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Judgment
V.M. Velumani, J.—This Civil Miscellaneous Appeal has been filed against the judgement and decree made in M.C.O.P.No.9 of 2003, dated 27.01.2009, on the file of the Motor Accident Claims Tribunal-cum-Sub-Court, Pudukkottai.
The appellant is the owner of the van bearing Registration No.TN 55C 2349 which was involved in the accident. In the accident, the deceased who was the husband of the first respondent, father of the second respondent and son of the third respondent died. The fourth respondent is the Insurance Company in which the vehicle of the appellant was insured at the time of accident. According to the respondents 1 to 3, the deceased was working as load man in the service of the appellant. On 01.11.2001 at about 5.00 p.m when the deceased was unloading the materials at Singam Clinic from the van belonging to the appellant, there was a blast in the backside of the van. The deceased suffered serious injuries and died in spite of medical treatment. Therefore the respondents 1 to 3 filed a claim petition claiming a sum of Rs.6 lakhs as compensation against appellant and fourth respondent.
The appellant remained ex parte before the Tribunal.
The fourth respondent filed a counter statement admitting that the vehicle of the appellant was insured with them at the time of accident, though denied their liability to pay compensation on the ground that the appellant violated the policy condition. The appellant committed offence by carrying crackers in the name of Fancy store goods. They denied the income of the deceased and the amount claimed according to the fourth respondent is excessive.
Before the Tribunal, the first respondent was examined as P.W.1. Driver of the vehicle was examined as P.W.2. Other claimants in the connected M.C.O.Ps. were examined as P.W.3 to P.W.5. Eight documents were marked as Ex.P1 to Ex.P8. The appellant and fourth respondent examined five witnesses as R.W.1 to R.W.5 and two documents were marked as Ex.R1 and Ex.R2.
The Tribunal after considering the pleadings and evidence came to the conclusion that the appellant violated the Motor Vehicle Rules and Act and therefore the fourth respondent is not liable to pay compensation. The Tribunal granted a sum of Rs.2,46,000/- to the respondents 1 to 3 and held that the appellant alone is liable to pay compensation. Against that order the present appeal has been filed.
The claimants in the claim petition have also filed a cross-objection for enhancing the compensation to Rs.5 lakhs with interest and costs.
There is no representation for the appellant. The learned counsel for the respondents 1 to 3 and cross-Objectors and counsel for first respondent are present.
In the grounds of appeal, the appellant contended that the policy taken by the appellant from the fourth respondent was in force and the appellant did not violate any of the conditions of policy issued by the fourth respondent and therefore the Tribunal is not correct in holding that the fourth respondent is not liable to pay compensation. The violation of Motor Vehicle Rules will not absolve the liability of the fourth respondent to pay compensation. Further,the compensation awarded is excessive.
Per contra, the learned counsel for the respondents 1 to 3/Cross Objectors submitted that the fourth respondent Insurance Company must also be made liable to pay compensation. The appellant has not violated any of the conditions of the policy. Therefore the fourth respondent is also liable to pay amounts. The order of Tribunal awarding compensation is meagre amount and prayed for enhancing the compensation. The learned counsel contended that even if the appeal is dismissed, cross-objection must be treated as appeal and it must be considered on merits. The Tribunal did not grant any amount towards loss of consortium and granted very meagre amounts for loss of Love and Affection and prayed for enhancement of compensation.
In support of his contention, the learned counsel for the respondents 1 to 3 relied on the following Judgements:
(1) 2011-3 TLNJ 365(Civil)(K. Kanagammal and others v. Chandran and G.Mani and others):
"12. In the present case, the Tribunal has held that the driver, who actually drove the vehicle at the time of the accident, has no valid and effective driving licence and thus, exonerated the Insurance Company from its liability. The Appellants/Claimants are the widow and sons of the deceased, who was working as a Watchman. It is seen that the claimants are in a state of penury and compensation will not be immediately recoverable from the owner. In a fact situation, like the present case, the Honourable Supreme Court, even after exonerating the Insurance Company from the liability to pay compensation has directed the Insurance Company to pay and recover."
(2) 2011(1) TNMAC 641(SC) Jawahar Singh v. Bala Jain and others):
"11. We cannot shut our eyes to the fact that it was Jatin, who came from behind on the motor cycle and hit the scooter of the deceased from behind. The responsibility in causing the accident was, therefore, found to be solely that of Jatin. However, since Jatin was a minor and it was the responsibility of the Petitioner to ensure that his motor cycle was not misused and that too by a minor who had no licence to drive the same, the Motor Accident Claims Tribunal quite rightly saddled the liability for payment of compensation on the Petitioner and, accordingly directed the Insurance Company to pay the awarded amount to the awardees and, thereafter to recover the same from the Petitioner. The said question has been duly considered by the Tribunal and was correctly decided. The High Court rightly chose not to interfere with the same."
(3) 2015(1) TNMAC 695(DB) (New India Assurance Co. Limited v. A. Baby and others):
"14. As far as the Multiplier is concerfned, the deceased was aged 38 years at the time of accident. As per the Judgment of the Honourable Apex Court in Sarla Verma's case, the proper multiplier to be adopted is 15. Therefore, we modify the multiplier adopted by the Tribunal and applying the Multiplier of "15", the compensation loss of income comes to Rs.22,68,000/-(Rs.18,900 x 12 x 15?) instead of Rs. 24,10,200/- awarded by the Tribunal. We enhance the compensation towards "Loss of Consortium'' to Rs.1,00,000/- instead of Rs.50,000/- We also enhance the compensation towards ''Funeral Expenses'' to Rs.10,000/-instead of Rs.5,000/- and we confirm the compensation of Rs.50,000/- towards ''Loss of Love and Affection" and disallow the compensation of Rs. 4200/- towards "Loss of Estate".
The learned counsel for the fourth respondent contended that the appellant not only violated the provisions of Motor Vehicle Act, but also the terms of policy and prayed for dismissal of the appeal and cross-objection against fourth respondent.
Heard the submissions made on either side and perused the materials available on record.
The point for consideration in this appeal is:
Whether the violation of the provisions of Motor Vehicle Act and Rules will absolve the liability of the fourth respondent and that only appellant is liable to pay compensation?
The appellant has transported crackers in the guise of fancy store goods. He did not have any licence for transporting crackers. While unloading the crackers, the accident took place and the deceased died due to the injury sustained by him in the accident that took place on 01.11.2001.
The fourth respondent in the counter statement stated that the appellant violated the conditions of policy. They have not pleaded that in view of the provisions of Motor Vehicle Act and Rules, the fourth respondent is not liable to pay any compensation.
The witnesses examined on behalf of the fourth respondent did not depose that the appellant has violated any conditions of policy. On the other hand, he deposed that the appellant has violated the provisions of Motor Vehicles Act and Rules. The Tribunal erred in accepting this portion of evidence and absolved the fourth respondent from their liability to pay compensation. The specific case of the fourth respondent is that the appellant violated the conditions of policy. But they have not substantiated this plea. Therefore I hold that the fourth respondent is also jointly and severally liable to pay compensation to the respondents 1 to 3.
The respondents 1 to 3 have filed cross-objection for enhancement of compensation. The Tribunal has considered the pleadings and evidence and granted a sum of Rs.2,16,000/- as compensation, for future loss of income. The deceased was aged about 30 years at the time of accident. Therefore as per the judgement of the Honouable Apex Court 30% enhancement has to be added to the income of the deceased for calculating future loss of annual income of the deceased. By taking the monthly income as Rs.1500/-p.m and after deducting one third towards personal expenses, Tribunal has taken the monthly income as 1000/-p.m. The annual income is fixed at Rs.12000/-. By adding 30% enhancement as future prospects, the annual income comes to Rs.15,600/-= Rs.12,000/- + Rs.3600/-.The deceased was aged 30 years at the time of his death and the correct multiplier is 18 as per the schedule and the Tribunal had arrived at a loss of future income at Rs. 2,16,000/- and the same is enhanced to Rs.15,600/- x 18 = Rs.2,80,800/-. The first respondent is aged 22 years at the time of the death of her husband and the second respondent minor daughter was aged only one year. The Tribunal did not grant any compensation for Loss of Consortium. Therefore a sum of Rs.1,00,000/- is granted to the first respondent towards loss of consortium and a sum of Rs.50,000/- each is granted towards loss of love and affection to the respondents 2 and 3. In all other aspects the award of the Tribunal is confirmed. Both the appellant and fourth respondent are jointly and liable to pay this amount.
Admittedly, the appellant has violated the provisions of the Motor Vehicles Act. It is the duty of the owner to ensure that the provisions of Motor Vehicles Act are not vilated. In the Judgments relied on by the counsel for the respondents relates to violation of Provision of Motor Vehicle Act as the driver of the vehicle in those cases were driving the vehicle without any valid driving licence. In spite of such violation Courts have constantly held that Insurance Company must pay the amounts and recover the same from the owner. The said decision is squarely applicable to the facts of the present case. In this case also, there is violation of provisions of Motor Vehicles Act. But fourth respondent/Insurance Company cannot be exonerated in to. Applying the ratio in the judgments relied on by the counsel for the respondents 1 to 3, the Insurance Company is made liable to pay compensation amount at the first instance and recover the same from the appellant. As per the Judgment Oriental Insurance Co. Ltd. Dharmapuri Town & Taluk v. M. Thennarasu and another reported in 2014 (1) TNMAC 393, even though I am dismissing the appeal for non-prosecution, I hold that cross objection filed by the respondents 1 to 3 is maintainable and they are entitled for enhancement of compensation. In the circumstances, the fourth respondent is entitled to recover the compensation from the appellant after paying the same at the first instance. In the result the fourth respondent is directed to pay compensation amount awarded at the first instance and recover the same from the appellant. The fourth respondent is directed to deposit the compensation awarded within eight weeks from today.
The award of Tribunal is modified as follows:-
S. No.
Description
Amount awarded by Tribunal
Amount awarded by this Court
Award confirmed or enhanced or granted
1
Loss of future Income
Rs.2,16,000/-
Rs.2,80,800/-
Enhanced
2
Loss of love and affection to (Respondents 2 and 3)
Rs. 25,000/-
Rs.1,00,000/-
Enhanced
3
For funeral expenses
Rs. 5,000/-
Rs. 5,000/-
Confirmed
4
Loss of consortium to the fourth respondent
------
Rs.1,00,000/-
Enhanced
5
Total
Rs.2,46,000/-
Rs.4,85,800/-
Enhanced
In the result, the Civil Miscellaneous Appeal is dismissed and the Cross-Objection is partly allowed enhancing the compensation from Rs. 2,46,000/- to Rs.4,85,800/- with interest at 7.5%p.a. from the date of claim Petition till the date of realisation. The appellant is directed to deposit the award amount now modified by this Court along with proportionate accrued interest and costs, less the amount if any already deposited before the Tribunal, within a period of six weeks from the date of receipt of a copy of this order. On such deposit being made, the first respondent/wife would be entitled to Rs.3,10,800/- with proportionate interest and entire costs and the second respondent/daughter would be entitled to Rs.1,00,000/-and third respondent/mother-in-law would be entitled to Rs.75,000/- with proportionate interest. The respondents 1 and 3 who are majors are entitled to receive the above said amounts by filing application before the tribunal and the share of the minor/second respondent viz., Rs.1,00,000/- with proportionate interest shall be deposited in any one of the nationalised banks, initially for a period of three years, renewable thereafter, till the minor attains majority. The first respondent-mother is permitted to withdraw interest from the above said deposit,once in three months, for the welfare of the children. Consequently, connected Miscellaneous Petition is closed. No costs.