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Judgment
G. Rajasuria, J.—This appeal is focussed as against the judgment and decree dated 0.04.2000, passed in M.C.O.P. No. 251 of 1997, on
the file of the Motor Accidents Claims Tribunal, (Sub-Judge), Srivilliputhur.
Heard both sides.
The challenge in this Civil Miscellaneous Appeal is relating to the quantum of compensation awarded by the Tribunal, vide judgment dated
10.04.2000, to a tune of Rs. 5,39,600/- (Rupees Five Lakhs Thirty nine Thousand and Six Hundred only) on the following sub-heads:
(i) For Loss of Income - Rs. 4,89,600.00
(ii) For Loss of Consortium - Rs. 20,000.00
(iii) For Loss of Love and
affection - Rs. 25,000.00
(iv) For Funeral Expenses - Rs. 5,000.00
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Total - Rs. 5,39,600.00
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The pith and marrow of the grounds of appeal as stood exposited from the memorandum of appeal would run thus:
The deceased who was driving the vehicle concerned, at the relevant time of accident was none but the son of the insured. Since the deceased
happened to be the tort-feasor, his legal heirs cannot claim compensation. The accident took place due to mechanical defects in the vehicle and in
such a case the Tribunal fell into error in mulcting the insurance company with the liability.
During trial, on the side of the claimants P.W.1 to P.W.3 were examined and Exs. P.1 to P.9 were marked and Ex.R.1 was marked on the side
of the respondents. There was no oral evidence adduced on the side of the respondents.
Points for consideration are
(1) Whether the Tribunal fell into error in not considering the plea that the deceased happened to be son of the insured and consequently the
deceased''s legal heirs are not entitle to compensation?
(2) Whether the deceased himself was a tort-feaser and consequently whether his legal heirs are not entitled to compensation?
(3) Whether the compensation awarded is just and proper?
Points 1, 2: The learned Counsel for the appellant/insurance company placing reliance on the judgment of the Honourable Apex Court in Minu
B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another, would develop his arguments to the effect that since the accident
occurred due to mechanical defect, the insurance company cannot be made liable. An excerpt from the said decision is extracted hereunder for
ready reference:
In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not
discoverable by the use of reasonable care. The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable
care. The law on this subject has been laid down in Henderson v. Henry E. Jenkins & Sons 1970 AC 282. In that case the lorry driver applied the
brakes of the lorry on a steep hill but they failed to operate. As a result, the lorry struck and killed a man who was emerging from a parked vehicle.
The defence was that brake failure was due to a latent defect not discoverable by reasonable care on driver''s part. It was found that the lorry was
five years old and had done at least 150,000 miles. The brakes were hydraulically operated. It was also found after the accident that the brake
failure was due to a steel pipe bursting from 7 mm to 1 mm. The corrosion had occurred where it could not be seen except by removing the pipe
completely from the vehicle and this had never been done. Expert evidence showed that it was not a normal precaution to do this if, as was the
case, the visible parts of the pipe were not corroded. The corrosion was unusual and unexplained. An expert witness said it must have been due to
chemical action of some kind such as exposure to salt from the roads in winter or on journeys near the sea. The House of Lords held that the
burden of proof which lay on the defendants to show that they had taken all reasonable care had been discharged. The defect remained
undiscovered despite due care. As the evidence had shown that something unusual had happened to cause this corrosion it was necessarily for the
defendants to show that they neither knew nor ought to have known of any unusual occurrence to cause the breakdown.(see Bingham''s Motor
Claims Cases Seventh Ed., page 219).
The burden of proving that the accident was due to a mechanical defect is on the owners and it is their duty to show that they had taken all
reasonable care and that despite such care the defect remained hidden. In this case in the written statement all that is pleaded is that the axle brake
ring of the lorry came out and the driver lost control of the motor lorry and that the defect can develop in a running vehicle resulting in the driver''s
losing control of the steering wheel. Though it was stated that all precautions were taken to keep the lorry in a roadworthy condition it was not
specifically pleaded that the defect i.e., the axle brake ring coming out, is a latent defect and could not have been discovered by the use of
reasonable care. This lack of plea is in addition to the lack of evidence and the fact that the defence set up has been rightly rejected by the
Tribunal.
The perusal of the said judgment would leave no doubt in the mind of the Court that if the defect is patent then only the owner can be made liable
and consequently the insurance company concerned also could be made liable to pay compensation. But on the other hand if the defect is a latent
one, neither the owner nor the insurance company can be made liable under the fault theory. The Honourable Apex Court in the said decision at
paragraph 13 clearly and categorically pointed out that due to lack of plea and lack of evidence the defence set up has been rightly rejected by the
Tribunal. In fact here also the factual position remains the same. In the Counter Statement filed by the second respondent it is found stated in
paragraph 5 and 6 as under:
In this accident deceased Velraj in a son of the owner of the lorry. At the time of accident the deceased Velraj drove the lorry at a very slow
speed, with carefully and abserving all the traffic rules and over taking the standing Mini Lorry, but unfortunately the lorry capsized with paddy
bags, with the front wheel and axle breaking away from the lorry. The deceased Velraj fell into the right side of lorry along with the paddy bags fell
on him and he died on the spot itself.
The accident has not happened due to the negligent driving of the deceased. So, the 2nd respondent not liable to give compensation to the
petitioners.
(Typed as in the counter)
It is therefore clear that in the counter statement filed by the second respondent before the Tribunal, it has not raised the plea that the deceased
driver was at fault. Under such circumstances for the first time the appellant cannot veer round and quite antithetical to what it had committed itself
in black and white in paragraphs 5 and 6 of the counter statement, raise any ground as though the deceased was the tort-feaser and his legal heirs
cannot claim any compensation. As such, the plea of the insurance company for the first time before this Court is rejected.
Regarding the mechanical defect is concerned the Counter Statement is as silent as silence could be. In such a case insurance company cannot
be allowed to putforth any plea, drawing support from the decision of the Honourable Apex Court cited supra. The factual narration by the
Tribunal would demonstrate that the lorry concerned loaded with paddy was driven by the regular driver of the lorry from Nedungulam and when
the lorry reached Gopalapuram, the deceased who was sitting beside the driver took up the driver seat and started driving. He was having proper
driving licence. When the lorry was negotiating along the Krishnakoil Road near Watrap at a normal speed and while overtaking a standing mini
lorry, the lorry got capsized with paddy bags, as the front wheel and axle got broken down. The Motor Vehicle Inspector would state that the
accident had occurred due to mechanical defect. The owner of the vehicle has not entered appearance and filed any counter statement taking a
plea that the defect was latent or patent and the insurance company also had not chosen to take such a plea after getting permission from the Court
u/s 170 of the Motor Vehicles Act. In such a case the plea raised in the grounds of appeal cannot be countenanced.
Point 3: The Tribunal placing reliance on Ex.P.9, Income Tax Return of the deceased, arrived at the conclusion that the deceased''s monthly
income at the relevant time of accident was Rs. 3600/- which cannot be found fault with. Consequently the monthly dependency was assessed at
Rs. 2,400/- after deducting 1/3 correctly 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. As such the annual dependency comes to Rs.
28,800/-. The Tribunal has chosen the multiplier 17, for which the learned Counsel for the appellant took exception and argued that even in a case
where the deceased died at the age of 33 years the Honourable Supreme Court in New India Assurance Co. Limited v. Smt. Kalpana and Ors.
reported in 2007 (1) TN MAC 1 (SC) had chosen the multiplier 13 and even in this case the deceased also was 32 years old and hence the
multiplier 13 would be proper. Whereas the learned Counsel for the claimant would argue that no such straight jacket formula has been laid down
by the Honourable Apex Court and it all depends upon the factual circumstances involved in each and every case. As per him the family
background of the deceased and the fact that there are two minors along with the wife and mother are the claimants the multiplier 17 can be
accepted.
By way of striking a balance between the two rival contentions and in view of the trite propositions that the multiplier has to be chosen
depending upon the circumstances involved in a case that there is no straight jacket formula applicable, that Second Schedule appended to the
Motor Vehicles Act is not conclusive. Mathematics cannot be the Master, the multiplier 16 can be chosen in view of the factual circumstances
involved in this case. The deceased was 32 years old and left behind him, his wife and two children and his mother. Awarding compensation
around Rs. 5,00,000/- and odd would be just. If such a figure should be arrived at necessarily multiplier 16 has to be chosen as otherwise
adequate compensation cannot be awarded.
Under the caption loss of consortium a sum of Rs. 20,000/- was awarded, which could be reduced to Rs. 15,000/-. Towards loss of love and
affection for two minor children Rs. 10,000/- each and for the mother Rs. 5,000/- awarded could be confirmed. Towards funeral expenses a sum
of Rs. 5,000/- was awarded which cannot be found fault with. Towards Transport Expenses a sum of Rs. 2,000/- (Rupees Two Thousand only)
could be awarded. As such, the compensation awarded by the Tribunal is reassessed at Rs. 5,07,800/- (Rupees Five Lakhs Seven Thousand and
Eight Hundred only) and rounded to Rs. 5,08,000/- (Rupees Five Lakhs and Eight Thousand only) thus:
(i) For Loss of Income - Rs. 4,60,800.00
(ii) For Loss of Consortium - Rs. 15,000.00
(iii) For Loss of Love and
affection - Rs. 25,000.00
(iv) For Funeral Expenses - Rs. 5,000.00
(v) For Transport Expenses - Rs. 2,000.00
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Total - Rs. 5,07,800.00
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The learned Counsel for the appellant would submit that the Tribunal fell into error in awarding interest at the rate of 12% p.a. and it could be
reduced. The accident took place in the year 1995 and compensation was awarded during the year 2000, and taking into account the rate of
interest prevailing during that period it is just and proper to reduce the interest rate from 12% p.a. to 9% p.a.
In the result, this appeal is partly allowed and the compensation awarded by the Tribunal is reduced from Rs. 5,39,600/- (Rupees Five Lakhs
Thirty nine Thousand and Six Hundred only) to Rs. 5,08,000/- (Rupees Five Lakhs and Eight Thousand only). The Interest awarded by the
Tribunal is reduced to 9% p.a. from 12% p.a. In other aspects the award shall hold good. Consequently, connected M.P. (MD) No. 1 of 2007 is
closed. No costs.