IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE B.RAJENDRAN
C.M.A.NOS.1840 AND 1841 of 2000 AND 61 OF 2001
C.M.A.Nos.1840 and 1841 of 2000:
The Oriental Insurance Company Limited,
Kumar Complex, I Floor,
146, West Car Street, Thiruchengode
Namakkal District. ... Appellant in C.M.A.
Nos.1840 and 1841
of 2000.
Vs.
1.Kalaivani
2.A.Muruganandam
3.M.Rajeswari
4.Minor M.Karthi
5.Minor M.Shankar
6.R.Bharathidhasan
7.A.Balaji
8.United India Insurance Company Limited
Divisional Office, Muthiah Complex,
Mettur Road, Erode 638 011
9.P.Chelliah ... Respondents in C.M.A.
No.1840 of 2000
1.P.Chandramathi
2.P.K.Pommuswamy
3.R.Bharathidhasan
4.A.Balaji
5.United India Insurance Company Limited
Divisional Office, Muthiah Complex,
Mettur Road, Erode 638 011
6.P.Chellaiah ... Respondents in C.M.A.
No.1841 of 2001
C.M.A.No.61 of 2001:
1.Kalaivani
2.A.Muruganandam
3.M.Rajeswari
4.Minor M.Karthi
5.Minor M.Sankar ... Appellants
Vs.
1.R.Bharathidasan
2.A.Balaji
3.United India Insurance Co.Ltd.,
Regional Office,
Muthaiya Complex
Mettur Road,
Erode 638 011
4.The Oriental Insurance Co.Ltd.,
Kumar Complex (I Floor)
146, West Car Street
Tiruchengode,
Namakkal District. ... Respondents
Civil Miscellaneous Appeals in C.M.A.Nos.1840 and 1841 of 2001 are filed under Section 173 of Motor Vehicles Act, 1988 against the Order made in M.C.O.P.Nos.744 and 791 of 1998 respectively dated 28.04.2000 on the file of Motor Accident Claims Tribunal Principal Subordiante Judge's Court, Erode.
Civil Miscellaneous Appeal in C.M.A.No.61 of 2001 is filed under Section 173 of Motor Vehicles Act, 1988 against the Order made in M.C.O.P.No.744 of 1998 dated 28.04.2000 on the file of Motor Accident Claims Tribunal Principal Subordinate Judge's Court, Erode.
For Appellant : Mr. N.Vijayaraghavan
in C.M.A.Nos.1840
and 1841 of 2000
and for R.5 in
C.M.A.No.60 of 2001
For Respondents : Mr.A.K.Kumarasamy
1 to 5 in C.M.A.No.
1840 of 2000,
for RR1 and 2 in
C.M.A.No.1841 of 2000
and for Appellants
in C.M.A.No.61 of 2001
For Respondent No.8 : Ms.N.Mala
in C.M.A.No.1840,
for Respondent
No.5 in C.M.A.No.
1841 of 2000 and
for Respondent No.3
in C.M.A.No.61 of 2001
COMMON JUDGMENT
R.BANUMATHI,J
Feeling aggrieved by the apportionment of negligence in the ratio of 50%:50%and award of compensation of Rs.45 lakhs in M.C.O.P.No.744 of 1998 for the death of Saravanan, who was a marine Engineer, Appellant-Oriental Insurance Company, insurer of the Tempo van has filed C.M.A.No.1840 of 2000.
2. Feeling dissatisfied with the quantum of compensation, Claimants have filed C.M.A.No.61 of 2001 for enhancement of compensation granted in M.C.O.P.No.744 of 1998.
3. Being aggrieved by the award of compensation of Rs.30,000/- for the damages caused to the articles in the road traffic accident, Appellant-Oriental Insurance Company, insurer of the Tempo van has filed C.M.A.No.1841 of 2000.
4. Since common points arise for consideration, all the three appeals were taken up together and shall stand disposed of by this common judgment.
5. Brief facts are that the houses of claimants are situated on the northern side of Erode Perundurai road. On 7.5.1998 at about 3.30 P.M, a lorry bearing Registration No.AP-13 T 7821 driven by the 6th Respondent in a rash and negligent manner, hit a Tempo van bearing registration No.TN-28 W 8996 and after hitting the Tempo van, the lorry turned left side and hit the house of Claimants and killed Saravanan, who was in the house. The lorry was proceeding from Perundurai to Erode from West to East, whereas the van was proceeding from Erode to Perundurai i.e., from East to West. Due to the accident, the entire roofing, asbestos cement sheets of the front portion of the house were damaged. Deceased - Saravanan sustained grievous injuries all over the body and he was immediately taken to Erode Government Hospital and he succumbed to injuries on his way to the Hospital. The driver and cleaner of the Tempo van also died on the spot. Criminal case was registered against the 6th Respondent lorry driver under Sections 279 and 304-A IPC in Crime No.231 of 1998 on the file of Erode Taluk Policle Station. Deceased Saravanan was a Marine Engineer and he was aged about 26 years and three months as on the date of accident. He was working as Radio Officer for Varun Shipping Company Limited and was getting more than Rs.60,000/- per month. Stating that the accident was due to the negligent driving of both lorry driver and tempo van driver and the composite negligence of both the drivers, the Claimants, who are wife, parents and brothers of deceased Saravanan filed the Claim Petition in M.C.O.P.No.744 of 1998 claiming compensation of Rs.75 lakhs.
6. In the same accident, the house of the Claimants in M.C.O.P.No.791 of 1998 was damaged and the windows, doors, rolling shutter and power loom machine were totally damaged. Alleging that the accident was due to the rash and negligent driving of both the vehicles, Claimants filed M.C.O.P.No.791 of 1999 claiming a sum of Rs.1 lakh as compensation for the damages caused to the house and other articles.
7. Before the Tribunal, first Claimant [Kalaivani], and second Claimant [Muruganantham] in MCOP.No.744/1998 were examined as P.Ws. 1 and 2. Ponnusamy [husband of first Claimant Chandramathi] in M.C.O.P.No.791 of 1998, who was an eye witness to the accident was examined as P.W.3. One Chandrasekar, a weaver by profession, who was also an eye witness was examined as P.W.4. Vikas Narayan Singh, Special Officer of Employees Welfare was examined as P.W.5. Exs.P.1 to P.55 were marked. On the side of Respondents, cleaner of the lorry viz., Kumar was examined as R.W.1. No documents were marked.
8. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to negligence of both the drivers and held that the owners of both lorry bearing registration No.AP-13 T 7821 and tempo van bearing Registration No.TN-28 W 8996 and the insurer of both the vehicles viz., United India Insurance Company and Oriental Insurance Company are jointly and severally liable to pay the compensation and apportioned the liability at 50% : 50%. In MCOP.No.744 of 1998, based upon the income tax return of Saravanan for the year 1998-99, Tribunal has taken the annual income at Rs.4,25,470/-. He has paid income tax of Rs.94,113/-. After deducting 1/4th for personal expenses i.e., Rs.82,714/-, the Tribunal has calculated the loss of income to the family at Rs.2,48,143/-. At the time of accident, deceased Saravanan was aged 26 years and 3 months. Tribunal has adopted multiplier 18 and calculated the total loss of income at Rs.44,66,574/-. Tribunal has awarded total compensation of Rs.44,99,574 as follows:
Loss of Income : Rs.44,66,574.00
Loss of love and affection : Rs. 5,000.00
Loss of consortium : Rs. 10,000.00
Funeral Expenses : Rs. 2,000.00
Damages to the articles : Rs. 16,000.00
------------------- Total : Rs.44,99,574.00
-------------------
Rounded off : Rs.45,00,000.00
9. The Tribunal has apportioned the liability and compensation payable at 50% : 50% between both the vehicles and Tribunal has also equally apportioned the compensation among the wife-1st Claimant and father-2nd Claimant of the deceased. Insofar as M.C.O.P.No.791 of 1998, Tribunal has awarded compensation of Rs.30,000/- for the damages caused to the house and to the articles.
10. Mr.Vijayaraghavan, learned counsel for Appellant-Insurance Company [Oriental Insurance Company] contended that Tribunal erred in fastening the liability on the Appellant-Insurance Company as the insurer of Tempo van bearing registration No.TN-28 W 8996 where the accident was solely due to the rash and negligent driving of the driver of the lorry bearing registration No.AP-13 T 7821. It was further contended that where the lorry driver was convicted on a plea of guilt, lorry driver alone ought to be been held responsible for the accident. Learned counsel for Appellant-Insurance Company further submitted that Tribunal ought to have held that from the very manner of accident and that only the lorry driver was charge sheeted who had chosen to plead guilty, Tribunal ought to have exonerated the Appellant-Insurer of Tempo van and Tribunal has not properly appreciated the plea of guilt by the lorry driver. In support of his contention, learned counsel placed reliance upon 2009 ACJ 1006 [Oriental Insurance Company Ltd. v. Ram Prasad Varma and others]; 1999-3-LW 811 [Marudhu Pandiyar Transport Corporation v. M.Veerammal and another]; and(2008) 2 MLJ 495 (SC) [National Insurance Company Ltd. v. Indira Srivastava].
11. Learned counsel for Respondents 1 to 5/Claimants submitted that in collision between two vehicles when the doubt arises as to who was responsible for the accident, Tribunal has rightly apportioned the liability at 50% : 50%. It was further submitted that the driver of lorry was keeping correct direction and accident was due to the negligence of the Tempo van driver and Tribunal rightly apportioned 50% liability upon the Tempo van driver.
12. Upon consideration of evidence, findings of the Tribunal and rival contentions, the following points arise for consideration in these Appeals.
(1) Whether the accident was due to rash and negligent driving of the lorry driver alone as contended by the Appellant-Insurance Company Oriental Insurance Company?
(2) Whether the accident was due to composite negligence of lorry bearing registration No.AP-13 T 7821 and Tempo van bearing registration No.TN-28 W 8996?
(3) Whether the Tribunal was right in apportioning negligence in the ratio of 50% : 50%?
(4) Whether the total compensation of Rs.45,00,000/- awarded by the Tribunal is reasonable?
(5) Whether the compensation of Rs.45,00,000/- awarded by the Tribunal is to be enhanced and if so, what is the quantum?
13. Point Nos.1 to 3:- On 07.05.1988 deceased Saravanan was watching the T.V. in his house, the lorry bearing registration No.AP-13 T 7821 driven by the 6th Respondent in a rash and negligent manner hit against the Tempo van bearing registration No.TN-28 W 8996 which was coming in the opposite direction and thereafter the lorry entered the house and Saravanan sustained fatal injuries. At the time of accident the lorry was proceeding from Perungudi to Erode i.e. west to east and the Tempo van was coming on the opposite direction from Erode to Perungudi i.e. east to west. The Tempo van was completely crushed resultantly, Tempo van driver and cleaner died instantaneously on the spot. Saravanan sustained fatal injuries and he died on his way to the hospital. PW3-Chandrasekaran who is an eye-witness has spoken about the accident and stated that the accident was due to rash and negligent driving of both the vehicles.
14. Contention of Appellant-Insurance Company is that the lorry was driven in a rash and negligent manner and Tempo van which was coming in the opposite direction was proceeding in its correct direction observing the road rules and while so, Tribunal erred in holding that both the vehicles are negligent and apportioning the liability at 50% : 50%. Main contention of Appellant-Insurance Company is that the criminal case was registered only against the lorry driver and lorry driver also chosen to plead guilty and in such circumstances, Appellant insurer of Tempo van ought to have been exonerated.
15. The cleaner of the lorry was examined as RW1. In his evidence RW1 has stated that the lorry was proceeding from west to east keeping its correct direction and the Tempo van came in the opposite direction hit against the lorry and that it was not due to the negligence of the lorry driver. Oral evidence of RW1 is not in consonance with the documents and other circumstances. RW1 who was a cleaner is an interested witness and based upon his evidence the Tempo van driver cannot be faulted.
16. Ex.A1-FIR in Crime No.231 of 1998 under Sec.304(A) IPC was registered against the lorry driver. By perusal of Ex.A1-FIR, it is seen that immediately after the accident lorry driver and cleaner ran away from the scene of accident. In the Criminal case, lorry driver was charge sheeted in STC.No.2824/1998. As is seen from Ex.A7-Judgment in STC.No.2824/1998, the lorry driver pleaded guilty and admitted the offence and paid fine of Rs.4500/-.
17. The conviction in criminal case is admissible in civil proceedings as prima facie evidence of negligence. However, acquittal in a criminal case is not to be taken as a prima facie evidence of non-negligence. In our considered view, the lorry driver’s plea of guilty and his conviction for rash and negligent driving is admissible as a prima facie evidence of negligence. Pointing out that the accident was due to collision between two vehicles, Tribunal rightly found that the accident was due to rash and negligent driving of both the drivers. Tribunal has rightly taken plea of guilty as a relevant factor in holding that the accident was due to negligent driving of both the drivers.
18. From Ex.A2-Plan, it is seen that the lorry proceeding from west to east swerved to the extreme north and hit the house. Whereas the Tempo which was proceeding from east to west was keeping its correct direction and after the impact swerved to the southern extremity and that the lorry proceeded to its wrong side i.e. northern side is clearly marked in Ex.A2-Plan. From the skid marks of lorry shown in Ex.A2-Plan, it is clear that the lorry driver was mainly responsible for the accident. As is seen from Ex.A5-MVI Report that Tempo van bearing registration No.TN-28 N 8996, suffered the following damages:-
“Cabin completely damaged; front bumper show set, grill door damaged; front windscreen glass broken; body damaged; door glass and quarter glass broken; steering wheel broken; driver seat and cabin inside damaged; dash board assembly broken; panel board broken; steering box broken; front suspension broken; front crossbar, rear crossbar engine bend and gear box bed broken; chassis bent front wheel disc bent; radiator, air cleaner assembly damaged.”
Whereas the lorry bearing registration No.AP-13 T 7821 suffered only less damages. That is front both windscreen glass broken; dash board assembly damaged. The pattern of damages sustained by both the vehicles would also show that lorry driver was mainly responsible for the accident.
19. Contention of the Appellant-Insurance Company is that Tribunal ought to have taken into account the plea of admission of guilt and that Tribunal ought to have held that lorry driver alone is liable and also ought to have fastened the entire liability upon the insurer of the lorry.
20. The principle of composite negligence comes in where more than one person is responsible in the commission of the wrong and the person wronged had a choice against all or any one or more than one of the wrongdoers. Every wrongdoer is liable and it does not lie in the mouth of one wrongdoer to say that though I am also responsible, yet the other man was also equally responsible for the wrong and on this basis, he cannot avoid the liability. In case of composite negligence, normally it is not possible to fix the liability among the different drivers. Both are jointly and severally liable to the claimants ‘because they are joint tortfeasors’. [See 1991 ACJ 198 (MP) (DB) [Hullanbai v. Jagdish Prasad].
21. In 1988 ACJ 8 (Raj) [National Insurance Co., v. Kastoori Devi], the Division Bench of Rajastan High Court held as follows:-
“It has been laid down in a plethora of cases of this court as well as other High Courts that in case of composite negligence the liability cannot be apportioned. In a case of composite negligence there is no method of indicia to bifurcate or apportion the liability and the only course open in such in such cases can be to make them both liable as jointly or severally. So far as the claimants are concerned, they can realise the amount from any one of the insurance companies and then the insurance company, which pays the entire amount, can take steps for recovering half of the amount from the other insurance company.”
22. In 1988 ACJ 597 (Ker) [United India Insurance Co., Ltd., v. Premakumaran], the Division Bench of Kerala High Court held that where the incident had happened as a result of the composite negligence of the driver of the bus and the railway administration, the claimants are entitled to recover the entire amount from any of the joint tort-feasors and there could be one decree against all of them.
23. In 1996 ACJ 1125 (SC) [Karnataka State Road Transport Corporation v. K.V.Sakeena], wherein collision between a Corporation bus and truck-trailer coming from opposite direction resulting in death of four passengers travelled in the bus including the driver and two others sustained injuries. In that case, the question arose whether driver of the truck-trailer was negligent or not. After analysing the evidence on record, the Supreme Court came to the conclusion that the driver of the truck-trailer was also negligent and the proportion of the negligence of the driver of the bus and the driver of the truck-trailer was determined at 60% and 40% respectively and in the light that conclusion, the Supreme Court has held that the owner, driver and insurer of the truck-trailer are jointly and severally liable to pay 40% of compensation.
24. It emerges from the above decisions that while awarding of amount in a case of composite negligence Tribunal can direct payment of entire compensation jointly and severally, but at the same time would apportion the liability between two owners for their facility, and if both the owners or the two insurance companies, as the case may be, may pay the amounts to the claimant in proportion as awarded by the Tribunal, there is no problem for the claimant. But in case of any one of the parties liable does not want to honour the award from the other, leaving such party to claim rateable distribution from the owner of the other vehicle involved in the accident and found negligent by the Tribunal.
25. Even though, criminal case was registered against the lorry driver and he pleaded guilty by itself does not lead to the conclusion that the lorry was solely responsible for the accident. Tempo van coming in the opposite direction ought to have foreseen the oncoming vehicle. The accident was during day time [ 3.30 P.M.] with sufficient day light. The Tempo van driver ought to have seen the oncoming vehicle and ought to have taken steps to prevent the accident. From the pattern of damages sustained by the Tempo van, it is clear that Tempo van driver had not exercised due care to avoid collision. Tempo van driver ought to have adopted a defensive driving and having failed to take reasonable care, the Tempo van driver also contributed to the accident.
26. Tribunal held that Appellant-Insurance Company and 6th Respondent [driver of the lorry] are to pay the compensation and apportioned the negligence in the ratio of 50% : 50%. While upholding the finding of the Tribunal, Appellant-Insurance Company and 6th Respondent [driver of lorry]; 7th Respondent [owner of lorry], 8th respondent [insurer of lorry] and 9th respondent [owner of tempo van] were jointly and severally liable to pay compensation to the Claimants awarded. In the facts and circumstances of the case, the liability is apportioned at 65% as that of the lorry driver and 35% as that the Tempo van and Point Nos.1 to 3 are answered accordingly.
27. Point Nos.4 and 5:- In MCOP.No.744/1998, first Claimant is the wife, 2nd Claimant is the father and 3rd Claimant is the step mother, Claimants 4 and 5 are the sons of 2nd and 3rd Claimants. In his evidence, PW1-father of the deceased Saravanan has stated that deceased has been working as qualified Radiographic Engineer. From Ex.P10, it is seen that deceased Saravanan had undergone Radio Operator Course and that he was qualified in Marine Engineering. From Ex.A17, it is also seen that deceased Saravanan had undergone training of Crews in Fire-Fighting and that Ex.P17 is the certificate for the Advanced Fire Fighting. From Ex.P20, it is seen that deceased Saravanan served on Board of Vessel M/T Gamma I from 01.10.1993 to 31.12.1993 as Radio Officer. It is clear from Ex.A23 that deceased Saravanan served on Board the Vessel “M.T.Hansdoot” as Radio Officer. Ex.A52 is the appointment order issued by Varun Shipping Company Limited appointing deceased Saravanan as Radio Officer. Exs.A53 to A55 are the Form-24 submitted to the Income-tax department showing salaries paid to the employees of Varun Shipping Company Limited and the tax deducted at source in respect of Floating staff Officers and Crew salaries.
28. In his evidence, PW2-wife of deceased has stated that her husband was getting salary of Rs.60,000/- to Rs.1,25,000/- per month. Ex.P35 is the income-tax return for the period from 01.04.1996 to 31.03.1997. Ex.P36 is the Income-tax return for the period from 01.04.1997 to 31.03.1998. From the income-tax returns [Ex.P35, P36 and P55], it is seen that the income of deceased and the tax paid by him is as under:-
Exhibit No.
Period
Income
Tax paid
P35
01.04.1996 to 31.03.1997
Rs.2,24,060.00
Rs.57,091.00
P36
01.04.1997 to 31.03.1998
Rs.4,24,970.00
Rs.96,641.00
P55
1997-98
Rs.4,25,470.00
Rs.94,113.00
Based upon Exs.P36 and P55, Tribunal observed that deceased Saravanan was getting the annual income of Rs.4,25,470/- and that Saravanan would have got atleast Rs.35,000/- per month as salary.
29. In CMA.No.61 of 2001, Claimants seek for enhancement of compensation. Learned counsel for Claimants submitted that the Annexure to Ex.P36 would clearly indicate that the gross salary payable from April to October 1997 was Rs.4,02,386/- and that the gross salary payable for November 1997 to March 1998 was Rs.2,81,108/-, totalling in all Rs.6,83,494/-. It was further submitted that since the Shipping Company has borne the entire expenses of its staff, Tribunal ought to have made deduction of 1/5th salary for personal expenses and 1/4th deduction made by the Tribunal is very much on the higher side.
30. Future prospects – Contention of Claimants is that Tribunal has not taken into account the future prospects of the deceased. It is fairly well settled that while awarding compensation, the Tribunal/Courts will have to keep in view the future prospects like future promotion, revision of pay etc., and the Court should bear them in mind while assessing the future loss of income. In K.K.Janardhanam Vs. Thiruvalluvar Transport Corporation Limited (2008 ACJ 875) and in Reshma Kumari and Others Vs. Madan Mohan and another (2009 AIR SCW 6999), Courts have held that the future prospects have to be taken into consideration.
31. In (2009) 6 SCC 121 [Sarla Verma and others v. Delhi Transport Corporation and another], the Supreme Court held that though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Deceased was working as Radio Officer in Shipping Company. Having regard to the age and his qualification, giving 40% increase of the salary would be appropriate. For paying income-tax, deduction of 10% is to be made and thus increase towards future prospects is taken as 30%. Taking the monthly income of the deceased as Rs.35,000/-, giving 30% increase, Rs.10,500/- is added for future prospects and the income of the deceased is taken as Rs.45,500/- per month.
32. Personal Expenses – In so far as, personal expenses, Tribunal has deducted one-fourth amount for personal expenses. Learned counsel for Claimants contended that the personal expenses of the deceased was met by the employer and while so, 1/5th deduction should have been made. The deceased who was serving as Radio Officer on the Board for few months would have been ‘off duty’ for an equivalent period. In such circumstances, as per the consistent view taken by the Supreme Court in (2009) 6 SCC 121 [Sarla Verma and others v. Delhi Transport Corporation and another], one-third deduction for personal expenses would be appropriate.
33. In (2008) 4 SCC 259 [Bilkish v. United India Insurance Co., Ltd.,], the Supreme Court has taken the view that deceased would have spent one-third towards personal expenses and the contribution two-third of his income to his family. Undisputedly, deduction of one-third towards personal expenses is ordinary rule in India. Following the consistent view taken by the Supreme Court, one-third deduction is made for personal expenses i.e. Rs.15,166/- round off to Rs.15,000/- and the monthly loss of income/loss of dependency is Rs.30,500/- and the annual loss of income of the deceased is Rs.3,66,000/- [Rs.30,500 x 12 = Rs.3,66,000/-]. For the income of Rs.3,66,000/- per annum, deceased would have paid income tax of Rs.73,200/- and therefore, the loss of dependency/loss of income to the family is calculated at Rs.2,92,800/- [Rs.3,66,000 Rs.73,200/-].
34. Choice of Multiplier Deceased was aged 26 years at the time of accident. As is seen from Ex.A9-passport, date of birth of deceased is 20.02.1972. As per second schedule to M.V. Act, the Tribunal has adopted multiplier ’18’ and the same is maintained. The total loss of dependency is calculated at Rs.52,70,400/- [Rs.2,92,800 x 18]. In so far as, conventional damages, Tribunal awarded Rs.5000/- towards “loss of consortium”. Having regard to the facts and circumstances of the case and age of 1st Claimant, compensation of Rs.5000/- awarded for “loss of consortium” is enhanced to Rs.25,000/-. Tribunal also awarded Rs.2000/- for “funeral expenses” and Rs.16,000/- for “damages to the articles” being reasonable, the same are maintained.
35. In modification, the compensation awarded by the Tribunal is enhanced to Rs.53,13,400/- as under:-
Loss of dependency [Rs.2,92,800 x18] : Rs.52,70,400.00 Loss of consortium : Rs. 25,000.00 Funeral expenses : Rs. 2,000.00 Damages to the articles : Rs. 16,000.00 ------------------- Total : Rs.53,13,400.00 ------------------- 36. Insofar as interest, the Tribunal has awarded interest at the rate of 12% per annum. Following the consistent view taken by the Supreme Court, the rate of interest is reduced to 7.5% per annum.
37. As per our direction, 1st Claimant-Kalaivani (wife of deceased) and 2nd Claimant-Muruganandam (father of deceased) were present in the Court. We have examined the 1st Claimant-Kalaiavani. She has stated that after the death of her husband, she has gone to her parents house in Kulithalai and she has been living with her parents. 1st Claimant has also stated that soon after one year after the death of her husband, her father also died and she is living with her mother. 1st Claimant is not employed and that she has taken the shelter with her mother. 2nd Claimant (father of deceased) also admitted that 1st Claimant-Kalaivani remains unmarried and that she is living with her mother. Having regard to the facts and circumstances and keeping in view that 1st Claimant had become a widow at her very young age, the enhanced amount of Rs.8,13,400/- along with accrued interest is ordered to be paid to the 1st Claimant-Kalaivani. The enhanced compensation of Rs.8,13,400/- is also apportioned between the Appellant-Insurance Company and 8th Respondent-Insurance Company in the ratio of 35% : 65% respectively.
38. C.M.A.No.1841 of 2000:- House of PW3-Ponnusamy [1st Claimant in MCOP.No.791/1998] was also damaged. In his evidence, PW3 has stated that the front portion of his house was damaged and that the windows, doors and iron shutters were damaged due to the accident. Ex.A47(series) photographs corroborates the version of PW3. Ex.A48 is the Engineer estimate estimating the damages at Rs.70,000/-. Ex.A49 is the bill for Rs.18,450/- evidencing the purchase of articles to repair the damages. Having regard to the evidence of PW3 and Exs.A47 to A49, Tribunal awarded Rs.30,000/- as compensation for the damages caused to the house of PW3.
39. Considering the oral and documentary evidence i.e. Ex.P48, report of the Engineer and Ex.P49, the bill for the purchase of materials, Tribunal awarded Rs.30,000/- towards the damages. More over, the Claimants have also not preferred any appeal questioning the quantum passed in M.C.O.P.No.791 of 1998. Having regard to the facts and circumstances of the case, amount of Rs.30,000/- awarded for the damages caused to the house and to the articles of the Claimants by the Tribunal is confirmed. The negligence and compensation is apportioned in the ratio of 65% : 35% respectively.
40. In the result,
C.M.A.Nos.1840 & 1841 of 2000:- Appellant-Insurance Company [insurer of the tempo van]; 9th Respondent [owner of the tempo van] and 6th Respondent [driver of the lorry], 7th Respondent [owner of the lorry] and 8th Respondent [insurer of the lorry] are jointly and severally liable to pay compensation to the Claimants.
Apportionment of composite negligence in the ratio of 50% : 50% fixed by the Tribunal in M.C.O.P.Nos.744 and 791 of 1998 is modified as 65% as that of the 8th Respondent, insurer of lorry [United India Insurance Company] and 35% as that of the Appellant, insurer of Tempo van [Oriental Insurance Company] and both the Appeals are partly allowed. No costs.
C.M.A.No.61 of 2001:- The compensation amount of Rs.45,00,000/- awarded by the Tribunal is enhanced to Rs.53,13,400/- payable with interest at the rate of 7.5% p.a. from the date of Claim Petition till the date of deposit and C.M.A.No.61 of 2001 is partly allowed. No costs.
Enhanced compensation of Rs.8,13,400/- [Rs.53,13,400 45,00,000] along with accrued interest at the rate of 7.5% is payable to the 1st Claimant, wife of the deceased.
By an order dated 01.12.2000 in C.M.P.Nos.17578 and 17579 of 2000, this Court directed the Appellant-Insurance Company to deposit 50% of the amount awarded along with accrued interest in C.M.A.No.1840/2000 and entire amount in C.M.A.No.1841/2000. Accordingly, Appellant-Insurance Company has also deposited 50% of the amount awarded along with accrued interest. It was stated before us that Claimants 1 and 2 have withdrawn the deposited amount.
Both Appellant-Insurance Company as well as 8th Respondent-Insurance Company are directed to deposit the balance 50% of compensation payable and also the enhanced compensation of Rs.8,13,400/- along with accrued interest at the rate of 7.5% p.a. Both insurers – 8th Respondent/United India Insurance Company, insurer of the lorry and Appellant/Oriental Insurance Company, insurer of Tempo van are directed to deposit their respective apportionment of compensation [ 65%(lorry) : 35%(tempo van)] within a period of eight weeks from the date of receipt of copy of this Judgment. On such deposit, 1st and 2nd Claimants are permitted to withdraw their respective share of compensation. 1st Claimant is also permitted to withdraw the enhanced compensation of Rs.8,13,400/- along with accrued interest.
bbr
To
The Principal Subordinate Judge,
Erode