Madras High Court
Kasthuri vs Muthukumaran on 21 June, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Civil Miscellaneous Appeal No.3020 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.06.2024
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Civil Miscellaneous Appeal No.3020 of 2023
1.Kasthuri
2.Selvarani ... Appellants
Vs.
1. Muthukumaran
2. The Manager,
Iffco Tokio General Insurance Co. Ltd.
Iffco Bhavan, 3rd Floor,
No.128, Habibullah Road,
T.Nagar, Chennai
... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, to enhance the compensation in the Judgement and decree
dated 08.08.2023 made in MCOP No.84 of 2020, on the file of
MACT/Principal District Court at Perambalur.
For Appellant : Mr.M.Lokesh
For Respondents : Mr.J.Michael Visuvasam
for 2nd Respondent
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https://www.mhc.tn.gov.in/judis
Civil Miscellaneous Appeal No.3020 of 2024
*****
JUDGMENT
The claimants aggrieved by the award passed by the Motor Vehicle Accident Claims Tribunal / Principal District Court at Perambalur in MCOP No.84 of 2020 dated 08.08.2023, has filed the present appeal.
2. The claimants are the wife and mother of the deceased Chandramouleeswaran. The case of the claimants is that the deceased Chandramouleeswaran, was the driver of Innova car and he was driving the car on 15.11.2017 from Pondicheery to Madurai and at about 2.30 p.m, when the car was nearing the bus stop, in order to avoid hitting another bus which came on the right side in a high speed, the deceased turned the vehicle to his left side and dashed behind another car, which was going in front of the car driven by the deceased. In this accident, the deceased as well as other passengers sustained grievous injuries. The claim petition was filed on the ground that the deceased was working as a Driver under the 1st respondent and therefore, the claimants are entitled for payment of compensation under the insurance policy. 2/8 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.3020 of 2024
3. The Tribunal on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence came to a conclusion that there is no evidence to show that the deceased was working as a driver under the 1st respondent. That apart, the FIR was also registered against the deceased which was subsequently closed as abated, since the deceased died. Hence, the Tribunal concluded that the deceased was only a paid driver and the policy is a package policy and therefore, it only had a personal accident coverage for Rs.2,00,000/- and this amount was determined as the compensation. The Insurance company was directed to deposit this amount with interest at the rate of 7.5% per annum.
4. The claimant not being satisfied with the quantum of compensation fixed by the Tribunal has filed this appeal seeking for enhancement of compensation.
5. Heard Mr.M.Lokesh, learned counsel for appellants/ claimants and Mr.J.Michael Visuvasam, learned counsel for respondent/Insurance company.
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6. This Court has carefully considered the submissions made on either side and the materials available on record.
7. This Court also carefully went through the award passed by the Tribunal.
8. It was contended by the learned counsel for the Appellants that the deceased was a driver, who was statutorily covered under Section 147 of the Motor Vehicles Act, since under the policy, a separate premium has been paid for the paid driver. IMT – 28 was brought to the notice of the Court which provided for legal liability to paid driver and or Conductor and / or cleaner employed in connection with the operation of the insured vehicle. The learned counsel submitted that considering the premium that was paid and the fact that it is covered under IMT 28, the Tribunal ought to have brought this case under Section 147 of the Motor Vehicles Act and apart from the contractual liability, the statutory liability must also have been fixed and appropriate compensation must also have been granted to the claimants.
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9. Per contra, the learned counsel appearing for the Insurance company submitted that there was absolutely no material to show that the deceased was a paid driver and even in the claim petition, no stand was taken that the deceased was working under the 1st respondent as a paid driver and therefore, the claimants are entitled only for the personal accident coverage which was rightly ordered by the Tribunal and the same does not require the interference of this Court.
10. In the claim petition that was filed before the Tribunal, there is absolutely no reference under whom the deceased was working as a driver in Column 5. That apart, in Column 23, a specific stand has been taken to the effect that the deceased was working as a driver in French Corner Bun Bakery.
11. PW2 in her evidence merely states that the deceased was driving the car and she along with the other relatives were travelling in that car. She no where states that the deceased was engaged as a paid driver. It is also relevant to take note of the fact that PW2 had 5/8 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.3020 of 2024 independently filed a claim petition in MCOP No.68 of 2018, wherein, she has identified herself as one of the partner of French Corner Bun Bakery. There is absolutely no material before the Tribunal to connect the 1st respondent with French Corner Bun Bakery. Unfortunately, the 1st respondent also did not care to come before the Tribunal and tender evidence. If the 1st respondent had come before the Tribunal and explained his relationship with the deceased and the capacity in which the deceased was driving the vehicle, it would have solved the entire problem. Therefore, the 1st respondent not coming before the Tribunal and taking a stand must lead to taking adverse inference in this case. Apart from that, the claim that was made by other injured persons has been settled.
12. The Tribunal while dealing with this issue has appreciated the evidence of PW2 and also the policy which was marked as Ex.P8 and has come to a conclusion that there is no evidence to prove that the deceased was employed by the 1st respondent. The deceased being the paid car driver of the 1st respondent cannot be a matter of assumption. It must be necessarily proved through some material or evidence and only then, the factum of paying a separate premium under the policy under 6/8 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.3020 of 2024 IMT 28 will gain significance.
13. The finding of the Tribunal to the effect that the deceased did not establish that he was a paid driver under the 1 st respondent does not suffer from any perversity or illegality and the said finding is not liable to be interfered by this Court.
14. The Tribunal was right in finding that the claimants are entitled only for personal accident coverage. Hence, this Court is not inclined to interfere with the award passed by the Tribunal and accordingly, this Civil Miscellaneous appeal stands dismissed. No costs.
21.06.2024 Speaking Judgment/Non-speaking Judgment Index :Yes/No Neutral citation: Yes/No rka N.ANAND VENKATESH.,J rka To, 7/8 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.3020 of 2024 MACT/Principal District Court at Perambalur CMA No.3020 of 2023 21.06.2024 8/8 https://www.mhc.tn.gov.in/judis