Madras High Court
Royal Sundaram Alliance ... vs Grandhi Sridevi on 25 February, 2021
CMA Nos.1140 & 1141/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.02.2021
CORAM
The Honourable Mr. Justice R. Subbiah
and
The Honourable Mr. Justice Sathi Kumar Sukumara Kurup
C.M.A. Nos.1140 and 1141 of 2016
and
C.M.P. Nos. 8600 and 8599 of 2016
---
Royal Sundaram Alliance Insurance Company Limited,
Subramaniam Building, 3rd Floor,
No.1, Club House Road, Chennai-600 002. ..Appellants in both appeals
Versus
1.Grandhi Sridevi
W/o.Late Siva Ganesh
2.Grandhi Viswa Manikanta Suhas (Minor)
S/o.Late Siva Ganesh
(Minor 2nd respondent is represented by
his mother Grandhi Sridevi, 1st respondent herein)
3.Grandhi Naga Lakshmi
W/o.Suresh
4.Grandhi Suresh ..Respondents in
S/o.Soma Ganapathi Rao C.M.A.No.1140 of 2016
1.Kancherla Ratna Madhuri
W/o.Late Veera Sesha Sai
2.Kancherla Veera Raghava Sujan
S/o.Late Veera Sesha Sai
3.Kancherla Veera Satya Tejas
S/o.Veera Sesha Sai
(Minors/Respondents 2 and 3 are rep.
by their mother Kancherla Ratna Madhuri,
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CMA Nos.1140 & 1141/2016
the 1st respondent herein)
4.Kancherla Raghava
W/o.Bhaskara Rao
5.Grandhi Suresh ..Respondents in
S/o.Soma Ganapathi Rao C.M.A.No.1141 of 2016
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the award dated 22.12.2015 in
M.C.O.P. Nos.1 and 2 of 2014 on the file of the Motor Accidents Claims
Tribunal, Sub-Court, Yanam.
For Appellant :: Mr. Elveera Ravindran
(In both C.M.As) Mr.K.Vinod
For R1 to R4 :: Mr.M.Ravi
For R5 :: Ex-parte
in CMA No. 1141
COMMON JUDGMENT
(Judgment of the Court was made by SATHI KUMAR SUKUMARA
KURUP, J)
Both these appeals are filed by Royal Sundaram Allied Insurance
Company, Chennai assailing the award dated 22.12.2015 passed in
M.C.O.P.Nos.1 and 2 of 2014 on the file of the Motor Accidents Claims
Tribunal, Sub-Court, Yanam.
2. Since both the appeals arise out of the same accident and award,
they are taken up together and disposed of by this common judgment.
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3. The parties to these appeals are referred to as per their ranks in
the claim petition for the sake of convenience.
4. Before the Tribunal, two Claim Petitions were filed as MCOP
Nos. 1 and 2 of 2014. MCOP No. 1 of 2014 was filed by the wife, minor son
and mother of the deceased Grandhi Siva Ganesh, while the other claim
petition in MCOP No. 2 of 2014 was filed by wife, minor children and mother
of the deceased Veera Seshasai.
5. As per the averments in the claim petitions in MCOP Nos. 1 and 2
of 2014, on 21.01.2013, the deceased Grandhi Siva Ganesh was driving the car
bearing Registration No. PY 04 6662 in which the deceased Veera Seshasai
was an occupant. At about 2.30 pm the car was proceeding from
Visakhapatnam to Yanam and when it reached a place called Tetagunta Check
post, the driver of the vehicle lost control over the vehicle and hit against a
cement pole situated on the road side. As a result, the car turned upside down
causing injuries to both the occupants in the car. Both the occupants of the car
were taken to the hospital, however, the driver of the car namely Grandhi
Sivaganesh died on the way to hospital. Therefore, a complaint was lodged by
the injured Veera Seshasai, based on which a case in Crime No.12 of 2013 was
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CMA Nos.1140 & 1141/2016
registered for an offence u/s.304 (A) and 338 IPC as against the deceased
Grandhi Sivaganesh by the S.H.O, Tuni Rural Police Station. Subsequently,
Veera Seshasai also died in the hospital. Therefore, the legal heirs of the
deceased Grandhi Sivaganesh have filed M.C.O.P.No.1 of 2014 seeking
compensation for the death of Grandhi Siva Ganesh and the legal heirs of
Kancharala Veeraseshasai have filed M.C.O.P.No.2 of 2014 claiming a sum of
Rs.30,00,000/- and Rs.25,00,000/- respectively as compensation.
6. Resisting the Claim Petitions, the appellant/Insurance Company
filed separate but identical counter statement in both the claim petitions. It was
the common defence of the appellant/Insurance Company that the Insurance
Policy was issued in favour of Grandhi Suresh and it was in force. However,
the deceased Siva Ganesh drove the vehicle without a valid driving licence and
it is one of the violations of the conditions of the policy. Even as per the
statement made in the claim petition, the driver of the car lost control and hit a
road side cement pole. There was no other motor vehicle involved in the
accident. The deceased was not a paid driver and as such he cannot be treated
as a third party to the policy of insurance. In such circumstances, the
Insurance Company prayed for dismissal of both the claim petitions.
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7. Before the Tribunal, in order to prove the averments in the
respective claim petitions, the first claimant in MCOP No. 1 of 2014 namely
Grandhi Sridevi was examined as PW1. Similarly, the first claimant in MCOP
No. 2 of 2014 namely Kancherla Ratna Madhuri was examined as PW1. In
both the claim petition, one Delta Venkata Satyanarayana Ramaraju was
examined as PW2, who witnessed the accident. In MCOP No. 1 of 2014, Exs.
P1 to P11 were marked. Similarly, in MCOP No. 2 of 2014, Exs. P1 to P15
were marked. On behalf of the respondents in MCOP Nos. 1 and 2 of 2014,
neither any witness was examined nor any document marked.
8. The Motor Accidents Claims Tribunal (Sub-Court), Yanam on
consideration of the oral and documentary evidence, awarded a total sum of
Rs.28,21,000/- and Rs.21,90,000/- as compensation. Aggrieved by the award
passed against the Insurance Company, the present appeals are filed.
9. Mr. Elveera Ravindran, learned counsel appearing for the
appellant-Insurance Company would contend that the accident had occurred
only due to the negligent driving on the part of the deceased Siva Ganesh.
There was no other motor vehicle involved in the accident and the accident was
by reason of negligence attributable on the part of the deceased driver of the
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CMA Nos.1140 & 1141/2016
car. Further, the deceased driver of the car was the son of the owner of the Car
and he cannot be regarded as a paid driver warranting the Tribunal to mulct
the insurance company to pay the compensation amount. Assuming that the
deceased driver was employed by the owner of the vehicle, then the
compensation can at best be awarded as per the provisions of The Workmen's
Compensation Act and to cover the owner of the vehicle under the Personal
Accident cover. The insurance policy is issued to indemnify the damage or loss
of life and injury caused to 3rd party by the motor vehicle. Therefore, provisions
of the Motor Vehicle Act and the policy of the insurance is against the claim
made in this case.
10. As far as M.C.O.P. No. 2 of 2014 is concerned, it was filed by the
wife, minor children and mother of the deceased Veera Seshasai who was an
occupant of car belonging to the 1st respondent. The car was driven by the son
of the owner of the vehicle. Due to rash and negligent driving, the driver lost
control and hit against the roadside lamp-post. There was no other motor
vehicle involved in the accident and therefore, the claimants in MCOP No. 2 of
2014 can only make a compensation as against the owner of the vehicle and
the insurer of the vehicle cannot be mulcted with any liability to pay the
compensation.
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11. It is stated by the counsel for the appellant that as per the
insurance policy, the owner of the car is covered under the policy of insurance
for the injury or death to the maximum of Rs.1,00,000/- only whereas the
Tribunal had granted award of Rs.20,25,000/- against the Insurance Company
for the death of Veera Seshasai, an occupant of the car in M.C.O.P.No2 of
2014 and Rs.26,56,000/- for the death of Grandhi Siva Ganesh, who was the
son of the owner of the car and who has driven the car on the fateful day. In
this context, the learned counsel for the appellant/Insurance Company had
relied on the rulings of the Hon'ble Supreme Court reported in New India
Assurance Company Ltd., Vs. Prabha Devi and Others reported in 2013
(1) TNMAC 781 (SC) and New India Assurance Company Ltd., Vs.
C.M.Jaya and Others reported in 2021 (1) ACC 299 (SC). Reliance was
also place on the decision of Division Bench of this Court, in (Divisional
Manager, United India Insurance Co. Ltd., Vs. R.Rekha) reported in 2017
(2) TNMAC 674 (DB) wherein one of us (R. Subbiah, J) was a party to the
Division Bench in which it was held that when there was no other motor
vehicle involved in the accident and the deceased himself was tort-feasor,
insurer cannot be mulcted with the liability to pay compensation. The learned
counsel for the appellant therefore prayed for allowing the appeals.
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12. On the above contentions, this Court heard the learned counsel for
the claimants, who only supported the award passed by the Tribunal and
prayed for dismissal of the appeals.
13. Admittedly, on the fateful day, the deceased Grandhi Siva Ganesh
was driving the car in which the other deceased Veera Seshasai was an
occupant. The driver Grandhi Siva Ganesh was none other than the son of the
owner of the car. He was not admittedly a paid driver engaged by the owner of
the car to drive the vehicle. Further, the driver of the car lost control and hit a
road side cement pole and in the impact, the car toppled upside down. The
driver Grandhi Siva Ganesh died on the spot while the occupant of the car
Veera Seshasai died subsequently. It is to be noted that when Veera Seshasai
was taken to the hospital, he gave a complaint against the driver Grandhi Siva
Ganesh as responsible for the accident and therefore, a case in Crime No. 12 of
2013 was registered for the offence punishable under Sections 304 (A) and
338 of IPC against Grandhi Siva Ganesh. After giving the complaint, the
occupant of the car Veera Seshasai also died due to the injuries he sustained in
the accident. While so, the driver of the car Grandhi Siva Ganesh himself was
the tort-feasor, who, due to his own negligence, has crashed the car against a
road side cement pole. In such circumstances, in our opinion, the Insurance
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Company cannot be mulcted with any liability to pay compensation to the legal
heirs of the deceased Grandhi Siva Ganesh, who are the claimants in MCOP
No. 1 of 2014 and at best, they are only entitled for payment of compensation
under the Personal Accident coverage of Rs.1,00,000/-. But the Tribunal
awarded Rs.28,21,000/- which cannot be sustained. In this context, reference
can be made to the decision of the Division Bench of this Court in (Divisional
Manager, United India Insurance Co. Ltd., Vs. R.Rekha) reported in 2017
(2) TNMAC 674 (DB) wherein it was held as follows:-
26. As far as the present case is concerned, the
deceased was travelling as a pillion rider in the two wheeler
owned by him. Admittedly, the deceased himself was the owner
of the two wheeler. At the time of accident, the driver of the
two wheeler suddenly applied brake and hit a cyclist which led
to the accident. No other motor vehicle has been involved in
this case. Thus, the accident did not involve any other motor
vehicle other than the one in which the deceased was travelling
as a pillion rider. Therefore, the liability of the insurance
company is only to the extent of indemnification of the insured
against the third person or in respect of damages of property.
While so, the insurance company cannot be fastened with any
liability under the provisions of the Motor Vehicles Act for the
death of the deceased who himself was the owner of the vehicle
and when no other motor vehicle was involved in this case.
Therefore, the question of the insurer being liable to indemnify
the deceased/owner of the vehicle does not arise. Since the
deceased himself was the owner of the two wheeler and not a
third party, the claim petition filed by the claimants will not
come within the purview of Section 146 or 147 of The Motor
Vehicles Act for the purpose of payment of compensation.
Therefore, we hold that the impugned Judgment and Decree of
the Tribunal cannot be sustained. The Appeal filed by the
Insurance Company deserves only to be allowed. At the same
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time, it is needless to mention that the claimants are entitled for
payment of Rs.1,00,000/- only towards Personal Accident
Cover proportionate to the premium paid by the deceased.
14. Therefore, in the light of the aforesaid decision of the Division
Bench of this Court, the award passed by the Tribunal in MCOP No. 1 of 2014
cannot be sustained and it is liable to be set aside holding that the claimants are
entitled only a sum of Rs.1,00,000/- towards personal accident cover.
15. As far as the award passed in MCOP No. 2 of 2014 filed by the
legal heirs of Veera Seshasai, admittedly, he was an occupant of the car driven
by Grandhi Siva Ganesh. For the death of the occupant of the Car, the
Insurance Company is liable to be indemnified by treating the occupant of the
car as a third party to the insurance policy. We also find that Veera Seshasai
was aged 36 years at the time of accident. He was doing business in fire works
as also rice business in a licensed premises as could be evident from Ex.P7,
licence and Ex.P8, Licence issued by the Commissioner of Municipality,
Yanam for doing rice business. Under Ex.P9, it was established that certificate
was registration was issued in the name of the deceased to run a business in
the name and style of M/s. Sri Veera Badhra Rice Store. The claimants have
also produced Ex.P11, Returns for payment of commercial tax at compounded
rate. Under Ex.P11, the annual turn over was shown as Rs.20,00,000/-.
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Having regard to the above documentary evidence, which remain unassailed,
the Tribunal has taken a sum of Rs.15,000/- as monthly income of the
deceased Veera Seshasai and arrived at a sum of Rs.1,80,000/- as his annual
income. The Tribunal deducted Rs.45,000/- thereof towards personal
expenses. Applying multiplier '15' the Tribunal awarded Rs.20,25,000/-
towards loss of income. We are in complete agreement with the compensation
awarded by the Tribunal towards loss of income. The Tribunal also awarded
Rs.1,00,000/- towards loss of consortium to the first claimant/wife, Rs.15,000/-
towards transportation and funeral expenses and Rs.50,000/- towards loss of
estate. These amount awarded by the Tribunal are fair and reasonable and
therefore we desist from interfering with the same.
16. In the result,
a) C.M.A.No.1140 of 2016 is allowed and the award dated 22.12.2015
passed by the Motor Accident Claims Tribunal, Yanam in M.C.O.P.No.1 of
2014 is modified to the extent that the claimants are entitled for a sum of
Rs.1,00,000/- only as compensation as against Rs.28,21,000/- awarded by the
Tribunal.
b) C.M.A.No.1141 of 2016 filed by the appellant-Insurance Company is
dismissed confirming the award dated 22.12.2015 passed in MCOP No. 2 of
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CMA Nos.1140 & 1141/2016
2014 on the file of Motor Accident Claims Tribunal, Yanam in favour of the
claimants.
c) The appellant insurance company is permitted to withdraw the
amount deposited in MCOP No.1 of 2014) except the sum of Rs.1,00,000/-
with accrued interest and cost, which we have awarded in favour of the
claimants
d) The appellant Insurance Company is directed to deposit the entire
compensation amount awarded by the Tribunal in MCOP No.2 of 2014 with
accrued interest and costs, if not already deposited, within a period of six
weeks from the date of receipt of a copy of this judgment. On such deposit, the
claimants the first and fourth claimants are permitted to withdraw their share
as has been apportioned by the Tribunal.
e) The award amount of the minor respondents 2 and 3 is directed to be
deposited in any one of the Nationalized Bank, till they attain majority. The
first claimant, being the mother of the minor respondents 2 and 3 is permitted
to withdraw the accrued interest once in every three months for the welfare of
the minor respondents. No costs. Consequently, connected Miscellaneous
Petition is closed.
(R.P.S.J) (S.S.K.J)
25.02.2021
gbi/rsh
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CMA Nos.1140 & 1141/2016
To
1.The Sub-Judge,
Motor Accidents Claims Tribunal,
Yanam.
2.The Section Officer,
V.R.Section,
High Court of Madras.
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CMA Nos.1140 & 1141/2016
R. Subbiah, J
and
Sathi Kumar Sukumara Kurup, J
gbi/rsh
CMA Nos.1140 & 1141/2016
25.02.2021
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