(Prayer in C.M.A. No.1047 of 2022: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 to set aside the judgement and decree passed in MCOP No.1194/2019 dated 20.10.2021 on the file of the Motor Accident Claims Tribunal, Special District Court for MACT Cases, Krishnagiri.
CROS.OBJ. No.40 of 2024 : Cross objection filed under Order 41 Rule 22 of the Code of Civil Procedure to enhance the compensation amount awarded in the Judgment and Decree passed in MCOP No.1194/2019 dated 20.10.2021 on the file of the Motor Accident Claims Tribunal, Special District Court for MACT Cases, Krishnagiri, by allowing this cross appeal in CMA No.1047/2022 on the file of this Hon’ble Court and thus render justice.)
The unsuccessful National Insurance Company Limited, has preferred the appeal in CMA No.1047 of 2022, aggrieved over the negligence and quantum of compensation awarded by the Motor Accident Claims Tribunal, Special District Court for MACT Cases, Krishnagiri dated 20.10.2021 in M.C.O.P. No.1194 of 2019.
2. The claimants have preferred the Cross Objection No.40 of 2024 in CMA No.1047 of 2022 seeking enhancement of compensation.
3. The first claimant is the wife, other claimants are sons and daughters of the deceased one Thirthamalai, who died in the road accident on 18.08.2016. The claim petition has been filed under Section 166 of the Motor Vehicles Act seeking compensation for the death of the said Thirthamalai.
4. According to the claimants, on 17.08.2016, the deceased Thirthamalai after cutting the Tamarind trees on the road side in Kuppam Palamaneri Road. While he was walking on the left side of the road near Dasarapalle cross on Baireddipalli – V.Kotta Road at about 17.00 hours, at that time, a lorry bearing Registration No KA 01 B 8911 driven by its driver in a rash and negligent manner and dashed on the deceased, while he was walking on the left side of the road, as a result of which, the deceased fell down on the road and sustained severe injuries all over his body. Immediately, he was admitted at PES Hospital, Kuppam and he died on 18.08.2016.
5. According to the claimants, the deceased was aged about 54 years, doing tree cutting work on contract and was earning not less than Rs.30,000/-per month. The first respondent is the owner of the lorry and the second respondent is the insurer of the said vehicle and they both are jointly and severally liable to pay compensation to the claimants.
6. The first respondent was called absent and remained ex parte before the Tribunal.
7. The second respondent / Insurance Company has filed counter statement wherein it has been stated that the second respondent does not admit any of the allegations made in the petition except those that are specifically admitted therein. It is specifically denied that the lorry was insured with the second respondent on the date of the accident and the claimants are put to strict proof of the same. The driver of the lorry did not hold valid and effective driving license at the time of the accident, which is a clear violation of policy. He has paid penalty for the same. Therefore, the second respondent is not liable to pay compensation to the claimants. If any compensation is awarded to the claimants, the first respondent alone is liable to pay the same to the claimants.
8. On behalf of the claimants, the first claimant examined herself as PW1, one Senthil, an eye witness was examined as PW2 and Ex.P1 to E.P20 were marked. On the side of the first respondent, no witness and exhibits was marked. On the side of the second respondent, one Vimalan, official was examined as RW1 and Ex.R1 to Ex.R4 were marked.
9. Upon appreciation of evidence adduced on either side, the Tribunal considering the evidence of PW2, who is an eyewitness to the accident, who categorically deposed about the manner of accident and also considering the fact that the criminal case was also registered against the driver of the offending vehicle, concludes that the accident had occurred only due to rash and negligent act of the driver of the offending vehicle. The Tribunal also considering the evidence of RW1 and considering the fact at the time of accident, the driver of the offending vehicle was not having valid and effective driving license and the driver of the offending vehicle has paid fine to that effect and the same was reflected in Ex.R2 / charge sheet. RW1 also deposed that it is violation of policy condition and that they are not liable to pay compensation. The Tribunal concludes that the offending vehicle was duly insured with the second respondent therein and the second respondent is liable to pay compensation to the claimants.
10. With regard to quantum of compensation, at the time of accident, the deceased was aged about 54 years and the same was reflected in Ex.P2/postmortem certificate and in the absence of proof of the monthly income, the Tribunal fixed a sum of Rs.9,000/- as notional income of the deceased. Considering the number of dependents, the Tribunal deducted 1/5th towards personal expenses of the deceased and adopted multiplier ‘9’ and added 10% towards future prospects and awarded compensation a sum of Rs.8,53,360/- under the head loss of dependency. The Tribunal also awarded a sum of Rs.15,000/- towards loss of estate and funeral expenses, respectively and awarded a sum of Rs.2,80,000/- (Rs.40,000/- each to the claimants) towards loss of consortium. In total, the learned Tribunal awarded a sum of Rs.11,65,360/-towards compensation as hereunder:
“table”
Aggrieved over the same, the Insurance Company has preferred the present appeal challenging the negligence and quantum of compensation awarded by the Tribunal, whereas the claimants have preferred Cross Objection seeking enhancement of compensation.
11. The learned counsel for the appellant / Insurance Company would submit that the Tribunal has failed to consider the fact that six children of the deceased are major persons and in the absence of any pleading and proof of dependency, erroneously awarded compensation by deducting 1/5th towards personal expenses of the deceased. The learned counsel for the appellant further would submit that as per the evidence of RW1 and Ex.R4 - Extract of Driving License, the driver of the lorry holds license of non-transport vehicle from 24.05.2012 to 23.05.2032 and obtained license to drive transport vehicle (only on the date of accident i.e. 17.08.2016) from 27.02.2021 to 26.02.2026. Therefore, the Tribunal ought to have held that at the time of accident the driver had no valid and effective driving license to drive transport vehicle. As per Ex.R2/final report, the driver of the lorry had paid fine by accepting guilty of the offence for not holding driving license. Therefore, when the owner of the vehicle having specific knowledge allowed to drive his vehicle and the same is violation of policy condition, the Tribunal ought to have exonerated the liability fixed on the part of the Insurance Company.
12. Per contra, learned counsel for the respondents / claimants would submit that the Tribunal has rightly considered the evidence of RW1 and considered the fact that as per Ex.R2 - final report laid down as against the driver of the offending vehicle, he has paid fine by accepting guilty of the offence for not holding driving license at the time of accident. Though the Insurance Company has stated that the children of the deceased are married and they are not dependent on the deceased, however, they have not placed any specific plea that they are not dependent on the deceased. The learned counsel would further submit that whether major earning sons and daughters of the deceased, being legal representatives, having a right to claim compensation. To strength his contention, he also relied upon the judgment of the Hon’ble Apex Court in Seema Rani & Others vs The Oriental Insurance Company Ltd & Others reported in CDJ 2025 SC 316 to show that the major married and earning sons of the deceased, being legal representatives, having a right to apply for compensation and the Tribunal must consider the application, irrespective of whether the representatives are fully dependent on the deceased or not. The learned counsel further would submit that the accident took place on 17.08.2016 and the deceased was aged about 54 years at the time of accident, however, the Tribunal has fixed only a sum of Rs.9,000/- as notional income of the deceased, which is very meagre and the same is to be enhanced.
13. The learned counsel for the eight respondent / owner of the vehicle would submit that the Tribunal has rightly found that as per the evidence of Ex.R4, it is proved that the driver of the offending vehicle was possessing valid driving license and in Ex.R4, he was having valid driving license to drive the non-transport vehicle from 24.05.2012 to 23.05.2032 and to drive the transport vehicle from 27.02.2021 to 26.02.2026. Admittedly, on the date of accident, the driver of the offending vehicle was possessing valid driving license and the offending vehicle was duly insured with the second respondent Insurance Company therein. Therefore, the Insurance Company alone is liable to pay the entire compensation to the claimants. Upon appreciation of the evidence adduced on either side, the Tribunal has rightly fixed entire negligence on the part of the driver of the offending vehicle and directed the Insurance Company to pay entire compensation to the claimants.
14. This Court considered the submissions made on either side and perused the available records carefully.
15. It is seen from the records that in order to prove the negligence, the claimants have relied upon the evidence of PW2, who is the eyewitness to the accident. It is not in dispute that as per Ex.P1 / FIR, the criminal case was registered as against the driver of the offending vehicle bearing Registration No KA01 B 8911 in Crime No.50/2016 under Section 304-A of IPC. The complaint was given by the son of the deceased namely, Palani, the fifth claimant therein. Ex.P1/ FIR shows the rash and negligent driving of the driver of the offending vehicle as the main cause for the accident. PW2, who is an eyewitness to the accident had categorically deposed that when he was in the occurrence place, he had witnessed to the occurrence. Even in the cross examination also, he has deposed that the lorry was coming on the left side of the road, at that time the deceased was not crossed the road and he was walking on the left side of the road along with PW2. Therefore, as per the evidence of PW2, it is clear that the accident occurred only due to rash and negligent act of the driver of the offending vehicle. Though the appellant herein, who is the second respondent therein, has taken a plea that the deceased was all of a sudden has crossed the road and he himself had invited the accident, the first respondent therein has not chosen to examine either or any other independent witness on his side.
16.1. Considering the evidence of PW2, the Tribunal has rightly came to the conclusion that the accident had occurred due to rash and negligent act of the driver of the offending vehicle. It is seen from the records that as per Ex.P20/Motor Vehicles Inspector Report of the offending vehicle which shows that there is no mechanical defects on the date of accident. As per evidence of RW1, official from the Insurance Company also admitted that the vehicle in question was having insurance and placed Ex.R1/copy of the insurance policy. RW1 deposed that on the date of accident, the driver of the offending vehicle was not having valid driving license to drive the lorry. He also deposed that the driver of the offending vehicle was pleaded guilty and paid fine and he has also place Ex.R2/final report and as per final report, the driver of the offending vehicle was not possessed valid and effective driving license and pleaded guilty he also paid fine amount. A perusal of Ex.R2/final report and Ex.R3/accident information report shows that the driver of the offending vehicle was not having valid driving license at the time of accident. RW1 has admitted the fact that the deceased was a third party and he is entitle to claim compensation as per policy was in force.
16.2. A perusal of Ex.P20/Motor Vehicles Inspector Report shows that the driver of the offending vehicle was having valid driving license till 23.05.2032. It is relevant to note that with consent of the claimants, Ex.R4/copy of extract of driving license of the offending vehicle came to be marked. A perusal of Ex.R4 shows that the driver of the offending vehicle was having valid driving license to drive non transport vehicle from 24.05.2012 to 23.05.2032 and to drive the transport vehicle from 27.02.2021 to 26.02.2026. In the case on hand, the accident took place on 17.08.2016, admittedly, on the date of accident the driver of the offending vehicle had driven the transport vehicle. Hence it is clear that as per Ex.P20 and Ex.R4 it is proved that the driver of the offending vehicle was not having valid driving license to drive the transport vehicle and driven the same and there is a violation of policy condition. In such circumstances, the Tribunal ought to have directed the Insurance Company to pay compensation to the claimants in the first instance and then recover the same from the owner of the vehicle. The findings of the Tribunal directing the Insurance Company to pay the entire compensation is liable to be set aside. This Court is of the view that as per evidence of RW2 and as per Ex.R4 clearly reveals that on the date of accident, the driver of the offending vehicle was not having valid and effective driving license to drive the transport vehicle. In such circumstances, it is a policy violation and therefore, the appellant Insurance Company is liable to pay compensation in the first instance and then recover the same from the eight respondent / owner of the vehicle.
Quantum :
17. According to the claimants, the deceased was aged 54 years on the date of accident. In the claim petition, it is contended that the deceased was doing tree cutting work and was earning not less than Rs.30,000/- p.m. The Tribunal fixed the notional income of the deceased as Rs.9,000/- per month, which is meagre. It is pertinent to point out that the accident took place in the year 2016. Considering the age of the deceased and the year of the accident, this Court is of the opinion that fixing notional monthly income of the deceased at Rs.14,000/- would meet the ends of justice. As per the decision of the Hon’ble Supreme Court of India in National Insurance Co. vs Pranay sethi and others reported in 2017 (2) TNMAC 601, 10% is added towards future prospects of the deceased. Since there are seven dependants 1/5th is deducted towards his personal expenses. The proper multiplier to be adopted in the instant case is ‘9’ as per the decision of Hon’ble Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121.
Accordingly, the compensation under the head loss of dependency would be :
Calculation
Notional Income = Rs.14,000/-
10% Future Prospects = Rs.15,400/-
After 1/5 deduction = Rs.12,320/-
Loss of dependency
= Rs.12,320/- x 12 x 9
= Rs.13,30,560/-
The amounts awarded by the learned Tribunal under other heads are just and reasonable and does not warrants any interference.
18. The following tabular column would show the modified amount awarded by this Court under various heads.
“table”
19. Thus, the compensation awarded by the Tribunal is enhanced to Rs.16,40,560/-. This amount shall carry interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit.
20. In the result,
i. The appeal in C.M.A. No.1047 of 2022 is partly allowed.
ii. The Cross Objection No.40 of 2024 is disposed of. No costs.
Consequently connected miscellaneous petition is closed.
iii. The compensation awarded by the Tribunal is enhanced to Rs.16,40,560/-.
iv. The claimants are directed to pay the court fee for the enhanced compensation amount, if any, and the Registry is directed to draft the decree only after the receipt of Court fee.
v. The appellant, the National Insurance Company Limited, Tiruchengodu, is directed to deposit the enhanced compensation amount of Rs.16,40,560/- (less the amount already deposited) together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit to the credit of MCOP No.1194/2019 dated 20.10.2021 on the file of the Motor Accident Claims Tribunal, Special District Court for MACT Cases, Krishnagiri, within a period of eight weeks from the date of receipt of a copy of this order/uploading of this order, in the first instance and then recover the same from the eighth respondent / owner of the vehicle on the same cause of action. (Pay and Recover).
vi. On such deposit being made, the claimants are at liberty to withdraw the same on filing appropriate application before the Tribunal. The ratio of apportionment made by the Tribunal shall be kept intact.
vii. The manner and mode of disbursement of compensation shall be as per the order of the Tribunal.
