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Judgment
D. Hari Paranthaman, J.—The first respondent in the appeal is the owner of the tractor bearing Registration No. TN 67 Z 3598 and Trailor bearing registration No. TNW 3598 that involved in the accident on 20.02.2009. The third respondent is the owner of the motor cycle bearing registration No. TN 59 AF 7179.
On 20.02.2009, the Tractor with trailor hit the motorcycle from the back side. The pillion rider of the motorcycle viz. Prabhu died. The mother, father and brother, who are the legal heirs of the deceased filed M.C.O.P. No. 2 of 2010 before the Motor Accident Claims Tribunal/VI Additional District Judge, Madurai claiming compensation for Rs. 10,00,000/-.
Before the Motor Accidents Claims Tribunal, the mother of the deceased was examined as P.W. 1. The occurrence witness was examined as P.W. 2. Ex. P1 to 7 were marked. On the side of the respondent herein, which is the insurance company for the tractor, examined two witnesses regarding license aspect and two documents viz., Ex. R1 and R2 were marked.
The Tribunal passed a judgment and decree dated 09.07.2012 in M.C.O.P. No. 2 of 2010 fixing liability equally on the appellant as well as the second respondent insurance company and directing them to pay a total sum of Rs. 3,96,000/- towards compensation.
At the time of the death, the deceased was 23 years. His income was fixed at Rs. 4,500/- and after deducting 50% towards his personal expenses, Rs. 2250/- was taken for calculation for loss of dependency as he was a bachelor. The multiplier 15 was adopted. The loss of dependency would come to Rs. 4,05,000/- (Rs. 2250 x 12 x 15). Loss of love and affection to the claimants was awarded Rs. 30,000/-, for funeral expenses, Rs. 5,000/- was awarded and totally it was awarded Rs. 4,40,000/- The Tribunal deducted 10% for alcohol consumption and accordingly, the Tribunal awarded Rs. 3,96,000/- Both the appellant and the second respondent were directed to pay compensation at the ratio of 50:50 along with 7.5% interest. The aforesaid facts are not in dispute by the appellant as well as the second respondent.
This appeal is filed by the insurance company to which the motorcycle was insured. The only witness, who was examined before the Tribunal is P.W. 2, who was the occurrence witness.
I have also perused the evidence of P.W. 2. In the evidence of P.W. s, in the chief examination, it is stated as follows:
The following is the cross examination of P.W. 2 done by the appellant.
Further, FIR was filed only against the driver of the Tractor and he was prosecuted. Ex. P1 is F.I.R. and Ex. P5 is the charge sheet. In view of Ex. P1 and P5 and the evidence of P.W. 2, I am of the view that the accident is caused solely by the driver of the Tractor and trailor. In fact, the Tribunal also held in para 10 as follows:
"The evidence of P.W. 2 who is an eye witness to the occurrence is also very vague. However a perusal of Ex. P4 which is a copy of Motor Vehicle Inspector''s report for the trailor and tractor bearing registration No. TNW 4827 and TN 67 Z 359 shows that the accident was not due to any mechanical defects of this vehicle. So, it can be inferred that the accident was not due to any mechanical defects of this vehicle. So, it can be inferred that the driver of the 1st respondent should have hit the motorcycle belonging to the 3rd respondent and this is not disputed by the 2nd respondent. The 1st respondent''s contention is that since the two wheeler was suddenly stopped on the middle of the road, the tractor and trailer hit the rear side of the motorcycle. This shows that the driver of the tractor and trailer did not drive the vehicle giving sufficient space between his tractor and the two wheeler which was proceeding ahead. The S.I. of Police have after verification has registered FIR against the driver of the first respondent alone. Considering the impact of accident in which the rider of the two wheeler got injured and the death of pillion rider coupled with proof of alcohol intake, the 3rd respondent''s contention cannot be ignored."
Further, after holding so, the Tribunal has held that both the driver of the tractor as well as the person, who rode the motorcycle were equally responsible for causing the accident. I am not able to agree with the said findings of the Tribunal.
I am of the view that the accident is solely caused by the driver of the tractor as per the record. Hence, apportioning of liability at the rate of 50:50 is set aside. The entire liability is fastened on the second respondent.
The accident took place in 2009. The learned counsel for the claimants has submitted that the amount towards love and affection to the parents and brother was only Rs. 30,000/-, when they have lost their son and brother at 23 years. Furthers, Rs. 5,000/- alone was ordered towards funeral expenses.
He has further submitted that besides 10% was deducted from the compensation for alcohol intake by the pillion rider, he submitted that it is not warranted as the Tribunal could not make a deduction for alcohol intake for pillion rider, as consuming alcohol is not at offence. Further it is not the case that the person who rode the motorcycle was in consumption of alcohol. Then, it is a different matter. Hence, atleast, the amount of Rs. 44,000/- shall not be deducted. I am also in agreement with the submission of the learned counsel for the claimants. Hence, the compensation is fixed Rs. 4,40,000/- instead of Rs. 3,96,000/-.
The learned counsel for the second respondent submitted that it is also established in para 11 of the award of the Tribunal, wherein, the Tribunal came to the conclusion that the driver of the Tractor and trailor did not have proper licence and hence, he prayed for pay and recovery order.
It is now well settled that the Apex Court and this Court in a catena of the following decisions, has consistently taken a view that the insurer shall pay the compensation and thereafter, they shall recover the amount from the vehicle owner, whenever the compensation was ordered on the ground that the driver did not posses valid license. The decisions are as follows:
"(i) Jawahar Singh Vs. Bala Jain and Others, (2011) ACJ 1677 : AIR 2011 SC 2436 : (2011) 164 PLR 117 : (2011) 3 RCR(Civil) 269 : (2011) 5 SCALE 494 : (2011) 6 SCC 425 : (2011) 2 SCC(Cri) 1006 : (2011) 3 TAC 12 : (2011) AIRSCW 3631 : (2011) 3 Supreme 742
(ii) S. Iyyapan Vs. United India Insurance Company Ltd. and Another, (2013) 5 ABR 385 : (2013) 3 ACC 19 : (2013) ACJ 1944 : (2013) 7 AD 202 : AIR 2013 SC 2262 : (2013) 10 JT 85 : (2013) 172 PLR 409 : (2013) 3 RCR(Civil) 654 : (2013) 7 SCALE 637 : (2013) 7 SCC 62
(iii) United India Insurance Co. Ltd. Vs. V. Vijayakumar and others, (2012) ACJ 1235
(iv) Bajaj Allianz General Insurance Co. Ltd. Vs. P. Manimozhi and Others, (2011) 238 CTR 183 : (2010) 4 LW 742
(v)2009(2) TN MAC 103 (DB) United India Insurance Co. Ltd. v. S. Saravanan and another (DB)."
The learned counsel for the appellant has no serious objection to permit the claimants to withdraw the award amount already deposited by them to the credit of M.C.O.P. No. 2 of 2010 before the learned VI Additional District Court, Madurai, pursuant to the order of this Court dated 01.04.2014, since the family has lost the young man years back. He has submitted that a direction could be issued to the second respondent to deposit the amount within a stipulated period.
Accordingly, the appeal is allowed with a direction to the second respondent to deposit the balance compensation before the Tribunal within a period of eight weeks from the date of receipt of a copy of this order along with 7.5% interest. On deposit of the same, the claimants are permitted to withdraw the same along with interest thereon. The appellant is also directed to withdraw the amount already deposited by them.