Decided on September 03,1970

Jayalakshmi And Ors. Appellant
Ruby General Ins. Co. Ltd. Respondents


NATESAN, J. - (1.) THE following order of reference to the Full Bench was passed by Mr. Justice Kailasam and Mr. Venkataraman on 25.9.1969: This is an appeal against the order of the Motor Accidents Claims Tribunal, Madras, dismissing the petition which the Appellants filed under Section 110A of the Motor Vehicles Act, claiming compensation of Rs. 1,50,000 on account of the death of one Krishnaswami. He was driving the car MSY 3938 in Mount Road at HMO a ra. on 24th March 1964. In the opposite direction, the lorry belonging to Mrs. R. Hamsavalli (second Respondent in the petition in the appeal be -before us, came. The case of the Appellants was that the lorry was driven by its driver, one Munuswami in a rash and negligent manner and it dashed against the car MSY 3938, as a result of which, Krishnaswami died. The first Respondent in the petition is the Insurance Co. with whom the lorry had been insured [Facts Omitted]
(2.) THE Tribunal has commented on the fact that Krishnaswami took the driving licence in March 1964 and was a novice in driving and must have got unnerved on seeing the lorry coming in the opposite direction. But this overlooks the actual evidence in the case. The Tribunal also comments on the fact that the foot brake of the lorry was 63 percent efficient and that the driver of the lorry was acquitted in the criminal court. Those factors are really not relevant. At the expense of repetition it has to be pointed out that the Tribunal's judgment has been vitiated by its failure to appreciate the evidence and overlooking the admissions of the driver of the lorry. We hold, therefore, that the driver of the lorry was responsible for the collision which resulted in the death Krishnaswami and that consequently the Respondents would be liable to pay compensation.
(3.) THE next question is the quantum of compensation. Now the deceased was aged 34 at the time of the accident. He was a contractor in the Public Works Department. PW.2. the Assistant Engineer of the Public Works Department, states that the work of the deceased as a contractor from 1954 to 1957 when he was there, was satisfactory. The petition itself mentions that he was getting an income of Rs. 6,500/ - a year and was an income tax assesfsee. Ex. P. 3 (the assessment order for 1962 -63 shows that this income was Rs. 8641 in 1961 -62. Ex. P. 2 the assessment order for the year 1963 -64 shows that the income for 1962 -63 was Rs. 6500 and he paid an income tax of Rs. 415 -11. It may, therefore, be taken that he was getting a net income of about Rs. 500 a month. His widow P.W 5,'states that he used to spend Rs. 250 to Rs. 300 per month on his familly consisting of his wife and his three children aged 8 years, 6 years and 4 1/2 years at the time of the petition. He had purchased a car for Rs. 10,000. The question is, on these materials what is the proper amount of compensation to be paid in a lump sum ? In Gobald Motor Service v. Velmam : AIR 1962 S.C. 1 their Lordships of the Supreme Court have laid down the principles governing the award of compensation in such cases. The case arose out of a suit instituted by the dependent's legal representatives of one Rajaratnam a passenger in a bus whose driver drove the vehicle rashly and negligently which resulted in fatal injuries to Rajaratnam. Compensation was claimed both under Section 1 and 2 of the Fatal Accidents Act. Their Lordships pointed out that under Section 1 the dependants would be entitled to compensation for the. loss of pecuniary benefit sustained by the person and under Section 2 the legal representatives would be entitled to loss sustained by the estate on account of the death of Rajaratnam. The two causes of action are different but where the claimants are the same they might overlap and compensation should not be awarded twice over. The same principles apply to the claim under Section 110A of the Motor Vehicles Act by the legal representatives. Now in this case the legal representatives and the dependants are the same. We can really proceed on the basis of the net lots to the estate. The deceased could be expected to live for about 25 years more and the net loss of income would reasonably be taken to be about Rs. 3000 per year. In this case, that may represent the loss of pecuniary benefit to the dependants. The total loss would therefore be Rs. 75,000 but this will have to be reduced on account of the fact that a lump sum payment is to be made. On this basis we held that a compensation of Rs. 40,000 (Rupees forty thousand only) would be fair and reasonable. Incidentally, it would, if invested at 6 per cent, yield only a return of Rs. 200 per month for the dependents and cannot be considered to be on the high side Obviously the second Respondent will be liable to pay the compensation of Rs. 40,000 to the Appellants, because, it was the negligent driving of the second Respondent's driver which caused the death of Krishnaswami. The Insurance company, the first Respondent, however, contends that under Section 95(2)(a) of the Motor Vehicles Act 1939 the liability of the insurance company must be limited to a sum of Rs. 20.000 since the vehicle was a goods vehicle. The Appellants, however, urge that this contention cannot prevail in view of the decision of the Bench of this Court consisting of Srinlvasan J. and Sadasivam J. in Gopalakrishna v. Sankaranarayana : A.I.R. 1968 Mad 436 (447) : 1969 A.C.J. 34. The insurance company submits that this decision requires reconsideration. After hearing the arguments of the counsel for the parties, we are inclined to think that the decision requires further reconsideration by a Full Bench. We accordingly propose to refer the matter to a Full Bench (vide separate order of reference) After receipt of the opinion of the Full Bench, the appeal will be posted before us for the final decision about the payment of compensation as between the Respondents.;

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