Madras High Court

Venkatachalam vs Sathiskumar on 22 April, 2021

                                                                                     C.M.A.No.1280 of 2016

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 22.04.2021
                                                          CORAM
                               THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
                                                 C.M.A.No.1280 of 2016

                     1.Venkatachalam
                     2.Jothimani                                                         ... Appellants

                                                              ..Vs..

                     1.Sathiskumar
                     2.ICICI Lombard General Insurance Company Ltd.,
                       Vigneswara Gesta, 1095, Avinashi – Road,
                       Pappanayakkanpalayam,
                       Coimbatore – 641 037.                                           ...Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, 1988, against the Judgment and Decree dated 06.09.2013
                     made in MCOP.No.421 of 2008 on the file of the Motor Accident Claims
                     Tribunal (Sub Judge at Dharapuram).


                                     For Appellants                    : Mr.Lokesh
                                                                        for Mr.Ma.P.Thangavel
                                     For Respondent 2                  : Mrs.R.Sreevidhya
                                     (R1-Left)




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https://www.mhc.tn.gov.in/judis/
                                                                                 C.M.A.No.1280 of 2016

                                                   JUDGMENT

This Civil Miscellaneous Appeal has been filed by the claimants

challenging the Award dated 06.09.2013 passed by the Motor Accident

Claims Tribunal (Sub-Judge, Dharapuram), in MCOP.No.421 of 2008.

2. Heard Mr.Lokesh, learned counsel for the Appellants and

Mrs.R.Sreevidhya, learned counsel for the second respondent. Since no

adverse orders are going to be passed against the first respondent, notice to

the first respondent is dispensed with by this Court.

3. The Appellants/claimants are aggrieved by the findings of the

Tribunal holding that they are not entitled for compensation under section

166 of the Motor Vehicles Act, since the deceased was himself a tortfeasor

and therefore, the Appellants/claimants are entitled only for a compensation

of Rs.50,000/- under no fault liability prescribed under section 140(1) of the

Motor Vehicles Act. Aggrieved by the findings of the Tribunal, this Appeal

has been preferred by the claimants.

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4. Learned counsel for the Appellants drew the attention of this Court

to the following authorities:

(a) The Oriental Insurance Co. Ltd., vs. Kaliya Pillai reported in 2002

(4) CTC 469 (DB);

(b) M.Anbalagan vs. K.M.Asalm Basha and another reported in 2015

(2) TN MAC 362 (DB); and

in C.M.A.No.158 of 2012.

Relying upon the aforementioned authorities, learned counsel for the

Appellants would submit that the deceased being employed as a driver by

the first respondent, the owner of the vehicle which is insured with the

second respondent, the Appellants/claimants are entitled for compensation

under the Workmen Compensation Act, 1923 eventhough they are not

entitled for compensation under the Motor Vehicles Act, in accordance with

ratio laid down in the aforesaid decisions.

5. Learned counsel for the Appellants/claimants would also submit

that separate insurance premium has also been paid for the driver of the

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vehicle by the first respondent and hence, the Appellants /claimants are

entitled for compensation to be paid in accordance with the provisions of

Workmen Compensation Act, 1923. According to him, having not disputed

the employer-employee relationship, the second respondent Insurance

Company is liable to pay the compensation as per the provisions of

Workmen Compensation Act, 1923, but the Tribunal erroneously without

applying the settled position of law, has awarded only a meager

compensation of Rs.50,000/- to the Appellants/claimants under section

140(1) of the Motor Vehicles Act on no fault liability basis.

6. The decisions relied upon by the learned counsel for the Appellants

referred to supra have categorically held that though the claim have been

filed under section 166 of the Motor Vehicles Act, the Tribunal is having

the power to convert the same to a claim under the Workmen Compensation

Act, and grant compensation whenever the insured has paid insurance

premium for an authorised employee of the vehicle. In the case on hand,

separate insurance premium of Rs.25/- has been paid by the first respondent

to the second respondent to cover the case of the deceased who was a driver

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employed by the first respondent. As seen from the evidence available on

record, the second respondent has also not disputed the employer-employee

relationship. Hence, the Tribunal by total non application of mind to the

settled position of law has not converted the claim filed under section 166

of the Motor Vehicles Act to a claim filed under the provisions of Workmen

Compensation Act. Therefore, this Court is of the considered view that the

Tribunal has erroneously granted a meager compensation of Rs.50,000/- to

the Appellants/claimants under section 140(1) of the Motor Vehicles Act

only on the ground of no fault liability.

7. With regard to the quantum of compensation payable to the

Appellants/claimants under the provisions of Workmen Compensation Act

is concerned, this Court gives the following reasons for arriving at a just

compensation payable to the Appellants/claimants. The accident happened

on 16.12.2007 which resulted in the death of Karthikeyan. In the claim

petition, the Appellants/claimants who are the dependents of the deceased

Karthikeyan have claimed that the deceased was earning Rs.5,000/- per

month apart from receiving Rs.100/- per day as batta, at the time of the

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accident. After giving due consideration to the year of the accident and by

applying section 4 of the Workmen compensation Act, which prescribes a

maximum limit for fixation of notional monthly income, this Court fixes the

notional monthly income of the deceased at Rs.4,000/-. The deceased was

aged 21 years at the time of the accident and the relevant factor for a person

aged 21 years is 222.71. Being a fatal accident, as per section 4(1)(a) of the

Workmen Compensation Act, 50% will have to be deducted from and out of

the monthly wages payable to the deceased workman. Accordingly, the

same is deducted by this court and compensation payable under the

Workmen Compensation Act is determined by this Court at Rs.4,45,420/-.

Apart from this, the Appellants/claimants are entitled for compensation

towards funeral expenses to a maximum extent of Rs.2,500/- as per the

provisions of section 4(4) of the Workmen Compensation Act and hence,

the same is also granted by this Court.

8. The Appellants/claimants are also entitled for 12% Simple Interest

per annum in accordance with section 4-A(3)(a) of the Workmen

Compensation Act and the same is also granted by this Court.

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9. For the foregoing reasons, this Court awards a compensation of

Rs.4,47,920/- to the Appellants/claimants in the following manner:

                                           Heads                Award Amount
                                                                    (Rs.)
                                   Loss of income     4,45,420/-
                                                      (4000 x 222.71 – 50%)
                                   Funeral Expenses   2,500/-
                                   Total              4,47,920/-

10. In the result, this Civil Miscellaneous Appeal is partly allowed by

setting aside the Judgment and Decree dated 06.09.2013 passed by the

Motor Accident Claims Tribunal in MCOP.NO.421 of 2008 and awarding a

compensation of Rs.4,47,920/- in the ratio of 1:1 between the Appellants.

This Court directs the second respondent Insurance company to deposit the

amount awarded by this Court i.e., Rs.4,47,920/- together with interest @

12% per annum from the date of claim till the date of deposit, excluding the

period of delay in filing this appeal, after deducting the amount already

deposited if any, to the credit of MCOP.No.421 of 2008 within a period of

four weeks from the date of receipt of a copy of this Judgment. On such

deposit being made, the Tribunal shall transfer the amount lying to the

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