Madras High Court
The Branch Manager vs K.Vadivelu on 21 December, 2021
C.M.A.No.1011 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1011 of 2013
and
M.P.No.1 of 2013
The Branch Manager
Royal Sundaram Alliance
Insurance Company Limited
No.127, II floor
Natesan Towers, Natesan nagar
Ellapillaichavady
Pondicherry. .. Appellant
Vs.
1.K.Vadivelu
2.R.Udayakumar .. Respondents
(R2 set exparte before the Tribunal)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 31.08.2012 made
in M.A.C.T.O.P.No.368 of 2011 on the file of Motor Accident Claims
Tribunal, Principal Sub Court, Tindivanam.
For Appellant : Mrs.R.Sreevidhya
1/15
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C.M.A.No.1011 of 2013
For R1 : Mr.M.R.Thangavel
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the judgment and decree dated
31.08.2012 made in M.A.C.T.O.P.No.368 of 2011 on the file of Motor
Accident Claims Tribunal, Principal Sub Court, Tindivanam.
2.The appellant is 2nd respondent/Insurance Company in
M.A.C.T.O.P.No.368 of 2011 on the file of Motor Accident Claims Tribunal,
Principal Sub Court, Tindivanam. The 1st respondent filed the said claim
petition claiming a sum of Rs.13,00,000/- as compensation for the injuries
sustained by him in the accident that took place on 02.05.2011.
3.According to the 1st respondent, he was employed under the 2 nd
respondent as driver. On the date of accident i.e., on 02.05.2011 at about 9.30
a.m., during the course of his employment, while the 1st respondent was
driving the lorry belonging to the 2nd respondent, near Valacherry patti
junction road in Trichy to Madurai Main Road, he dashed on the back side of
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C.M.A.No.1011 of 2013
the stationed lorry and caused the accident. In the accident, he sustained
grievous injuries all over the body. Therefore, the 1st respondent filed the
above claim petition claiming compensation against the 2nd respondent and
appellant, owner and insurer of the lorry respectively.
4.The 2nd respondent, owner of the lorry, remained exparte before the
Tribunal.
5.The appellant/Insurance Company filed counter statement denying
the averments made in the claim petition and stated that there is a delay in
lodging the complaint before the Police. The accident has occurred only due to
negligence on the part of the 1st respondent. In any event, he contributed
negligence to the accident. The 1st respondent did not possess valid driving
license and the insurance policy was not in force at the time of accident.
Therefore, the appellant/Insurance Company is not liable to pay any
compensation to the 1st respondent. The appellant/Insurance Company has
also denied the age, avocation, income and injuries sustained by the 1st
respondent. In any event, the compensation claimed by the 1st respondent is
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C.M.A.No.1011 of 2013
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1
and Dr.Sekar was examined as P.W.2 and marked seven documents as Exs.P1
to P7. The appellant/Insurance Company did not let in any oral and
documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred due to negligence on the part of
the 1st respondent and directed both the 2nd respondent, owner of the lorry as
well as the appellant/Insurance Company being insurer of the said lorry to pay
a sum of Rs.2,98,218/- as compensation to the 1st respondent.
8.Against the said award dated 31.08.2012 made in
M.A.C.T.O.P.No.368 of 2011, the appellant/Insurance Company has come out
with the present appeal.
9.The learned counsel appearing for the appellant/Insurance Company
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C.M.A.No.1011 of 2013
contended that the Tribunal erred in fastening liability on the appellant
holding that the 1st respondent had hit the stationed lorry parked due to the
tyre burst. The 1st respondent was the tort-feasor and therefore, the claim
petition filed by him is not maintainable and prayed for setting aside the
award of the Tribunal.
10.Per contra, the learned counsel appearing for the 1 st respondent
contended that the 1st respondent was working as a driver under the 2nd
respondent and the accident has occurred, during the course of his
employment. The lorry belonging to the 2nd respondent was insured with the
appellant/Insurance Company at the time of accident and hence, the appellant
is liable to pay compensation. The Tribunal has rightly held that the 2nd
respondent and appellant, owner and insurer of the lorry are liable to pay
compensation to the 1st respondent and prayed for dismissal of the appeal.
11.The 2nd respondent remained exparte before the Tribunal and hence,
notice to the 2nd respondent is dispensed with.
12.Heard the learned counsel for the appellant/Insurance Company,
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C.M.A.No.1011 of 2013
who appeared before this Court physically as well as the learned counsel
appearing for the 1st respondent through Video-conferencing/Hybrid mode and
perused the entire materials available on record.
13.From the materials on record, it is seen that 1st respondent was
driver of the lorry belonging to the 2nd respondent. On the date of accident, i.e.
on 02.05.2011, while the 1st respondent was driving the said lorry, he dashed
on the back side of the stationed lorry and caused the accident. In the
accident, he sustained injuries all over the body including fracture. He filed
claim petition under Section 163A of the Motor Vehicles Act claiming
compensation for the injuries sustained by him against the 2 nd respondent,
who is his employer and appellant, insurer of lorry. The Tribunal considering
the evidence let in by the 1st respondent as P.W.1 and Ex.P1/F.I.R., held that
accident has occurred due to rash and negligent driving by the 1st respondent.
From this finding of the Tribunal, it is seen that 1st respondent is the
tort-feasor. Now it is well settled that a tort-feasor is not entitled to maintain
claim petition even under Section 163A of the Motor Vehicles Act. At the same
time, it is to be taken note that 1st respondent has claimed that he is the driver
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C.M.A.No.1011 of 2013
of the lorry working under 2nd respondent and while in the course of his
employment, the accident has occurred. The 2nd respondent as well as
appellant did not deny the said claim of 1st respondent. In view of the fact that
1st respondent being the employee of 2nd respondent and accident has occurred
during course of his employment, he is entitled to compensation under
Workmen's Compensation Act and both the 2nd respondent as well as
appellant are liable to pay compensation as per the provisions of Workmen's
Compensation Act.
14.The issue whether an employee of the owner of the vehicle or in case
of death, the legal heirs of the deceased/employee can maintain the claim
under the Motor Vehicles Act or only course available in such situation is only
to approach the authority under Workmen's Compensation Act, came up for
consideration before the Division Bench of this Court. This Court considering
the provisions of Motor Vehicles Act and contract of injured held that a claim
petition under Motor Vehicles Act as well as Workmen's Compensation Act are
maintainable. The claimants must choose either one of the legal forums and
they cannot maintain the same application under both the Acts. The Division
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Bench of this Court, further held that even if the claimants are not entitled to
compensation under the provisions of Motor Vehicles Act, they are entitled to
compensation covered under the insurance policy, which is the contract
between the owner of the vehicle and insurer. In paragraph 6 of the judgment
reported in 2002 (4) CTC 469 in the Oriental Insurance Co.Ltd. vs. Kaliya
Pillai and 2 others, it is held as follows:
“6. .. .. However, the insurer's liability is to be
determined not only with reference to the provisions
under the Motor Vehicles Act, but also with reference to
the contract of insurance which would extend to the
liability of the insured under the Workmen's
Compensation Act. There is a specific finding by the
Tribunal that the deceased tractor driver died in the
course of his employment. Further, it is not disputed that
there was a valid insurance on the date of the accident,
and accordingly the insurer was liable to the extent of
liability under the Workmen's Compensation Act. In other
words, we hold that even though the insurance company
was not liable under the provisions of the Motor Vehicles
Act, it would be proper to assess the compensation under
the Workmen's Compensation Act and award the same in
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C.M.A.No.1011 of 2013
favour of the claimants. On this ground, instead of
directing the respondents/claimants to go before the
Commissioner for Workmen's Compensation Act, in order
to shorten the litigation and also in the interest of justice,
we decided to dispose of the appeal by determining the
appropriate compensation in favour of the claimants.”
15.This judgment was followed by another Division Bench of this
Court in the judgment reported in 2015 (2) TNMAC 362 (DB) in
M.Anbalagan vs. K.M.Asalm Basha, in paragraph 6 to 12 it is held as
follows:
“6. Relying upon two decisions of the Supreme
Court one in Oriental Insurance Company Limited vs.
Dyamavva and others, reported in 2013(1) TN MAC
161(SC) and another in Ramachandra vs. Regional
Manager (2013(2) TN MAC 304 (SC)), it is contended
by Mr.M.Swamikannu, the learned counsel for the
appellant that the choice of the forum cannot actually
deprive the victim of compensation. Therefore, the
learned counsel contended that if a person is entitled to
claim compensation in terms of the Employees'
Compensation Act, 1923, he cannot be deprived of
compensation under the Motor Vehicles Act, 1988.
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C.M.A.No.1011 of 2013
7. We have carefully considered the above
submissions. But we are unable to sustain the said
argument in total.
8. It is true that the victim is entitled to choose any
one of the two fora, depending upon the benefits that he
may get before either of them. But in so far as the claim
under the Motor Vehicles Act, 1988 is concerned, the
claimant should establish that he was entitled to
approach the Court under Section 166 and that he was
not himself a tort-feasor. This question played a vital
role in distinguishing the claim made under the Motor
Vehicles Act from the claim made under the Employees'
Compensation Act, 1923.
9. However, as rightly contended by the learned
counsel for the second respondent, this Court is
empowered to award compensation as payable under the
Employees' Compensation Act, 1923. In Oriental
Insurance Company Vs. Kaliya Pillai and another,
reported in 2003-1-L.W.113, a Division Bench of this
Court held that the aggrieved or interested person can
make a claim for compensation either under the
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C.M.A.No.1011 of 2013
Workmen's Compensation Act or under the Motor
Vehicles Act. The only bar is that the claim cannot be
made under both the Acts.
10. The Division Bench pointed out that the
insurer's liability is to be determined not only with
reference to the provisions of the Motor Vehicles Act, but
also with reference to the contract of insurance.
Therefore, the Division Bench held that the
compensation as payable under the Workmen's
Compensation Act, could at least be awarded.
11. A similar view was taken by yet another
Division Bench of this Court in the Oriental Insurance
Co., Ltd., vs. Krishnan and others, reported in 2003-2-
L.W.73. Therefore, even if the appellant is not entitled to
make a claim, as a third party, under Section 166 of the
Motor Vehicles Act, he can at least make a claim under
the Employees' Compensation Act, 1923.
12. Coming to the quantum of compensation that
should be awarded, at least under the Employees
Compensation Act, 1923, it is seen from the pleadings
and the evidence on record that the appellant was aged
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C.M.A.No.1011 of 2013
38 years on the date of the accident. Therefore, the
relevant factor under Schedule-IV to the Employees'
Compensation Act, 1923, is 189.56.”
16.The ratio in the above two judgments is squarely applicable to the
facts of the present case. The 1st respondent is entitled to compensation as per
the provisions of the Workmen's Compensation Act, 1923. The 1 st respondent
is claiming that he was earning Rs.15,000/- per month at the time of accident.
Initially as per Workmen's Compensation Act, the maximum salary that can be
taken into account for awarding compensation is only Rs.4,000/- per month.
Subsequently, as per G.O.No.1047, Ministry of Labour and Employment
Notification dated 31.05.2010, the limit is enhanced to Rs.8,000/- per month.
The accident has occurred on 02.05.2011, i.e., after the amendment.
Therefore, a sum of Rs.8,000/- per month is fixed as notional income of the 1 st
respondent. The 1st respondent was aged 35 years at the time of accident. As
per Schedule IV of the Employees Compensation Act, 1923, for 35 years, the
relevant factor applicable is 197.06. In the accident, the 1st respondent
suffered fracture of both bones, underwent surgery and rod was implanted.
Due to the injuries, the 1st respondent finds it difficult to walk, climb staircase
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C.M.A.No.1011 of 2013
and squat and he is limbing. To prove the same, the 1 st respondent marked the
discharge summaries and medical bills as Exs.P3 to P6 respectively.
P.W.2/Doctor after examining the 1st respondent, assessed the disability of the
1st respondent as 53%. The appellant/Insurance Company has not let in any
evidence to disprove the disability certificate issued by P.W.2/Doctor and
evidence of P.W.2/Doctor. As per Section 4(1) of the said Act, the salary could
be taken into account for calculating compensation and in case of permanent
total disability resulting from the injury, 60% of salary received by him has to
be taken for calculation. Hence, applying the factor mentioned in Schedule IV
of the Employees Compensation Act and taking into consideration 60% of the
salary fixed by this Court, the amount awarded by the Tribunal towards
disability comes to Rs.5,01,320.64 (Rs.8,000/- X 197.06. X 60/100 X
53/100). The Tribunal has granted only a sum of Rs.2,98,218/- as total
compensation to the 1st respondent. In view of the same, the award of the
Tribunal is not interfered with.
17. In the result, this Civil Miscellaneous Appeal is dismissed and the
sum of Rs.2,98,218/- awarded by the Tribunal as compensation to the 1st
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C.M.A.No.1011 of 2013
respondent along with interest and costs is confirmed. The 2nd respondent and
appellant/Insurance Company are directed to deposit the entire award amount
along with interest and costs, less the amount already deposited, if any, within
a period of six weeks from the date of receipt of a copy of this judgment. On
such deposit, the 1st respondent is permitted to withdraw the entire amount
awarded by the Tribunal along with interest and costs, less the amount if any,
already withdrawn. Consequently, connected Miscellaneous Petition is closed.
No costs.
21.12.2021
Index : Yes / No
kj
To
1.The Principal Subordinate Judge
(Motor Accident Claims Tribunal)
Tindivanam.
2.The Section Officer
V.R.Section
High Court, Chennai.
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C.M.A.No.1011 of 2013
V.M.VELUMANI, J.,
kj
C.M.A.No.1011 of 2013
and
M.P.No.1 of 2013
21.12.2021
https://www.mhc.tn.gov.in/judis
