Madras High Court
Santhi vs J.Charles on 3 December, 2021
C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.Nos.1958 of 2013 and
456, 748, 2180 of 2014
Santhi .. Appellant in C.M.A.No.1958 of 2013
Sathya .. Appellant in C.M.A.No.456 of 2014
Ellammal .. Appellant in C.M.A.No.748 of 2014
1.Ellammal
2.Krishnaveni
3.Arumugam .. Appellants in C.M.A.No.2180 of 2014
Vs
1.J.Charles
2.The Manager,
National Insurance Co. Ltd.,
No.751, Anna Salai,
III rd floor,
Chennai 600 002.
3.Muthu .....Respondents in all C.M.As.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the judgment and decree dated
26.11.2009 made in M.C.O.P.Nos.5139, 5138, 5136 & 5140 of 2003 on the
file of the Motor Accident Claims Tribunal, Additional District Court (Fast
Track Court No.II), Chennai.
In all C.M.As.
For Appellant : Mr.Amar D Pandiya
In C.M.A.Nos.1958 of 2013, 456 and 748 of 2014
For Respondents : Mr.M.Krishnamoorthy for R2
R1 - No appearance
R3 – Died
In C.M.A.No.2180 of 2014
For Respondents : Mr.S.Vadivel for R2
R1 – No appearance
R3 - Died
COMMON JUDGMENT
These Civil Miscellaneous Appeals have been filed by the
appellants/claimants against the common award dated 26.11.2009 made in
M.C.O.P.Nos.5139, 5138, 5136 & 5140 of 2003 on the file of the Motor
Accident Claims Tribunal, Additional District Court (Fast Track Court No.II),
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
2.All the appeals arise out of the same accident and common award and
hence, they are disposed of by this common judgment.
3.The appellants in all the appeals are claimants in M.C.O.P. Nos.
5139, 5138, 5136 & 5140 of 2003, on the file of the Motor Accident Claims
Tribunal, Additional District Court, (Fast Track Court No.II), Chennai. The
appellants in C.M.A.Nos.1958 of 2013 & 456 and 748 of 2014 filed the said
claim petitions claiming a sum of Rs.50,000/- each as compensation for the
injuries sustained by them in the accident that took place on 05.01.2003. The
appellants/legal heirs of the deceased Dhanapal in C.M.A.No.2180 of 2014
filed the said claim petition claiming a sum of Rs.3,00,000/- as compensation
for the death of one Dhanapal who died in the same accident.
4.According to the appellants, on 05.01.2003 at about 04.00 a.m.,
while the appellants and deceased Dhanapal were travelling in a auto from
Puliyanthoppu to Koyambedu, the driver of the auto drove the same in a rash
and negligent manner. Due to which, the auto toppled. In the accident, the
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C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
appellants and 2 others sustained injuries and one Dhanapal died. According
to the appellants, the accident occurred due to rash and negligent driving by
the driver of the auto beloning to the respondents 1 and 3 and insured with
the 2nd respondent. The appellants and legal heirs of the deceased Dhanapal
claimed compensation depending upon the age, occupation and income of the
injured/deceased against the respondents.
5.The respondents 1 and 3, who are the owners of the auto remained
exparte before the Tribunal.
6.The 2nd respondent/Insurance Company filed counter statement,
denying all the averments made in the claim petitions and stated that the 2nd
respondent is not liable to pay compensation as driver of the auto did not
possess badge endorsement to drive the transport vehicle. The 2 nd respondent
further stated that permitted capacity of the auto is 3 passengers + 1 driver. At
the time of accident, 9 persons traveled in the auto. The 1 st respondent
committed breach of policy conditions by entrusting the auto to the person,
who did not possess valid driving license to drive passengers vehicle and
permitted him to carry more number of persons than permitted capacity and
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C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
thereby violated statutory and policy conditions. Originally, the appellants
contended that the 1st respondent is owner of the auto. Subsequently, they
impleaded 3rd respondent as owner of the auto as he purchased the auto from
the 1st respondent. The Registration Certificate of the auto is in the name of
the 1st respondent and Insurance Policy is in the name of the 3 rd respondent
and prayed for dismissal of all the three claim petitions.
7.Before the Tribunal, wife of the deceased Dhanapal was examined as
P.W.1, appellants in C.M.A.Nos.1958 of 2013 and 456 & 748 of 2014 were
examined as P.W.2 to P.W.4, Dr.Thiyagarajan was examined as P.W.5 and
marked 16 documents as Exs.P1 to P16. The 2nd respondent/Insurance
Company examined 3 witnesses as R.W.1 to R.W.3 and marked 3 documents
as Exs.R1 to R3.
8.The Tribunal considering the pleadings, oral and documentary
evidences held that the accident occurred only due to rash and negligent
driving by the driver of the auto. The Tribunal considering the fact that the
driver of the auto did not possess badge endorsement to drive the transport
vehicle and carried more than permitted capacity and committed violation of
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C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
policy conditions, directed the respondents 1 and 3, owners of the auto to
jointly and severally pay a sum of Rs.7,500/-, Rs.35,000/- , Rs.5,000/- and
Rs.2,12,000/- respectively as compensation to the appellants and dismissed
the claim petitions as against the 2nd respondent/Insurance Company.
9.Challenging the portion of award dismissing the claim petitions
against the 2nd respondent/Insurance Company and for enhancement of
compensation, the present appeals have been filed by the appellants.
10.The learned counsel appearing for the appellants contended that the
appellants are third parties, the 2nd respondent is liable to pay compensation as
the policy was in force at the time of accident. The Tribunal erred in
dismissing the claim petitions as against the 2nd respondent/Insurance
Company from its liability on the ground that the driver of the auto did not
possess badge endorsement to drive the transport vehicle. The Tribunal ought
to have ordered pay and recovery and prayed for a direction to the 2nd
respondent/Insurance Company to pay compensation. The Tribunal erred in
awarding only meagre amounts as compensation to the appellants without
considering the age, occupation and nature of injuries sustained by the
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C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
appellants as well as the deceased and prayed for enhancement of
compensation.
11.The 2nd respondent/Insurance Company contended that at the time of
accident, more number of persons than permitted capacity traveled in the
auto. The permitted capacity is 3+1 and at the time of accident, 9 persons
have traveled in the auto. Hence, the owner of the auto has violated permit
and policy conditions. The Tribunal considering the judgment of the Hon'ble
Apex Court and this Court, rightly dismissed the claim petitions as against the
2nd respondent/Insurance Company. In any event, the 2nd respondent/Insurance
Company is liable only to the risk of three persons to whom the Insurance
Policy was issued. In support of his contention, he relied on the judgments of
the Hon'ble Apex Court as well as the Division Bench of this Court reported in
2004 ACJ 140[M.Anandavalliamma and others Vs. Aravind Eye Hospital
and another] and 2007 (2) TNMAC 202 [Thirumalainayagam and another
Vs. Dheeran Chinnamalai Transportation] and submitted that carrying more
number of persons is also a reason for the accident. In the present case, the
owner of the auto has carried more passengers than the permitted capacity
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C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
and hence, he is only responsible for the accident. Hence, the 2nd
respondent/Insurance Company is not liable to pay compensation. The total
compensations awarded by the Tribunal are not meagre and the appellants
have not made out any case for enhancement of compensations and prayed for
dismissal of the appeals.
12.Though notice has been served on the 1st respondent and his name is
printed in the cause list, there is no representation for him either in person or
through counsel.
13.Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the 2nd respondent/Insurance Company and
perused the entire materials available on record.
14.The claim petitions are filed by the appellants, claiming
compensation for the injuries and death of Dhanapal against the respondents.
The Tribunal dismissed the claim petitions as against the 2 nd
respondent/Insurance Company on two grounds viz., the driver of the auto did
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C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
not possess badge endorsement to drive the transport vehicle and at the time
of accident, 9 persons have traveled in the auto which is more than the
permitted capacity of 3 passengers + 1 driver. In the two judgments relied on
by the learned counsel for the 2 nd respondent, the Hon'ble Apex Court as well
as this Court has held that when more number of persons than permitted
capacity of persons travelled in a vehicle, the Insurance Company is liable to
pay compensation only with regard to the permitted number of persons and
Insurance Company cannot be exonerated from their liability. In the present
case, at the time of accident, 9 persons have traveled and claimed
compensation. As per the above two judgments, the Insurance Company is
liable to pay highest three compensations awarded by the Tribunal and the
same has to be disbursed proportionately to all the appellants. In view of the
judgments of the Hon'ble Apex Court as well as the Division Bench of this
Court cited supra, the award of the Tribunal is modified directing the 2nd
respondent/Insurance Company to deposit highest three compensations viz.,
Rs.2,12,000/-, Rs.35,000/- and Rs.7,500/- to the credit of claim petitions. The
appellants are entitled to recover the balance amount viz., Rs.5,000/-
(M.C.O.P.No.5136 of 2003) from the owners of the vehicle viz., respondents
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C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
1 and 3. On such deposit, the Tribunal is directed to disburse the same to all
the appellants in proportionate to the compensation awarded to them.
15.As far as possessing badge endorsement is concerned, the said
reasoning of the Tribunal is no longer available to the Insurance Company.
This issue was decided by the Hon'ble Apex Court in the judgment reported in
2017 (4) SCC 663 (Mukund Dewangan vs. Oriental Insurance Company
Ltd.), wherein the Hon'ble Apex Court has held that if a person holds a license
to drive a particular class of vehicle with specified weight of the vehicle, he
can drive all the vehicles in that particular class including transport vehicle.
The badge endorsement is not necessary to drive the transport vehicle, if a
person possess valid driving license to drive that particular class of vehicle. In
the present case, the driver of the auto possessed driving license to drive light
motor vehicle but he did not obtain badge to drive transport vehicle. As per
the judgment of the Hon'ble Apex Court referred to above, not obtaining and
possessing badge endorsement will not make the driving license possessed by
the driver invalid to drive the transport vehicle in the particular class for which
the persons have obtained license. In view of the judgment of the Hon'ble
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C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
Apex Court referred to above, the Insurance Company is liable to pay
compensation awarded by the Tribunal.
16.In the result, this Civil Miscellaneous Appeals are partly allowed and
the 2nd respondent/Insurance Company is directed to deposit highest three
compensations viz., Rs.2,12,000/-, Rs.35,000/- and Rs.7,500/- together with
interest at the rate of 7.5% per annum from the date of filing of the appeal i.e.,
27.02.2014, till the date of deposit, along with interest and costs, within a
period of eight weeks from the date of receipt of a copy of this judgment. The
owners/respondents 1 and 3 are directed to deposit the balance compensation
amount viz., Rs.5,000/- (M.C.O.P.No.5136 of 2003) together with interest at
the rate of 7.5% per annum from the date of filing of the appeal i.e.,
27.02.2014, till the date of deposit, along with interest and costs, within a
period of eight weeks from the date of receipt of a copy of this judgment, to
the credit of M.C.O.P.No.5136 of 2003. On such deposit, the Tribunal is
directed to disburse the same to all the appellants in proportionate to the
compensation awarded to them. The appellants in C.M.A.Nos.1958 of 2013
and 456 & 748 of 2014, are permitted to withdraw the award amount, along
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C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
with interest and costs, as per the apportionment fixed by the Tribunal, after
adjusting the amount, if any already withdrawn, by filing necessary
applications before the Tribunal. The appellants in C.M.A.No.2180 of 2014
are permitted to withdraw their share of the award amount, along with
proportionate interest and costs, as per the apportionment fixed by the
Tribunal, after adjusting the amount, if any already withdrawn, by filing
necessary applications before the Tribunal. The respondents 1 and 3, owners
of the auto are permitted to withdraw the award amount, lying in the deposit
to the credit of M.A.C.T.O.P.Nos.5139, 5138 and 5140 of 2003, if the entire
award amount has already been deposited by them. No costs.
03.12.2021
Index : Yes / No
vkr
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
To
1.Additional District Court,
Fast Track Court No.II,
The Motor Accident Claims Tribunal
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1958 of 2013 and 456, 748 & 2180 of 2014
V.M.VELUMANI, J.,
vkr
C.M.A.Nos.1958 of 2013 and
456, 748, 2180 of 2014
03.12.2021
https://www.mhc.tn.gov.in/judis
