Madras High Court
The New India Assurance Company ... vs Poorani on 23 February, 2021
C.M.A.Nos.1973 of 2019 & 430 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.Nos.1973 of 2019 & 430 of 2021
and
C.M.P.No.7000 of 2019
C.M.A.No.1973 of 2019:
The New India Assurance Company Limited,
66-C, North Car Street, Tiruchengode,
Namakkal. ..Appellant
Vs.
1.Poorani
2.Minor. Lisanthkumar
3.Minor. Thirisha
(Minor respondents 2 & 3 represented by
their mother Poorani, 1st respondent herein)
4.Pappayee
5.Ponnusamy
6.P.Ramasamy
7.Indian Vehicle Carriers (P) Limited,
Baskhusala, Sec-7, IMT M Anesar,
Gurgan.
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C.M.A.Nos.1973 of 2019 & 430 of 2021
8.Barati Axa General Insurance Company Limited,
No.162, Metro Plaza 2nd Floor, Opposite to Spence Plaza,
Anna Salai,
Mount Road, Chennai – 600 002. ..Respondents
(R6 & R7 remained exparte before Tribunal.
Hence, notice to R6 & R7 dispensed with)
C.M.A.No.430 of 2021:
1.Poorani
2.Minor. Lisanthkumar
3.Minor. Thirisha
(Minor appellants 2 & 3 represented by
their mother Poorani, 1st appellant herein)
4.Pappayee
5.Ponnusamy ..Appellants
Vs.
1.P.Ramasamy
2.The New India Assurance Company Limited,
66-C, North Car Street, Tiruchengode,
Namakkal.
3.Indian Vehicle Carriers (P) Limited,
Baskhusala, Sec-7, IMT M Anesar,
Gurgan.
4.Barati Axa General Insurance Company Limited,
No.162, Metro Plaza 2nd Floor, Opposite to Spence Plaza,
Anna Salai,
Mount Road, Chennai – 600 002. ..Respondents
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C.M.A.Nos.1973 of 2019 & 430 of 2021
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated
05.04.2018 made in M.C.O.P.No.1440 of 2013 on the file of the Motor
Accident Claims Tribunal, Principal District Court, Namakkal.
In C.M.A.No.1973 of 2019:
For Appellant : Mr.M.Krishnamoorthy
For RR 1 to 5 : Mr.T.S.Arthanareeswaran
for Mr.C.Paraneedharan
For R8 : Mr.S.Arunkumar
In C.M.A.No.430 of 2021:
For Appellants : Mr.T.S.Arthanareeswaran
for Mr.C.Paraneedharan
For R2 : Mr.M.Krishnamoorthy
For R8 : Mr.S.Arunkumar
COMMON JUDGMENT
These Civil Miscellaneous Appeals have been filed against the award
dated 05.04.2018 made in M.C.O.P.No.1440 of 2013 on the file of the Motor
Accident Claims Tribunal, Principal District Court, Namakkal.
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C.M.A.Nos.1973 of 2019 & 430 of 2021
2.Both the appeals arise out of the same accident and same award and
hence, they are disposed of by this common judgment. The parties are
referred to as per their respective ranks in the claim petition for the sake of
convenience.
3.The claimants filed the above said claim petition claiming a sum of
Rs.75,00,000/- as compensation for the death of one Govindaraju, who died
in the accident that took place on 22.04.2012 against the respondents, being
the owner and insurer of the Maruthi Van and Container Lorry.
4.According to the claimants, on 22.04.2012 at about 11.45 P.M., while
the said Govindaraju along with one Mohan, claimant in M.C.O.P.No.948 of
2013 was travelling in the Maruthi Van bearing Registration No.TN 28 AA
4081 on the Dharmapuri - Salem Main Road near Thombarakampatttu Pirivu
Road, the driver of the lorry bearing Registration No.HR 55 L 7989, stopped
the lorry negligently on the same road at same direction without any signal.
Due to the said negligent act of the driver of the lorry, the Maruthi Van
dashed on the Container Lorry and caused the accident. In the accident, the
said Govindaraju sustained fatal injuries and died on the spot. Therefore, the
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C.M.A.Nos.1973 of 2019 & 430 of 2021
claimants filed the above said claim petition claiming a sum of
Rs.75,00,000/- as compensation against the respondents, being the owner and
insurer of the Maruthi Van and Container Lorry.
5.The respondents 1 & 3, being the owner of the Maruthi Van and
Container Lorry respectively remained exparte before the Tribunal.
6.The 2nd respondent-New India Assurance Company Limited, being
the insurer of the Maruthi Van filed counter statement and denied all the
averments made by the claimants. According to 2nd respondent, the Container
Lorry belonging to 3rd respondent was parked in a no parking area without
proper signal and the driver of the Container Lorry alone is responsible for
the accident. Two vehicles are involved in the accident and if negligence is
fixed on the part of the driver of the Maruthi Van, it is only contributory
negligence. The deceased being the driver of the Maruthi Van is at fault, he
cannot claim compensation against the 2nd respondent as he was not third
party. The claimants have to prove that the deceased died only due to the
injuries sustained by him in the accident and also the fact that they are the
legal heirs of the deceased. The 2nd respondent denied the age, avocation and
income of the deceased. In any event, the quantum of compensation claimed
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C.M.A.Nos.1973 of 2019 & 430 of 2021
by the claimants is highly excessive and prayed for dismissal of the claim
petition.
7.The 4th respondent-Barati Axa General Insurance Company Limited,
being the insurer of the Container Lorry belonging to 3rd respondent filed
separate counter statement and denied all the averments made by the
claimants. According to 4th respondent, the deceased only drove the Maruthi
Van in a rash and negligent manner and dashed on the rear side of the
Container Lorry belonging to 3rd respondent, which was parked on the
extreme left side of the mud road. In the final report also it is stated that the
accident has occurred only due to the negligence on the part of the deceased
and the Police closed the case as charges abated. The damages caused to the
Container Lorry in the Motor Vehicle Inspector report also shows the reason
for accident. Only to get compensation from the 4 th respondent, the claimants
have impleaded the 4th respondent as a party in the claim petition. There was
no negligence on the part of the driver of the Container Lorry belonging to 3 rd
respondent. The driver of the Container Lorry belonging to 3rd respondent
was not possessing valid driving license on the date of accident. There was
no fitness certificate and valid permit for the 3 rd respondent's lorry. Hence, the
4th respondent is not liable to pay any compensation to the claimants. The 3rd
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C.M.A.Nos.1973 of 2019 & 430 of 2021
respondent-insured failed to furnish the particulars of policy, date, time, place
of accident and particulars of injured and name of the driver. The Thoppur
Police failed to forward all the relevant documents to the concerned insurer
within 30 days from the date of information. Hence, the 4 th respondent is not
liable to pay any compensation to the claimants. The claimants have to prove
the age, avocation and income of the deceased. In any event, the quantum of
compensation claimed by the claimants is highly excessive and prayed for
dismissal of the claim petition.
8.Before the Tribunal, one Mohan, claimant in M.C.O.P.No.948 of
2013 was examined as P.W.1, 1st claimant was examined as P.W.2,
Dr.Madhuperiyasamy was examined as P.W.3 and one Venkatachalam was
examined as P.W.4 and 25 documents were marked as Exs.P1 to P25. On
behalf of the respondents 2 and 4, two witnesses were examined as R.W.1 &
R.W.2 and 4 documents were marked as Exs.R1 to R4.
9.The Tribunal considering the pleadings, oral and documentary
evidence, held both the deceased as well as the driver of the lorry belonging
to 3rd respondent are responsible for the accident, fixed negligence in the ratio
75% : 25%, awarded a sum of Rs.12,04,000/- as compensation and directed
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C.M.A.Nos.1973 of 2019 & 430 of 2021
the 2nd respondent to pay 75% of the award amount, i.e., Rs.9,03,000/- and 4th
respondent to pay 25% of the award amount, i.e., Rs.3,01,000/- as
compensation to the claimants.
10.To set aside the portion of the award fixing 75% contributory
negligence on the part of the deceased and for enhancement of compensation,
the claimants have come out with an appeal in C.M.A.No.430 of 2021 and to
set aside the award dated 05.04.2018 made in M.C.O.P.No.1440 of 2013, the
2nd respondent-Insurance Company has come out with an appeal in
C.M.A.No.1973 of 2019.
11.The learned counsel appearing for the 2nd respondent-insurer of the
Maruthi Van contended that the Tribunal considering the materials placed
before it, held that one Govindaraju, driver of the Maruthi Van contributed to
the accident by dashing on the backside of the parked lorry. The Tribunal
fixed 75% contributory negligence on the part of the said Govindaraju, who
died in the accident. The Tribunal fixed 25% negligence on the part of the
driver of the Container Lorry belonging to 3rd respondent. The deceased was
the driver of the Maruthi Van at the time of accident and he is a tort feasor.
The claimants who are the legal heirs of the tort feasor are not entitled to any
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C.M.A.Nos.1973 of 2019 & 430 of 2021
compensation from the 2nd respondent insurer of the Maruthi Van. The
Tribunal contrary to the judgments of the Hon'ble Apex Court and this Court,
erroneously directed the 2nd respondent-Insurance Company to pay 75% of
the compensation awarded and prayed for setting aside the portion of the
award directing the 2nd respondent to pay 75% of the compensation and for
dismissal of C.M.A.No.430 of 2021, filed by the claimants.
12.Per contra, the learned counsel appearing for the claimants
contended that at the time of accident, the deceased Govindaraju drove the
Maruthi Van at a moderate speed and the driver of the Container Lorry
belonging to 3rd respondent only parked the Container Lorry without any
signal. The deceased Govindaraju is not responsible for the accident. In any
event, the Maruthi Van was insured with the 2nd respondent and insurance
policy was in force at the time of accident. The Tribunal considering the
materials, rightly directed the 2nd respondent-New India Assurance Company
Limited to pay 75% of the compensation awarded and 4th respondent-Barati
Axa General Insurance Company Limited to pay 25% of the compensation
awarded and prayed for dismissal of C.M.A.No.1973 of 2019 filed by the 2nd
respondent. The learned counsel appearing for the claimants further
contended that at the time of accident, the deceased Govindaraju was working
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C.M.A.Nos.1973 of 2019 & 430 of 2021
as Driver and was earning a sum of Rs.50,000/- per month. The Tribunal
fixed a meagre amount of Rs.6,000/- per month as notional income of the
deceased and granted lesser amount as compensation for loss of dependency
and prayed for enhancement of compensation.
13.Mr.S.Arunkumar, learned counsel appearing for the 4th respondent
contended that the 4th respondent satisfied the award amount as per the
direction of the Tribunal. In C.M.A.No.1973 of 2019, no relief is sought for
against the 4th respondent and prayed for dismissal of C.M.A.No.1973 of
2019 against the 4th respondent. He further submitted that the claimants have
failed to prove the avocation and income of the deceased. In the absence of
any material evidence with regard to avocation and income, the monthly
income of the deceased fixed by the Tribunal is not meagre. The
compensation awarded by the Tribunal under different heads are not meagre
and prayed for dismissal of C.M.A.No.430 of 2021.
14.Heard the learned counsel appearing for the claimants as well as the
learned counsel appearing for the 2nd respondent and the learned counsel
appearing for the 4th respondent and perused the entire materials on record.
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C.M.A.Nos.1973 of 2019 & 430 of 2021
15.From the materials on record, it is seen that the claimants have
contended that while the deceased was driving the Maruthi Van carefully, the
driver of the Container Lorry belonging to 3rd respondent parked the lorry
without any signal. Due to the said negligent parking by the driver of the
Container Lorry, the deceased dashed the Maruthi Van belonging to 1st
respondent on the backside of the Container Lorry. To prove that driver of the
Container Lorry parked the same without any indicator in a negligent manner,
the claimants examined P.W.1, claimant in M.C.O.P.No.948 of 2013, who is
the eyewitness to the accident and marked F.I.R., which was registered
against the deceased and driver of the Container Lorry. The 2nd respondent
also contended that the accident has occurred only due to negligent parking
by the driver of the Container Lorry belonging to 3rd respondent. The 4th
respondent contended that the deceased only drove the Maruthi Van in a rash
and negligent manner and dashed on the backside of the Container Lorry,
which was parked on the extreme left side of the mud road. To prove the said
contention, the respondents 2 and 4 examined two witnesses as R.W.1 &
R.W.2 and marked four documents as Exs.R1 to R4. Police after
investigation, closed the case as charges abated. The Tribunal considering the
evidence of P.W.1, P.W.2, R.W.1, R.W.2 and documents filed on behalf of
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C.M.A.Nos.1973 of 2019 & 430 of 2021
the parties, held that accident has occurred due to negligence of both the
deceased as well as the driver of the Container Lorry belonging to 3rd
respondent and fixed 25% negligence on the part of the driver of the
Container Lorry and 75% negligence on the part of the deceased. The
contention of the learned counsel appearing for the 2nd respondent-insurer of
the Maruthi Van is that deceased being the tort feasor, the claimants are not
entitled to claim compensation from the 2nd respondent-insurer of the Maruthi
Van. The claimants filed the claim petition under Section 166 of the Motor
Vehicles Act. When the claim petition is filed under Section 166 of the Motor
Vehicles Act, the claimants must prove the negligence on the part of the
driver of the other vehicle. In the present case, the Tribunal considering the
materials placed before it, fixed 75% negligence on the part of the deceased
and 25% negligence on the part of the driver of the Container Lorry. When
75% negligence is fixed on the part of the deceased, who was the driver of
the Maruthi Van at the time of accident, the insurer of the Maruthi Van is not
liable to pay compensation to the claimants.
16.The issue whether the driver of the vehicle, who borrowed the
vehicle from the owner was responsible for the accident and the tort-feasor
can claim compensation from the owner and insurer of the said vehicle was
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C.M.A.Nos.1973 of 2019 & 430 of 2021
considered by the Hon'ble Apex Court in the judgment reported in 2009 (2)
TNMAC 169 (SC) [Ningamma & another v. United India Insurance Co.
Ltd.]. In the said judgment, the Hon'ble Apex Court has held that a borrower
of the vehicle steps into the shoes of the owner and the tort-feasor or his legal
representatives are not entitled to claim compensation against the insurer of
the vehicle. In the present case, the vehicle driven by the deceased is Maruthi
Van. The said ratio was reiterated by the Hon'ble Apex Court in the following
judgment reported in 2020 (1) TN MAC 1 (SC) [Ramkhiladi and another
Vs. United India Insurance Co. Ltd., and another]:
“5.4 An identical question came to be
considered by this Court in the case of Ningamma
(supra). In that case, the deceased was driving a
motorcycle which was borrowed from its real owner
and met with an accident by dashing against a bullock
cart i.e. without involving any other vehicle. The claim
petition was filed under Section 163A of the Act by the
legal representatives of the deceased against the real
owner of the motorcycle which was being driven by the
deceased. To that, this Court has observed and held
that since the deceased has stepped into the shoes of
the owner of the vehicle, Section 163A of the Act
cannot apply wherein the owner of the vehicle himself
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C.M.A.Nos.1973 of 2019 & 430 of 2021
is involved. Consequently, it was held that the legal
representatives of the deceased could not have claimed
the compensation under Section 163A of the Act.
Therefore, as such, in the present case, the claimants
could have even claimed the compensation and/or filed
the claim petition under Section 163A of the Act
against the driver, owner and insurance company of
the offending vehicle i.e. motorcycle bearing
registration No. RJ 29 2M 9223, being a third party
with respect to the offending vehicle. However, no
claim under Section 163A was filed against the driver,
owner and/or insurance company of the motorcycle
bearing registration No. RJ 29 2M 9223. It is an
admitted position that the claim under Section 163A of
the Act was only against the owner and the insurance
company of the motorcycle bearing registration No. RJ
02 SA 7811 which was borrowed by the deceased from
the opponent-owner Bhagwan Sahay. Therefore,
applying the law laid down by this Court in the case of
Ningamma (supra), and as the deceased has stepped
into the shoes of the owner of the vehicle bearing
registration No. RJ 02 SA 7811, as rightly held by the
High Court, the claim petition under Section 163A of
the Act against the owner and insurance company of
the vehicle bearing registration No. RJ 02 SA 7811
shall not be maintainable.
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C.M.A.Nos.1973 of 2019 & 430 of 2021
5.5 It is true that, in a claim under Section 163A
of the Act, there is no need for the claimants to plead
or establish the negligence and/or that the death in
respect of which the claim petition is sought to be
established was due to wrongful act, neglect or default
of the owner of the vehicle concerned. It is also true
that the claim petition under Section 163A of the Act is
based on the principle of no fault liability. However, at
the same time, the deceased has to be a third party and
cannot maintain a claim under Section 163A of the Act
against the owner/insurer of the vehicle which is
borrowed by him as he will be in the shoes of the
owner and he cannot maintain a claim under Section
163A of the Act against the owner and insurer of the
vehicle bearing registration No. RJ 02 SA 7811. In the
present case, the parties are governed by the contract
of insurance and under the contract of insurance the
liability of the insurance company would be qua third
party only. In the present case, as observed
hereinabove, the deceased cannot be said to be a third
party with respect to the insured vehicle bearing
registration No. RJ 02 SA 7811. There cannot be any
dispute that the liability of the insurance company
would be as per the terms and conditions of the
contract of insurance. As held by this Court in the case
of Dhanraj (supra), an insurance policy covers the
liability incurred by the insured in respect of death of
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C.M.A.Nos.1973 of 2019 & 430 of 2021
or bodily injury to any person (including an owner of
the goods or his authorized representative) carried in
the vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle. In
the said decision, it is further held by this Court that
Section 147 does not require an insurance company to
assume risk for death or bodily injury to the owner of
the vehicle.
5.6 In view of the above and for the reasons
stated above, in the present case, as the claim under
Section 163A of the Act was made only against the
owner and insurance company of the vehicle which
was being driven by the deceased himself as borrower
of the vehicle from the owner of the vehicle and he
would be in the shoes of the owner, the High Court has
rightly observed and held that such a claim was not
maintainable and the claimants ought to have joined
and/or ought to have made the claim under Section
163A of the Act against the driver, owner and/or the
insurance company of the offending vehicle i.e. RJ 29
2M 9223 being a third party to the said vehicle.”
17.In view of the judgment of the Hon'ble Apex Court, 2020 (1) TN
MAC 1 (SC) cited supra, the contention of the learned counsel appearing for
the 2nd respondent is acceptable. The claimants, who are the legal
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C.M.A.Nos.1973 of 2019 & 430 of 2021
representatives of the deceased tort-feasor are not entitled to claim
compensation from the 2nd respondent-New India Assurance Company, who
is the insurer of the Maruthi Van which the deceased was riding at the time of
accident. For the above reason, the award of the Tribunal directing the 2 nd
respondent to pay 75% of the compensation awarded to the claimants is liable
to be set aside and it is hereby set aside. The claimants are entitled to only
25% of the compensation awarded from the 4th respondent.
18.As far as quantum of compensation is concerned, the claimants
claimed that the deceased was aged 36 years, working as Driver and was
earning a sum of Rs.50,000/- per month at the time of accident. They failed to
prove the same. In the absence of materials with regard to avocation and
income, the Tribunal fixed a sum of Rs.6,000/- per month as notional income
of the deceased. The accident occurred in the year 2012. The cost of living
has increased enormously and salary of even unskilled workers has increased
substantially. Hence, a sum of Rs.10,000/- per month is fixed as notional
income of the deceased. The deceased was aged 36 years at the time of
accident. The Tribunal applied multiplier '15' and granted 40% enhancement
towards future prospects and the same are proper. There are 5 dependants of
the deceased and the Tribunal has rightly deducted 1/4th towards personal
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C.M.A.Nos.1973 of 2019 & 430 of 2021
expenses of the deceased. Thus, by fixing the notional income of the
deceased as Rs.10,000/- per month, the compensation awarded by the
Tribunal towards loss of dependency is modified to Rs.18,90,000/-
{Rs.14,000/- [(Rs.10,000/- + Rs.4,000/- (40% of Rs.10,000/-)] X 12 X 15 X
¾}. The amounts awarded by the Tribunal under other heads are just and
reasonable and hence, the same are confirmed. Thus, the compensation
awarded by the Tribunal is modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of dependency 11,34,000/- 18,90,000/- Enhanced
2. Loss of consortium 40,000/- 40,000/- Confirmed
3. Funeral expenses 15,000/- 15,000/- Confirmed
4. Loss of estate 15,000/- 15,000/- Confirmed
Total Rs.12,04,000/- Rs.19,60,000/- Enhanced by
75% of award amount Rs.9,03,000/- Rs.14,70,000/- Rs.7,56,000/-
(Rs.19,60,000/-
25% of award amount Rs.3,01,000/- Rs.4,90,000/- -
Rs.12,04,000/-)
19.The total compensation awarded by the Tribunal at Rs.12,04,000/-
is hereby enhanced to Rs.19,60,000/- together with interest at the rate of 7.5%
per annum from the date of petition till the date of deposit. The 4th
respondent-Barati Axa General Insurance Company Limited is directed to
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C.M.A.Nos.1973 of 2019 & 430 of 2021
deposit 25% of the award amount, (i.e., Rs.4,90,000/-) now determined by
this Court, along with proportionate 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 common judgment, to the credit of M.C.O.P.No.1440 of
2013 on the file of the Motor Accident Claims Tribunal, Principal District
Court, Namakkal. On such deposit, the claimants 1, 4 & 5 are permitted to
withdraw their respective share of the award amount, now determined by this
Court, as per the ratio of apportionment fixed by the Tribunal, along with
proportionate interest and costs, less the amount if any, already withdrawn by
making necessary applications before the Tribunal. The share of the minor
claimants 2 & 3 are directed to be deposited in any one of the Nationalized
Banks, till the minor claimants 2 & 3 attains majority. On such deposit, the 1st
claimant, being the mother of the minor claimants 2 & 3 is permitted to
withdraw the accrued interest once in three months for the welfare of the
minor claimants 2 & 3. The 2nd respondent-New India Assurance Company
Limited is permitted to withdraw the award amount lying in the credit of
M.C.O.P.No.1440 of 2013, if the award amount has already been deposited
by them. No costs.
20.In the result, C.M.A.No.1973 of 2019, filed by the 2nd respondent-
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C.M.A.Nos.1973 of 2019 & 430 of 2021
New India Assurance Company Limited is allowed and C.M.A.No.430 of
2021, filed by the claimants is partly allowed. Consequently, the connected
Miscellaneous Petition is closed. No costs.
23.02.2021
krk
Index : Yes
Internet : Yes
To
1.The Principal District Judge,
Motor Accident Claims Tribunal,
Namakkal.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
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krk
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23.02.2021
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