R.Lathamaheswari vs T.Rameshkumar
2021 Latest Caselaw 4911 Mad

                                                                      C.M.A. No.4410 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 25.02.2021

                                                     CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                              C.M.A.No.4410 of 2019

                   1.R.Lathamaheswari

                   2.Minor S.Sibi

                   3.Minor S.Sibitha
                   (Minors rep. By their mother 1st appellant)

                   4.Perumal

                   5.P.Kiliyammal                                         .. Appellants

                                                         Vs.

                   1.T.Rameshkumar

                   2.V.Thangavel

                   3.M/s.The Oriental Insurance Co. Ltd.,
                     No.281, Cross Cut Road,
                     P.B.No.2907, Gandhipuram,
                     Coimbatore.                                          .. Respondents



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                                                                              C.M.A. No.4410 of 2019

                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                   Vehicles Act, 1988, against the judgment and decree dated 30.09.2011, made
                   in M.C.O.P. No.1367 of 2008, on the file of the Additional District &
                   Sessions Court, Fast Track Court I, (Motor Accident Claims Tribunal),
                   Coimbatore.


                                         For Appellants     : Mr.S.S.Swaminathan

                                         For Respondents : Mr.J.Chandran (For R3)

                                                  JUDGMENT

This Civil Miscellaneous Appeal has been filed to set aside the portion

of the award dismissing the claim petition as against the 3 rd respondent as

well as seeking enhancement of the compensation granted by the Tribunal in

the award dated 30.09.2011, made in M.C.O.P. No.1367 of 2008, on the file

of the Additional District & Sessions Court, Fast Track Court I, (Motor

Accident Claims Tribunal), Coimbatore.

2.The appellants filed M.C.O.P. No.1367 of 2008, on the file of the

Additional District & Sessions Court, Fast Track Court I, (Motor Accident

Claims Tribunal), Coimbatore, claiming a sum of Rs.10,00,000/- (value

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amended vide order of this Court dated 23.02.2015 made in M.P.No.1 of 2014

in C.M.A.Sr.70113 of 2014), as compensation for the death of one R.

Subramani, who died in the accident that took place on 03.09.2008.

3.According to the appellants, on the date of accident, when the

deceased was riding a Two Wheeler bearing Registration No.TN-37-AM-

6745 from West to East and turned towards South in front of Sri Selva

Ganapathy Timbers, Goldwins, Avinashi Road, Coimbatore, keeping left side

of the road, 1st respondent, rider of a Motorcycle bearing Registration No.TN-

37-AA-4358 belonging to the 2nd respondent, in the regular course of

employment under 2nd respondent, came from East to West in a rash and

negligent manner without adhering the traffic regulations and dashed on the

Two Wheeler driven by the deceased and caused the accident. The accident

occurred only due to rash and negligent driving by the 1st respondent, driver

of the Motorcycle belonging to the 2nd respondent. Hence, the appellants filed

the claim petition claiming compensation against the respondents as driver,

owner and insurer of the said vehicle respectively.

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4.The respondents 1 and 2 remained exparte before the Tribunal.

5.The 3rd respondent-Insurance Company, filed counter statement and

denied all the averments made by the appellants in the claim petition.

According to the 3rd respondent, the 2nd respondent has violated the policy

conditions by permitting the 1st respondent to ride the Motorcycle without

possessing valid driving license. Hence, the 3rd respondent is not liable to

indemnify the 2nd respondent for violation of policy conditions. In any event,

the deceased did not possess valid driving license at the time of accident and

hence, the appellants are not liable to claim any compensation. The appellants

have to prove the age, avocation and income of the deceased to claim

compensation. The total compensation claimed by the appellants under

different heads is excessive and prayed for dismissal of the claim petition.

6.Before the Tribunal, the 1st respondent examined herself as P.W.1,

examined eye witness as P.W.2 and marked 7 documents as Exs.P1 to P7. The

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appellant examined their official as R.W.1 and marked 5 documents as

Exs.R1 to R5.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred only due to rash and negligent

riding by 1st respondent, rider of the Motorcycle belonging to the 2nd

respondent and directed the 2nd respondent as owner of the vehicle to pay a

sum of Rs.4,83,000/- as compensation to the appellants. The Tribunal

dismissed the claim petition as against the 3rd respondent-Insurance Company.

8.Challenging the portion of the award dismissing the claim petition as

against the 3rd respondent-Insurance Company and not being satisfied with

the amounts granted by the Tribunal in the award dated 30.09.2011, made in

M.C.O.P. No.1367 of 2008, the appellants have come out with the present

appeal.

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9.The learned counsel appearing for the appellants contended that the

Tribunal erred in dismissing the claim petition against the 3rd respondent-

Insurance Company without appreciating the law. Even if the 2nd respondent,

owner of the vehicle has violated the policy conditions and the 1st respondent,

rider of the offending vehicle did not possess driving license, the Tribunal

ought to have ordered pay and recovery. The Tribunal having held that the

rider and owner of the vehicle are responsible for the accident, ought to have

held that the Insurance Company is liable for payment of compensation. The

deceased was aged 40 years and was a Partner in M/s.Rusi Fast Food. The

Tribunal erroneously fixed the monthly income of the deceased at Rs.3,500/-,

instead of Rs.5,000/- per month. There are 5 dependents. The Tribunal erred

in deducting 1/3rd instead of 1/4th. The Tribunal failed to grant any

enhancement towards future prospects and amounts granted under other

heads are meagre and prayed for setting aside the dismissal of claim petition

against the 3rd respondent and for enhancement of the compensation.

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10.The respondents 1 and 2 remained exparte before the Tribunal and

hence, notice to the respondents 1 and 2 is dispensed with.

11.Per contra, the learned counsel appearing for the 3rd respondent-

Insurance Company contended that the 1st respondent, rider of the Motorcycle

did not possess valid driving license at the time of accident. The Tribunal

considering the materials on record, rightly held that the Insurance Company

is not liable to pay any compensation and dismissed the claim petition. There

is no error in the award of the Tribunal and prayed for dismissal of the appeal.

12.Heard the learned counsel appearing for the appellants as well as the

2nd respondent-Insurance Company and perused the materials available on

record.

13.It is the case of the 3rd respondent-Insurance Company that the 1st

respondent, rider of the Motorcycle belonging to the 2nd respondent did not

possess driving license at the time of accident. To substantiate their

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contention, the 3rd respondent examined R.W.1 and marked Exs.R1 to R5.

From the documents filed by the 3rd respondent, it is seen that the 3rd

respondent issued notice to the respondents 1 and 2, the rider and owner of

the offending vehicle to produce the driving license of the 1st respondent. The

1st respondent received Ex.R2/notice and having acknowledged the same, did

not produce the driving license. Notice sent to the 2nd respondent, owner of

the offending vehicle was returned unserved and the same was marked as

Ex.R5. Both the respondents 1 and 2 remained exparte before the Tribunal

and did not dispute the contention of the 3rd respondent-Insurance Company

that the 1st respondent did not possess driving license at the time of accident.

The appellants in the grounds of appeal, have not raised that the 1st

respondent, rider of the offending vehicle possessed driving license. On the

other hand, it is the case of the appellants in the appeal that even if owner has

violated the policy conditions by permitting the 1st respondent to ride the

vehicle without license, the Tribunal ought to have ordered pay and recovery.

The contention now raised in the appeal is not acceptable as the same is

contrary to the judgment of the Hon'ble Apex Court reported in AIR 2020

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SCC 4453 [Beli Ram Vs. Rajender Kumar and another], wherein it has been

held as follows:

“21. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under:

“18 When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot

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that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim.

23.When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years. The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are,

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however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger issues could be debated in other proceedings.

The only exception is in the provisos to Section 3 of the Compensation Act, which is not the factual situation in the present case. The relevant provision reads as under:

“3. Employer' s liability for compensation.- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

Provided that the employer shall not be so liable--

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [four] days;

(b) in respect of any [injury, not resulting in death, caused by] an accident which is directly attributable to--

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

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(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.”

We are not aware whether any other proceedings have been initiated or not, at least, none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in not renewing the driving licence would be present, but the lack of care of the appellant as the employer would also arise.

We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount. Proceedings here being under the Compensation Act, the consequences are not flowing to the first respondent as the initial negligent person.”

The ratio in the said judgment of the Hon'ble Apex Court referred to above is

squarely applicable to the facts of the present case. In view of the same, the

3rd respondent-Insurance Company is not liable to pay compensation to the

appellants. Hence, there is no reason to interfere with the award dismissing

the claim petition against the 3rd respondent.

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14.Further, it is the case of the appellants in the claim petition that at

the time of accident, the deceased was a Partner in M/s.Rusi Fast Food and

was earning a sum of Rs.15,000/- per month. The appellants have not filed

any document to prove the avocation and income of the deceased. In the

absence of any materials with regard to avocation and income of the

deceased, the Tribunal fixed the notional income at Rs.3,500/- per month. The

accident is of the year 2008. The notional income fixed by the Tribunal is

meagre and the same is enhanced to Rs.5,000/-, as claimed by the appellants

in the appeal. The deceased was aged 40 years at the time of accident. The

Tribunal has not granted any enhancement towards future prospects. The

appellants are entitled to 25% enhancement towards future prospects. There

are 5 dependents. The Tribunal erroneously deducted 1/3rd towards personal

expenses of the deceased and applied multiplier '16', instead of deducting

1/4th towards personal expenses and applying multiplier '15'. Hence, by

deducting 1/4th towards personal expenses, granting 25% enhancement

towards future prospects and applying the multiplier '15', the amounts

awarded by the Tribunal towards loss of dependency is modified to

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Rs.8,43,750/- {[Rs.5,000/- + Rs.1,250/- (25% of Rs.5,000/-)] x 12 x 15 x

3/4}. The amounts granted by the Tribunal under other conventional heads are

just and reasonable and hence, the same are confirmed. Thus, the compensation

awarded by the Tribunal is modified as follows:

S. No Description Amount awarded Amount Award by Tribunal awarded by this confirmed or (Rs) Court (Rs) enhanced or granted

1. Loss of dependency 4,48,000/- 8,43,750/- Enhanced

2. Transportation 1,000/- 1,000/- Confirmed

3. Funeral expenses 5,000/- 5,000/- Confirmed

4. Loss of consortium to 5,000/- 5,000/- Confirmed 1st appellant

5. Loss of love and 24,000/- 24,000/- Confirmed affection to appellants 2 to 5 Total 4,83,000/- 8,78,750/- Enhanced by Rs.3,95,750/-

15.In the result, the appeal is partly allowed and the amount awarded

by the Tribunal at Rs.4,83,000/- is enhanced to Rs.8,78,750/- together with

interest at the rate of 7.5% per annum from the date of petition till the date of

deposit. The 2nd respondent is directed to deposit the award amount, now

determined by this Court, along with interest and costs, within a period of

twelve weeks from the date of receipt of a copy of this judgment, to the credit

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of M.C.O.P. No.1367 of 2008. On such deposit, the appellants 1, 4 and 5 are

permitted to withdraw their share of the award amount, now determined by

this Court, along with proportionate interest and costs, as per the ratio of

apportionment fixed by the Tribunal, after adjusting the amount, if any,

already withdrawn, by filing necessary applications before the Tribunal. The

shares of the minor appellants 2 and 3 are directed to be deposited in any one

of the Nationalized Bank, till the minors attain majority. The 1st appellant,

mother of the minor appellants 2 and 3 is permitted to withdraw the accrued

interest, once in three months for the welfare of the minor appellants 2 and 3.

It is made clear that the appellants are not entitled for any interest for the

delay period on the amount of Rs.3,95,750/-, enhanced by this Court, as per

the order of this Court dated 25.09.2019, made in M.P.No.1 of 2015 in

C.M.A. SR.70113 of 2014. This claim is dismissed as against the 3rd

respondent. No costs.

25.02.2021 Index : Yes / No gsa

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V.M.VELUMANI, J.,

gsa

To

1.The Additional District & Sessions Judge, Fast Track Court I, (Motor Accident Claims Tribunal), Coimbatore.

2.The Section Officer, V.R Section, High Court, Madras.

C.M.A.No.4410 of 2019

25.02.2021

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