IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.07.2010 CORAM : THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A.Nos.41, 1230 and 1419 of 2007 and M.P.No.2 of 2007 in C.M.A.No.1230 of 2007 C.M.A.No.41 of 2007:- M/s.Royal Sundaram Alliance Insurance Co., Ltd., Chennai. .. Appellant Vs 1.M.Nayeem Banu 2.Minor Nawaz Sheriff 3.Minor Nazreen Banu (Minors Appellants 2 and 3 represented by their natural guardian and mother 4.V.Mohanraj 5.The Managing Director, Tamil Nadu Stte Transport Corporation Ltd., (Salem Division-I), Salem. .. Respondents C.M.A.No.1230 of 2007:- The Managing Director, Tamil Nadu Stte Transport Corporation Ltd., (Salem Division-I), Salem. .. Appellant Vs 1.M.Nayeem Banu 2.Minor Nawaz Sheriff 3.Minor Nazreen Banu (Minors Appellants 2 and 3 represented by their natural guardian and mother 4.V.Mohanraj 5.M/s.Royal Sundaram Alliance Insurance Co., Ltd., Chennai. .. Respondents https://hcservices.ecourts.gov.in/hcservices/ C.M.A.No.1419 of 2007:- 1.M.Nayeem Banu 2.Minor Nawaz Sheriff 3.Minor Nazreen Banu (Minors Appellants 2 and 3 represented by their natural guardian and mother the first appellant) .. Appellants Vs. 1.V.Mohanraj 2.The Managing Director, Tamil Nadu Stte Transport Corporation Ltd., (Salem Division-I), Salem. 3.M/s.Royal Sundaram Alliance Insurance Co., Ltd., Chennai. .. Respondents Common Prayer:- Appeals filed under Section 173 of Motor Vehicles Act against the award and decree passed on 28.02.2006 in M.C.O.P.No.128 of 2005 on the file of the Motor Accident Tribunal (Principal District Judge, Erode). For Appellants : Mr.N. Vijayaraghavan in CMA.No.41 of 2007 Mr.P. Jagadeeswaran in CMA.No.1230 of 2007 Mr.R. Marudhachalamurthy in CMA.No.1419 of 2007 For Respondents : Mr.R. Marudhachalamurthy for R1 to R3 in CMA.No.41/2007 and for R1 to R3 in CMA.No.1230/07 Mr.N. Vijayaraghavan for R5 in CMA.No.1230/07 and for R3 in CMA.No.1410/07 Mrs.B.Vijayalakshmi for R5 in CMA.No.41/2007 and R2 in CMA.No.1419/2007 COMMON JUDGMENT All the appeals arise out of the same award. By consent of all the parties, all the appeals are taken up together and a common award is passed. 2. The claimants have filed appeal in CMA No.No.1419 of 2007 as against the order challenging the award on the ground that 40% liability is fixed on the deceased himself and 60% liability is fixed on the insurance company. It is mainly contended that there was no mistake on the part of the deceased person as he was driving the vehicle in the proper side of the road, on the right hand corner whereas the vehicle which was coming on the opposite side namely the https://hcservices.ecourts.gov.in/hcservices/ Bus had crossed the meridian and came on the extreme side of the right which is not the correct side they should be traveling. Under those circumstances, fixing of 40% liability on the part of the deceased was not correct and therefore they have preferred the appeal and also as against the claim of Rs.25,00,000/-, the tribunal has awarded only a sum of Rs.4,24,000/-, they have restricted the appeal value to Rs.12,00,000/-. They also would contend that the appellant/claimant was earning not less than Rs.10,000/- per month whereas the tribunal has taken only a sum of Rs.3,000/- per month as salary and not taken into consideration Rs.6,000/- which is earned as a commission by the appellant/claimant. Therefore, if Rs.9,000/- is taken as the monthly income of the deceased, the claim could have been more than awarded. Hence, they have come forward with this appeal. They also would contend that the deceased was traveling by the vehicle was also insured and the Insurance company is liable to compensate even if the 40% contributory negligence is fastened on the deceased. 3. As far as the deceased vehicle's insurance company M/s.Royal Sundaram is concerned, they also have filed a separate appeal in CMA No.41 of 2007 inter alia contending that they are not liable to pay any amount under the award as the policy did not permit them to pay for a loss against the owner himself. They also would plead that even if the Court come to the conclusion that the insurance company is liable, yet it is restricted only to Rs.1 Lakh as per Clause 3 of the policy. Therefore, they have filed a separate appeal in so far as the 40% liability fastened on the deceased and pursuant to the 40% even if they are liable to pay, they are liable to pay only Rs.1 lakh. 4. The Transport Corporation has come forward with a separate appeal ni CMA No.1230 of 2007. They have mainly come forward with this appeal on the ground that in a case of accident or a collusion, the tribunal has wrongly given a finding that the Transport Corporation is liable to pay 60% and the contributory negligence attributed to the deceased was only 40% whereas the Supreme Court has held the liability as 50% each and it is not 40% even otherwise the driver of the vehicle is not responsible for the accident whereas the deceased was the right cause for the accident. Therefore, they have prefered this appeal challenging the award itself. 5. Heard all the three counsel namely, claimant and insurance companies. 6. The point for consideration in the appeal are as follows - [1] Whether the deceased has attributed to the cause of the accident ? [2] Whether the contributory negligence fixed by the tribunal at 60% - 40% is fair and reasonable ? https://hcservices.ecourts.gov.in/hcservices/ [3] Whether the Insurance Company of the deceased vehicle is liable to pay for the personal damage/loss cause to the insurer as per the policy conditions and whether it is limited to a particular extent ? [4] Whether the compensation as awarded by the tribunal is correct and reasonable or is liable to the enhanced asp er the appeal filed by the claimants ? 7. According to the counsel for the claimants, at about 5.25 p.m. when the deceased Mohammed Ismail was proceeding in TVS Victor bearing Regn.No.TN33 AB 3058 and his brother in another vehicle on Salem – Kovai byepass road, near Kandasamy Mill Gate, the deceased was riding the vehicle on the extreme left side of the road with moderate speed observing all the rules of traffic, a Tamil Nadu State Transport Corporation Bus bearing Regn.No.TN 27W 1500 which was proceeding from Salem – Coimbatore belonging to the second respondent Transport Corporation was driven by the driver in a very rash and negligent manner dashed against the deceased on his right side thereby the deceased was thrown away and sustained grievous injury on his neck, right shoulder and injuries all over his body and the accident has occurred only due to the rash and negligent act on the part of the driver of the Transport Corporation and immediately after the accident, he was admitted to Lotus Hospital, Erode where he succumbed to death. 8. At the time of accident, the deceased was aged about 37 years and the claimant was working as a commission agent as a part time for selling textile products with M/s.Vandhana Traders, Erode and was earning a sum of Rs.6,000/- as commission. Apart from this, the deceased was also working as a Manager in the same Vandhana Traders, Erode and thereby he was earning a sum of Rs.3,000/- per month as salary. Therefore, the deceased was earning not less than a sum of Rs.10,000/- per month and hence the claimants has preferred a compensation of Rs.25,00,000/-. The wife of the deceased was examined as PW1. PW2 is the eye witness and PW3 is an employee of the firm in which the deceased was working and PW4 was also an employee who was examined for the purpose of proving the income and on the side of the respondent, the vehicle driver of the Transport Corporation was examined. The claimants have marked Exs.A1 to A10 and the respondents have marked Ex.B1 the policy of the deceased person's vehicle. 9. On a careful scrutiny let in by both the parties, the tribunal has fixed the liability at 40% on the deceased person and 60% on the Transport Corporation and has awarded a sum of Rs.4,34,000/- as against the claim of Rs.25,00,000/-. Aggrieved against the same, the respective parties have preferred the present appeals. PW2 is https://hcservices.ecourts.gov.in/hcservices/ examined as an eye witness who would state that the deceased was driving the vehicle on the left hand side of the road following the traffic rules. Thereafter, he would contend that the bus of the Transport Corporation coming in the opposite direction was driven by its driver in a rash and negligent manner and dashed against the deceased. In the chief examination, he has stated as follows - "muR ngUe;J TN 27 N 1500 vd;w tz;oapd; Xl;Ldh; g!;ir kpf ntfkhft[k;. ftdf;Fiwthft[k; kdpj capiu gwpf;Fk; ntfj;jpy; Xl;o te;J ,lJ g[wk; KfkJ ,!;khapy; Xl;o te;j nkhl;lhh; irf;fpspd; kPJ nkhjp mjdhy; mth; Jhf;fp vwpag;gl;L nuhl;oy; tpGe;J tpl;lhh;/ He would say that the left side of bus hit the vehicle of the deceased. PW2 had helped the deceased and taken him to the hospital where he was declared dead. In the cross examination, he would that the occurrence took place within 400 feet from the check post and there are barigades. At that point of time, near the check post and on both sides of the road there are mud roads and a suggestion has been put to him in the cross examination as follows - "tpgj;J rkaj;jpy; rhiyapy; brd;W bfhz;oUe;j ,we;j egh; rhiypapd; jtwhd jpirf;F jpObud;W mtuJ ,Urf;fu thfdj;ij jpUg;gp te;J ngUe;jpd; kPJ nkhjp[ajhy; jhd; tpgj;J ele;jJ vd;why; rhpay;y@/ 10. The suggestion was to the effect that the deceased had driven the vehicle on the wrong side and thus caused the accident was denied. But unfortunately in the cross examination, he would also suggest that the driver of the vehicle on seeing such swearing of the deceased, the driver of the bus also sweared the bus to the left side of the road does not tally with the sketch produced by the appellant which is marked as Ex.A3. On a reading of the sketch Ex.A3, the deceased has taken the vehicle to the extreme corner of the right side beyond the white line. When there is a lot of space on the left hand side, it is not known why the deceased took the vehicle on the extreme corner of the right side of the road. But at the same time, on the place of impact it is very clear that the bus which was coming in the opposite direction normally should have kept to the left side of the road, they have crossed the white line and has come beyond the limit and has dashed against the vehicle. Even their admission was made by the learned counsel for the Transport corporation stating that the deceased tried to swear to the right side and there was an impact even it is assumed that the deceased did swear to take a right turn or 'u' turn without any signal. The fact that the bus was coming from the https://hcservices.ecourts.gov.in/hcservices/ opposite direction beyond the white line on the right of the road instead of keeping on the left side necessarily would say that the fault lies more on the bus driver. But at the same time we cannot rule out the possibility that the deceased has also caused some negligence on his part in causing this accident because the place of occurrence is on the very extreme left on the right side of the road. If we take the evidence of RW1, it is pertinent to note that the driver remain ex parte in the case who is the first respondent in the case but he has been examined as a witness for the second respondent transport corporation. He would say in the chief examination that he was driving in the left side of the road. He would also say that before him there was so many lorries which were plying in the road and hence he was driving slowly. He would only say that the TVS Victor which was driven by the deceased person was running without any control and on seeing the same, he would stop the vehicle on the left side of the road but inspite of that the vehicle came and dashed against his vehicle and therefore the accident took place which is unbelievable taking into consideration the sketch produced by the appellant where the accident spot is normally noted which clearly shows that the accident spot is on the right side. In the cross examination also he would admit that on the instruction made by the authorities concerned in the transport corporation they have given a report stating that had the driver of the vehicle taken the vehicle to the left hand side, the very accident could have been averted which would normally prove any reasonable doubt that the main fault would be on the part of the bus driver. He also admit that admittedly action has also been taken against the driver of the bus. Therefore, from the very evidence of RW1, PW2 and the sketch will also categorically prove beyond any reasonable doubt that the accident took place due to the rash and negligent driving of the bus driver coupled with the fact that the deceased has taken the vehicle to the extreme corner of the right hand side of the road and in that process, the accident has taken place. Therefore the major share of the impact and liability could only be taken by the bus transport corporation as rightly pointed by the tribunal. But the tribunal has fixed the liability as 60% - 40%. 11. In my view, taking into consideration the cumulative effect on the reading of the evidence and documents, it is clear that the impact was more because of the rash and negligent driving of the driver of the bus belonging to the transport corporation. Hence, it is now modified fixing 75% liability on the part of the transport corporation and 25% liability on the part of the deceased. Therefore, in so far as the appeal filed by the claimants challenging the percentage of liability is concerned, the appeal in CMA No.1419 of 2007 is partly allowed enhancing the liability more on the part of the driver of the bus fixing the liability at 75% and 25% on the deceased. https://hcservices.ecourts.gov.in/hcservices/ 12. As far as the appeal filed by the Insurance Company in CMA No.41 of 2007 is concerned, it relates to the challenge that they had no liability at all to pay even if it is only meagre liability is fixed on the deceased person, the insurance company is not liable since the insurance policy do not cover any insurance in respect of the death of the owner of the insurance policy. The policy only covers if death occurs to third parties and therefore the policy does not cover to the injuries sustained by the insured himself. Further, they would contend that the insurance company will be liable under the policy if the deceased is held liable and an award has been passed against him and the policy deals only third parties risks of the Motor Vehicles Act, 1988 the duty of the Insurer is only to satisfy the award in respect of award obtained against nay person insured by the policy. 13. In this connection, it is worthwhile to extract the clauses in the policy itself. At the outset, as regards the premium payment, we find that there is a collection of Rs.50/- under the heading PA cover for owner – driver. Section III (CSI) – Rs.1 Lakh. Therefore, a sum of Rs.50/- has been collected in the policy towards the PA cover for the owner and the details are enumerated in Section III. On perusing a clause in Section III under the heading Personal Accident cover for owner – driver, it is stated as follows - SECTION III- PERSONAL ACCIDENT COVER FOR OWNER-DRIVER Subject otherwise to the Terms Exceptions Conditions and limitations of this Policy the Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the Owner-Driver of the vehicle in direct connection with the vehicle insured whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in: Details of injury Scale of compensation (i) Death 100% of CSI* (ii)Loss of two limbs or sight of two eyes or one limb and sight of one eye 100% of CSI* (iii) Loss of one limb or sight of one eye 50% of CSI* (iv)Permanent Total Disablement from injuries other than named above 100% of CSI* * CSI – Capital Sum Insured https://hcservices.ecourts.gov.in/hcservices/ Provided always that (A) the compensation shall be payable under only one of the items (i) to (iv) above in respect of the Owner-Driver arising out of any one occurrence and the total liability of the Insurer shall not in the aggregate exceed the sum of Rs.1 lakh during any one period of Insurance. (B) no compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) international self injury, suicide or attempted suicide, physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs. (C) such compensation shall be payable directly to the insured or to his/her legal representatives whose receipt shall be the full discharge in respect of the injury to the insured. This cover is subject to - (a) the Owner-Driver is the registered owner of the vehicle insured herein; (b) the Owner-Driver is the insured named in this Policy (c) the Owner-Driver holds an effective driving licence, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident. 14. If we read Section III, it is very clear that the policy covers to pay compensation as per the scale for bodily injured / death sustained by the owner – driver of the vehicle caused by accident externally and by visible means provided under Clause A in the proviso, the compensation shall be payable in respect of owner/driver arising out to any one occurrence and the total liability to the insurer shall not in the aggregate exceed an amount of Rs.1 Lakh during any one period of insurance. Therefore, the policy is very clear that the insurance company is liable to pay for the injury/death of the insurer of the owner of the vehicle provided he owns the licence to drive the vehicle and on further condition in so far as such liability is concerned, it will be restricted to a maximum amount of Rs.1 Lakh. They have also collected a separate sum of Rs.50/- under this head. Having collected a specific amount on specific head that it is PA cover for owner / driver, this Court does not find any reason for the insurance company to plead that they are not liable to pay any amount. Admittedly, it is not only a third party insurance whereas a specific amount have been collected in respect of coverage for owner cum driver subject to one condition that it is restricted to Rs.1 Lakh. Therefore the plea as such made by the insurance company https://hcservices.ecourts.gov.in/hcservices/ is totally baseless in accordance with law and it is against the policy condition and therefore the appeal filed by the Royal Sundaram Alliance Company in CMA No.41 of 2007 as against the award in so far as the payment that liability of 40% is wrong, this appeal is dismissed without costs. Hence, this Court holds that as per the policy condition the Royal Sundaram Alliance Company appellant in CMA No.41 of 2007 is liable to pay the compensation to the claimants/petitioners/appelants in CMA No.1419 of 2007 in so far as 25% of the award which is stated as liability on the part of the deceased person. Therefore, in so far as the claimant's appeal in respect of the liability is concerned is modified to the effect that they are liable for 25% and 75% liability rests on the driver of bus belonging to the transport corporation. Therefore the first two question is answered in favour of the claimants and as against the respondent. 15. In so far as the question relating to the quantum is concerned, it is the evidence of PW1, the wife of the deceased, he was working as an Accountant in the Vandhana Traders, Erode and he was also working as a commission agent for selling the cotton goods. According to her, he was earning a sum of Rs.3,000/- towards salary in Vandhana Traders and Rs.6,000/- by way of commission. PW3 an employee of Vandhana Traders was examined who would say that the deceased was earning a sum of Rs.6,000/- by way of commission and that the firm has filed a TDS under Form 16 issued to the deceased person and has produced Ex.A9 the challan for payment of TDS. In the cross examination, he would categorically admit that there is no records to prove that the deceased was doing the commission agency business with him. He also admits that he is not the owner of Vandhana Traders. He would further admit that Ex.A9 is challan for payment of TDS and in the challan it is not mentioned for whom this TDS was paid and the name of the Company alone is found whereas there is no reference to the deceased Mohammed Ismail. PW4 was also examined who is the owner of the Vandhana Traders. In his evidence, he would only say that he is paying Rs.1,000/- per month as salary to the deceased Mohammed Ismail and he also would say that Ex.A10, Income Tax Return filed by him and under the Income Tax return he has shown for 12 months towards salary for the deceased person. 16. He would also further admit in the cross examination that he has been working in the firm for the period of one year and he has been paying salary of Rs.1,000/- whereas he would also admit that no records as such is maintained by him. If we take Exs.A9 & A10, A9 is only a counterfoil challan for payment of TDS for Rs.1,613/-. It was paid only on 29.10.2004 much after the accident and no mention is made in so far as it relates to the deceased person in the challan. The Income Tax Return filed by the owner of Vandhana Textiles is marked as Ex.A10. This SARAL form alone is produced which is dated 20.10.2004. As far as the name is concerned, the name is mentioned as B.Naushadali, Proprietor, Shastha Tex. Therefore, this has nothing to https://hcservices.ecourts.gov.in/hcservices/ do with Vandhana Traders in which the deceased was an employee. There is no evidence in any way this income tax return filed by third party is in any way connected with this case. In the net result, from the evidence available from the evidence, namely PW1, PW3, PW4 and Exs.A9 & A10, only thing which is proved is the deceased was employed in Vandhana Traders and earning a salary of Rs.1,000/- only but for this there is no further evidence to show that he was employed and earning as a commission agency to the tune of Rs.6,000/-. If that be the case, the tribunal rightly took into consideration that even as per the pleadings originally they have received a salary of Rs.3,000/- even though in the evidence, the owner himself as stated that the deceased was earning a salary of Rs.1,000/- per month, the tribunal has fixed Rs.3,000/- which is reasonable and correct. Taking into consideration, Supreme Court decision, even if no evidence is produced, a minimum of Rs.3,000/- could be fixed an income / salary of the deceased persons. Therefore, there is no need to interfere with the basis of arriving the salary by the tribunal. The tribunal having arrived at a salary at Rs.3,000/- per month had applied multiplier theory which multiplier is not disputed by anyone. As the age is not disputed, the value arrived at Rs.3,000/- as salary