Madras High Court
Bajaj Allianz General Insurance ... vs Kansool on 29 August, 2018
Author: V.M. Velumani
Bench: V.M. Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.08.2018
CORAM
THE HONOURABLE MS.JUSTICE V.M. VELUMANI
CMA(MD).No.315 of 2009 and
Cross Objection (MD).No. 59 of 2012 and
M.P(MD).Nos.1 and 1 of 2009 and 2012 in CMA(MD).No.315 of 2009
CMA(MD).No.315 of 2009
Bajaj Allianz General Insurance Company Limited,
KMA Complex,
First Floor, 12-G, Ram Nagar,
Bye ? Pass Road,
Madurai ? 625 010,
rep. by its Branch Manager, : Appellant/ Respondent No.4
Vs.
1.Kansool
2.Nagoor Pichai
3.Noorunnisa
4.Sharmila Banu : Respondents 1 to 4/petitioners
5.Thirunavukkarasu
6.Oriental Insurance Company Limited,
Pudukkottai.
7.Rasheep Khan : Respondents.
Cross Objection MD(MD).No.59 of 2012
1.Kansool
2.Nagoor Pichai
3.Noorunnisa
4.Sharmila Banu : Cross Objectors / Respondents 1 to 4
Vs.
1.Thirunavukkarasu
2.Oriental Insurance Company Limited,
Pudukkottai.
3.Rasheep Khan
4.Bajaj Allianz General Insurance Company Limited,
KMA Complex,
First Floor, 12-G, Ram Nagar,
Bye ? Pass Road,
Madurai ? 625 010,
rep. by its Branch Manager, : Respondents.
Prayer in CMA: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988 against the fair and decreetal order dated
20.01.2009 made in MCOP.No.34 of 2007 on the file of the Motor Accident
Claims Tribunal / Additional District Court (Fast Track Court), Pudukkottai.
Prayer in Cross Objection: This petition is filed under Section XLI Rule 22
CPC to enhance the compensation and modify the award in MCOP.No.34 of 2007 on
the file of the Motor Accident Claims Tribunal / Additional District Judge
(Fast Track Court), Pudukkottai, dated 20.01.2009.
!For Appellant : Ms. K. R. Shivasankari in CMA
For R4 in Cross Objection
^For R1 to R4 : Mr.K. Baalsudaram in CMA
Cross objectros
For R5 : Mr. Jegadeeswaran in CMA
For R1 in Cross Objection
For R6 : Mr. Athimoolapandian in CMA
For R2 in Cross Objection
:COMMON JUDGMENT
This Civil Miscellaneous Appeal has been filed against the against the Judgment and decree dated 20.01.2009, made in MCOP.No.34 of 2007 on the file of the Motor Accident Claims Tribunal / Additional District Court (Fast Track Court), Pudukkottai.
2. The Cross Objection (MD).No.59 of 2012 is filed to enhance the compensation and modify the award in MCOP.No.34 of 2007 on the file of the Motor Accident Claims Tribunal / Additional District Judge (Fast Track Court), Pudukkottai, dated 20.01.2009.
3. The appellant in CMA(MD).No.315 of 2009 is the fourth respondent in MCOP.No.34 of 2007, on the file of the Motor Accident Claims Tribunal / Additional District Court (Fast Track Court), Pudukkottai. The respondents 1 to 4 are claimants; the respondents 5 to 7 are the respondents 1 to 3 in the said claim petition. The respondents 1 to 4 filed said claim petition claiming a sum of Rs.28,00,000/- as compensation for the death of one Mohaideen Baava, who is the husband of the first respondent and father of the respondents 2 to 4.
4. According to the respondents 1 to 4, on 20.05.2006, the said Mohaideen Baava was riding his Two Wheeler bearing Regn. No.TVS XL TN 55 M0735 belonging to the fifth respondent from Aranthangi to Nagudi. When said Mohaideen Baava nearing Mathan Tea Stall at Cheenamangalam, the sixth respondent riding Hero Honda motorcycle bearing Reg.No. TN 55 6276 in a rash and negligent manner and dashed against the TVS 50, in which, the deceased was riding and caused accident. Due to the same, the said Mohaideen Baava thrown away from TVS 50 and sustained multiple injuries. He was taken to Government Hospital, Pudukkottai and after giving first-aid, he was taken to Medical College Hospital, Thanjavur, where he died at 4.00 p.m., on the same day in spite of medical treatment. The deceased was a citizen of Malaysia doing biscuit business and was earning a sum of Rs.50,000/- per month. He was aged about 55 years at the time of accident. He would have lived up to 80 years and would have earned Rs.20,00,000/-. The respondents 1 to 4 are the legal heirs of the deceased. The accident occurred due to the rash and negligent driving by rider of the Hero Honda motorcycle. The seventh respondent is the owner of the Hero Honda and the said motorcycle was insured with the appellant. Hence, the respondents 1 to 4 filed claim petition claiming a sum of Rs.28,00,000/- as compensation against the respondents 5 to 7 and appellant.
5. The respondents 5 and 7 remained ex parte before the Tribunal.
6. The sixth respondent filed counter statement and contended that accident occurred only due to rash and negligent driving by the seventh respondent and hence, the appellant and seventh respondent are only liable to pay compensation and prayed for dismissal of the claim petition as against the sixth respondent.
7. The appellant filed counter statement and contended that the seventh respondent was riding Hero Honda carefully, the deceased while trying to overtake a cyclist, fell down and sustained injuries. The seventh respondent did not have valid driving licence for riding the motorcycle. The accident is head on collusion and compensation if any awarded must be paid by respondents 5 and 7 and in any event, the respondents 1 to 4 have to prove the age and income of the deceased. Since the respondents 3 and 4 are married daughters, they are not the legal heirs of the deceased and prayed dismissal of the claim petition.
8. Before the Tribunal, the first respondent examined herself as PW.1 and examined one Rathinakumar as PW.2 and marked 5 documents as Exs.P1 to P5. The appellant examined three witnesses as RW.1 to RW.3 and marked 8 documents as Exs.R1 to R8.
9. The Tribunal considering the pleadings, oral and documentary evidence especially Ex.P1 ? First Information Report and evidence of PW.2 held that the accident occurred only due to rash and negligent driving of the seventh respondent and awarded a sum of Rs.1,45,000/- as compensation and held that at the time of the accident, the seventh respondent did not have valid driving licence to drive the motorcycle, directed the appellant to pay compensation at the first instance and recover the same from the seventh respondent.
10. Against the said Award, both the Insurance Company and the claimants have come forward with the Civil Miscellaneous Appeal and Cross Objection respectively.
11. The learned counsel appearing for the appellant contended that the Tribunal having held that the seventh respondent did not have driving licence to drive the motor cycle, erred in directing the appellant to pay compensation at the first instance and recover the same, when the appellant is not liable to pay compensation. The Tribunal failed to see that the accident took place on account of composite negligence of both the vehicles owned by the respondents 5 and 7. The Tribunal ought to have apportioned the liability equally on the respondents 5 and 6 on one hand and 7th respondent and appellant on the other hand.
12. The learned counsel appearing for the respondents 1 to 4 filed cross objection in Cross Objection (MD).No. 59 of 2012 and contended that accident occurred only due to rash and negligent driving by the seventh respondent. The respondents 1 to 4 proved the same by oral and documentary evidence by examining PW.2 and marking Ex.P1 First Information Report. The Tribunal erred in taking into consideration the age of the deceased as per passport and did not take the income as stated by the respondents 1 to 4. The age of the deceased mentioned as 55 years in the Postmortem certificate, the Tribunal ought to have taken the same into account and applied correct multiplier. The amount awarded by the Tribunal towards loss of consortium, towards loss of love and affection and towards funeral expenses are very meagre and prayed for enhancement of compensation.
13. The learned counsel appearing for the sixth respondent contended that the Tribunal considering the materials on record and evidence let in by the respondents 1 to 4, came to the correct conclusion that the accident occurred only due to rash and negligent driving by the seventh respondent. The appellant and the seventh respondent did not let in contra evidence to prove that the deceased also contributed negligence for the accident. He further contended that the accident occurred due to the negligence, the Tribunal appreciated the materials on record held that the seventh respondent and the appellant are liable to pay compensation and prayed for dismissal of this appeal.
14. I have heard the learned counsel appearing on either side and perused the materials available on record.
15. Before the Tribunal, PW.2 eye witness was examined. He deposed as to how the accident occurred and the seventh respondent is responsible for the accident due to his rash and negligent driving. Ex.P1 ? First Information Report, lodged against the seventh respondent, is also in conformity with the evidence of PW.2. No contra evidence has been let in by the appellant or the seventh respondent. In view of the same, I confirm the finding of the Tribunal that the accident occurred only due to rash and negligent driving by seventh respondent.
16. As far as quantum of compensation is concerned, the respondents 1 to 4 have not produced any acceptable evidence to substantiate their claim that the deceased was earning Rs.50,000/- per month and in future, he would have earned Rs.20,00,000/-. In the absence of any evidence, the Tribunal has fixed the notional income of the deceased at Rs.3,000/- per month, which is very low and hence, the income of deceased is taken as Rs.5,000/- per month. The date of birth of the deceased is mentioned in the Passport as 01.11.1928, but, in the postmortem certificate his age was mentioned as 55. The Tribunal has fixed the age of the deceased as 67 years taking into consideration of both the age mentioned in the passport and postmortem Certificate. There is no error warranting interference by this Court. The Tribunal has applied multiplier 5 for the deceased age 67 years. The respondents 1 to 4 are entitled to compensation for loss of income at Rs.2,25,000/- (Rs.5,000/- x 12 x sx 5= Rs.2,25,000/-). Accordingly, the amount awarded by the Tribunal towards loss of income is enhanced to Rs.2,25,000/- from Rs.1,20,000/-. As per the Judgment of the Hon'ble Supreme Court reported in 2017 (2) TNMAC 609(SC) in the case of National Insurance Company Limited Vs. Pranay Sethi and others, the amount awarded by the Tribunal towards Funeral expenses and loss of consortium is set aside and the claimants are entitled to Rs.70,000/- under the conventional heads viz., Rs.40,000/- towards loss of Consortium; Rs.15,000/- towards Funeral expenses and Rs.15,000/- towards loss of estate. In all other aspects, the amount awarded by the Tribunal is hereby set aside. Therefore, the award of the Tribunal is enhanced from Rs.1,43,000/- to Rs.2,95,000/- in the following manner.
S.No Description Amount awarded by Tribunal Amount awarded by this Court Award confirmed or enhanced or granted 1 Loss of income 1,20,000.00 2,25,000.00 Enhanced to Rs.1,05,000/-
2. Lost of Estate Loss of Consortium Funeral Expenses No amount awarded 10,000.00 3,000.00 (conventional heads) 15,000.00 40,000.00 15,000.00 Granted Rs.15,000/-
Enhanced by Rs.30,000/-
Enhanced by Rs.12,000/-
4Loss of love and affection 10,000.00 Nil Set aside Total 1,43,000.00 2,95,000.00 Enhanced by RS.1,42,000/-
17. The interest awarded by the Tribunal at the rate of 7.5% per annum remains un-altered.
18. The seventh respondent was having licence only to drive the four wheeler and he did not have any licence to ride the motorcycle. It is well settled that the person, who caused accident did not possess licence to drive motorcycle, the insurance company is liable to pay compensation at the first instance and recover the same from the owner of the vehicle. This principle is followed so that the injured or the dependants of the deceased should not suffer and they may not be in a position to recover the amount. The Hon'ble Apex Court in the case of Oriental Insurance Co.Ltd., Vs. Shri Nanjappan and others, reported in I (2004) ACC 524 (SC), held that it is not necessary for the Insurance Company to file separate suit for obtaining decree and execute the same against the owner and recover the compensation paid by them to the victim. In view of the same, there is no error in the order passed by the Tribunal directing the appellant to pay at the first instance and recover the same from the owner of the vehicle.
19. The appellant in CMA(MD).No.315 of 2009 is directed to deposit the said sum of Rs.2,95,000/- together with interest at 7.5% per annum from the date of petition till the date of deposit to credit of MCOP.No.34 of 2007, on the file of the Motor Accidents Claims Tribunal / Additional District Court (Fast Track Court), Pudukkottai, after deducting the amount already deposited if any, within a period of eight weeks from the date of receipt of a copy of this Judgment and on such deposit being made, the appellants / claimants are permitted to withdraw their share with accrued interest and costs, as per the apportionment fixed by the Tribunal, on filing proper application before the Tribunal.
20. In the result, the Civil Miscellaneous Appeal in CMA(MD).No.315 of 2009 is dismissed. The Cross Objection (MD).No.59 of 2012 is partly allowed. No costs. Consequently, the connected Miscellaneous Petitions are closed.
To
1. The Motor Accident Claims Tribunal / Additional District Court (Fast Track Court), Pudukkottai.
2. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
.