Madras High Court
United India Insurance Co. Ltd vs B.Karthick on 2 February, 2021
C.M.A.No.3595 of 2012 & 663 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.02.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
Civil Miscellaneous Appeal No.3595 of 2012 & 663 of 2013
United India Insurance Co. Ltd.,
No.132, Greams Road,
Chennai – 6. ... Appellant in C.M.A.No.3595/2012
Respondent No.2 in C.M.A.No.663/2013
..Vs..
1. B.Karthick ... Respondent No.1 in C.M.A.No.3595/2012
Appellant in C.M.A.No.663 of 2013
2. J.Karthikeyan ... Respondent No.2 in C.M.A.No.3595/2012
Respondent No.1 in C.M.A.No.663/2013
Appeals filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgement and decree dated 1.8.2012 made in M.C.O.P.No.2050 of 2011 on the
file of XV Additional Judge, (Motor Accidents Claims Tribunal) Chennai.
For Appellant/Ins.Co. : Mr.D.Bhaskaran
For Respondent No.1/ : Mr.Terry Chella Raja
Claimant
For Respondent No.2/ : Notice unserved
J.Karthikeyan
*****
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3595 of 2012 & 663 of 2013
COMMON JUDGMENT
Both the appeals are filed against a judgment and decree, dated
1.8.2012, made in M.C.O.P.No.2050 of 2011, by the Motor Accident Claims
Tribunal, the Insurance Company has preferred C.M.A.No.3595 of 2012 challenging
the award passed by the tribunal and the claimant has preferred C.M.A.No.663 of
2013 for enhancement of compensation awarded by the tribunal. Therefore, both
the appeals are heard together and disposed of by a common judgment.
2. It is the case of the claimant that on 08.11.2010 at about 3.15
p.m., while he was riding a Pulzar motorcycle bearing registration No.TN-19-A-
8352 at G.S.T. Road, near Maraimalai Nagar Bus stop, an autorickshaw bearing
bearing registration No.TN-22 AY-2343 came from the opposite direction in a rash
and negligent manner hit the aforesaid motorcycle causing accident and thereby
the appellant sustained grievous injuries. The first respondent as the owner and
the second respondent as insurer are jointly and severally liable to pay
compensation. The appellant claimed a total compensation of Rs.6,00,000/- from
the respondents.
3 In the counter affidavit filed by the second respondent Insurance
company, it is stated that the driver of the autorickshaw was not holding a valid
driving license to drive passenger carrying transport vehicle and badge at the time
of accident as required by rule 21 of the Tamil Nadu Motor Vehicle rules 1989. It
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3595 of 2012 & 663 of 2013
is further submitted that the claimant is not entitled for any relief as he himself
contributed to the accident and hence, he cannot take advantage of his own fault
and injury. As there is a breach of policy condition, the Insurance company is not
liable to pay compensation.
4 The Tribunal, based on the oral and documentary evidence Exs.P1
to P.9, has awarded a compensation of Rs.2,27,500/- as total compensation along
with interest at the rate of 7.5% p.a from the date of petition till realization. The
total compensation awarded by the tribunal under various heads are as follows:
Heads Amount in Rs.
Permanent Disability at 40% 1,12,500/-
Pain and suffering, Extra 50,000/-
Nourishment & Transportation
Loss of Income for a period of 3 15,000/-
months (5000 x 3)
Future Prospects 50,000/-
Total 2,27,500/-
5. Heard the learned counsel appearing for the appellant/Insurance
Company and the learned counsel appearing for the respondent/claimant and
perused the materials available on record.
6. According to the learned counsel appearing for the appellant/
Insurance Company, the second respondent owner of the vehicle has violated the
policy conditions by allowing the passengers without having a Badge meant for
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C.M.A.No.3595 of 2012 & 663 of 2013
passenger vehicle and as such, the owner of the autorickshaw against which
compensation claimed did not possess a valid licence to drive transport vehicle
and therefore, the claimant is not entitled to any compensation from the
Insurance Company. Further, the award passed by the tribunal under various
heads are excessive and the claimant is not entitled to such huge compensation
awarded by the tribunal.
7. Per contra, the learned counsel appearing for the claimant would
submit that based on the oral and documentary evidence, the tribunal has rightly
determined the compensation to the claimant. Further, it is submitted that
tribunal considering the evidence of P.W.2 Dr.Saravanabavanandam who examined
the claimant deposed before the Court below that he assessed disability as 40%
permanent disability, awarded Rs.1,12,500/- towards permanent disability.
Further, the claimant also filed appeal in C.M.A.No.663 of 2013 for enhancement
of compensation.
8. The main contention of the learned counsel appearing for the
appellant Insurance Company is that the owner of the vehicle had violated the
policy conditions by allowing a person who had no valid driving licence to drive the
vehicle involved in the accident and also the passengers were allowed in the said
vehicle without having a Badge endorsed by the Motor Vehicle Inspector. In
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C.M.A.No.3595 of 2012 & 663 of 2013
support of his contention, the learned counsel appearing for the appellant/
Insurance Company relied on the decision of the Hon'ble Supreme Court in
MUKUND DEWANGAN VS. ORIENTAL INSURANCE COMPANY LTD. [(2017) 14 SCC
663] wherein the Hon'ble Supreme Court held that ''light motor vehicle'' would
include a transport vehicle as per the weight prescribed in S.2(21) r/w Ss.2(15)
and 2(48) of M.V. Act, 1988. A transport vehicle and omnibus, the gross vehicle
weight of either of which does not exceed 7500 kg. would be a light motor vehicle
and also motor car or tractor or a roadroller, ''unladen weight'' of which does not
exceed 7500 kg. Further, holder of a driving licence to drive class of ''light motor
vehicle'' as provided in S.10(2) (d) is competent to drive a transport vehicle or
omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor
car or tractor or roadroller, the ''unladen weight'' of which does not exceed 7500
kg. The Hon'ble Supreme Court interpreted Sec.10(2) (e) of the Act in the
aforesaid judgment. The relevant paragraph is extracted hereunder:
30. The State Government has to maintain a
register of motor vehicles under Rule 75 as provided in
Form 41 which includes gross vehicle weight, unladen
weight, etc. The Central Government has the power to
frame rules under Section 27, inter alia, regarding minimum
qualification, forms, and contents of the licences, etc. Thus,
we are of the considered opinion that the definition of “light
motor vehicle” under Section 2(21) of the Act includes
transport vehicle of the class and weight defined therein.
The transport vehicle or omnibus would be light motor
vehicle, gross vehicle weight of which, and also a motor car
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C.M.A.No.3595 of 2012 & 663 of 2013
or tractor or roadroller, unladen weight of which, does not
exceed 7500 kg, and can be driven by holder of licence to
drive light motor vehicle and no separate endorsement is
required to drive such transport vehicle.''
9 In view of the aforesaid judgment, the learned counsel appearing
for the appellant/Insurance Company has fairly submitted that the ground raised
by the appellant no longer required for consideration of this Court and the said
judgment is squarely apply to the facts of the present case. Therefore, no further
discussion required on the ground raised by the appellant with regard to violation
of policy conditions.
10 Secondly, with regard to quantum of compensation, the learned
counsel appearing for the appellant/Insurance Company submitted that the
tribunal erred in awarding compensation to the respondents/claimants. The
tribunal without considering the nature of the disability, awarded compensation
towards future prospects. According to the learned counsel appearing for the
appellant/Insurance Company, no material has been placed before the tribunal to
prove that the respondents/claimants suffered future earning capacity.
Therefore, the finding of the tribunal under such head is liable to be set aside. In
sofar as the other heads are concerned, the learned counsel appearing for the
appellant/Insurance Company has fairly submitted that reasonable compensation
can be fixed by this Court.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3595 of 2012 & 663 of 2013
11 The learned counsel appearing for the respondents/claimants
justified the award passed by the tribunal under the head loss of future prospects.
However, this Court found that there is no evidence or any material placed before
the tribunal for grant of compensation towards loss of future earning capacity.
Therefore, the respondent/claimant is not entitled for any compensation under
loss of future earning capacity. In sofar as the other heads are concerned, the
learned counsel appearing for the respondent/claimant submitted that the
tribunal has not awarded any amount towards loss of amenities and attender
charges and seeks enhancement of compensation for the other heads also. There
is some force in the contention of the learned counsel appearing for the
respondent/claimant. To that extent, the compensation awarded by the tribunal
is modified on various heads and awarded as follows:
Heads Compensation Compensation
awarded by the awarded by this Court
Tribunal (Rs.)
Rs.
Disability 40% x 3000/- 1,12,500/- 1,20,000/-
Pain & suffering, Extra 50,000/- 20,000/- +
Nourishment & 10,000/- +
Transportation 5,000/-
Loss of Income for 4 15,000/- 20,000/-
months (5000 x 4)
Loss of Amenities -- 15,000/-
Attender charges -- 10,000/-
Loss of future prospects 50,000/- --
Total : 2,27,500/- 2,00,000/-
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3595 of 2012 & 663 of 2013
12 The compensation awarded by the tribunal is reduced to the
aforesaid extent. Except the above modification, the award passed by the
tribunal is confirmed. The appellant/Insurance company is entitled to withdraw
the excess amount deposited before the tribunal, after adjusting the total
compensation amount as modified by this Court along with interest at the rate of
7.5% p.a. payable to the respondent/claimant. The respondent/claimant is
entitled to withdraw the amount if any, as modified by this Court by filing
appropriate application, if not already withdrawn by the claimant.
13. In the result, the C.M.A.No.3595 of 2012 is partly allowed to the
aforesaid extent. No costs. C.M.A.No.663 of 2013 is dismissed.
02.02.2021
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
vaan
To
1. The XV Additional Judge, (Motor Accidents Claims Tribunal) Chennai.
2. The United India Insurance Co. Ltd., No.132, Greams Road, Chennai – 6.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3595 of 2012 & 663 of 2013
D.KRISHNAKUMAR, J.
vaan
Civil Miscellaneous Appeal
No.3595 of 2012 &
663 of 2013
02.02.2021
https://www.mhc.tn.gov.in/judis/
