IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.1306 of 2011 & M.P.No.1 of 2011 United India Insurance Co. Ltd., Trichy. ... Appellant / II Respondent Versus 1.Sugirtha 2.Murugan 3.Poonkodi 4.Ilayaraja 5.St.Alocious Girls Higher Secondary School, Vettavalam, Thiruvannamalai Taluk. ... Respondents/ Petitioners 1 to 4 (R5 set exparte & 1st Respondent in the lower court) Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 21.03.2007, made in M.A.C.T.O.P.No.348 of 2005 on the file of the Motor Accidents Claims Tribunal, Sub Judge, Ginjee. For Appellant : Mr.K.S.Narasimhan For Respondents: Mr.M.R.Sivakumar (R1 to R4) J U D G M E N T The above appeal has been filed by the appellant / United India Insurance Co. Ltd., against the judgment and decree dated 21.03.2007, made in M.A.C.T.O.P.No.348 of 2005 on the file of the Motor Accidents Claims Tribunal, Sub Judge, Ginjee. 2.The short facts of the case are as follows:- On 06.09.2003, the (deceased) Munusamy was travelling on the TVS 50, from Pothuvar to Nallanpillaipetral. At 01.00 p.m., when https://hcservices.ecourts.gov.in/hcservices/ the TVS 50 was nearing Narayanapuram Eari on Nallanpillaipetral to Vettavalam Road, a van bearing Registration No.TN25-D-8997, belonging to the first respondent, which was driven by its driver at a high speed and in a rash and negligent manner, came in the opposite direction and dashed against the TVS 50. The (deceased) Munusamy sustained head injuries in the accident and was admitted in the Ginjee Hospital, but succumbed to the injuries. Hence, the petitioners, who are the legal-heirs of the deceased have claimed a compensation of Rs.10,00,000/- from the first and second respondents, who are the owner and insurer of the said van. 3.The second respondent in his counter has resisted the claim denying the averments in the claim regarding the involvement of the van bearing Registration No.TN-25-D-8997 in the alleged accident. The respondent has also denied the averments in the claim regarding age, income and occupation of deceased and has also denied that the petitioners are the legal-heirs of the deceased. Further, it was stated that the non-inclusion of the owner and insurer of the TVS 50 as necessary parties in the claim renders, the claim not maintainable. The respondent has also denied that the said van had been insured with them at the time of accident and that the Van driver had a valid driving licence, at the time of accident. It was stated that the claim was excessive. 4.Another person Kasi who was travelling in the said TVS 50, had also died in the said accident and a claim had been filed by the legal-heirs of the said Kasi in M.C.O.P.No.402 of 2004. Hence, the Tribunal based on the Memo for a joint trial, took up both the cases for enquiry, collected common evidence and passed common judgment for both the cases. 5.On the averments of both parties, the Tribunal had framed two issues for consideration, namely; “(i)Was the accident caused by the rash and negligent driving of the driver of the van bearing Registration No.TN25-D-8997, owned by the first respondent insured with the second respondent? (ii)Are the petitioners entitled to get compensation? If so, what is the quantum of compensation?” 6.On the petitioner's side, three witnesses were examined as PW1, PW2 and PW3 and twelve documents were marked as Exs.P1 to P12. On the respondents side, no witness, no documents. 7.PW3, Murugan, the eyewitness of the accident adduced evidence that he was a worker in the Electricity Department. The https://hcservices.ecourts.gov.in/hcservices/ Line Inspector Kasi, Wireman Munusami and his other co-workers in the Electricity Department viz., Sadasivam, Boopalam besides himself after attending to a transformer fault at Pothuvar Village were on their way to their office. He had proceeded by cycle along with the said Boopalan and Munusamy rode his TVS 50 along with the said Kasi and Sadasivam as pillion riders. At about 01.10 p.m., in the afternoon, while they were proceeding in the Vettavalam to Nallampillaipetral road and when they were nearing Narayanapuram Junction Road, he had seen a Mahendira van bearing Registration No.TN25-D-8997, coming in the opposite direction and driven by its driver in a rash and negligent manner, dashed against the said TVS 50 going ahead of his cycle and caused the accident. In the impact, the said Munusamy and Sadasivam had died on the spot and the said Kasi had died while being taken to the Hospital. Ex.P1 reveals that the complaint had been given by the said Boopalan. The version of accident as seen from the F.I.R., is similar to the version of accident given by PW3. It is seen from the charge sheet marked as Ex.P4, that a criminal case had been registered against the driver of the said Van and from a scrutiny of Ex.P5, judgment copy, it is seen that the driver of the van had admitted his guilt. Hence, the Tribunal on considering evidence of PW3 and FIR were of the opinion that the accident had been caused by the driver of the first respondent's van. However, on considering that three persons had travelled in the said TVS 50, the Tribunal held that there was contributory negligence also on the part of the (deceased) Munusamy who rode the TVS 50 as well as the other two deceased pillion riders of the TVS 50. Hence, the Tribunal held that there was contributory negligence of 25% on the part of the driver and pillion riders of the TVS 50 and 75% on the part of the van driver. 8.The son of the deceased Munusamy was examined as PW2. PW2 adduced evidence that his father was a wireman in the Electricity Department and earning a sum of Rs.6,000/- per month and that in addition to this he was earning a sum of Rs.4,000/- per month by doing agricultural work in his land. The Tribunal, on considering the oral and documentary evidence held that the (deceased) Munusamy was earning a sum of Rs.9,000/- per month and awarded a compensation of Rs.10,08,000/- (Rs.9,000 x 2/3 x 12 x 15) under the head of 'loss of income'. Further, the Tribunal awarded Rs.10,000/- for funeral expenses; Rs.20,000/- as consortium to the first petitioner; and Rs.10,000/- each to the second, third and fourth petitioners for loss of love and affection; Rs.50,000/- each to the second and fourth petitioners for marriage expenses. In total, the Tribunal awarded a sum of Rs.12,40,000/- as compensation to the petitioners and directed the second respondent to deposit 75% of the award i.e., Rs.9,30,000/- together with interest at the rate of 7.5% per annum from the date accident till the date of deposit of compensation, within 60 days from the date of its order. https://hcservices.ecourts.gov.in/hcservices/ 9.Aggrieved by the said award passed by the Tribunal, the United India Insurance Company Limited has filed the present appeal to set-aside the award passed by the Tribunal. 10.The learned counsel for the appellant has argued that the Tribunal had totally overlooked the fact that for an educational institution bus, there is no necessity to travel in any place except for what it is authorised and if the vehicle is required to be used for any excursion or picnic, then a temporary permit has to be obtained from authorities. The Tribunal failed to note that a vehicle authorised to be plied for the school has no reason or valid excuse to travel beyond the city limit, that too on a Saturday, and the excuse offered and accepted by the Tribunal that travelling in a place without permit, due to natural calamities or urgency cannot be sustained under Motor Vehicles Act and no owner can claim any right under the Act. (i)The learned Tribunal failed to note that the vehicle owned by the educational institution is permitted to be plied within the town limits of Thiruvannamalai District and that too for the conveyance of students and cannot be plied for hire or reward. (ii)The learned Tribunal has thus failed to note that the owner of the vehicle, a school, had violated the permit and policy conditions and the insurer cannot be made liable to pay compensation. It was argued that the Tribunal ought to have granted at least the right of recovery from the owner of the vehicle. It was also contended that the Tribunal had failed to note that there were damages found on the front portion including the handle bar of the two-wheeler, which corroborates the defence that there was a head on collision and as such the rider as well as the two pillion riders were guilty of contributory negligence. It was also argued that the Tribunal failed to note that the deceased was employed in the Tamil Nadu Electricity Board and was earning a sum of Rs.5,999/- per month and hence he could not have engaged himself in cultivation and as such the Tribunal ought to have fixed the income of deceased as Rs.6,000/- only per month instead of Rs.10,000/- per month. The learned counsel further argued that the Tribunal had fastened the liability on the Insurance Company to the extent of 75%, which is erroneous. 11.The learned counsel for the claimants argued that the age of deceased was 45 years and he was a wireman attached to the Tamil Nadu Electricity Board. Besides, he was engaged in agricultural operations. As such, he was earning a sum of Rs.10,000/- per month, but the learned Tribunal had fixed the income of the deceased as Rs.9,000/- only. All the claimants were depending upon the income of the deceased, who was the breadwinner of the family. https://hcservices.ecourts.gov.in/hcservices/ 12.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 is of the considered opinion that the age and income had been fixed by the Tribunal on the basis of documentary evidence. As such, the Tribunal had assessed compensation and awarded it to the claimants, out of which the Tribunal deducted 25% being the contributory negligence on the side of the rider and pillion riders of the said TVS 50. This is found to be fair and justifiable in the instant case. Therefore, this Court directs the appellant to comply with the Tribunal order within a period of six weeks from the date of receipt of this order. After such deposit has been made, it is open to the claimants to withdraw their apportioned share amount as fixed by the Tribunal with accrued interest thereon lying in the credit of M.A.C.T.O.P.No.348 of 2005 on the file of the Motor Accidents Claims Tribunal, Sub Judge, Ginjee, after filing a Memo along with this order. 13.Resultantly, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.A.C.T.O.P.No.348 of 2005, dated 21.03.2007 on the file of Sub Judge, Ginjee is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. r n s To 1. The Motor Accidents Claims Tribunal, Sub Judge, Ginjee. 2. The section Officer VR Section, High Court, Madras C.M.A.No.1306 of 2011 GV (CO) kk 6/7 https://hcservices.ecourts.gov.in/hcservices/