Madras High Court
Ponmalar Katie Selvaraj vs Krishnamurthy on 25 August, 2021
C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.08.2021
CORAM
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
C.M.A.No.38 & 39 Of 2001
1. Ponmalar Katie Selvaraj
2. Thenmalar Victoria Richard ... Appellants in both C.M.A's
Vs.
1. Krishnamurthy
2. S.K.L. Bus Service,
rep by its Proprietor,
Mr. K.P. Sudhakar,
No.29, Othavadai Street, Pondicherry.
3. National Insurance Company Limited,
Branch Office I, No.20-A, Jawaharlal
Nehru Street, Pondicherry-1.
4. Tamil Nadu Veterinary and Animal
Science University,
reptd by its Registrar,
Vepery High Road,
Chennai – 600 007 ... Respondents in both C.M.A's
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
Vehicles Act, 1988 against the Judgment and decree dated 23.8.2000 made
in M.C.O.P.Nos.2083 & 2084 of 1996 on the file of the Motor Accident
Claims Tribunal (in the Chief Court of Small Causes), Chennai.
For Appellants : Ms.G.Sumitra
For Respondents : Mr.A.N. Bharathi for R4
No appearance for R1 & R2
C.M.A NO. 171 & 850 of 2001
M/S National Insurance company Ltd.,
Branch at No.1, 20-A, Jawaharlal
Nehru Street, Pondicherry. ...Appellant in both C.M.A's
Vs.
1. Ponmalar Katie Selvaraj
2. Thenmalar Victoria Richard
3. Krishnamurthy
4. S.K.L. Bus Service
rep. By its Proprietor
Mr.K.P. Sudhakar,
No.29, Othavadi Street,
Pondicherry.
5. Tamil Nadu Veterinary &
Animal Science University
Chennai -7, rep by its
Registrar. ... Respondents in both C.M.A's
(Respondents 3 & 4 Exparte in
the Lower Court)
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
Vehicles Act, 1988 against the Judgment and decree dated 23.8.2000 made
in M.C.O.P.Nos.2083 & 2084 of 1996 on the file of the Motor Accident
Claims Tribunal (in the Chief Court of Small Causes), Chennai.
For Appellant : Mr.S. Vadivel
For Respondents : Mr.S.Thirumavalavan for R5
Ms.G. Sumitra for R1&R2
R3 & R4 exparte
C.M.A.No.1468 & 1467 of 2002
The Tamil Nadu Veterinary and
Animal Science University,
Madras-7,
Represents by its Registrar. ...Appellant in both C.M.A's
1. Ponmalar Katie Selvarah
2. Thenmalar Victoria Richard
3. Krishnamurthy
4. S.K.L. Bus Service
Rep by its proprietor
Mr.K.P. Sudhakar
5. National Insurance Company ... Respondents in both C.M.A's
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
Vehicles Act, 1988 against the Judgment and decree dated 23.8.2000 made
in M.C.O.P.Nos.2083 & 2084 of 1996 on the file of the Motor Accident
Claims Tribunal (in the Chief Court of Small Causes), Chennai.
For Appellant : Mr.S.Thirumavalavan
For Respondents : Mr.S. Vadivel for R5
Ms.G.Sumitra for R1 & R2
No appearance for R3 & R4
COMMON JUDGMENT
Since the issues involved in all these Appeals are one and the same
and pertains to the accident that occurred on 03.06.1992, they are taken up
and disposed of by common Judgment.
2. C.M.A.Nos.38 and 39 of 2001 have been filed by the Claimants
filed for enhancement of compensation granted by the award dated
23.08.2000 made in M.A.C.T.O.P. Nos.2083 and 2084 of 1996, on the file
of the Motor Accident Claims Tribunal cum Chief Judge, Small Causes
Court, Chennai.
3. C.M.A.Nos. 171 & 850 of 2001 have been filed by the National
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
Insurance company to set aside the award dated 23.08.2000 made in
M.A.C.T.O.P. Nos.2083 and 2084 of 1996, on the file of the Motor
Accident Claims Tribunal cum Chief Judge, Small Causes Court, Chennai.
4. C.M.A. Nos. 1467 & 1468 of 2002 have been filed by the The
Tamil Nadu Veterinary and Animal Science University seeking to exonerate
them from liability fixed vide award dated 23.08.2000 made in
M.A.C.T.O.P. Nos.2083 and 2084 of 1996, on the file of the Motor
Accident Claims Tribunal cum Chief Judge, Small Causes Court, Chennai.
5.For the sake of convenience, the parties herein are referred to as
Claimants, Insurance Company and University, in the Appeal.
6. The Claimants filed M.A.C.T.O.P. No.2083 of 1996 before the
Tribunal claiming a sum of Rs.20,00,000/- as compensation for the death of
their father and filed M.A.C.T.O.P No. 2084 of 1996, claiming a sum of
Rs.10,00,000/- as compensation for the death their mother.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
7.According to Claimants, on 03.06.1992, when the deceased viz.,
mother and father of the Claimants were travelling in the car, the driver of
the car tried to overtake the bullock cart which was going infront of them, at
that time the Tourist Bus came in the opposite direction and dashed against
the car and caused the accident. Due to which, the father of the Claimants
died on the spot and the mother of the Claimants died on the way to
Hospital. Therefore, the claimants filed the said claim petitions claiming
compensation as stated supra.
8. On consideration of the oral and documentary evidence available
on record, the Tribunal held that the accident occurred due to the rash and
negligent driving by the driver of the car, in which the deceased were
travelling and the driver of the tourist bus and awarded a sum of
Rs.11,32,880/- and Rs.1,27,300/- as compensation to the Claimants on
account of the death of the Father and Mother of the Claimants respectively,
payable by the Insurance Company and the University. Details of the
compensation awarded by the Tribunal are as follows :
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C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
M.A.C.T.O.P. No.2083 of 1996:
Amount awarded by
Heads
the Tribunal (Rs.)
Loss of income 11,27,880/-
Loss of Estate 2,500/-
Funeral Expenses 2,500/-
Total Rs.11,32,880/-
M.A.C.T.O.P. Nos.2084 of 1996:
Amount awarded by
Heads
the Tribunal (Rs.)
Loss of income 1,24,800/-
Funeral Expenses 2,500/-
Total Rs.1,27,300/-
9. The aforesaid compensation amount were directed to be paid by the
Insurance Company and the University.
10. The Claimants are the Legal heirs of the deceased. They filed the
aforesaid M.A.C.T.O.P's claiming compensation on account of the death of their
parents, caused due to the alleged accident.
11.The main contention of the learned counsel for the University is that the
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C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
Tribunal failed to consider the evidence of P.W.2 and fixed 50% negligence on
the driver of the car belonging to the University and hence the University is not
liable to pay the compensation to the Claimants. He further submitted that the car
was insured with the National Insurance Company and in support of the same, the
Xerox copy of the Insurance Policy was marked as Ex.R5 before the Tribunal and
the same was valid from 24.04.1992 to 23.04.1993 and therefore when there is a
valid policy in which premium has been paid, apart from that though a specific
plea with regard to the same has been made in the counter filed by the University
before the Tribunal, the Claims Tribunal erred in fixing liability on the University
while the vehicle bearing No.TMU 5793 was insured with the National Insurance
Company. He further submitted that the Tribunal ought to have taken note of
Ex.R5, ought to have directed the Insurance Company to pay the compensation
and ought not to have foisted liability on the University.
12. The learned counsel Insurance Company contended that the Claims
Tribunal failed to consider the evidence of R.W.1 who is the driver of the Bus. He
further submitted that the Claims Tribunal failed to note the fact that P.W.2 did not
drive the car and it was driven by the deceased viz., father of the claimants and
P.W.2 was seated in rear seat and hence the Insurance company is not liable to pay
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C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
the compensation to the Claimants. He further submitted that though the
Tribunal rendered categorical finding that both the drivers are responsible for the
accident, in the absence of plea with regard to the Insurance taken with validity of
the policy 50% of the liability foisted on the Insurance Company cannot be shifted
to the Insurance Company.
13. The learned counsel for the Claimants contended that the total
compensation awarded to the Claimants under various heads are very meagre and
the same needs to be enhanced. According to the learned counsel for the
Claimants, the passengers are not at all responsible for the accident and that they
only are victim of circumstances and therefore they are entitled for enhancement
of compensation.
14. Heard the learned counsel for the parties and perused the
material documents available on record.
15. The Tribunal based on the certificate produced by the Claimants viz.,
Ex.P11 - Salary Certificate of the father of the claimants and Ex.P13- Salary
certificate of the mother of the claimants has rightly fixed a sum of Rs.10,846/- per
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C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
month as income of the father of the Claimants and a sum of Rs.1,200/- per month
as income of mother of the claimants. After deducting 1/3 towards personal
expenses, by adopting multiplier 13,the loss of income of the father of the
claimants was fixed at Rs.11,27,880/-(10,846x12x13 - 1/3) and mother of
the claimants was fixed at Rs.1,24,800/-(1200 x 12 x13 - 1/3) and the same
is reasonable and does not warrant interference. Further, the compensation
awarded towards other heads are also reasonable.
16. The Tribunal while considering the issue with regard to the nature of
the accident and fastening liability has rightly held that driver of both the vehicles
have driven the vehicle in a rash and negligent manner and foisted liability @ 50%
each. Though the Insurance Company have not taken a plea about the non filing
of the valid policy by the owner of the bus admitted that there was a valid policy
and therefore the Tribunal has granted compensation by directing the Insurance
Company to pay 50% of the compensation.
17. It is no doubt true that the University has not taken any plea with regard
to the Insurance. The main plea taken by them is that they are not necessary
parties to the case on hand and they must be discharged from the liability on the
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C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
ground of mis joinder of necessary parties and sought to delete from array of
parties. The technicality shall not come into play for depriving the compensation
and foisting the liability on the Insurance Company. Admittedly, both the bus and
the car were registered with the Insurance Company. Further, the University in its
counter has stated that the Ambassador Car was insured with the National
Insurance Company and it has the valid Insurance Policy and the copy of the same
was marked as Ex.R5. Therefore when two vehicles have been insured in two
different places of the National Insurance Company and when the matters are tried
together and when both the vehicles are insured with the same Insurance Company
and when the accident is not in dispute the compensation will have to be paid
only by the Insurance Company and not by the University.
18. In view of the same, this Court holds that the Insurance Company alone
is liable to pay compensation to the Claimants.
19. As far as the contention raised by the Insurance Company that P.W.2
did not drive the car and it was driven by the deceased viz., father of the claimants
and P.W.2 was seated in rear seat of the car, the same was not supported by any
oral or documentary evidence and considering the overall facts and circumstances
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C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
of the case, the Insurance Company cannot be exonerated from liability.
20. In the result, C.M.A Nos. 38 and 39 of 2001, filed by the Claimants as
well the C.M.A.Nos.171 and 850 of 2001 are dismissed. No costs. The Insurance
Company is directed is directed to deposit the entire amount awarded by the
Tribunal together with interest at 7.5% per annum from the date of the
Claim Petition till the date of realization, less the amount, if any, already
deposited to the credit of M.A.C.O.P.Nos.2083 and 2084 of 1996 on the file
of the Motor Accidents Claims Tribunal,(in the Chief Court of Small
Causes) Chennai, within a period of four months from the date of receipt of
a copy of this Judgment. On such deposit being made, the Tribunal is
directed to transfer the Award amount directly to the Bank account of the
Respondents/Claimants through RTGS as per their respective shares,
apportioned by the Tribunal, within a period of two weeks thereafter.
21. C.M.A.Nos.1467 and 1468 of 2002 filed by the University are allowed.
No costs. The University is exonerated from paying the compensation. Any
deposit made by the University shall be refunded to the University with accrued
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C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
interest.
25.08.2021
Index : Yes / No
Speaking Order : Yes / No
(arr)/(shk)
To:
1. Motor Accident Claims Tribunal
(in the Chief Court of Small Causes)
Chennai.
2. The Section Officer,
V.R. Section,
High Court of Madras,
Chennai 600 104.
S.VAIDYANATHAN,J.
(arr)/(shk)
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.38, 39, 171, 850 of 2001 and
C.M.A.Nos.1467 & 1468 of 2002
C.M.A.Nos.38, 39, 171, 850 of 2001
and
C.M.A.Nos.1467 & 1468 of 2002
25.08.2021
https://www.mhc.tn.gov.in/judis
