Madras High Court
M/S.United India Insurance Company ... vs K.Shahidha Banu on 15 March, 2022
Author: P.T.Asha
Bench: P.T.Asha
C.M.A.No.2723 of 2019
and
C.M.A.No.570 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.03.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T.ASHA
C.M.A.No.2723 of 2019
and
C.M.A.No.570 of 2022
and
C.M.P.No.13732 of 2019
C.M.A.No.2723 of 2019:
M/s.United India Insurance Company Limited,
The Divisional Office,
No.139, Kumaran Road,
Tiruppur – 641 018. ... Appellant
vs.
1.K.Shahidha Banu
2.M.Ummul Barkath
3.M.Mohammed Haaris (Minor)
4.M.Mohammed Uvais(Minor)
[Respondents 2 to 4 minors
represented by Mother & next
friend 1st respondent]
5.Mr.Anandakumar ... Respondents
C.M.A.No.570 of 2022
1.K.Shahidha Banu
2.M.Ummul Barkath
3.M.Mohammed Haaris (Minor)
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.2723 of 2019
and
C.M.A.No.570 of 2022
4.M.Mohammed Uvais(Minor) ... Appellants
[Appellants 2 to 4 minors
represented by Mother & next
friend 1st respondent]
vs.
1.Mr.Anandakumar
2.M/s.United India Insurance Company Limited,
The Divisional Office,
No.139, Kumaran Road,
Tiruppur – 641 018. ... Respondents
COMMON PRAYER: Civil Miscellaneous Appeal filed under Section 173
of the Motor Vehicles Act, 1988 against Judgment and Decree made in
M.C.O.P.No.266 of 2013, dated 19.02.2018 on the file of the Motor
Accident Claims Tribunal, Subordinate Court, Sathiyamangalam.
For Appellant : Mrs.Harini
For Respondents 1 to 4 :Mr.R.Nalliyappan
R5 – Served – No Appearance
JUDGMENT
These two appeals arises out of the award in M.C.O.P.No.266 of 2013 on the file of the the Motor Accident Claims Tribunal, Subordinate Court, Sathiyamangalam.
2. For the sake of convenience, the parties are referred to as per 2/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2723 of 2019 and C.M.A.No.570 of 2022 the rank in the claim petition.
3. The above claim petition has been filed by the legal representatives of the deceased Mohammed Abbas who had succumbed to the injury sustained to him in a road traffic accident. On 05.03.2013, the said Mohammed Abbas was driving a Tata lorry bearing Registration No.TN 40 E 4457 and proceeding from Thirukkanambigai to Dindigul road. According to the claimants, the accident occurred when the lorry was taking the bend between the 19th and 18th hairpin bend at Thimbam hills, Sathiyamangalam and the lorry had capsized and the said Abbas got caught under the lorry and died on the spot. The 1st respondent is the owner of the lorry which was driven by the deceased Abbas and the 2nd respondent is the insurance company of the 1st respondent's lorry. The claimants sought for a total compensation of Rs.15,00,000/-. The claimants would contend that the deceased earned Rs.9,000/- p.m. The 1st respondent, the owner of the lorry has remained exparte. The 2nd respondent/Insurance Company has filed their counter, in which apart from denying the age, the negligence etc,, the insurance company had also raised plea that the accident was caused by 3/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2723 of 2019 and C.M.A.No.570 of 2022 tort-feasor himself and therefore he could claim compensation only under the Workmen Compensation Act and not under the Motor Vehicles Act. Despite this defence taken up by the insurance company, the same has not at all considered by the Tribunal below. In fact, there is no reference to the said statement in the discussion of the learned Judge. The learned Judge had proceeded to award a sum of Rs.20,11,900/- to the claimants/respondents.
4. Challenging this award, the appellant/Insurance company has filed C.M.A.No.2723 of 2019 and the claimants aggrieved by the compensation has filed C.M.A.No.570 of 2022.
5. Mrs.Harini, learned counsel appearing on behalf of the appellant/Insurance Company would submit that the very filing of the claim petition before the Motor Accident Claims Tribunal is not maintainable since the accident has not occurred by reason of the involvement of a third party vehicle but has been caused by the driver of the vehicle himself and therefore, he cannot claim compensation under the 4/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2723 of 2019 and C.M.A.No.570 of 2022 Motor Vehicles Act and ought to have file an application under the Workmen's Compensation Act as he is the employee of the 1st respondent/lorry owner. She would further submit that it is open to the claimants to have a compensation under the Workmen's Compensation Act and in fact in a Division Bench judgment of this Court rendered in the judgment of the Oriental Insurance Co.Ltd., v. Krishnan & Others reported in 2003(2) LW 73, the Bench has observed that even where a claim has been made under the Motor Vehicles Act, when the same was not maintainable, if the insurer does not dispute the fact that the policy covers the the liability of the insured to his employee under the Workmen's Compensation Act, then in such cases, the insurer should be held liable to pay compensation in accordance with Workmen's Compensation Act. She would further submit that this Court could therefore pass an award as if the claim is one under the Workmen's Compensation Act.
6. The learned counsel appearing for the claimants had conceded the said arguments, the same being a legal proposition. Therefore, taking into account, the judgment of the Hon'ble Division Bench of this Court in 5/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2723 of 2019 and C.M.A.No.570 of 2022 the cases of the Oriental Insurance Co.Ltd., v. Krishnan & Others reported in 2003(2) LW 73 and considering the provisions of Workmen's Compensation Act, 1923, the compensation payable to the claimants is re-worked as follows:
1 Income Rs.8,000/- p.m. 2 Age Factor 194.64 (36 Years) 3 Loss of Income Rs.8,000 X 50% X 194.64 = Rs.7,78,560/-
4 Funeral Expenses Rs.5,000/-
Total Rs.7,83,560/-
7. In the result, C.M.A.No.2723 of 2019 is allowed and the Judgment and Decree made in M.C.O.P.No.266 of 2013, dated 19.02.2018 on the file of the Motor Accident Claims Tribunal, Subordinate Court, Sathiyamangalam is set aside. The amount of compensation awarded by the Tribunal is reduced from Rs.20,11,900/- to Rs.7,83,560/- as per the Workmen's Compensation Act. Since C.M.A.No.2723 of 2019 is allowed by applying the provisions of Workmen's Compensation Act, the appeal filed by the claimants in C.M.A.No.570 of 2022 is not maintainable and 6/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2723 of 2019 and C.M.A.No.570 of 2022 accordingly dismissed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.
15.03.2022 Index : Yes/No Speaking / Non-speaking order ssn To
1. The Motor Accident Claims Tribunal, Subordinate Court, Sathiyamangalam.
2. The Section Officer, V.R.Section, High Court of Madras, Chennai.7/8
https://www.mhc.tn.gov.in/judis C.M.A.No.2723 of 2019 and C.M.A.No.570 of 2022 P.T.ASHA, J., ssn C.M.A.No.2723 of 2019 and C.M.A.No.570 of 2022 and C.M.P.No.13732 of 2019 15.03.2022 8/8 https://www.mhc.tn.gov.in/judis