Madras High Court
D.Bharathi vs R.Murugan on 21 April, 2021
C.M.A.No.2940 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.2940 of 2013
1. D.Bharathi
2. S.Suseela ... Appellants
Versus
1.R.Murugan
2.HDFC ERGO General Insurance Company Ltd.,
6th Floor, LeelaBusiness Park,
Andheri Kurla Road, Andheri(E),
Mumbai - 400 059 ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree dated 28.01.2013 made in
M.C.O.P.No.93 of 2010 on the file of the Motor Accident Claims Tribunal,
(I Additional District Court) Vellore, Vellore District.
For Appellants : Mr.M.Sivakumar
For Respondents
For R2 : M/s.Harini
for Mr.N.Vijayaraghavan
R1 : Not ready in notice
Page 1 of 13
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C.M.A.No.2940 of 2013
JUDGMENT
This appeal has been laid as against the judgment and decree dated
28.01.2013 made in M.C.O.P.No.93 of 2010 on the file of the Motor
Accident Claims Tribunal, (I Additional District Court) Vellore, Vellore
District, thereby awarded the compensation to the tune of Rs.84,500/-.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status before the Tribunal.
3. The case of the claimants is that on 28.08.2009 at 5.00 p.m.
when the deceased was crossing the service road near Shenbakkam
over-bridge approached from South to North, the car belongs to the first
respondent driven by its driver in a rash and negligent manner from east to
west dashed against the deceased. Due to which, the deceased was thrown
out and sustained severe injuries on her left cheek and lacerated wounds on
her right side forehead and also her stomach. Immediately, she was taken to
Sankari Hospital, Vellore. There, the deceased was declared dead. The
deceased was aged 50 years at the time of accident and she was earning
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C.M.A.No.2940 of 2013
Rs.4,500/- per month as Mason. Therefore, the claimants filed claim petition
seeking compensation at Rs.5,00,000/-.
4. Resisting the same, the second respondent filed counter and
disputed the age, income and occupation of the deceased and further,
specifically had taken stand that the vehicle which involved in the accident
was insured with the second respondent and subsequently by order dated
20.02.2009, insurance was cancelled and the same was also duly intimated
to the first respondent i.e. the owner of the vehicle. Therefore, the second
respondent is not held to be liable for compensation as claimed by the
claimants and sought for dismissal of the claim petition.
5. On the side of the claimants, they examined P.W.1 and P.W.2
and marked Ex.P.1 to Ex.P.8. On the side of the respondents, they examined
R.W.1 to R.W.3 and marked Ex.R.1 to Ex.R.9. On the basis of the evidence
available on records and also considering the submission made by the
learned counsel appearing on either side, the Tribunal held that the second
respondent Insurance Company is exonerated and awarded compensation of
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C.M.A.No.2940 of 2013
Rs.84,500/-, that too payable by the first respondent, namely the owner of
the vehicle. Aggrieved by the same, the claimants came forward with the
present appeal.
6. The learned counsel appearing for the appellants submits that
though the policy of the vehicle was cancelled by the second respondent, by
order dated 20.02.2009, the same was not duly communicated to the first
respondent. They marked only certificate of posting and they failed to mark
any acknowledgment to show that the order of cancellation was duly
communicated to the first respondent. Insofar as the quantum is concerned,
the deceased was Mason and she was earning Rs.4,500/- per month. Even
then, the Tribunal had taken only Rs.1,500/- as monthly income and also
without considering the future prospect awarded only a sum of Rs.84,500/-
as compensation. Therefore, he prayed for enhancement of the award
amount.
7. Per contra, the learned counsel appearing for the second
respondent would contend that due to violation of policy, it was duly
cancelled on 20.02.2009, which is marked as Ex.R4. Thereafter, it was duly
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C.M.A.No.2940 of 2013
communicated to the first respondent by certificate of posting and it is
marked as Ex.R5. Therefore, the tribunal rightly exonerated the second
respondent from paying any compensation and rightly awarded
compensation as against the owner of the vehicle. Insofar as the quantum is
concerned, the Tribunal rightly had taken a sum of Rs.1,500/- as monthly
income of the deceased and prayed for dismissal of the present appeal.
8. Heard Mr.M.Sivakumar, learned counsel appearing for the
appellants and M/s.Harini, learned counsel appearing for the second
respondent herein.
9. The claimants are the legal representatives of the deceased.
When the deceased on 28.08.2009, while crossing the service road near
Shenbakkam over-bridge from south to north, the car owned by the first
respondent driven by its driver in a rash and negligent manner from east to
west dashed against the deceased, due to which she sustained grievous
injuries and died while she was taken to hospital.
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C.M.A.No.2940 of 2013
10. PW1 deposed that the deceased was Assistant to Mason and
she was earning minimum a sum of Rs.4,500/- per month. There is no contra
evidence produced by the respondents. Further, the Tribunal also failed to
award any compensation for future prospects of the deceased. Insofar as
liability is concerned, the vehicle owned by the first respondent was insured
with the second respondent. Subsequently, by order dated 20.02.2009, it was
cancelled by the second respondent and the same was communicated by
certificate of posting. The cancellation of policy is marked as Ex.R4 and the
certificate of posting of the said order is marked as Ex.R5. As rightly
pointed out by the learned counsel for the appellants, the second respondent
failed to produce any proof to show that the certificate of posting was duly
served on the first respondent in respect of cancellation of policy. Mere
filing of certificate of posting does not amount to service of letter. In this
regard, the learned counsel for the appellants relied upon the judgment in
the case of New India Assurance Company Limited Vs. Azhagusumathi
and 2 others reported in 2015 (1) TN MAC 179, wherein it is held as
follows:
13. In the instant case, it has been proved that the cheque
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C.M.A.No.2940 of 2013
Ex.B1 was dishonoured on presentation with the bank for want of
sufficiency of funds and that the policy issued by the insurance
company for the period from 25.06.2003 till 24.06.2004 was
cancelled under Ex.B5 and further, the dishonour of cheque as well
as the cancellation of policy was intimated to the owner by a
registered post in Ex.B6 as also to the RTO and the postal receipts
for sending the letters by registered post is marked as Ex.B6 series.
14. As per Section 27 of General Clauses Act, 1897 which
deals with topic 'Meaning of service by post' says that where
any Central Act or regulation authorizes or requires a document to
be served by post, then unless a different intention appears, the
service shall be deemed to be effected by properly addressing',
prepaying and posting it by registered post, a letter containing the
document, and, unless the contrary is proved, to have been effected
at the time at which the letter would be delivered in ordinary course
of post. The Section, thus, raises the presumption of due service or
proper service if the document sought to be served is sent by
properly addressing, prepaying and posting by registered post to the
addressee and such presumption is raised irrespective of whether
any acknowledgment due is received from the addressee or not. Of
course, the said presumption is rebuttable. But in the present case
Exs.B4, B6 and B7 would show that the letter intimating about the
dishonour of cheque followed by cancellation of policy has been sent
to the address of the owner given in the policy by registered post, of
course, without any acknowledgement due. The said letter having
been sent properly addressing and posting it by registered post, it
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C.M.A.No.2940 of 2013
would raise a presumption that the service been effected on the
addressee to whom the communication was sent. Therefore, the
appellant having intimated the notice of cancellation by registered
post to the owner and the RTO, the service of notice of cancellation
can be treated as sufficient and the insurance company can take
advantage that it has duly intimated to the owner of the offending
vehicle and the authorities concerned regarding cancellation of
policy due to the dishonour of cheque. Hence, the insurer cannot be
held liable to indemnify the owner and it is absolved from liability.
The reasoning given and the finding recorded by the Tribunal in this
regard is erroneous. Both the questions are answered accordingly.
However, the claim of third party cannot be defeated for the self
created predicament of the insurer in issuing the policy without
actually receiving the premium. Hence, the insurance company shall
pay the compensation to the claimants which it may realise from the
owner of the offending vehicle.
In the above judgment, this court held that when the insurance company
failed to file any document to show that the communication was duly served
to the owner of the vehicle in respect of cancellation of policy, the insurance
company is liable to pay compensation and may be at liberty to recover the
same from the owner of the vehicle.
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C.M.A.No.2940 of 2013
11. In the case on hand, admittedly the second respondent failed to
prove that the cancellation of insurance policy dated 20.02.2009 was duly
served to the first respondent. Therefore, the second respondent is liable to
pay compensation to the claimants and thereafter they are at liberty to
recover the same from the first respondent.
12. Insofar as the quantum of compensation is concerned, the
salary has to be taken into account at Rs.4,500/- per month. After deducting
1/3 for her personal expenses, 2/3 amount comes to Rs.3,000/-. Accordingly
the loss of earnings is calculated as follows :-
= [(Rs.3,000/- + 10% FP ) X 12 X11]
= [(Rs.3,300/- X 12 X11]
= 4,35,600
Therefore, a sum of Rs.4,35,600/- has to be awarded under the head of loss
of earnings to the claimants.
13. Accordingly the compensation awarded by the Tribunal stands
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C.M.A.No.2940 of 2013
modified as under :-
Sl.No Heads Amount awarded by Amount awarded by
the Tribunal this Court
1 Loss of Earnings Rs.50,000/- Rs.4,35,600/-
2 Transport charges Rs.10,000/- Rs.10,000/-
3 Loss of Estate Rs.2,500/- Rs.5,000/-
4 Funeral expenses RS.2,000/- Rs.10,000/-
5 Love and affection Rs.20,000/- Rs.20,000/-
Total Rs.84,500/- Rs.4,80,600/-
14. In the result the Civil Miscellaneous Appeal is allowed as
follows:-
(i) The award passed by the Tribunal is enhanced from Rs.84,500/- to
Rs.4,80,600/-.
(ii) The award amount will carry the interest at the rate of 7.5% per
annum from the date of the claim petition till the date of deposit.
(iii) The apportionment of the modified enhanced award amount is
as follows:-
1st appellant/claimant - 50%
2nd appellant/claimant - 50%
(iv) The second respondent herein / insurance company is directed
to deposit the award amount, less the amount, if any, already deposited,
along with interest and costs within a period of six weeks from the date of
receipt of copy of this Judgment. Thereafter, the second respondent herein is
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C.M.A.No.2940 of 2013
at liberty to recover the said amount from the first respondent herein.
(v) On such deposit, the appellants / claimants are permitted to
withdraw the amount awarded as above by filing proper application before
the Tribunal.
(vi) The appellants/claimants are not entitled to any interest for the
condoned delay (default) period, if any.
(vii) There shall be no order as to costs.
21.04.2021
Index:Yes/No
Internet: Yes/no
Speaking/Non-speaking Order
lok
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C.M.A.No.2940 of 2013
To
1.The I Additional District Judge,
Motor Accident Claims Tribunal,
Vellore, Vellore District.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
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C.M.A.No.2940 of 2013
G.K.ILANTHIRAIYAN, J.
lok
C.M.A.No.2940 of 2013
21.04.2021
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