Madras High Court
Bharti Axa General Insurance ... vs S.Suguna on 19 February, 2021
C.M.A. No.411 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 19.02.2021
CORAM
THE HONOURABLE Mr. JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A. No.411 of 2021
and CMP.No.2642 of 2021
Bharti Axa General Insurance Company Ltd.,
2n Floor, Metro Plaza,
No.162, Annasalai,
Chennai 600 002. .. Appellant
Versus
1. S.Suguna
2. S.Percy (minor)
3. S.Berlin (minor)
[minors are rep. by their mother &
natural guardian, 1st respondent herein]
4. S.Santhanam
5. M/s.Shree Pooja Roadways .. Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the judgment and decree dated 13.03.2019 made in
MCOP. No.7254 of 2014 on the file of the Motor Accident Claims Tribunal /
Chief Judge, Court of Small Causes, Chennai.
For appellant : M/s.K.Poomalai
For respondents
for R1 to 4 : Mr.A.N.Viswanatha Rao
for R5 : Set ex-parte before the Tribunal
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C.M.A. No.411 of 2021
JUDGMENT
(The Judgment of the Court was delivered by R.Subbiah, J)
The appeal is heard through video conferencing.
2. This appeal has been filed by the Insurance Company challenging the
award dated 13.03.2019 made in MCOP.No.7254 of 2014 on the file of the
Motor Accident Claims Tribunal / Chief Judge, Court of Small Causes,
Chennai.
3. The respondents 1 to 4 / claimants are the wife, 2 minor children and
father of the deceased Senthil Kumar. It is the case of the claimants that the
deceased was working as a Driver in AMS Corporate Pvt. Ltd., Kandigai and
earning Rs.33,000/- per month. On 01.10.2013 at about 00.30 hours, he was
driving a Lorry bearing Registration No.TN 19 B 9187 from
Venkatamangalam to Potheri. While he was nearing Abdul Rahman
University Gate at Kelambakkam-Vandalur Salai, the deceased Senthil Kumar
hit a Stationary Container Lorry bearing Registration No.TN 28 F 9410 on its
rear side. In the accident, the deceased sustained fatal injuries and died on the
spot.
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C.M.A. No.411 of 2021
4. It is the specific case of the claimants that while parking the
Container Lorry at night time, the driver ought to have switched on the rear
side parking lamp to caution the motorist plying on the road. However the
driver of the Container Lorry had parked the Container Lorry on the road
without switching on the rear side parking light and hence, the accident
occurred. Therefore, they made a claim as against the owner of the Container
Lorry and its insurer / appellant herein, claiming a compensation of
Rs.60,00,000/-.
5. In the counter statement filed by the second respondent / Insurance
Company, they had taken a specific stand that the accident had occurred only
due to the rash and negligent driving of the Lorry bearing Registration No.
TN 19 B 9187. Therefore, the Insurance Company is not liable to pay
compensation amount. Even otherwise the driver of the Container Lorry
bearing Registration No.TN 28 F 9410, does not possess a valid driving
licence, which is a violation of conditions of insurance policy. Therefore, the
Insurance Company is not liable to indemnify the owner of the Container
Lorry bearing Registration No.TN 28 F 9410 to pay the compensation amount.
6. In order to prove the claim, on the side of the claimants, the first
claimant / wife of the deceased examined herself as PW1, besides examining
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C.M.A. No.411 of 2021
one M.Sekar, an eye witness to the accident as PW2 and Exs.P1 to P8 were
marked. On the side of the Insurance Company, in order to prove that the
driver of the Container Lorry did not have any valid driving licence, they
examined one Balamurugan, an official from the Insurance Company as RW1
and marked Exs.R1 to R4.
7. The Tribunal, after analysing the entire evidence, came to the
conclusion that there is negligence on the part of the deceased as well as the
driver of the Container Lorry. Thus, the Tribunal fixed 1/3 negligence on the
part of the deceased and 2/3 on the part of the driver of the Container Lorry.
By coming to such conclusion, the Tribunal has passed an award for a sum of
Rs.20,00,000/- as compensation to the claimants. The break-up details of the
amount awarded by the Tribunal under various heads are as follows:
S.No. Heads under which the amount is Amount in Rs.
awarded by the Tribunal
1. Towards Loss of Future Dependency 27,84,600
2. Towards Loss of Estate 15,000
3. Towards Funeral Expenses 15,000
4. Towards Loss of Consortium 40,000
5. Towards Loss of Love and Affection 1,45,400
30,00,000
LESS: Contributory Negligence at 1/3 10,00,000
Net Compensation Payable 20,00,000
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C.M.A. No.411 of 2021
8. Now, the learned counsel for the appellant / Insurance Company
submitted that at the time of the accident, the Container Lorry was parked on
the extreme left side of the road and it is the deceased, who came in a rash and
negligent manner and hit on the rear side of the Container Lorry. In such
circumstances, the Tribunal ought to have dismissed the claim petition. Even
otherwise, if the Tribunal comes to the conclusion that there was contributory
negligence, the Tribunal ought to have fixed 50% negligence on the part of the
driver of the Container Lorry as well as the deceased, instead the Tribunal had
fixed only 1/3 negligence on the part of the deceased. Thus, the learned
counsel for the Insurance Company prayed to set aside the award of the
Tribunal or in alternative to fix negligence at 50% on the part of the deceased
and consequently, to reduce the compensation in proportion to the percentage
of negligence.
9. With regard to quantum of compensation, it the submission of the
learned counsel for the Insurance Company that the Tribunal calculated the
amount under the head "Loss of Future Dependency", by fixing Rs.13,000/- as
monthly income. But no documentary evidence was produced to show that the
deceased was earning a sum of Rs.13,000/- per month. Hence, by taking a
notional sum of Rs.10,000/- as monthly income, the amount under the head
"Loss of Future Dependency" has to be re-calculated.
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C.M.A. No.411 of 2021
10. That apart, the learned counsel for the Insurance Company
submitted that by examining RW1, Senior Executive of the Insurance
Company and marking Exs.R1 to R4, the Insurance Company established that
the driver of the Container Lorry was only having a Light Motor Vehicle
driving licence. Though the Tribunal had accepted that the driver of the
Container Lorry did not have a valid driving licence, right of recovery was not
given to the Insurance Company on the reasoning that at the time of the
accident, the Container Lorry was not running on the road and it was in
stationary position. Thus, the Tribunal held that the Insurance Company is not
entitled to recover the amount from the owner of the vehicle. Assailing the
said reasoning, the learned counsel for the appellant/Insurance Company
submitted that when the driver of the Lorry did not have valid driving licence,
the fifth respondent / owner of the Container Lorry ought to have been
mulcted with the liability of payment of compensation amount and hence, the
Tribunal ought to have given right of recovery to them.
11. Per contra, the learned counsel for the claimants made submissions
supporting the award passed by the Tribunal and prayed to dismiss the appeal.
12. Keeping in mind the above submissions made on either side, we
have carefully perused the materials available on record.
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C.M.A. No.411 of 2021
13. We find that the accident had occurred during the night time, i.e.,
12.30 am and absolutely, there is no evidence to show that the rear side of the
parking lorry was switched on to caution the motorists, who were plying on
the road. In the absence of such evidence, we are not inclined to accept the
submission of the learned counsel for the Insurance Company that entire
negligence has to be fixed on the part of the deceased. At the same time, we
are of the opinion that, had the deceased been vigilant, he would have averted
the accident. Therefore, we do not find any infirmity in the order passed by the
Tribunal that there is negligence on the part of the driver of both the vehicles.
14. It it the next contention of the learned counsel for the Insurance
Company that as the Tribunal came to the conclusion that there is contributory
negligence, 50% negligence ought to have been fixed on the part of the
deceased, instead of 1/3. But we are not inclined to accept the said submission
also since we find that after investigation the police had filed charge sheet as
against the driver of the Container Lorry only.
15. It is the further contention of the Insurance company, that the
Tribunal, by taking a sum of Rs.13,000/- as monthly income, has granted
excessive amount as compensation. We are of the view that considering the
avocation of the deceased, the monthly income of Rs.13,000/- fixed by the
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C.M.A. No.411 of 2021
Tribunal cannot be said to be exorbitant. The Tribunal, by taking Rs.13,000/-
as the monthly income, and adding 40% towards future prospects, arrived at a
sum of Rs.18,200/- [13,000 + 5,200]. Thereafter, the Tribunal by deducting 1/4
towards personal expenses, arrived at a sum of Rs.13,650/- [Rs. 18,200 -
4,550]. Resultantly, the annual income was arrived at Rs.1,63,800/- [13,650 x
12]. Considering the age of the deceased being 28 at the time of the accident,
multiplier "17" was applied and the "Loss of Future Dependency" was arrived
at Rs.27,84,600/-. Subsequently, by awarding amounts under various heads,
the Tribunal awarded a sum of Rs.30,00,000/- as compensation. Thereafter,
the Tribunal by deducting 1/3, i.e., Rs.10,00,000/- towards contributory
negligence on the part of the deceased, had granted Rs.20,00,000/- as
compensation to the claimants. Absolutely, we do not find any infirmity in the
method of calculation made by the Tribunal to award the compensation
amount.
16. So far as the right of recovery is concerned, we find that the driver
of the Container Lorry did not possess valid driving licence at the time of the
accident, which amounts to violation of policy conditions. The said aspect has
also been proved by the Insurance Company by examining RW1, an official
from the Insurance Company and also by marking Exs.R1 to R4. In such
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circumstances, the Tribunal ought to have directed the Insurance Company to
pay the compensation at first instance and thereafter, permitted them to recover
the same from the owner of the Container Lorry.
17. (i) Thus, the compensation of Rs.20,00,000 awarded by the Tribunal
to the claimants is hereby confirmed, which shall carry interest at 7.5% from
the date of claim petition till the date of payment. The Insurance Company is
directed to deposit the total compensation awarded by this Court before the
Tribunal, after adjusting the amount if any already deposited, within a period
of four weeks from the date of receipt of a copy of this judgment. On such
deposit, the claimants 1 and 4 are permitted to withdraw their respective
shares. Insofar as the minor claimants 2 and 3 are concerned, their shares shall
be deposited by the Tribunal in any Fixed Deposit Scheme in any one of the
Nationalised Banks and it shall be renewed periodically till they attains
majority and the interest accrued thereon shall be withdrawn by the first
claimant / mother once in three months. The apportionment of shares as
fixed by the Tribunal to the claimants is hereby confirmed.
(ii) The appellant / Insurance company is permitted to recover the
compensation amount from the owner of the Container Lorry since there is a
violation to the condition of the Insurance Policy.
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18. With the above observations and directions, this appeal is disposed
of. No costs. Consequently, connected miscellaneous petition is closed.
[R.P.S., J] [S.S.K., J]
19.02.2021
Speaking Order : Yes / No
Index : Yes / No
pvs
To
1. The Motor Accident Claims Tribunal /
Chief Judge, Court of Small Causes, Chennai
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. No.411 of 2021
R.SUBBIAH, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
pvs
C.M.A. No.411 of 2021
19.02.2021
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