is only a gratuitous passenger and no liability can be imposed upon this respondent. 11.This respondent submits that the petitioner is hereby called upon to prove that the first respondent vehicle is insured with this respondent company and the driver of the first respondent vehicle was holding effective driving licence and also the vehicle under reference TN-31A8766 is plying with the valid permit and fitness certificate at the time of the accident. https://hcservices.ecourts.gov.in/hcservices/ 12.This respondent submits that the amount of compensation claimed is heavy, excessive and exorbitant. The petitioner is not entitled to that amount, since the petition is devoid of material particulars and not supported by relevant documents, this respondent is unable to state his defence and as such craves the leave of this Hon'ble Tribunal to reserve their right to file additional statement if and when necessary. 13.This respondent therefore prays that this Tribunal may be pleased to dismiss the petition with the cost of this respondent." 5. After considering the contents of the claim petition and the counter statement filed by the second respondent, the learned Tribunal had framed four issues namely; (1)Who was the cause for the said accident? (2)How much the claimants are entitled to receive compensation? (3)Who is liable to pay compensation? (4)What other relief? 6. On the side of the claimants, the P.W.1 the wife of the deceased had adduced her evidence stating that the deceased had travelled in the TATA sumo lorry bearing registration No.TN-31A8766 as a loadman. While the lorry was proceeding to Tindivanam, G.S.T. Road, nearing Then bazaar road, the driver of the lorry lost his control and dashed against the palm tree. As a result, the two loadman were killed on the spot and others had sustained grievous injuries. The said accident case was registered by the Mailam Police station in Crime No.150 of 2000, against the driver of the lorry and the alleged offence under Section 304(2) I.P.C. On the side of the claimants, Ex.P1-an F.I.R., Ex.P2-motor vehicle inspectors report, Ex.P3-Insurance policy and Ex.P4 - post-mortem report, were marked. The first claimant further adduced her evidence stating that the deceased was a loadman and he was earning Rs.5,000/- per month at the time of the accident, and however, his age was 35 years old. All the claimants are depending upon the income of the deceased. Further, the first claimant had adduced her evidence stating that the deceased was the only breadwinner of their family. 7. After considering the evidence of P.W.1 and perused the documents which were marked by the P.W.1, the learned Motor Accident Claims Tribunal came to the conclusion that the accident had happened only due to the rash and negligent driving of the driver of the https://hcservices.ecourts.gov.in/hcservices/ lorry. As such the Tribunal had awarded a compensation as follows: The deceased income was Rs.2,500/- per month at the time of the accident, after deducting the personal expenses Rs.1,000/- the balance amount Rs.1,500/- was contributed to his family members. Considering the age of the deceased which was 35 years, the Tribunal adopted a multiplier as 16 and awarded Rs.2,88,000/- for loss of income, Rs.20,000/- for funeral expenses, Rs.15,000/- for consortium, Rs.10,000/- for love and affection towards the other claimants namely, two to five. In total, the Tribunal had awarded a compensation of Rs.3,15,000/- together with interest 9% per annum from the date of filing the claim petition till the date of payment of compensation. 8. Aggrieved by the said award and decree passed in M.A.C.T.O.P. No.75 of 2000, dated 24.03.2005, by the Motor Accident Claims Tribunal(Sub-Court) Panruti, the appellant/United India Insurance Company, Cuddalore, has filed the present Civil Miscellaneous Appeal and contend the following points: "a)The award of the Motor Accident Claims Tribunal, is not sustainable either in law or on facts. b)The Tribunal failed to note that the deceased has travelled as a gratuitous passenger in a goods vehicle. The claimants are not entitled to claim any compensation from this appellant. The claimants remedy if any is only against the fifth respondent. c)The Tribunal failed to note that more than 13 persons, unauthorisedly travelled in the lorry as gratuitous passengers, in gross violation of policy condition. The policy does not cover gratuitous passengers. Ignoring this factual position, the Tribunal erroneously cast the liability on this appellant. d)The learned Judge failed to see that the deceased was neither an employee of the sixth respondent nor was he authorised to travel in the lorry. The averment in the claim petition that he was an employee under the sixth respondent and he travelled in the lorry with the permission of the sixth respondent has been specifically denied by the sixth respondent. Ignoring this admitted fact the Tribunal erroneously cast the liability on the appellant. e)The learned Judge failed to see that the sixth respondent has specifically stated that he did not authorise the driver of the lorry to carry the deceased https://hcservices.ecourts.gov.in/hcservices/ in the vehicle. This has not been considered by the Tribunal. f)The learned Judge erred in holding that the accident was caused due to the negligence of the lorry driver. The lorry driver lost control of the vehicle due to large number of un-authorised passengers travelling in the vehicle in violation of the policy condition. The deceased had contributed to the accident. The claimants are not entitled to any compensation. g)The learned Judge having held that the claimants have not produced any evidence regarding the employment of the deceased as loadman erred, in granting the compensation and directing the appellants to pay the compensation. h)The Tribunal erred in fixing the income of the deceased at Rs.2,500/- per month and granting Rs.2,88,000/- as compensation under the head of loss of income. i)The learned Judge having granted permission to the appellant to contest the claim petition on all grounds as available to the insured ought to have noted that the claim petition as against this appellant in wholly misconceived and not maintainable. j)The award is excessive and not in conformity with law. It is therefore, prayed for to admit and allow the civil miscellaneous appeal to set aside the judgement and decree in M.A.C.C.O.P.No.75 of 2000, dated 24.03.2005, on the file of the Motor Accident Claims Tribunal (Sub-Court) Panruti. The learned counsel for the appellant vehemently argued that the deceased was not a loadman and he was a gratuitous passenger, as such he was not entitled to get compensation as per insurance policy. " 9. The learned counsel for the respondents argued that the deceased was a loadman and he was engaged at the time of employment, the accident had happened. Further, at the time of the accident, the deceased's age was 35 years and he was earning Rs.5,000/- per month. But, the learned Tribunal had come to the conclusion and stated that the deceased's income was Rs.2,500/- per month which was fixed by the Tribunal, is on lower side. Further, the learned counsel for the respondents argued that the amount given for medical expenses is on lower side and also the other heads namely, consortium, love and affection are also on lower side. He further argued that the https://hcservices.ecourts.gov.in/hcservices/ deceased was the only breadwinner of his family. After his death, the entire family was suffering. As such award granted by the Tribunal is fair and equitable. Further, the learned counsel for the respondents argued that there is no error in the said award and decree passed by the Tribunal and as such the civil miscellaneous appeal is not maintainable. Hence, he prayed for confirming the order of the Tribunal. 10. Considering the facts and circumstances, scrutiny of findings of the learned Motor Accident Claims Tribunal and also considering the age of the deceased and nature of employment, this court is of the view that the award amount granted by the Tribunal of Rs.3,15,000/- is not on the higher side. Hence, this Court does not warrant to interfere with the said award and decree passed by the Tribunal in M.A.C.T.O.P. No.75 of 2000, dated 24.03.2005. Hence, this Court, confirms the said award. 11. On 24.02.2006, this Court directed the appellant insurance company to deposit the entire award amount with accrued interest into the credit of M.A.C.T.O.P. No.75 of 2000, dated 24.03.2005, on the file of Motor Accident Claims Tribunal (Sub-Court) Panruti. As per this court's conditional order also remains the same at present for the appellant insurance company. 12. As the accident had 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 M.A.C.T.O.P. No.75 of 2000, dated 24.03.2005, on the file of Motor Accident Claims Tribunal (Sub- Court) Panruti, after filing necessary payment of application in accordance with law, subject to the claimants two to four becoming majors. 13. In the result, the above Civil Miscellaneous Appeal is dismissed and the award and decree dated 24.03.2005, made in M.A.C.T.O.P. No.75 of 2000, passed by the Motor Accident Claims Tribunal (Sub-Court) Panruti, is confirmed. Consequently, the connected civil miscellaneous petition is closed. There will be no order as to costs. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar kj https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accident Claims Tribunal Sub-Court, Panruti. + 1 c.c. to Mr. J. Raja Kalifulla, Advocate. S.R.No.29600. + 1 c.c. to Mr. J. Rajmohan, Advocate. S.R.No.29827. C.M.A.No.620 of 2006 KA (CO) GSK 16.06.2010. https://hcservices.ecourts.gov.in/hcservices/