Madras High Court
The Divisional Manager vs Papatthi @ Papaty on 16 February, 2021
CMA.Nos.1033 and 1034 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.02.2021
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
CMA.Nos.1033 and 1034 of 2011
CMA.No. 1033 of 2011
The Divisional Manager
M/s.Cholamandalam MS General Insurance Co.Ltd,.
2nd Floor, Wajeeha Corporate Centre,
No.I, Village Road, Nungambakkam,
Chennai -600034. ... Appellant
..vs..
1.Papatthi @ Papaty
W/o. Late. Perumal
2.Palani @ Palany
3. Ilangovan
4. C.Ashok Kumar
S/o. Cunniyappan ..Respondents
CMA.No. 1034 of 2011
The Divisional Manager
M/s.Cholamandalam MS General Insurance Co.Ltd,.
2nd Floor, Wajeeha Corporate Centre,
No.I, Village Road, Nungambakkam,
Chennai -600034. ... Appellant
..vs..
1/11
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CMA.Nos.1033 and 1034 of 2011
1. Ilangovan
2. C.Ashok Kumar
S/o. Cunniyappan ..Respondents
Common Prayer : These appeals filed under Section 173 of the
Motor Vehicles Act, 1988, against the common judgment and
decree dated 21.12.2010 in M.C.O.P.Nos.783 of 2007 and 784 of
2007 on the file of the Motor Vehicles Accident Claims
Tribunal,Principal District Court, Pondicherry.
For Appellant : Ms. Harini
(in both CMAs) For M.B.Gopalan
For Respondents
(in CMA.No.1033 of 2011) : Notice unserved
For Respondent,
(in CMA.No.1034 of 2011) : Notice unserved
----
COMMON JUDGMENT
The matter is heard through "Video Conferencing".
Since the common question of law is involved in both the
appeals and the appeals filed against the common award of Motor
Accidents Claims Tribunal, they are also disposed of by a common
judgment.
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CMA.Nos.1033 and 1034 of 2011
2. These Civil Miscellaneous Appeals have been filed by the
claimants against the common judgment and decree dated
21.12.2010 in M.C.O.P.Nos.783 of 2007 and 784 of 2007 on the file
of the Motor Vehicles Accident Claims Tribunal,Principal District
Court, Pondicherry.
3. Common facts involved in these cases before the tribunal
is that on 22.11.2004 at about 2.30 pm the deceased Perumal and
his son namely Ilangavoan were proceeding in their TVS 50 moped
bearing Reg.No. PY01-J-1838. Ilangovan was riding the TVS 50
Moped and his father deceased Perumal travelled as pillion rider.
While proceeding along S.V.Patel Salai from west to east
direction, near an auto stand, a Hero Honda Splendor motor cycle
bearing Reg.No.PY01-S-5472 ridden by its rider in rash and
negligent manner from the same direction and dashed against the
moped, due to which, the deceased Perumal and Ilangovan were
fell down from the moped and the said Ilangovan sustained injuries
. Inspite of treatment, Perumal died on the same day in the
Government General Hospital, Puducherry. The claimants, the wife
and two children inclduing the said Ilangovan have filed claim
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CMA.Nos.1033 and 1034 of 2011
petition before the tribunal in MCOP.No. 783 of 2007, claiming
compensation for the death of the deceased father. The rider of the
TVS 50 Moped Ilangaovan has filed a separate claim petition in
MCOP.No.784 of 2007, claiming compensation for the injuries
sustained by him in the said accident. The tribunal after analysing
the oral and documentary evidence, has fixed the negligence on
the part of the rider of the Hero Honda Splender motory cycle
bearing Reg.No. PY-01-S-5472 and directed to pay the
compensation by the insurance company/appellant herein. The
tribunal has awarded a sum of Rs.1,49,000/- as compensation in
MCOP.No. 783 of 2007 and a sum of Rs.26,000/- as compensation
in MCOP.No. 784 of 2007. Not being satisfied with the quantum
and liability, the Insurance Company has preferred the present
appeals to set aside the common award passed by the tribunal.
4.The Insurance Company has filed counter statements
before the tribunal and denied the alleged accident. It is also
stated that the insured has not intimated about the accident and
therefore they are not in a position to ascertain the fact of the
accident and the manner of the accident. The involvement of the
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CMA.Nos.1033 and 1034 of 2011
insured vehicle was also denied and a false case has been hoisted
in order to claim compensation, therefore, the insurance company
is not liable to pay compensation.
5. Before the Tribunal, Ilangovan, 3rd claimant in MOCP.No.
783/2007 and the claimant in MCOP.No.784 of 2007 was examined
as PW1 and marked documents Ex.A1 to A10. On the side of the
respondents/appellants herein, four witnesses were examined as
RW1 To RW4 and marked 13 documents Ex.B1 to B13.
6. Heard both sides and perused the documents available on
record.
7. The main grounds raised by the learned counsel appearing
for the appellant/Insurance company is that the tribunal grossly
erred in fixing liability on the Insurance Company, in a case, where
the driver of the vehicle had no valid driving license, at the time of
accident for driving a two wheeler. Further erred in holding that
the appellant was liable to pay the compensation at the first
instance and recover the same from the owner of the vehicle in
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CMA.Nos.1033 and 1034 of 2011
separate proceedings. Therefore the common judgment and
decree passed by the tribunal is liable to be set aside.
8. On perusal of the common award passed by the tribunal, it
is seen that the insurance company/appellant herein has
contended that the rider of Hero Honda Splendor motor cycle,
namely Sasikumar has no driving license to drive such motor cycle
at the time of the accident and hence the insurance company is not
liable to compensation to the claimants. The insurance
company/appellant herein has examined the owner of the alleged
motor cycle namely Ashok Kumar/4th respondent in CMA.No. 1033
of 2011 & 2nd respondent in CMA.No. 1034 of 2011, he deposed
that he does not know whether the rider of the vehicle was holding
valid driving licence or not. Inspite of efforts, the Insurance
company/appellant herein was not able to prove the holding of
driving licence by the rider of the two wheeler. But the owner of
the vehicle was holding valid driving licence the same was marked
by both sides as Ex.A6 & Ex.B12 and insured with the appellant
herein, hence the tribunal has concluded that the owner of the
vehicle who holds valid driving licence has violated policy
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CMA.Nos.1033 and 1034 of 2011
conditions, therefore, being insurer of the offending vehicle,
insurance company is liable to pay compensation in both the
petitions and recover the same from the owner of the vehicle. This
Court finds no error in fixing the negligence and liability by the
tribunal and the same is confirmed.
9. As far as quantum of compensation awarded by the
tribunal is concerned, in the award passed in MCOP.No.783/2007,
it is seen that though the claimants/respondent 1to 3 in CMA.No.
1033 of 2011 herein have claimed that the deceased was earning
a sum of Rs.300/- per day by running a tea-stall, the tribunal fixed
a sum of Rs.3000/- as monthly income considering the age of the
deceased and the period of accident and inflation in the money
value. The tribunal has calculated the loss of dependency by
adopting multiplier method. The tribunal has fixed the age of the
deceased at 70 years as per Ex.A3/Accident Register and
Ex.A7/copy of Postmortem certificate and by deducting 1/3 (since
no.of claimants are 3), adopting multiplier 5, arrived the
compensation at Rs. 1,20,000/-, which is proper as per the
principles laid down by the Hon'ble Supreme Court in Sarala
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CMA.Nos.1033 and 1034 of 2011
Verma's Case. Further the compensation awarded under other
heads viz., loss of consortium, loss of love and affection, transport
expenses and funeral expenses are also proper and reasonable. In
total the compensation awarded by the tribunal at Rs.1,49,000/- as
against the claim of RS.5,00,000/- is fair and reasonable and does
not require any interference by this Court.
10. As far as compensation awarded in MCOP.NO. 784 of
2007, the claimant/1st respondent in CMA.No. 1034 of 2011 & 3rd
respondent in CMA.No. 1033 of 2011 has claimed compensation of
Rs.1,00,000/- for the injuries sustained by him in the said
accident. The tribunal by considering Ex.A8/wound certificate
issued by the Government General Hospital,Puducherry, which
reveals that the said Ilangovan sustained multiple abrasion and
laceration ½ x ½ inch on the extremities of the body and the
injury is simple in nature. Apart from the said document, no other
documents were filed by the claimant to substantiate his injuries,
therefore the tribunal has not accepted the statement of the
claimant that he suffered partial permanent disability due to the
said accident. Considering the age of the claimant, who was aged
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CMA.Nos.1033 and 1034 of 2011
35 years at the time of the accident, the tribunal has awarded a
sum of Rs.25,000/- towards injury and a sum of Rs.1000/- towards
pain and suffering. In all, the sum awarded at Rs.26,000/- in
MCOP.No. 784 of 208 is reasonable and does not warrants any
interference by this Court.
11. The appellant /Insurance Company in both the appeals
shall deposit the compensation amount along with interest, as
awarded by the tribunal, 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 is being made, the
claimants/respondents 1 to 3 in CMA.No. 1033 of 2011 and 1 st
respondent in CMA.No. 1034 of 2011 are permitted to withdraw the
same by filing appropriate applications before the tribunal.
12. In fine, both Civil Miscellaneous Appeals are dismissed.
The common judgment and decree dated 21.12.2010 in
M.C.O.P.Nos.783 of 2007 and 784 of 2007 passed by the tribunal is
confirmed. No costs.
16.02.2021
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CMA.Nos.1033 and 1034 of 2011
Index: Yes/No
Internet : yes
ak
http://www.judis.nic.in
CMA.Nos.1033 and 1034 of 2011
D.KRISHNAKUMAR, J.,
ak
To
1. The Principal District Court,
(Motor Vehicles Accident Claims Tribunal)
Pondicherry..
2. The Section Officer,
VR Section,
High Court, Madras.
CMA. Nos.1033 and 1034 of 2011
16.02.2021
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