Madras High Court
Roseli vs Sharfudeen on 13 December, 2021
C.M.A.Nos.896 & 897 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.Nos.896 & 897 of 2015
1.Roseli
2.Minor. Duena
3.Minor. Deena
(Minor appellants 2 & 3 are represented
by their Guardian / Next Friend / Mother
Roseli, 1st appellant herein)
4.Mary
5.Mathai .. Appellants
[in C.M.A.No.896 of 2015]
M.Kangamuthu .. Appellant
[in C.M.A.No.897 of 2015]
Vs.
1.Sharfudeen
2.The United India Insurance Company Limited,
No.11/392, Shop No.3 – Golden Complex,
Calicut road,
Gudalur,
The Nilgiris District. .. Respondents
[in both appeals]
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated
16.04.2012 made in M.C.O.P.Nos.666 & 799 of 2010 on the file of the Motor
Accident Claims Tribunal, Sub Court, Sathyamangalam.
For Appellant(s) : Mr.Ma.P.Thangavel
For R1 : No appearance
For R2 : Ms.I.Malar
COMMON JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”.)
These Civil Miscellaneous Appeals are filed against the awards dated
16.04.2012 made in M.C.O.P.Nos.666 & 799 of 2010 on the file of the Motor
Accident Claims Tribunal, Sub Court, Sathyamangalam.
2.Both the appeals are arising out of the same accident and hence, they
are disposed of by this common judgment.
3.According to appellants in both the appeals, on 06.05.2010 at about
01.30 hours, while appellant in C.M.A.No.897 of 2015 was travelling in the
Jeep bearing Registration No.TN 72 F 4545, which was driven by the
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
deceased Wilson @ Thomas from Thiruppur to Gudalore on the Ooty –
Gudalur Main Road at a moderate speed and at that time, an unknown vehicle
came in the opposite direction with high speed in a rash and negligent manner
without blowing horn and not observing the road rules. Therefore, to avoid
the major accident, the deceased Wilson @ Thomas, who was driving the
Jeep suddenly turned the Jeep on the left side of the road and due to the same,
the Jeep lost its control and upset on the road side and thus, the accident
occurred. In the accident, the said Wilson @ Thomas sustained fatal injuries
and died on the spot and the appellant in C.M.A.No.897 of 2015 sustained
multiple grievous injuries on the left knee, nose, head, right leg, abdomen and
all over the body. Immediately after the accident, the appellant in
C.M.A.No.897 of 2015 was taken to Government Hospital, Ooty and
thereafter shifted to CMC Hospital, Coimbatore and at Private Hospital.
Therefore, the appellants in C.M.A.No.896 of 2015 filed claim petition in
M.C.O.P.No.666 of 2010 under Section 163(A) of the Motor Vehicles Act,
claiming a sum of Rs.12,00,000/- as compensation for the death of the said
Wilson @ Thomas and the appellant in C.M.A.No.897 of 2015 filed claim
petition in M.C.O.P.No.799 of 2010 under Section 166 of the Motor Vehicles
Act, claiming a sum of Rs.5,00,000/- as compensation for the injuries
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
sustained by him against the respondents.
4.The 1st respondent in both the appeals, remained exparte before the
Tribunal.
5.The 2nd respondent-Insurance Company, being the insurer of the Jeep
filed separate counter statements in both the claim petitions and denied all the
averments made by the claimants in both the claim petitions. According to the
2nd respondent, the accident has occurred only due to the negligence on the
part of the deceased, who only drove the Jeep in a rash and negligent manner
and caused the accident. At the time of accident, six persons traveled in the
Jeep in violation of policy conditions as well as Motor Vehicles Act. The
appellants in C.M.A.No.896 of 2015 have to prove that they are the legal
heirs of the deceased by producing valid documents. At the time of accident,
the driver of the Jeep was not having valid driving license to drive the Jeep
and hence, the 2nd respondent is not liable to pay any compensation to the
claimants in both the claim petitions. The 2nd respondent denied the age,
avocation and income of both the deceased as well as appellant in
C.M.A.No.897 of 2015 and the nature of injuries, disability and period of
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
treatment taken by the appellant in C.M.A.No.897 of 2015. In any event, the
quantum of compensation claimed by the claimants in both the claim
petitions are highly excessive and prayed for dismissal of both the claim
petitions.
6.Before the Tribunal, the 1st appellant in both the appeals examined
themselves as P.W.1 & P.W.2 respectively and Dr.Thambiraj was examined
as P.W.3 and 9 documents were marked as Exs.P1 to P9. On behalf of the 2 nd
respondent-Insurance Company, two witnesses were examined as R.W.1 and
R.W.2 and two documents were marked as Exs.R1 & R2.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred due to negligence on the part of
the driver of the Jeep and directed the 1st respondent – owner of the Jeep to
pay a sum of Rs.4,85,000/- and Rs.60,000/- as compensation to the appellants
in both the appeals respectively. The Tribunal dismissed the claim petitions
as against the 2nd respondent-Insurance Company on the ground that the
driver of the Jeep was not possessing valid driving license on the date of
accident.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
8.Challenging the said common award dated 16.04.2012 made in
M.C.O.P.Nos.666 & 799 of 2010 dismissing the claim petition as against the
2nd respondent as well as for enhancement of compensation, the appellants
have come out with the present appeals.
C.M.A.No.896 of 2015:
9.The learned counsel appearing for the appellants contended that the
award of the Tribunal exonerating the 2nd respondent-Insurance Company on
the ground that the driver of the Jeep did not possess driving license is
erroneous. The Tribunal failed to see that the deceased in order to avoid the
accident with the oncoming vehicle, turned the Jeep and unfortunately the
Jeep capsized. Due to the injuries sustained by the driver in the accident, he
died. In a claim petition filed under Section 163(A) of the Motor Vehicles
Act, the claimants need not prove the negligence and therefore, the appellants
are entitled to compensation. The Tribunal erroneously dismissed the claim
petitions as against the Insurance Company on the ground that owner of the
vehicle remained exparte before the Tribunal. The learned counsel appearing
for the appellants further submitted that the deceased was employed as Driver
and was earning a sum of Rs.9,000/- per month at the time of accident. The
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
Hon'ble Apex Court has fixed a sum of Rs.12,000/- as monthly income and
granted 30% enhancement towards future prospects for the accident
happened in the year 2011. The compensation awarded by the Tribunal
towards loss of love and affection, loss of consortium, funeral expenses and
transportation are meagre. The Tribunal has not granted any amount towards
loss of estate.
C.M.A.No.897 of 2015:
10.The learned counsel appearing for the appellant further submitted
that though the appellant filed claim petition in M.C.O.P.No.799 of 2010
under Section 166 of the Motor Vehicles Act, to do the complete justice, this
Court empowered to award compensation under Section 163(A) by moulding
the relief. Being the occupant of the Jeep, the appellant also sustained
grievous injuries, fracture in the left leg and he has taken treatment as
inpatient from 08.05.2010 to 05.06.2010. The appellant was a Mason Coolie,
was aged 48 years and was earning a sum of Rs.7,500/- per month at the time
of accident. The Tribunal ought to have fixed a sum of Rs.12,000/- as
monthly income and granted 30% enhancement towards future prospects. The
compensation awarded by the Tribunal in both the cases are very low and
prayed for setting aside the portion of the award dismissing the claim petition
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
as against the Insurance Company and for enhancement of compensation.
11.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the deceased was a tort feasor and he is
responsible for the accident and hence, the legal heirs of the deceased tort
feasor are not entitled to get compensation. The policy issued by the 2nd
respondent-Insurance Company is 'Act Only Policy'. The occupants of Jeep
are not covered under the policy issued by the 2nd respondent-Insurance
Company. It covers only third party liability. No premium was collected to
cover the risk of Personal Accident coverage and therefore, Insurance
Company is not liable to pay any compensation. The Tribunal considering the
entire materials, rightly dismissed the claim petitions as against the 2nd
respondent-Insurance Company and prayed for dismissal of both 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 in both the
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
appeals as well as the learned counsel appearing for the 2nd respondent and
perused the entire materials on record.
14.As far as appellants in C.M.A.No.896 of 2015 are concerned, they
have filed claim petition under Section 163(A) of the Motor Vehicles Act.
The reason for enacting Section 163(A) is for speedy disposal of claim
petition and therefore, certain guidelines have been formulated. In the claim
petition filed under Section 163(A) of the Motor Vehicles Act, the claimants
need not plead and prove the negligence on the part of the driver or owner of
the vehicle. This being a special provision, a limit has been fixed with regard
to income of the deceased or injured. The claimants in case of death can
maintain the claim petition under Section 163(A), only if annual income of
the deceased is Rs.40,000/- or less. The appellants in C.M.A.No.896 of 2015
in the claim petition have stated that deceased was earning a sum of
Rs.9,000/- per month. In the grounds raised in C.M.A.No.896 of 2015, the
appellants have stated that as per the judgment of the Hon'ble Apex Court,
the Tribunal ought to have fixed a monthly income of the deceased at
Rs.12,000/-. As per this claim of appellants, the annual income of the
deceased will be more than Rs.40,000/-. The Tribunal, in the absence of any
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
evidence with regard to monthly income of the deceased, fixed monthly
income of the deceased at Rs.4,000/- which would come to Rs.48,000/- per
annum, which exceeds the maximum limit of the annual income fixed under
Section 163(A) of the Motor Vehicles Act. The Honb'le Apex Court in the
judgment reported in 2004 (1) TN MAC (SC) 193 [Deepal Girishbhai Soni
and others Vs. United India Insurance Co. Ltd., Baroda], held that the
proceedings under Section 163-A of the Act being a social security provision,
providing for a distinct scheme, only those persons whose annual income is
up to Rs.40,000/- can take the benefit, invoking the provisions of Section
163-A of the Act. As per the judgment of the Hon'ble Apex Court reported in
2004 (1) TN MAC (SC) 193, cited supra, when the annual income of the
deceased or injured is more than Rs.40,000/-, the claim petition under Section
163(A) is not maintainable. In view of the fact that annual income of the
deceased is more than Rs.40,000/- and the judgment of the Hon'ble Apex
Court referred to above, the appellants in C.M.A.No.896 of 2015 are not
entitled to compensation in the claim petition filed under Section 163(A) of
the Motor Vehicles Act.
15.As far as appellant in C.M.A.No.897 of 2015 is concerned, he was
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
an occupant of the Jeep at the time of accident. It is submitted by the learned
counsel for the 2nd respondent that policy taken by the owner of the vehicle is
only Act Policy. In the Act Policy, the liability of Insurance Company is only
with regard to third parties. The risk of occupants of four wheeler is not
covered under the Act Policy. Unless the owner of the vehicle pays extra
premium to cover the risk of occupants of the four wheeler, the Insurance
Company is not liable to pay any compensation to the occupants of the four
wheeler in the accident.
16.In the present case, it is the case of the appellant in C.M.A.No.897
of 2015 that owner of the Jeep paid extra premium to cover the risk of the
occupants and driver of the Jeep. On perusal of Ex.R2/Insurance Policy, it is
seen that there is no extra premium paid by the owner to cover the risk of
driver or occupant of the car. Hence, the appellant is not entitled for any
compensation under Personal Accident coverage. In view of the same, there
is no error in the order of the learned Judge warranting interference by this
Court.
17.In the result:
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
(i) C.M.A.No.896 of 2015 is dismissed and the compensation awarded
by the Tribunal at Rs.4,85,000/- along with interest and costs is confirmed.
The 1st respondent is directed to deposit the award amount along with interest
and costs, less the amount if any already deposited, 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.666 of 2010 on the file of the Motor Accident Claims Tribunal,
Sub Court, Sathyamangalam. On such deposit, the appellants 1, 4 & 5 are
permitted to withdraw their respective share of the award amount as per the
ratio of apportionment fixed by the Tribunal along with proportionate interest
and costs after adjusting the amount, if any already withdrawn, by filing
necessary applications before the Tribunal. The share of the minor appellants
2 & 3 are directed to be deposited in any one of the Nationalized Banks, till
the minor appellants 2 & 3 attain majority. On such deposit, the 1st appellant,
being the Mother of the minor appellants 2 & 3 is permitted to withdraw the
accrued interest once in three months for the welfare of the minor appellants
2 & 3.
(ii)C.M.A.No.897 of 2015 is dismissed and the compensation awarded
by the Tribunal at Rs.60,000/- along with interest and costs is confirmed. The
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
1st respondent is directed to deposit the award amount along with interest and
costs, less the amount if any already deposited, 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.799 of 2010 on the file of the Motor Accident Claims Tribunal,
Sub Court, Sathyamangalam. On such deposit, the appellant is permitted to
withdraw the award amount along with interest and costs after adjusting the
amount, if any already withdrawn, by filing necessary applications before the
Tribunal. No costs.
13.12.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The learned Subordinate Judge,
Motor Accident Claims Tribunal,
Sathyamangalam.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
krk
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.896 & 897 of 2015
C.M.A.Nos.896 & 897 of 2015
13.12.2021
https://www.mhc.tn.gov.in/judis
