BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.183 of 2008 1.Irulayee 2.Minor Sivaraman (Minor second appellant rep. through his mother viz., first appellant) .. Appellants Vs 1.K.Alagarsamy 2.National Insurance C.Ltd., through its Divisional Manager, 1st Floor, West Masi street, Madurai. .. Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgement and Decree dated 26.02.1996 passed in M.C.O.P.No.275 of 1995 by the learned Motor Accidents Claims Tribunal (Principal District Judge), Sivagangai. !For Appellants ...Mr.G.Prabhu Rajadurai ^For Respondent No.1 ...Mr.Santhosam For Respondent No.2 ...Mr.R.S.Ramanathan :JUDGMENT
This appeal is focussed as against the Judgement and Decree dated
26.02.1996 passed in M.C.O.P.No.275 of 1995 by the learned Motor Accidents
Claims Tribunal (Principal District Judge) Sivagangai.
2. Heard both sides.
3. The Tribunal vide Judgement dated 26.02.1996 awarded compensation to a
tune of Rs.1,10,400/-(Rupees one oakh ten thousand and four hundred only).
4. The challenge in this appeal is relating to the liability fixed on the
owner of the vehicle alone instead of fixing it on both the owner of the vehicle
and the Insurance Company.
5. The grievance of the appellants/claimants is that the quantum of
compensation awarded by the Tribunal was very low despite the fact that an young
man of 32 years old as a loadman died in the year 1992, leaving behind his wife
and minor child.
6. The points for consideration are (i) whether the second
appellant/Insurance Company is also to be fastened with the liability to pay the
compensation despite the fact that the driver of the offending vehicle (insured
vehicle) did not get his driving licence renewed? and (ii) whether the Tribunal
awarded ‘just compensation’?
7. Point(i):
The learned counsel for the appellants/claimants by placing reliance on
the grounds of appeal would contend that in the accident concerned several
persons sustained injuries; in one other case, one other Tribunal fixed the
liability both on the Insurance Company as well as the owner of the offending
vehicle; as against which A.O.No.279 of 1995 was filed before this Court, but
that appeal was dismissed; as against which no further steps have been taken by
the Insurance Company; however the Insurance Company only in this case turned
turtle and taking a different stand.
8. The learned counsel for the second appellant/ Insurance Company cannot
specifically deny the arguments of the learned counsel for the appellants/
claimants by producing any order to show the contrary that the Insurance Company
did not accept such a stand in one other case; the Insurance Company being a
public body cannot be allowed to take one stand in one case and a different
stand in one other case relating to one and the same accident. Two different
stands in respect of two different persons, relating to one and the same
individual by the Insurance Company is not tenable.
9. Be that as it may, coming to the case on hand, it is clear that the
Tribunal gave a finding to the effect that driver of the offending vehicle had
licence to drive the lorry, but it got expired by 13.10.1988 itself and the
accident took place on 08.01.1992. No doubt, this is a case of the driver of
the offending vehicle having not got his licence renewed and that amounts to
violation of the policy conditions.
10. The Hon’ble Apex Court in National Insurance Co. Ltd. v. Kuzum Rai
and Others reported in 2006(2)CTC 347 held that if the driver of the offending
vehicle did not possess proper driving licence at the time of the accident, then
the Insurance Company cannot be mulcted with the responsibility to pay the
compensation. However, in the cited case taking into account the penurious and
impecunious circumstances of the claimants ushered in the pay and recovery
theory subject to the decision of the Hon’ble Apex Court in Oriental Insurance
Co. Ltd., v. Shri Nanjappan and Ors. reported in 2004(1) AJR 320 (SC). In this
case also considering the fact that a poor widow and her child have been
litigating ever since the year 1992 for getting compensation and that they have
not received money, so far I am of the considered opinion that pay and recovery
theory could be applied subject to the decision of the Hon’ble Apex Court in
Oriental Insurance Co. Ltd., v. Shri Nanjappan and Ors. reported in 2004(1) AJR
320 (SC). Accordingly, this point is decided in favour of the
appellants/claimants.
11.Point(ii):
The learned counsel for the appellants/claimants would submit that even
though a young man of 32 years old died leaving behind his wife and minor child,
the Tribunal awarded a meagre compensation of Rs.1,10,400/- (Rupees one lakh ten
thousand and four hundred only).
12. Perused the Judgment of the Tribunal, which as per the present
standard, is totally untenable. The Tribunal simply took into account 23 years
of the deceased’s future life and accordingly arrived at some calculation and
passed orders. The Tribunal also assumed as though the deceased might have
earned a sum of Rs.20/- (Rupees twenty only) per day. As such it warrants
interference by this Court. During the year 1992, a loadman working in a lorry
might have earned not less than Rs.30/- (Rupees thirty only) per day and
accordingly if worked out, his monthly income comes to Rs.900/- (Rupees nine
hundred only). After deducing one third (1/3) towards the expenditure which the
deceased would have incurred for maintaining himself had he been alive
irrespective of the fact whether the deceased lead the life of a Bohemian or
that of a Spartan, the monthly dependency can be assessed at Rs.600/- (Rupees
six hundred only).
13. The deceased died at the age of 32, leaving behind his wife and minor
child. Taking a cue from the Second Schedule appended to the Motor Vehicles
Act, the appropriate multiplier is 17. I am fully aware of the fact that in
all cases the multiplier as found suggested in the Second Schedule appended to
the Motor Vehicles Act cannot be taken as conclusive. But in this case, I am of
the considered opinion that multiplier 17 is the appropriate one because the
widow and the minor child are the claimants. As such unless multiplier 17 is
chosen significant compensation cannot be computed, so as to provide some
succour to the claimants. Hence, the compensation under the head ‘loss of
income’ shall be re-fixed at Rs.1,22,400/- [ 900 X 12 X 17 X 2/3 = 1,22,400/-]
(Rupees one lakh twenty four thousand and four hundred only).
14. Towards loss of consortium a sum of Rs.15,000/- (Rupees fifteen
thousand only) could be awarded. Towards loss of love and affection yet another
sum of Rs.10,000/- (Rupees ten thousand only) could awarded in favour of the
minor son.
15. The sub head funeral expenses shall carry Rs.2000/- (Rupees two
thousand only) and the transport expenses shall carry Rs.1000/- (Rupees one
thousand only). Accordingly, the compensation is modified as under:
For loss of income -Rs.1,22,400/-
For loss of consortium -Rs. 15,000/-
For loss of love and
affection -Rs. 10,000/-
For funeral expenses -Rs. 2,000/-
For transport expenses -Rs. 1,000/-
————–
Total -Rs.1,50,400/-
————–
16. The Tribunal awarded 12% interest p.a.; considering the prevailing
rate at that time, the interest awarded is reduced to 9% p.a. in view of the
long delay in filing appeal half of the delay period shall be excluded from
calculating interest.
17. In the result, this Civil Miscellaneous Appeal is partly allowed and
the award of the Tribunal is enhanced from Rs.1,10,400/-(Rupees one lakh ten
thousand and four hundred only) to Rs.1,50,400/- (Rupees one lakhs fifty
thousand and four hundred only) which shall carry interest at the rate of 9%
from the date of M.C.O.P. till deposit and half of the delay period shall be
excluded from computing the interest. The second appellant/ Insurance Company
is directed to pay the award amount and recover it from the owner of the vehicle
without initiating any separate fresh proceedings, but by executing this
Judgment directly. Proportionately there will be variation in the allotments in
favour of each of the claimants depending upon the variation in the total
compensation awarded herein. No costs.
smn
To
The Motor Accidents Claims Tribunal cum
the Principal District Judge,
Sivagangai.