Madras High Court
Kannan vs M.Kalyani (Deceased) on 18 January, 2021
CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 18.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
CMA.No.2155 of 2010 and
CMA No.1221, 1247 of 2011
1. Kannan
2. Pownammal
3. Kanniyappan
4. Sankar
5. Palani ... Appellants/ Claimants in
CMA No.2155 of 2010
S.Dhanasekaran ... Appellant/Claimant in
CMA No.1221 of 2011
A. Vadivel ... Appellant/ Claimant in
CMA No.1247 of 2011
Vs.
1. M.Kalyani (deceased),
2. The Divisional Manager,
United India Insurance Company Limited,
Katpadi Road, Vellore 632 004.
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CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
3. S. Vijyaya
4. The Divisional Manager,
United India Insurance Company Limited,
Katpadi Road, Vellore 632 004.
5. Mani
6. Shanmugam
( R5 and R6 are brought on record as LRs of the deceased R1
vide order of this court dated 28.03.2019 made in
MP No.2 and 3 of 2014 in CMA No.255 of 2010.)
... Respondents in all CMAs
Prayer in CMA No.2155 of 2010
This Civil Miscellaneous Appeal has been filed under Section
173 of the Motor Vehicles Act, 1988, against the decree and judgment
dated 30.11.2009 passed in MCOP No.132 of 2006 on the file of the
Subordinate Judge, Motor Accident Claims Tribunal, Ranipet.
Prayer in CMA No.1221 of 2011
This Civil Miscellaneous Appeal has been filed under Section
173 of the Motor Vehicles Act, 1988, against the decree and judgment
dated 30.11.2009 passed in MCOP No.213 of 2006 on the file of the
Subordinate Judge, Motor Accident Claims Tribunal, Ranipet.
https://www.mhc.tn.gov.in/judis/
CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
Prayer in CMA No.1247 of 2011
This Civil Miscellaneous Appeal has been filed under Section
173 of the Motor Vehicles Act, 1988, against the decree and judgment
dated 30.11.2009 passed in MCOP No.197 of 2006 on the file of the
Subordinate Judge, Motor Accident Claims Tribunal, Ranipet.
In all CMAs
For Appellant/s : Mr.M.Sivakumar
For Respondents : Mr.S.Arunkumar for R2 and R4
R1- Died
No appearance for R5 and R6
R3- Left
COMMON JUDGMENT
Challenging the judgment and decree passed by the
Tribunal in MCOP No.132 of 2006, the claimants/appellants have filed
CMA No.2155 of 2010.
Challenging the judgment and decree passed by the
Tribunal in MCOP No.213 of 2006, the claimant/appellant has filed
CMA No.1221 of 2011.
https://www.mhc.tn.gov.in/judis/
CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
Challenging the judgment and decree passed by the
Tribunal in MCOP No.197 of 2006, the claimant/appellant has filed
CMA No.1247 of 2011.
2. The claimants/appellants in CMA 2155 of 2010 have
filed a claim petition in MCOP No.132 of 2006 before the Tribunal
seeking compensation of Rs.8,00,000/- for the death of one Vinayagam;
the claimant/appellant in CMA No.1221 of 2011 has filed a claim
petition in MCOP No.213 of 2006 seeking compensation of Rs.50,000/-
and the claimant/appellant in CMA No.1247 of 2011 has filed a claim
petition in MCOP No.197 of 2006 seeking compensation of
Rs.1,00,000/-
3. The brief case of the claimants in all the claim petitions
is as follows.
On 12.05.2006, one Vinayagam and the petitioners in the
claim petitions in MCOP No. 197/2006, MCOP No.200/2006 and
MCOP No.213 of 2006 were travelling in an autorickshaw bearing
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CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
registration No.TN-07-Y-5742 along Chennai-Bangalore National
Highways Road and while nearing opposite to the Government I.T.I at
Abdullahpuram Junction road, the driver of the auto had moved the
vehicle in a wrong route, due to which a tempo van bearing registration
No.TN65 B 1400 came from opposite side hit the autorickshaw, due to
which the said Vinayagam died on the spot and the other petitioners
sustained grievous injuries. According to the petitioners, since the first
and third respondents are the owners of the vehicles involved in the
accident and the second and fourth respondents are the insurers of the
said vehicles, all the respondents are liable to pay compensation to the
petitioners.
4. The respondents 2 to 4 resisted the claim petition by
filing their respective counter affidavit.
5. Before Tribunal, on the side of the petitioners PW1 to
PW5 were examined and Ex.P1 to Ex.P15 were marked. On the side of
the respondents, RW1 was examined and Ex.R1 was marked.
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CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
6. After analysing the evidence on record, the Tribunal has
awarded compensation in the claim petitions, as extracted hereunder.
In MCOP No.132 of 2006
Heads Amount in Rs.
Loss of income and Loss of dependency 7,20,000
(6000-2000 x15x12)
Loss of love and affection 10000x5 50,000
Funeral expenses 5,000
Transportation charges 5,000
Total 7,80,000
In MCOP No.213 of 2006
Heads Amount in Rs.
Pain and suffering 20,000
Disability 55,000
Transportation charges 2,000
Extra nourishment 2,000
Damages to clothes 1,000
Medical expenses 82,134
Total 1,62,134
In MCOP No.197 of 2006
A sum of Rs.10,500/- was awarded as compensation totally
towards " Pain and sufferings, Medical and Transport Expenses and
Extra Nourishment ".
https://www.mhc.tn.gov.in/judis/
CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
7. Not satisfied with the Award passed by the Tribunal, the
claimants/appellants are before this court to enhance the compensation
and also to direct the insurance company to pay the compensation to the
claimants.
8. Heard the learned counsels for the parties and also I
have perused the materials on record.
9. Now the point for determination is
(i) Whether the insurance company is liable to pay
compensation to the claimants.
(ii) Whether the award passed by the Tribunal has to be
enhanced?
10. Point No.1
The learned counsel appearing for the claimants/appellants
submitted that since the vehicles involved in the accident namely
autorickshaw and tempo van were insured with the insurance
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CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
companies/ the respondents two and four, they are liable to pay
compensation to the claimants and hence the Tribunal ought to have
ordered the insurance companies to pay the compensation to the
claimants and then recover the same from the owners of the vehicles.
However, without appreciating the above said facts, the Tribunal had
erroneously dismissed the claim of the petitioners against the insurance
companies and directed the first respondent/owner of the autorickshaw
to pay compensation to the claimants. He also submitted that the
compensation awarded by the Tribunal in MCOP No.213 of 2006 and
MCOP No.197 of 2006 is very meagre and hence, the same has to be
enhanced.
11. The learned counsel appearing for the respondents 2
and 4 submitted that even according to the claimants, the accident took
place was only due to the negligence on the part of the driver of the
autorickshaw and hence, the insurance company is not liable to pay
compensation to the claimants. It is further submitted that the driver of
the vehicle had not obtained " Badge" to drive commercial vehicles on
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CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
the date of accident and that the auto involved in the accident had
capacity of 4 in all, whereas, seven persons, including driver had
travelled in the auto and hence, the claimants are not entitled to claim
compensation. It is also submitted that after analysing the evidence on
record, the Tribunal has rightly arrived just and reasonable
compensation and has rightly dismissed the claim petitions as against
the insurance company and directed the first respondent/ owner of the
autorickshaw to pay compensation to the claimants. Therefore, the
award passed by the Tribunal need not be modified.
12. The learned counsel appearing for the appellants relied
on a decision in Mukund Dewangan Vs. Oriental Insurance Company
Limited reported in 2017 14 Supreme Court Cases 663, in which at
paragraph No.60 it is decided as follows.
60. Thus, we answer the questions which are referred to
us thus:
60.1. " Light motor vehicle" as defined in Section 2(21)
of the Act would include a transport vehicle as per the weight
prescribed in Section 2(21) read with Sections 2(15) and 2(48).
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CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
Such transport vehicles are not excluded from the definition of
the light motor vehicle by virtue of Amendment Act 54 of 1994.
60.2. A transport vehicle and omnibus, the gross vehicle
weight of either of which does not exceed 7500 kg would be a
light motor vehicle and also motor car or tractor or a roadroller,
" unladen weight" of which does not exceed 7500 kg and holder
of a driving licence to drive class of " light motor vehicle" as
provided in Section 10(2)(d) is competent to drive a transport
vehicle or omnibus, the gross vehicle weight of which does not
exceed 7500 kg or a motor car or tractor or roadroller, the "
unladen weight" of which does not exceed 7500 kg. That is to
say, no separate endorsement on the licence is required to drive a
transport vehicle of light motor vehicle class as enumerated
above. A licence issued under Section 10(2)(d) continues to be
valid after Amendment Act 54 of 1994 and 28.03.2001 in the
form.
60.3. The effect of the amendment made by virtue of Act
54 of 1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h)
of Section 10(2) which contained " medium goods vehicle" in
Section 1092)(e), " medium passenger motor vehicle" in Section
10(2)(f), "heavy goods vehicle" in Section 10(2)(g) and " heavy
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CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
passenger motor vehicle" in Section 10(2)(e) related only to the
aforesaid substituted classes only. It does not exclude transport
vehicle, from the purview of Section 10(2)(d) and Section 2(41) of
the Act. i.e. light motor vehicle.
60.4. The effect of amendment of Form 4 by insertion of "
transport vehicle" is related only to the categories which were
substituted in the year 1994 and the procedure to obtain driving
licence for transport vehicle of class of " light motor vehicle"
continues to be the same as it was and has not been changed and
there is no requirement to obtain separate endorsement to drive
transport vehicle, and if a driver is holding licence to drive light
motor vehicle, he can drive transport vehicle of such class
without any endorsement to that effect.
13. The main contention of the insurance company is that
on the date of accident, the driver of the auto was not having " Badge"
to drive the commercial vehicle and hence, the insurance company
cannot be held liable to pay compensation. In the present case, the
vehicle involved in the accident was a passenger vehicle. Therefore,
the above decision of the Honorable Supreme Court is squarely applied
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CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
to the present case. The insurance company cannot escape from its
liability to pay a valid compensation to the claimants, who suffered due
to the accident. Therefore, this court is of the view that the insurance
company has to pay the compensation to the claimants at the first
instance and then recover the same from the owner of the autorickshaw.
The Point No.1 is answered accordingly.
14. Point No.2
As far as the quantum of compensation awarded by the
Tribunal is concerned, after analysing all the materials on record and
after discussing elaborately, the Tribunal has awarded a just and
reasonable compensation to the claimants in all the claim petitions and
the same does not warrant any interference by this court. Therefore, the
compensation awarded by the Tribunal in all the claim petitions are
unaltered. The point No.2 is answered accordingly.
15. In the result,
(i) The appeal in CMA No.2155 of 2010, CMA No.1221 of
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CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
2011 and CMA No.1247 of o2011 are partly allowed, no costs, and the
Award passed by the Tribunal is modified to the effect that the second
respondent/insurance company is directed to pay the compensation as
awarded by the Tribunal in the claim petitions in MCOP No.132 o
2006, MCOP No.213 of 2006 and MCOP No.197 of 2006 respectively,
within a period of 12 weeks from the date of receipt of a copy of this
order, less the amount already deposited and then, recover the same
from the first respondent/ owner of the autorickshaw.
(ii) On such deposit being made by the second respondent,
the claimants are entitled to withdraw the same, after following due
process of law.
18.01.2021
mst
Index:Yes/No
Internet:Yes/No
Speaking/non Speaking order
To
The Divisional Manager,
United India Insurance Company Limited,
Katpadi Road, Vellore 632 004.
https://www.mhc.tn.gov.in/judis/
CMA No.2155 of 2010 and
CMA No.1221 and 1247 of 2011
D. KRISHNAKUMAR, J.
mst
CMA.No.2155 of 2010,
CMA No.1221of 2011 and
CMA No. 1247 of 2011
18.01.2021
https://www.mhc.tn.gov.in/judis/
