Madras High Court

Chandrasekar vs K.Sakkarai on 27 April, 2021

                                                                             C.M.A.No.2508 of 2012

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 27.04.2021

                                                        CORAM:

                                   THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                 C.M.A.No.2508 of 2012

                     1.Chandrasekar
                     2.Anjalai
                     3.Kozhmani
                     4.Ayyammal
                     5.Muruvammal                                              ... Appellants

                                                            Versus
                     1.K.Sakkarai

                     2.The Branch Manager,
                     The New India Assurance Company Ltd.,
                     No.110, Gandhi Road,
                     Arani, Thiruvannamalai District.                          ... Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, against the order and decree dated 02.12.2010 made in
                     M.C.O.P.No.359 of 2009 on the file of the Motor Accident Claims Tribunal,
                     Fast Track Court – II, Tindivanam.
                                           For Appellants     : Mr.Sivakumar
                                                                for T.Dhanyakumar

                                           For R1             : Mr.E.Kannadasan
                                           For R2             : Mr.J.Chandran

                     Page 1 of 9


https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.2508 of 2012

                                                   JUDGMENT

This appeal is laid as against the judgment and decree dated

02.12.2010 made in M.C.O.P.No.359 of 2009 on the file of the Motor

Accident Claims Tribunal, Fast Track Court – II, Tindivanam.

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 05.03.2008, when the

deceased was travelling in a lorry owned by the first respondent as a cleaner,

the driver of the said lorry had driven in a rash and negligent manner and hit

against the tamarind tree on the left of the road near Kanthadu. As a result,

he sustained grievous injuries and died on the spot. Hence, the legal heirs

of the deceased filed a claim petition.

4. Resisting the same, the respondents filed a counter denying the

age and occupation of the deceased and the claimants are put to strict proof

of the same. The driver of the lorry was not impleaded as a party in the

claim petition and as such, the claim petition is liable to be dismissed for

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2508 of 2012

non-joinder of necessary parties. At the time of accident, the driver of the

lorry did not possess any valid license to the lorry and as such there is

violation of the condition of the insurance policy and it would amount to

breach of contract of insurance. Therefore, the second respondent is not

liable to compensate for the claim made by the claimants.

5. On the side of the claimants, they examined P.W.1 to P.W.3 and

marked Ex.P1 to E.P5. On the side of the respondents, no one was

examined and no exhibits were marked. 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 fastened the liability

on the first respondent viz., the owner of the vehicle and awarded a sum of

Rs.3,64,500/- as compensation. Aggrieved by the same, the claimants filed

this appeal questioning the liability as well as the quantum of compensation.

6. The learned counsel appearing for the claimants would submit

that the deceased was aged only 22 years at the time of accident. He was

drawing salary of Rs.7,500/- p.m. Even then, the Tribunal had taken into

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2508 of 2012

consideration only a sum of Rs.4,000/- p.m. and adopted the multiplier

method at 15 instead of 18. The Tribunal also failed to take note of the

future prospects of the deceased.

7. Per contra, the learned counsel for the second respondent

would submit that the driver of the lorry did not possess any valid license to

drive the lorry. Therefore, it violates the condition of the policy and the

second respondent is not held to be liable for any compensation payable to

the claimants. Therefore, the Tribunal rightly awarded the compensation

payable by the first respondent viz., the owner of the lorry.

8. Heard, the learned counsel for the appellants as well as the

learned counsel for the respondents.

9. The accident took place only on the negligence of the driver of

the lorry. Due to which, the deceased sustained grievous injuries and died

on the spot. Admittedly, the driver of the lorry did not posses any valid

license to drive the lorry. Only after the accident, the driver of the lorry has

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2508 of 2012

taken license. Therefore, at the time of accident, there was no license.

Now, this position is settled that the insurance company is directed to pay

compensation with liberty to recover the same from the owner of the

vehicle. Since, the vehicle is insured with insurer and as such, the insured is

held liable to pay compensation. If there is any violation on the strict by

way of the insurer and insured, the compensation payable by the insurance

company can be recovered from the owner of the vehicle. Therefore, the

award passed by the Tribunal, directing the first respondent to pay the

compensation is set aside. The second respondent is directed to pay the

compensation with liberty to recover the same from the first respondent.

10. The learned counsel for the second respondent relied upon a

judgment reported in 2020 (2) TANMAC 445 in the case of Beli Ram Vs.

Rajinder Kumar. The Hon'ble Supreme Court of India held that the

beneficiary is the driver himself who was negligent but then we are not

dealing with a claim under the MV Act but under the Workmen

Compensation Act, which provides for immediate succor, not really based

on a fault theory with a limited compensation as specified being paid. We

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2508 of 2012

are, thus, in the present proceedings not required to decide the share of the

burden between the appellant as the owner and the first respondent as the

driver as may happen in a proceeding under the MV Act. Therefore, the

above judgment held under the Workmen Compensation Act. Therefore, the

said judgment is not applicable to the case on hand, which is arising out of

the MV Act.

11. Insofar as the quantum of compensation is concerned, the

deceased was aged 22 years at the time of accident. Admittedly, he was a

cleaner of the lorry owned by the first respondent. He died as a bachelor.

According to the claimants, he was drawing a salary of Rs.7,500/- p.m.,

whereas, the Tribunal had taken only Rs.4,000/- as monthly salary of the

deceased. It is liable to be enhanced. This Court felt that the salary of the

deceased to be fixed at Rs.4,500/- instead of Rs.4,000/-. Further, the

Tribunal failed to consider the future prospects of the deceased. The

deceased died at his age of 22 years and even then, the Tribunal adopted the

multiplier method at 15 instead of 18. Accordingly, the pecuniary loss is

calculated as Rs.4,500 + 40% * 12 * 18 *1/2 = Rs.6,80,400/-. Insofar as

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2508 of 2012

other heads are concerned, the Tribunal failed to award compensation under

the head of Love and Affection and awarded a very meager amount under

the head of Funeral Expenses and Loss of Estate. Therefore, this Court is

inclined to enhance the award passed by the Tribunal as follows :

                                     Heads             Amount awarded by         Amount modified by
                                                        the Tribunal (Rs.)        this Court (Rs.)
                      Loss of Income                              3,60,000.00              6,80,400.00
                      Love and Affection                                     -             2,00,000.00
                      Funeral Expenses                               2,000.00                10,000.00
                      Loss of Estate                                 2,500.00                15,000.00
                      TOTAL                                       3,64,500.00              9,05,400.00

12. In the result the Civil Miscellaneous Appeal is partly allowed

as follows:-

(i) The award passed by the Tribunal is enhanced from Rs.3,64,500/-

to Rs.9,05,400/-.

(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 claimants are entitled to get the modified award amount as follows:-

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2508 of 2012

1st claimant - Rs. 2,60,000/-

2nd claimant - Rs. 5,85,400/-

3rd to 5th claimant – Rs.20,000/- each

(iv) The second respondent/Insurance Company is directed to