Madras High Court
Tata Aig General Insurance Company ... vs Mayan on 25 March, 2019
Author: V.M.Velumani
Bench: V.M.Velumani
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.03.2019
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1292 of 2019 and
C.M.P.No.3566 of 2019
TATA AIG General Insurance Company Limited,
No.1, C-in-C Road, Ethiraj Salai,
Egmore, Chennai - 600 008. .. Appellant
Vs.
1.Mayan
2.Vasantha
3.K.Kumaresan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
18.04.2015 made in M.C.O.P.No.704 of 2012 on the file of the Motor
Accident Claims Tribunal, II Additional District Court, Salem.
For Appellant : Mr.E.Rajadurai for
Mr.N.Vijayaraghavan
For RR1 & 2 : Mr.Dr.P.Jagadeesan
JUDGMENT
This Civil Miscellaneous Appeal has been filed against award dated 18.04.2015 made in M.C.O.P.No.704 of 2012 on the file of the Motor http://www.judis.nic.in 2 Accident Claims Tribunal, II Additional District Court, Salem.
2.The appellant is the second respondent in M.C.O.P.No.704 of 2012 on the file of the Motor Accident Claims Tribunal, II Additional District Court, Salem. The respondents 1 and 2 filed the above said claim petition, claiming a sum of Rs.6,00,000/- as compensation for the death of one Murali, who died in the accident that took place on 10.09.2010.
3.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to the rash and negligent driving by the driver of the unknown vehicle and directed the appellant- Insurance Company to pay a sum of Rs.4,41,000/- as compensation to the respondents 1 and 2.
4.Against the said award dated 18.04.2015 made in M.C.O.P.No.704 of 2012, the appellant has come out with the present appeal.
5.The learned counsel appearing for the appellant-Insurance Company contended that the Tribunal erred in fixing liability on the part of the appellant insurer, when the deceased who was riding the insured vehicle was not covered either under Section 147 of Motor Vehicles Act, http://www.judis.nic.in 3 1988, or under insurance policy. The deceased was a borrower of the vehicle from the insured owner and he is not a paid driver or workman and he is not covered under policy. The deceased was employed as Assistant in Finance Company. The Tribunal ought to have seen that the deceased was himself at fault and has caused the accident and is not entitled to make a claim for compensation against the appellant insurer. In any event, the total compensation at Rs.4,41,000/- awarded by the Tribunal under different heads are excessive and prayed for setting aside the award passed by the Tribunal.
6.Per contra, the learned counsel appearing for the respondents 1 and 2 contended that the respondents 1 and 2 filed claim petition under Section 163 (A) of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"). For the claim filed under Section 163 (A), the claimants need not plead and prove the negligence on the part of the driver and owner of the vehicle. The Insurance Company is not entitled to take objection that deceased being at fault is not entitled to claim compensation from Insurance Company. The total compensation awarded by the Tribunal is not excessive and prayed for dismissal of appeal.
7.I have heard the learned counsel appearing for the appellant as http://www.judis.nic.in 4 well as respondents 1 and 2 and perused the entire materials on record.
8.It is the contention of the learned counsel for the appellant that the deceased was a tort-feaser and therefore the respondents 1 and 2 are not entitled to claim compensation and appellant is not liable to pay any compensation to the respondents 1 and 2. From the award of the Tribunal, it is seen that the respondents 1 and 2 have filed claim petition under Section 163 (A) of the Act. In the claim petition filed under Section 163 (A) of the Act, the claimant need not plead and prove the negligence. Section 163 (A) is inserted with a view to avoid delay in disposing the claim petition filed under Section 166 of the Act read with Rule 3 of T.N.M.A.C.T.Rules. As per Section 166, the claimant must allege and prove the negligence on the part of the driver or owner of the vehicle, which takes considerable time to dispose the claim petition. In order to benefit the claimants to get compensation without delay, the Motor Vehicles Act was amended and Section 163 (A) was inserted. This issue was considered by the three Judges Bench of Hon'ble Apex Court in 2017 (2) TN MAC 753 (SC) [United India Insurance Co. Ltd., Vs. Sunil Kumar and another], wherein it has been held in paragraphs 7, 8 and 9 as follows:
“7.....Section 163-A, on the other hand, was introduced in the New Act for the first time to remedy the situation where determination of http://www.judis.nic.in 5 final Compensation on fault basis under Section 166 of the Act was progressively getting protracted. The Legislative intent and purpose was to provide for payment of final compensation to a class of Claimants (whose income was below Rs.40,000 per annum) on the basis of a Structured Formula without any reference to fault liability. In fact, in Hansrajbhai Vs. Kodala (supra), the Bench had occasion to observe that:
“Compensation amount is paid without pleading or proof of fault, on the Principle of Social Justice as a Social security measure because of ever-increasing Motor Vehicle accidents in a fast-moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for no fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163-A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on Structured-Formula basis. Further, if the question of determining Compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the Owner of the defaulting vehicles.”
8.From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the Structured Formula is in the nature of a Final Award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the Driver/Owner of the vehicle(s) involved in the accident. This is made explicit by http://www.judis.nic.in 6 Section 163-A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the Claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163-A of the Act, namely, final compensation within a limited time frame on the basis of the Structured Formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act at par with the proceeding under Section 166 of the Act, which would not only be self-contradictory but also defeat the very legislative intention.
9.For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163-A of the Act it is not open for the Insurer to raise any defence of neligence on the part of the victim.”
9.This issue was again came up for consideration by the three Judges Bench of Hon'ble Apex Court in the judgment reported in 2018 (2) TN MAC 149 (SC) [Shivaji and another Vs. Divisional Manager, United India Insurance Co. Ltd., and others], in paragraph 5 it has been held as follows:
http://www.judis.nic.in 7 "...5. The issue which arises before us is no longer res integra and is covered by a recent judgment of three judges of this Court in United India Insurance Co. Ltd. v. Sunil Kumar & Anr.,1 wherein it was held that to permit a defence of negligence of the claimant by the insurer and/or to understand Section 163A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is "final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time".The Court observed that if an insurer was permitted to raise a defence of negligence under Section 163A of the Act, it would "bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention". Consequently, it was held that in a proceeding under Section 163A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation."
10.A reading of the above judgments, makes it clear that Insurance Company is not entitled to take objection with regard to negligence when claim petition is filed under Section 163 (A) of the Act. In both judgments referred to above, the Hon'ble Apex Court has held that permitting the Insurance Company to raise objection with regard to http://www.judis.nic.in 8 negligence would defeat the legislative intention of entertaining Section 163 (A) of the Act. The Hon'ble Apex Court held that insurer cannot raise any defense of negligence on the part of the victim to counter a claim for compensation when the claim petition is filed under Section 163 (A) of the Act. In view of above two judgments, the Insurance Company is liable to pay compensation.
11.As far as quantum of compensation is concerned, claim petition can be maintained by the claimants only when the annual income of the victim or deceased is Rs.40,000/- or less than that. In the present case, the respondents 1 and 2 have claimed that deceased was earning a sum of Rs.3,000/- per month. The Tribunal erroneously added Rs.1,500/- towards future prospects to Rs.3,000/- and fixed monthly income at Rs.4,500/-, deducted 50% and awarded compensation and the same is erroneous. In the claim petition filed, a sum of Rs.3,000/- is fixed as monthly income of the deceased. As per second Schedule of the Act, when a claim petition filed under Section 163 (A), 1/3rd has to be deducted and claimants are entitled to claim compensation under conventional heads only as per II Schedule. In view of the scope of Section 163 (A) of second Schedule, the compensation awarded by the Tribunal towards loss of income is modified to Rs.3,84,000/- [Rs.3,000/- X 12 X 16 X 2/3]. The compensation awarded by the Tribunal under http://www.judis.nic.in 9 other heads are liable to be set aside and are hereby set aside. A sum of Rs.5,000/- awarded by the Tribunal towards funeral expenses is hereby reduced to Rs.2,000/-. The Tribunal has not awarded any amount towards loss of estate. A sum of Rs.2,500/- is granted by this Court towards loss of estate. Thus, the compensation awarded by the Tribunal is modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of income 4,05,000/- 3,84,000/- reduced
2. Loss of love and 25,000/- - set aside
affection
3. Funeral expenses 5,000/- 2,000/- reduced
4. Transportation 5,000/- - set aside
5. Loss of property 1,000/- - set aside
6. Loss of estate - 2,500/- granted
Total Rs.4,41,000/- Rs.3,88,500/- reduced by
Rs.52,500/-
12.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.4,41,000/- is hereby modified to Rs.3,88,500/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The appellant-Insurance Company is directed to deposit the modified award amount now determined by this Court, along with interest and costs, http://www.judis.nic.in 10 less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the respondents 1 and 2 are permitted to withdraw their respective share of the modified award amount, as per the ratio of apportionment fixed by the Tribunal, along with interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The appellant-Insurance Company is permitted to withdraw the excess amount lying in the deposit to the credit of M.C.O.P.No.704 of 2012 on the file of the Motor Accident Claims Tribunal, II Additional District Court, Salem, if the entire amount has already been deposited. No costs. Consequently, connected miscellaneous petition is closed.
25.03.2019
krk
Index : Yes
Internet : Yes
http://www.judis.nic.in
11
To
1.The II Additional District Judge,
Motor Accident Claims Tribunal,
Salem.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
krk
http://www.judis.nic.in
12
C.M.A.No.1292 of 2019 and
C.M.P.No.3566 of 2019
25.03.2019
http://www.judis.nic.in