Madras High Court
The Manager vs C.Nithya on 1 November, 2018
Author: V.M.Velumani
Bench: V.M.Velumani
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.11.2018
CORAM :
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.(MD)No.122 of 2013
and
M.P.(MD)Nos.1 and 2 of 2013
The Manager,
The Branch Office,
United India Insurance Co. Ltd.,
58/11, Jahir Hussain Salai,
Salem Salai, Rasipuram – 637 408. ... Appellant
Vs.
1.C.Nithya
2.C.Ramya
3.Kumari @ Nagammal ... Respondents
[R2 is declared as Major and R3 discharged
from her guardianship as per order dated
09.10.2018, in C.M.P.(MD)Nos.10068 &
10069 of 2018 in C.M.A.(MD)No.122/2013]
Appeal filed under Section 173 of the Motor Vehicles Act,
1988, against the judgment and decree dated 30.04.2012, made in
M.C.O.P.No.117 of 2007 on the file of the Motor Accident Claims
Tribunal, Kulithalai.
For Appellant : Mr.G.Prabhu Rajadurai
For R1 & R2 : Mr.Nirmal Kumar
for M/s.Ajmal Associates
For R3 : No Appearance
http://www.judis.nic.in
2
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award dated 30.04.2012, made in M.C.O.P.No.117 of 2007 on the file of the Motor Accident Claims Tribunal, Kulithalai.
2.The appellant Insurance Company is the second respondent in M.C.O.P.No.117 of 2007 on the file of the Motor Accident Claims Tribunal, Kulithalai. The respondents 1 and 2 are the claimants and the third respondent is the mother of the respondents 1 and 2 and owner of the Car involved in the accident.
3.According to the respondents 1 and 2, they were travelling in the Car belonging to the third respondent on 27.01.2007. At that time, it was raining and visibility was very poor and hence, the driver of the Car/father of the respondents 1 and 2 and husband of the third respondent was driving the same carefully adhering to the traffic rules. Due to Act of God, the Car dashed against the Tree on the left side of the road and he died in the accident. The deceased was working as driver of the third respondent. The deceased was aged 43 years and was earning Rs.6,000/- per month and Rs.50/- per day as Batta. The third respondent is also entitled to http://www.judis.nic.in 3 compensation, as she lost both her husband and the travelling business of the Car. The respondents 1 and 2 lost the income of the deceased and as legal heirs of the deceased, they are entitled to compensation. The vehicle was insured with the appellant and hence, the appellant is liable to pay Rs.10,00,000/- as compensation.
4.The third respondent filed counter statement supporting the claim of the respondents 1 and 2.
5.The appellant filed counter statement and denied all the averments and contended that the deceased is the husband of the third respondent and he was not employed as driver of the third respondent. The accident occurred due to the negligence of the deceased. He is the tort-feasor and the appellant is not liable to pay any compensation. The claim petition under Section 163-A of the Motor Vehicles Act, is not maintainable, as according to the respondents, the deceased was earning a sum of Rs.6,000/- per month and Rs.50/- per day as Batta and the claim petition under Section 163-A of the Motor Vehicles Act is maintainable only if the annual income is less than Rs.40,000/- and prayed for dismissal of the claim petition.
http://www.judis.nic.in 4
6.Before the Tribunal, on the side of the respondents 1 and 2/claimants, the first respondent examined herself as P.W.1 and 10 documents were marked as Exs.P.1 to P.10. On behalf of the third respondent and the appellant, no oral and documentary evidence was let in.
7.The Tribunal considering the pleadings and oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by the deceased. Though the respondents 1 and 2 have claimed that the deceased was paid salary at Rs.6,000/- per month and Rs.50/- per day as Batta, the Tribunal fixed the notional income of the deceased at Rs.3,300/- per month and held that the claim petition under Section 163-A of the Motor Vehicles Act is maintainable and granted compensation of Rs.1,42,600/- each to the respondents 1 and 2 and Rs.1,77,600/- to the third respondent.
8.Against the said award dated 30.04.2012, the present Civil Miscellaneous Appeal is filed.
9.The learned counsel appearing for the appellant contended that the claim petition is not maintainable, as tort-feasor cannot http://www.judis.nic.in 5 claim compensation for his own wrong. The claim petition under Section 163-A is not maintainable, when the accident happened due to the negligence of the deceased. The third respondent has admitted that due to negligence of the deceased, the accident took place. In any event, if the respondents are entitled to compensation, they can claim compensation only under Section 140 of the Motor Vehicles Act under no fault liability.
10.The deceased being a tort-feasor/wrong-doer, the respondents are not entitled to claim any compensation. In the present case, the third respondent, who is the wife the deceased, is the owner of the vehicle involved in the accident and the deceased had stepped into the shoes of the owner of the vehicle and cannot claim compensation from the appellant for his own wrong.
11.In support of his submissions, the learned counsel for the appellant relied on the following judgments:-
(i) Ningamma and another Vs. United India Insurance Company Limited reported in 2009 ACJ 2020, wherein at Paragraphs 18 and 19, it has been held as follows:-
''18.In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736 : http://www.judis.nic.in 6 2008 ACJ 1441 (SC), wherein one of us, namely, Hon'ble Justice S.B.Sinha was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.
19.We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision http://www.judis.nic.in 7 would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA.
Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.''
(ii) Deepal Girishbhai Soni and others Vs. United India Insurance Company Limited reported in 2004 ACJ 934, wherein at Paragraphs 51 and 67, it has been held as follows:-
''51.The scheme as envisaged under Section 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike Section 140. In terms of the said http://www.judis.nic.in 8 provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs. 40,000/- or less is covered thereunder whereas Sections 140 and 166 cater to all sections of society.
Conclusion:
67.We, therefore, are of the opinion that Kodala's case, 2001 ACJ 827 (SC), has correctly been decided.
However, we do not agree with the findings in Kodala (supra), that if a person invokes provisions of Section 163- A, the annual income of Rs.40,000/- shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.''
(iii) New India Assurance Co. Ltd. Vs. K.Jothilingam and others reported in 2011 ACJ 333, wherein at Paragraphs 11 and 21, it has been held as follows:-
''11.Next we come to the question of the negligence. The vehicle was going from Gingee to Thiruvannamalai. The vehicle turned right and hit the tree. It is an admitted case that there was no other vehicular traffic on the road. It is no doubt true that on a highway, drivers may drive faster than normal and the absence of vehicular traffic might encourage the drivers to accelerate the vehicle http://www.judis.nic.in 9 more. But in this case, the road was turning right and therefore, the driver is expected to slow down when there is a curve on the road. Had he slowed down even if the steering wheel had stuck he could have applied the brakes and brought the vehicle to a halt. But the very fact that he went and dashed against the tree shows that he was driving at a speed where he was neither able to control the vehicle nor bring it to a halt. It is only then that the car would have gone off the road to hit the tree on the road side.
21.In this case also, we find that the car turning to the right, got on to the mud track and then proceeded to hit against the tree, which had resulted in the death of the wife of P.W.1. It is evident that the accident would not have occurred, but for the rash and negligent driving of P.W.1. In the award of the Tribunal, the learned Judge refers to the fact that as per Exh.P.20, the total breadth of the tar road is about 22 feet. There is a right turn. There was admittedly no other vehicular traffic. The Motor Vehicle Inspector deposed that it was not due to the mechanical defect of the motor car. Then there were damages to the front wind screen glass, grill bumper, radiator, fan leaf and water pump, engine, front mudguard, front side doors and steering. The vehicle was in such a condition that the entire brake system and the entire steering system were completely damaged. When the extent of damage is so much and the spot sketch speaks of the accident and the evidence of the expert is that the car had no mechanical defect, the Tribunal erred in its http://www.judis.nic.in 10 conclusion that there is no evidence that P.W.1 drove the car in a rash and negligent manner, and that there is acceptable evidence that the accident occurred only due to the mechanical defect. Pushpabai's case, 1977 ACJ 343 (SC), applies without any doubt.''
12.Per contra, the learned counsel appearing for the respondents 1 and 2 contended that the accident took place due to Act of God. The accident is not due to the negligence on the part of the deceased. The deceased was working as a driver under the third respondent and therefore, the respondents as legal heirs of the deceased, are entitled to claim compensation. The Tribunal fixed the annual income of the deceased at Rs.39,600/- and the claim petition under Section 163-A of the Motor Vehicles Act is maintainable. The claimants have filed claim petition under Sections 140, 163-A and 166 of the Motor Vehicles Act. The accident did not happen due to the negligence of the driver and therefore, as per Section 166 of the Motor Vehicles Act, the respondents are entitled to compensation.
13.In support of his submissions, the learned counsel appearing for the respondents 1 and 2 relied on the judgment of this Court reported in 2011 ACJ 333 [New India Assurance Co. http://www.judis.nic.in 11 Ltd. Vs. K.Jothilingam and others], wherein at Paragraph 22, it has been held as follows:-
''22.The other point that was raised by the insurance company is whether it was not against public policy for the tortfeasor to make the claim and whether when it was the husband of the deceased who by his rash and negligent driving had caused the accident, he can claim compensation. We agree that the husband of the deceased being the tortfeasor cannot reward himself. But the other claimants are undoubtedly entitled to be compensated. The claim for compensation was made not only by the husband of the deceased, but also by the child as well as parents of the deceased. Perhaps, the claim ought to have been made by the minor child represented by her grandparents showing her father as respondent No.1. But as it happened, the husband of the deceased was the claimant No.1. Now in the appeal stage, a petition has been filed for transposing the claimant No.1 as respondent No.3 which we have ordered today. We did so because as far as the minor daughter and parents of the deceased, they are entitled to make a claim. The death occurred on account of rash and negligent driving of the husband and the child, a third party who lost her mother on account of rash and negligent driving of her father cannot be denied her compensation. The objection had been rectified at the appeal stage by the petition seeking transposition of claimant No.1 as respondent No.1.'' http://www.judis.nic.in 12
14.Heard the learned counsel appearing for the appellant and the respondents 1 and 2 and perused the materials on record.
15.From the materials on record, it is seen that the Car involved in the accident belonged to the third respondent. The deceased is the husband of the third respondent. The third respondent claims that she has employed her husband as a driver and the respondents claimed that a sum of Rs.6,000/- per month was paid as salary and also Rs.50/- per day was paid as Batta. The respondents contend that the third respondent was doing Car travelling business and the deceased was looking after the same. The respondents have not produced any material to prove that the third respondent was carrying on the Car travelling business and the deceased was employed as a driver. Thus, there is a failure on the part of the respondents to substantiate the said claim. Therefore, the Tribunal erred in holding that the third respondent employed her husband as driver of the Car. Further, the Tribunal has fixed the notional income of the deceased at Rs.3,300/- per month only with a view to maintain claim petition under Section 163-A of the Motor Vehicles Act. The Tribunal has not given any reason for fixing such income as monthly salary to the deceased. The Tribunal has held that the accident occurred only due to the http://www.judis.nic.in 13 negligence on the part of the deceased driver. The Tribunal has come to the said conclusion holding that when it was raining heavily and visibility was very poor, the deceased ought to have stopped the vehicle instead of proceeding with driving. The respondents have not filed any appeal challenging the said finding. Further, it is admitted that the Car was totally damaged in the accident and in view of the same, the contention of the respondents that the deceased was driving the Car carefully, cannot be accepted.
16.The respondents have alleged and proved that the policy taken by the third respondent is a comprehensive policy and it covers the driver of the Car. The respondents have not produced any acceptable material to substantiate their case that the third respondent employed her husband as a driver of the Car and to look after her business also. Considering the materials on record, it is clear that the deceased as husband of the third respondent has stepped into the shoes of the third respondent, who is the owner of the Car. The Tribunal has held that the accident had occurred due to the negligence on the part of the deceased. The respondents 1 and 2 have claimed compensation against the third respondent also. The Tribunal not only awarded compensation to the respondents 1 and 2, but also awarded compensation to the third respondent. The http://www.judis.nic.in 14 Tribunal failed to see that as per Section 163-A of the Motor Vehicles Act, a third party need not prove the negligence on the part of the driver or owner of the vehicle. The owner of the vehicle or person, who steps into the shoes of the owner, cannot claim compensation for their own wrong-doing. The tort-feasor cannot be a claimant as well as recipient.
17.This issue is no longer res integra. The Hon'ble Apex Court in the judgments reported in 2004 ACJ 934 [cited supra] and 2004 ACJ 2020 [cited supra], has held that the tort- feasor/wrong-doer cannot maintain claim petition under Section 163-A of the Motor Vehicles Act.
18.As far as Section 163-A of the Motor Vehicles Act is concerned, the claimants need not prove the negligence on the part of owner and driver, when they are third parties. In the present case, it has been held that the negligence is on the part of the deceased/driver, who is none other than the husband of the third respondent and father of the respondents 1 and 2. No other vehicle is involved in the accident and it cannot be said that the deceased was a third party and the respondents are entitled to claim compensation. Considering the materials on record and the http://www.judis.nic.in 15 judgments referred to above, this Court is of the considered view that the Tribunal erred in holding that the respondents are entitled to compensation from the appellant.
19.For the above reasons, this Civil Miscellaneous Appeal is allowed and the award of the Tribunal is set aside. No costs. Consequently, connected Miscellaneous Petitions are closed.
Index : Yes
Internet : Yes 01.11.2018
smn2
To
1.The Motor Accident Claims Tribunal,
Kulithalai.
2.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
16
V.M.VELUMANI, J.
smn2
CMA(MD)No.122 of 2013
01.11.2018
http://www.judis.nic.in