Madras High Court
Malarkodi vs M/S.Chitra Stores on 24 September, 2019
Author: S. Ramathilagam
Bench: S. Ramathilagam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 24.09.2019
CORAM:
THE HON'BLE MRS JUSTICE S. RAMATHILAGAM
Civil Miscellaneous Appeal No.2616 of 2019
1. Malarkodi
2. Esvanth
3. Sivanath ... Appellants
..vs..
1. M/s.Chitra Stores
Textile Showroom
No.2, Big Bazaar Street
Ambur, Vaniyambadi Taluk,
Vellore District.
2. The Divisional Manager
The United India Insurance Company Ltd.,
Katpadi Road
Vellore District.
... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree,
http://www.judis.nic.in
2
dated 17.12.2016 made in MCOP No.10 of 1995 on the file of the
Motor Accident Claims Tribunal, Sub Court, Arni.
For Appellants : M/s. P.Satheesh Kumar
For Respondent-2 : Mr.P.Sankaranarayanan
JUDGMENT
The appeal has been preferred by the claimants, aggrieved against the judgment and decree dated 17.12.2016 made by the Motor Accident Claims Tribunal, Sub Court, Arni, in MCOP No.10 of 1995.
2. The brief facts leading to the claim application is as follows:-
The deceased Aron, who was a permanent driver under the first respondent, met with the accident on 09.07.1994 at about 8.30 a.m, and at the time of accident, he was driving the tempo vehicle bearing Registration No.TN-23-Y-6499 in a very cautious http://www.judis.nic.in 3 manner and at the time when the vehicle proceeds near Vannankulam Village, one school boy suddenly crossed the road and the driver, while trying to avoid the hit against the boy, dashed against the road side tree and the driver Aron died at the spot itself. The first claimant is the wife of the deceased Aron and other two claimants are the sons of the deceased Aron. The claimants claimed a sum of Rs.4,82,000/- as compensation for loss of income, loss of love and affection, loss of support, loss of future earning and other inconvenience and expenses incurred by them.
3. The second respondent Insurance Company contended in the counter statement that at the time of accident, there were 18 persons travelled in the said tempo against the capacity of 12 persons and hence, the Insurance Company is not liable to pay any compensation. Further the accident occurred only due to the negligence on the part of the driver. The legal heirs of http://www.judis.nic.in 4 the deceased are not entitled for claiming any compensation. The Insurance Company also denied the sum claimed by the claimants under various heads.
4. The Tribunal analysed the evidence and the documents placed before the same and has given a finding that the accident occurred only due to the negligent driving on the part of the driver i.e., the deceased in the claim application and the investigation report also reveals the same and a criminal case was also registered against the said driver of the van, the Tribunal has decided as such. While determining the claim made by the claimants, the Tribunal has given a finding that when it is already determined that the accident occurred only due to the negligence on the part of the deceased driver Aron and he himself a tort-feasor, he or his legal heirs cannot claim any compensation and the Tribunal has dismissed the claim application preferred by the claimants. Aggrieved against the http://www.judis.nic.in 5 said judgment and decree, the claimants have preferred this Appeal.
5. The appellants contended that when it is a clear case of the appellants that the deceased tried to avoid the accident by hitting against the school boy, who crossed the road suddenly, and that the accident could not be avoided by hitting against the road side tree, the trial Court failed to note that only while taking care of the boy, to avert the accident, the deceased has no other go except to turn the vehicle on the left side and the accident occurred in that way. The trial Court also failed to note that as far as the insurer is concerned, the deceased was the third party and the claimants are entitled to maintain the claim application. The other grievance raised by the appellants is that the trial Court ought not to have concluded the First Information Report alone as the encyclopedia. The trial Court failed to note that the deceased was not the owner of the vehicle and http://www.judis.nic.in 6 therefore, the claim application is very much maintainable before the Tribunal and therefore, the appellants sought for setting aside the judgment and decree of the trial Court.
6. Heard both and perused the materials available on record.
7. On hearing both sides and on perusal of the records, it is observed that the deceased Aron was working as permanent driver under the first respondent at the time of accident. Such facts are stated in the claim application as well as before the Tribunal by way of evidence by PW.1. The mode of accident is also clearly stated in the claim application that at the time of accident, the deceased Aron was driving the said vehicle bearing Registration No.TN-23-Y-6499 and while he was driving the said vehicle and on seeing a school boy suddenly crossed the road, he show much effort to avoid the hit against the boy and take the http://www.judis.nic.in 7 vehicle on the left side and thereby, the vehicle got hit at a tree and the accident occurred. These facts are spoken before the Tribunal.
8. Apart from that, on the side of the second respondent/Insurance Company it is contended that the criminal case was registered only against the driver of the said vehicle, who is none other than the deceased Aron, claims an employee under first respondent, and when the accident occurred due to his negligent driving, the claimants cannot claim any compensation before the Tribunal. Further, at the time of accident, more than 12 persons were travelled in the said vehicle and only because of the overload, the vehicle lost the control and dashed against the tree and hence, the second respondent Insurance Company denied the liability and also the claim made by the claimants.
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9. From the perusal of the particulars and also the evidence placed before the Tribunal, it is observed that the vehicle involved in the accident was owned by the first respondent and the deceased was the driver of the said vehicle at the time of accident. Regarding registering of the final report, on the side of the respondent, one witness was examined. The second respondent also deposed before the Tribunal that there were more than 12 persons sustained injuries in the said accident and the number of claim applications were also filed by the concerned claimants and in those cases, compensation was awarded by the Tribunal even by observing the fact that the accident occurred only due to the negligent driving on the part of the driver of the vehicle, whereas in this case, the claimants are the legal heirs of the deceased driver and they cannot claim compensation before the Tribunal. Since it is very much argued before the Tribunal and the Tribunal has also observed the fact that at the time of accident, the deceased was http://www.judis.nic.in 9 driving the vehicle belonging to the first respondent and the accident also occurred due to his negligent driving, the Tribunal further observed that the claimants cannot claim compensation before it, further they can claim compensation only before the Workmen Compensation Tribunal. Hence, the observation of the Tribunal is that when the claimants have clearly proved that the deceased was the employee under the first respondent and also the accident occurred while he was in employment, very well the claimants can appear before the Workmen Compensation Tribunal and accordingly, the Tribunal has dismissed the claim application.
10. The appellants also relied on the judgment of this Court reported in 2002 (4) CTC 469 (The Oriental Insurance Co. Ltd., ..vs.. Kaliya Pillai and others) regarding maintainability of the claim application before the Motor Accident Claims Tribunal and to support their contention that http://www.judis.nic.in 10 aggrieved persons can file claim application either before Workmen Compensation Tribunal or before Motor Accident Claims Tribunal, but not before both forum and therefore, the finding of the Tribunal is not proper and the said order is set aside. The relevant portions of the said judgment are extracted hereunder:-
“6. ........ By pointing out para 23 of the claim petition, learned counsel for the appellant Insurance company raised his contention that since the deceased fell down from the moving tractor and died, while he was driving the same from Sankarapuram to Moongilthuraipattu, neither himself nor any one could claim compensation for his own wrong. In other words, it is his main contention that the deceased being a tort- feasor, the claimants namely his parents are not entitled to claim compensation under the Motor Vehicles Act. Learned counsel appearing for the respondents drew our attention to Section 167 of the Motor Vehicles Act,1988, and contended that http://www.judis.nic.in 11 irrespective of the provisions in the Workmen's Compensation Act, 1923, they can very well maintain the claim petition under the Motor vehicles Act. It is relevant to refer Section 167 of the Motor Vehicles Act, 1988.
"Section 167. Option regarding claims for compensation in certain cases.- Notwithstanding anything contained in the Workmen's Compensation Act, 1928 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
It is true that due to death or bodily injury,the aggrieved or interested person can make a claim for compensation under http://www.judis.nic.in 12 both of the Workmen's Compensation Act and the Motor Vehicles Act, and that without prejudice to the provisions of Chapter X, he can claim such compensation under either of these Acts but not under both. The only bar is that the aggrieved person/persons cannot claim compensation under both the Acts.
However, it is not disputed that in this case the death occurred due to falling down from a moving tractor. The deceased was none-
else than the driver of the tractor and the trailer. In such a circumstance, he being a tort-feasor and responsible for the accident, he cannot claim compensation for the injuries, likewise his legal heirs also are not entitled for compensation from the Insurance company by invoking the provisions of the Motor vehicles Act.
............
............
However, the insurer's liability is to be determined not only with reference to the provisions under the Motor Vehicles Act, but http://www.judis.nic.in 13 also with reference to the contract of insurance which would extend to the liability of the insured under the Workmen's Compensation Act. There is a specific finding by the Tribunal that the deceased tractor driver died in the course of his employment. Further, it is not disputed that there was valid insurance on the date of the accident, and accordingly the insurer was liable to the extent of liability under the Workmen's Compensation Act. In other words, we hold that even though the insurance company was not liable under the provisions of the Motor Vehicles Act, it would be proper to assess the compensation under the Workmen's Compensation Act and award the same in favour of the claimants. On this ground, instead of directing the respondents/ claimants to go before the Commissioner for Workmen's Compensation Act, in order to shorten the litigation and also in the interest of justice, we decided to dispose of the appeal by determining the appropriate http://www.judis.nic.in 14 compensation in favour of the claimants.”
11. Hence, in this case, when it is clearly proved that the deceased was employed under the first respondent and based on the evidence, it is proper to determine the compensation here itself.
12. The appellants also rely on the judgment of the Hon'ble Apex Court reported in 2002 (3) CTC 633 (Pramodkumar Rasikbhai Jhaveri ..vs.. Karmasey Kunvargi Tak and Others) in support of their contention that if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. The relevant portion of the said judgment http://www.judis.nic.in 15 is extracted hereunder:-
“10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling Vs. Cooper [1931] A.C. 1 at page 9, Lord Hailsham said:
"Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision, the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the http://www.judis.nic.in 16 circumstances."
13. The appellants while disputing the observation made by the Tribunal that the deceased is the cause for the accident by his negligent driving, contended that First Information Report is not an encyclopedia and merely based on First Information Report, negligence cannot be fastened. To support of their contention, they relied on the judgment of this Court reported in 2008 (2) TNMAC 137 (New India Assurance Co. Ltd., ..vs.. Manimaran and another). The Headline of the said judgment reads as follows:-
“MOTOR VEHICLES ACT, 1988, Ss.147 & 166 – Claimant/Injured driver of vehicle involved in accident – If a third party – Whether Insurer liable to compensate claimant – claimant in order to avert accident with lorry coming from opposite direction negligently and rashly, turned his http://www.judis.nic.in 17 vehicle to left side of road and vehicle dashed against a tree – Accident not due to any negligence of claimant – claimant is not owner of vehicle, but only driver - 2nd respondent only owner of vehicle – Therefore, claimant, being a third party, insofar policy concerned can seek compensation against insured & insurer.” and the relevant portion of the said judgment reads as follows:-
“10. It is well settled that FIR is not an encyclopedia and merely based on FIR, negligence cannot be fastened. FIR in accident cases is often lodged in a haste manner and the same cannot be substituted for evidence to be let in by the parties before the Tribunal. It is the duty of the Tribunal to assess the evidence both oral and documentary to render a finding on negligence. It is the case of the claimant that in order to avert an accident, he was constrained to turn the vehicle on the left side of the road, which resulted in the http://www.judis.nic.in 18 accident and it was not due to any negligence. The said statement is corroborated by PW.2.
.....
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17. ....... Pleadings and evidence disclose that the petitioner is not the owner of the vehicle and the second respondent in this Appeal is the owner of the vehicle.
Therefore, the first respondent/claimant is a third party insofar as the policy is concerned and he can seek for a just and reasonable compensation against the insured as well as the insurer.”
14. The learned counsel for the appellants also relied on the judgment dated 06.11.2014 made in CMA No.2825 of 2005 (National Insurance Co. Ltd., .. vs.. Manjula and others), wherein the decision reported in 2008 (2) TNMAC 137 (cited supra) was followed by this Court.
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15. On hearing the appellants as well as the respondents and when it is very much proved that the deceased was the employee under the first respondent and the said aspect was also not denied by the first respondent, the claimants can very well have every right to prefer the forum for claiming compensation and the claim made by the claimants cannot be dismissed by stating that they can approach appropriate forum. Hence, in view of the fact that they are entitled to claim compensation and it is for their option to prefer the forum, the judgment of the Tribunal in dismissing the application is set aside.
16. The claimants have deposed before the Tribunal that the deceased was working as driver under the first respondent vehicle and he was receiving a sum of Rs.1,400/- as monthly salary and from the passengers, he will be getting Rs.1,000/- per month and hence, he was getting Rs.2,400/- p.m and the http://www.judis.nic.in 20 claimants are entitled for the same and hence, accordingly, the monthly income of the deceased has to be taken as Rs.2,400/-. Further, when it is clearly proved that the deceased was employed under first respondent and his income has to be taken at Rs.2,400/- p.m and also by applying the factor i.e.,207.98, the loss of income has to be determined. Accordingly, the compensation is arrived at Rs.2,49,576/- (Rs.2,400 x 207.98 x 50/100). Rounded off to Rs.2,50,000/-.
17. Hence, the Civil Miscellaneous Appeal is allowed. The judgment and decree, dated 17.12.2016 made in MCOP No.10 of 1995 on the file of the Motor Accident Claims Tribunal, Sub Court, Arni is hereby set aside. The claimants are entitled to a sum of Rs.2,50,000/- as compensation, which carries interest at 12% p.a, after thirty days from the accident till the date of realisation, after deducting the period of dismissal of the claim petition for default, if any, and costs of the claim petition, to be http://www.judis.nic.in 21 paid by the second respondent, within a period of six weeks from the date of receipt of a copy of this order. Out of the said amount, first claimant/wife is entitled to Rs.1,50,000/- and second and third claimants/sons are entitled to Rs.50,000/- each. On such deposit being made, the Tribunal is directed to transfer their respective shares with proportionate interest and costs to the Savings Bank Account of the claimants/appellants herein, through RTGS. No costs.
Mra 24.09.2019
Index : Yes / No
Web : Yes / No
Speaking/Non-speaking
To
1. Motor Accident Claims Tribunal,
Sub Court, Arni.
2. The Section Officer, V.R.Section, Madras High Court, Chennai 104.
http://www.judis.nic.in 22 S. RAMATHILAGAM , J., mra C.M.A.No.2616 of 2019 24.09.2019 http://www.judis.nic.in