NATIONAL INSURANCE CO. LTD. Vs. VENKATESH

JUDGEMENT

(1.) The insurer, who figured as the second respondent before the Tribunal, is the appellant in the Civil Miscellaneous Appeal. The petitioners in MCOP (claimants) are the respondents 1 to 3 in the appeal. The owner of the vehicle, who figured as the first respondent in the MCOP, is the fourth respondent in the appeal.

(2.) Respondents 1 to 3 herein had filed MCOP No.622/2008 (originally MCOP No.333/2005) on the file of the Tribunal, namely Motor Accident Claims Tribunal (Court of Subordinate Judge), Dharmapuri against the fourth respondent herein and the appellant herein as owner and insurer of the offending vehicle, claiming a sum of Rs.10,00,000/- as compensation for the death of Jaishankar, the son of the first respondent herein in an accident that took place on 23.02.2005 at about 10.00 hours at Gudipatti diversion on the Salem to Dharmapuri main road. The respondents 1 to 3/claimants contended that, while the deceased Jaishankar was proceeding in his TVS 50 motorcycle bearing Regn. No.TN-29 A-3109 from Gudipatti to Nallampalli on the Salem Dharmapuri main road, the lorry bearing Regn. No.KA-05 AF-9496 belonging to the fourth respondent herein/first respondent in the MCOP came there from Dharmapuri side towards Salem, driven by its driver in a rash and negligent manner, as a result of which the driver lost his control and dashed the lorry against the TVS 50 vehicle in which the deceased was proceeding; that due to the said impact, the deceased was thrown away from the vehicle and he sustained severe injuries all over the body; that the deceased was taken to the Government Hospital, Dharmapuri and was given treatment there as an in-patient; that there he succumbed to the injuries on the same day and that hence the 4th respondent herein as the owner of the lorry (offending vehicle) was liable to compensate the respondents 1 to 3 herein, who are father and sisters of the deceased Jaishankar. Contending further that the said vehicle, namely lorry bearing Regn. No.KA-05 AF-9496, stood insured at the time of accident with the appellant herein, namely National Insurance Company Ltd and the appellant herein was also liable to pay compensation on behalf of the owner of the vehicle, the respondents 1 to 3 made the claim for compensation against the 4th respondent herein and the appellant herein. Contending that the deceased was aged about 22 years and was employed as a Head Cook making sweets and other items for Sweet Stalls, marriage and other functions and was deriving an income of Rs.10,000/- per month and that though the respondents 1 to 3 calculated the reasonable compensation at Rs.32,50,000/-, they would restrict their claim to Rs.10,00,000/- alone, they prayed for passing an award against the 4th respondent herein and the appellant herein to jointly and severally pay the said amount together with an interest from the date of claim petition till realisation and cost.

(3.) The owner of the vehicle, namely the 4th respondent herein/first respondent in the MCOP, did not contest the case and he remained ex-parte. The insurer of the lorry, namely National Insurance Company Ltd, who is the appellant herein/second respondent in the MCOP alone contested the case by filing a counter contending that the deceased Jaishankar was not riding the TVS 50 vehicle bearing Regn. No.TN-39 A-3109 when the accident took place on 23.02.2005 and on the other hand, it was driven by one Manoharan and the deceased Jaishankar was seated as a pillion rider; that the rider of the TVS 50, drove it at a high speed from Gudipatti branch road towards the main road; that at that point of time, a town bus with Route No.2A also came in National Highways towards Gudipatti branch road and that when the rider of the TVS 50, namely Manoharan moved his vehicle sidelining the town bus in an attempt to enter the main road, namely NH-7, he came to the extreme end of the road, lost his balance and fell down. It was further contended that on account of such fall, the pillion rider Jaishankar also fell down and backside of his head received injuries leading to his death and that the accident occurred due to the careless driving of the TVS 50 vehicle by its rider and not due to the rash and negligent driving of the lorry bearing Regn. No.KA-05 AF-9496 by its driver. It was the further contention of the appellant that as per the provisions of the Hindu Succession Act, 1956, the respondents 1 to 3 herein were not the legal heirs of the deceased Jaishankar; that the age, occupation and income of the deceased, as furnished by the claimants were not correct; that the deceased was having no income at all; that the deceased was a native of Andhra Pradesh and his presence in the accident spot and the purpose of his visit had not been mentioned in the petition; that the alleged offending vehicle, namely lorry bearing Regn. No. KA-05 AF-9496 was not insured with the appellant herein/second respondent in the MCOP and the driver of the said vehicle did not hold a valid driving licence at the time of accident; that the amount claimed as compensation by the respondents 1 to 3/claimants was excessive and exorbitant and that hence the MCOP should be dismissed with cost.