Madras High Court
The Divisional Manager vs Uma on 17 March, 2021
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.494 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.494 of 2019
and
C.M.P.Nos.1740 of 2019 & 2118 of 2021
The Divisional Manager,
Royal Sundaram Alliance Insurance Company Limited,
Pondicherry. .. Appellant
Vs.
1.Uma
2.Minor.Yamuna
(Rep by mother/guardian/Next Friend, Uma)
3.Arumugam
4.Ayyanar .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 30.10.2017
made in M.C.O.P.No.1261 of 2013, on the file of the I Assistant District and
Sessions Court, (Motor Accidents Claims Tribunal), at Cuddalore.
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https://www.mhc.tn.gov.in/judis/
C.M.A.No.494 of 2019
For Appellant : Mr.M.Krishnamoorthy
For Respondents : Mr.N.U.Prassana (For R1 to R3)
: No Appearance (For R4)
JUDGMENT
(The matter is heard through "Video Conferencing/Hybrid mode") This Civil Miscellaneous Appeal has been filed by the appellant- Insurance Company to set aside the judgment and decree dated 30.10.2017 made in M.C.O.P.No.1261 of 2013, on the file of the I Assistant District and Sessions Court, (Motor Accidents Claims Tribunal), at Cuddalore.
2.The appellant is the 2nd respondent in M.C.O.P.No.1261 of 2013, on the file of the I Assistant District and Sessions Court, (Motor Accidents Claims Tribunal), at Cuddalore. The respondents 1 to 3/claimants filed the said claim petition, claiming a sum of Rs.25,00,000/- as compensation for the death of one Rajagopal who died in the accident that took place on 05.09.2010.
3.According to the respondents 1 to 3, on the date of accident, when the deceased Rajagopal was travelling as a spare driver sitting on the left side of the 4th respondent, driver-cum-owner of the Mini Lorry bearing _____ 2/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.494 of 2019 Registration No.TN-28-K-6730, near Keezhpettai Ayyanar Kovil at Keeshpettai, the said 4th respondent drove the vehicle in a rash and negligent manner and dashed against a Tipper Lorry and caused the accident. In the accident, the said Rajagopal sustained fatal injuries. The accident occurred only due to rash and negligent driving by the 4th respondent. Hence, the respondents 1 to 3 filed claim petition, claiming compensation for the death of Rajagopal against the 4th respondent as owner-cum-driver and appellant as insurer of the Mini Lorry respectively.
4.The 4th respondent, owner-cum-driver of the Mini Lorry, remained exparte before the Tribunal.
5.The appellant-Insurance Company, filed counter statement and denied all the averments made by the respondents 1 to 3 in the claim petition, including the manner of accident. According to the appellant, the Mini Lorry owned by the 4th respondent is a Goods vehicle with seating capacity of three persons (2 + 1), including the driver, whereas four persons traveled in the vehicle at the time of accident and committed breach of permit and provisions of the Motor Vehicles Act. Hence, for violation of policy conditions, the appellant is not liable to pay compensation to the respondents 1 to 3. The _____ 3/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.494 of 2019 claim petition is bad for non-joinder of owner and insurer of the Tipper Lorry involved in the accident. In any event, the respondents 1 to 3 have to prove that the 4th respondent/driver of the Mini Lorry possessed valid driving license to ply the vehicle and vehicular records viz., Fitness Certificate and Permit for the said Mini Lorry. The respondents 1 to 3 also have to prove the age, avocation and income of the deceased, to claim compensation. The total compensation claimed by the respondents 1 to 3 is excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1, examined one S.Saravanan, eye witness as P.W.2 and marked 6 documents as Exs.P1 to P6. The appellant examined their Official viz., T.N.S.Raghavan as R.W.1 and marked two documents as Exs.R1 and R2.
7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by the 4th respondent, driver-cum-owner of the Mini Lorry and directed the appellant as insurer of the said vehicle to pay a sum of Rs.13,96,000/- as compensation to the respondents 1 to 3. _____ 4/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.494 of 2019
8.To set aside the said award of the Tribunal dated 30.10.2017 made in M.C.O.P.No.1261 of 2013, the appellant - Insurance Company has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company contended that the policy issued by the appellant for the offending vehicle did not cover a spare driver. The 4th respondent, owner of the offending vehicle did not obtain National Permit and has obtained permit only to ply within the State of Tamil Nadu. At the time of accident, the vehicle was plied outside the State and the 4th respondent has violated the permit and policy condition. Hence, the appellant is not liable to pay any compensation. The appellant examined R.W.1, their Official and marked policy and permit for the Mini Lorry as Exs.R1 and R2 respectively. The Tribunal failed to consider the oral and documentary evidence of the appellant in proper perspective. The Tribunal also failed to consider the FIR in which it was stated that the deceased was only a spare driver and in column nos.4 and 23 of the claim petition, the respondents 1 to 3 have clearly mentioned that the deceased was a spare driver. The Tribunal without considering the above materials, erroneously held that the deceased was a spare driver cum load man and fastened liability on the appellant. The Tribunal while fixing quantum, held _____ 5/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.494 of 2019 that the deceased was driver and fixed a sum of Rs.6,500/- per month as notional income. The monthly income fixed by the Tribunal is excessive and the seating capacity of the vehicle is only 2 + 1, including the driver. The Tribunal erred in not considering the defence taken by the appellant- Insurance Company that the 4th respondent has violated the permit and policy condition and prayed for setting aside the award of the Tribunal.
10.The learned counsel appearing for the respondents 1 to 3 made submissions in support of the award passed by the Tribunal and prayed for dismissal of the appeal.
11.Though notice has been served on the 4th respondent and his name is printed in the cause list, there is no representation for him either in person or through counsel.
12.Heard the learned counsel appearing for the appellant-Insurance Company as well as the respondents 1 to 3 and perused the materials available on record.
13.It is the case of the respondents 1 to 3 that while the husband of the 1st respondent viz., deceased Rajagopal was travelling in a Mini Lorry as _____ 6/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.494 of 2019 spare driver sitting in the left hand side of the driver, the 4th respondent, driver-cum-owner of the Mini Lorry drove the vehicle in a rash and negligent manner and dashed against the Tipper Lorry and caused the accident. In the accident, the said Rajagopal suffered fatal injuries. The respondents 1 to 3 claimed compensation for the death of said Rajagopal from the 4th respondent, driver-cum-owner and appellant as insurer of the Mini Lorry. The respondents 1 to 3 examined the 1st respondent as P.W.1, one S.Saravanan, eye-witness as P.W.2 and marked the FIR which was registered against the driver of the Mini Lorry as Ex.P1. On the other hand, it is the case of the appellant that the accident occurred only due to rash and negligent driving by the driver of the Tipper Lorry and claim petition is not maintainable for not impleading the owner and insurer of the Tipper Lorry. The offending vehicle is a Goods vehicle. The seating capacity is only for three persons, i.e., 2 + 1. Whereas, at the time of accident, four persons traveled in the vehicle. The 4th respondent permitted four persons to travel in the vehicle violating the policy and permit condition. Hence, the appellant is not liable to pay compensation. The deceased Rajagopal traveled as spare driver and policy issued by the appellant does not cover for the claim of the spare driver. The appellant examined one T.N.S.Raghavan, Assistant, Legal Manager of the appellant as R.W.1 and marked two documents as Exs.R1 and _____ 7/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.494 of 2019 R2. R.W.1 deposed that the 4th respondent plied the vehicle outside the State, when the permit was issued only to ply within the State of Tamil Nadu.
14.From Ex.R1 – policy issued by the appellant-Insurance Company, it is seen that the 4th respondent has paid additional premium to cover paid Driver/Cleaner (not exceeding 7 persons) as per IMT 28 and 4th respondent also paid additional premium for Coolies as per IMT 39. A reading of the policy shows that the appellant has received additional premium of Rs.25/- to cover the risk of Driver/Cleaner, totally 7 persons. Admittedly, at the time of accident, only four persons traveled in the Mini Lorry. Having received a sum of Rs.25/- to cover the risk of five persons, apart from Driver and Cleaner, the appellant-Insurance Company has not mentioned the persons who are covered under this coverage. The contention of the learned counsel appearing for the appellant-Insurance Company that in violation of permit condition, the 4th respondent permitted the driver to ply the vehicle outside the State is without merits as the accident has occurred only within the jurisdiction of Tamil Nadu and FIR was registered in Cr.No.402/2010 by the SHO, Marakkanam Police Station. There is no error in the finding of the Tribunal that the appellant is liable to pay compensation to the respondents 1 to 3, warranting interference by this Court.
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15.As far as the quantum of compensation is concerned, the respondents 1 to 3 contended that at the time of accident, the deceased who was aged 30 years, was working as a Driver and earning a sum of Rs.15,000/- per month. They did not file any document to prove the said contention. In the absence of materials, the Tribunal fixed the notional income of the deceased Rajagopal as Rs.6,500/- per month and granted 50% enhancement towards future prospects. The accident is of the year 2010. The monthly income fixed by the Tribunal is meagre. The deceased was aged 30 years at the time of accident. As per the judgment of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others], the respondents 1 to 3 are entitled to 40% enhancement towards future prospects. The Tribunal has granted meagre amount towards loss of love and affection, funeral expenses and transportation charges to the respondents 1 to 3. In view of the above, the 50% enhancement granted by the Tribunal towards future prospects is not interfered with.
16.For the above reason, this Civil Miscellaneous Appeal is dismissed and the amount awarded by the Tribunal at Rs.13,96,000/- together with interest at the rate of 7.5% per annum from the date of petition till the date of _____ 9/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.494 of 2019 deposit is confirmed. The appellant-Insurance Company is directed to deposit the award amount, along with interest and costs, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.1261 of 2013. On such deposit, the respondents 1 and 3 are permitted to withdraw their share of the award amount, along with proportionate interest and costs, as per the ratio of apportionment fixed by the Tribunal, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. The share of the minor 2nd respondent is directed to be deposited in any one of the Nationalized Bank, till the minor attains majority. The 1st respondent, mother of the minor 2nd respondent is permitted to withdraw the accrued interest, once in three months for the welfare of the minor 2nd respondent. Consequently, connected Miscellaneous Petitions are closed. No costs.
17.03.2021 Index : Yes / No gsa _____ 10/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.494 of 2019 To
1.The I Assistant District and Sessions Judge, (Motor Accident Claims Tribunal), Cuddalore.
2.The Section Officer, VR Section, High Court, Madras.
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