Madras High Court
Pavithra vs Palanisamy on 3 July, 2021
C.M.A(MD)No.819 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Order Date of Pronouncing the Order
02.03.2022 22.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.M.A(MD)No.819 of 2021
1.Pavithra
2.Minor Rithanyasree
(Rep by her natural guardian & mother
The 1st appellant herein)
3.Muthupetchiammal
4.Muthukaamu ... Appellants
vs
1.Palanisamy
2.The Branch Manager,
New India Assurance Co.Ltd.,
No.722201, Anusham Complex,
D.No.1/1, 1/2, 1/3 Basement,
Palani Main Road, Udumalaipettai,
Tiruppur District. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act praying this Court to set aside the judgment and
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C.M.A(MD)No.819 of 2021
decree made in M.C.O.P.No.247 of 2017 by the Additional District and
Sessions Court (Fast Track Court), Palani, dated 03.07.2021.
For Appellants : Mr.D.Venkatesh
For R2 : Mr.J.S.Murali
For R1 : No appearance
JUDGMENT
*************
The claimants are the appellants herein. The claim petitioners
have preferred MCOP No.247 of 2017 before the learned Additional
District & Sessions Court (Fast Track Court), Palani, claiming
compensation for the death of the Thavaselvan on the road accident that
taken place on 28.07.2017.
2.The brief case of the appellants/claimants is as follows:-
On 28.07.2017, when the deceased was riding a two wheeler, the
Tractor having registration No.TN 41-U-2644 came from the opposite
direction driven by his driver in a rash and negligent manner, dashed
against the motor cycle in which the deceased traveled and caused the
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C.M.A(MD)No.819 of 2021
accident. In the accident, the deceased sustained severe injuries and
subsequently, succumbed to the injury sustained in the road transport
accident. Hence, the claim petition.
3.The first appellant is examined as P.W.1 and the documents
Ex.P1 to Ex.P7 were marked through her. The eye witness is examined
as P.W2 on the appellants side. On the side of the second respondent,
two witnesses were examined as R.W.1 and R.W.2 and two documents
were marked as Ex.R1 and Ex.R2. The first respondent has not contested
the case and remained ex parte.
4.When the deceased Thavaselvan was proceeding in an Apache
Motor cycle bearing Registration No.TN-57-AT-7096 towards north on
Palani-Neikarapatty road near Karikaranputhoor Vannanduraimedu, the
driver of the first respondent who drove the Tractor bearing Registration
No.TN-41-U-2644 from opposite direction in a rash and neglient manner,
dashed on the two wheeler in which the deceased traveled and caused the
accident. According to the appellants, the accident was solely caused due
to the rash and negligent driving of Tractor by the driver of the first
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C.M.A(MD)No.819 of 2021
respondent. The driver of the first respondent has not been impleaded in
this case as party, whereas the owner of the Tractor is impleaded as first
respondent in this case. But the first respondent has not contested the
case and remained exparte. At the same time, the Tractor belongs to the
first respondent has been insured with the second respondent, who is the
Insurance Company. The second respondent has contested the case and
filed its detailed counter.
5.The accident and the involvement of the Tractor belongs to the
first respondent in the accident have not been denied by the second
respondent, whereas the manner of the accident and the negligence on
the part of the driver of the tractor have been denied by the second
respondent. Ex.P2-Final Report reveals that the respondent police has
laid charge sheet under Sections 279 and 304-A IPC after completion of
investigation against one Marimuthu, S/o.Kalimuthu, who is said to have
been the driver of the Tractor at the time of accident.
6.Based upon the findings, the tribunal has came to the
conclusion that the driver of the tractor is rash and negligent and he does
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C.M.A(MD)No.819 of 2021
not posses any driving licence on the date of the accident. Accordingly,
the Tribunal exonerated the Insurance Company and fasten the liability
upon the owner of the vehicle, namely, the first respondent. As against
the finding of the Tribunal, the appellants/claimants have preferred this
appeal on the point of liablilty as well as the quantum.
7.The learned counsel for the appellants would contend that
though the driver of the offending vehicle does not posses driving
licence, the insurance company cannot be exonerated from the liability
and they have to pay and recover and relied upon the National
Insurance Company Limited vs. Swaran Singh & others reported in
2004 (1) TNMAC 104 (SC).
8.The learned counsel for the Insurance Company has relied upon
the judgment reported in 2020 (2) TNMAC 455 in the case of Beli Ram
Vs Rajinder Kumar and another. In the case law of Hon'ble Apex
Court, it is held that “when a tort-feasor failed to renew the driving
license within 30 days of expiry of driving license, as per the provision
of the Motor Vehicle Act, the Insurance Company is not liable to pay
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C.M.A(MD)No.819 of 2021
compensation, as owner of the vehicle has committed breach of terms of
policy by entrusting the vehicle to a person not possessing a valid driving
license.
9. I had an occassion to consider the above decision in C.M.A.No.
1706 of 2016, wherein I followed the decision rendered by brother
Justice Mr.G.Jayachandran in C.M.A.No.1746 of 2015 and held that in
respect of the Workmen compensation Act alone, for non-possession of
the driving licence, the insurance company can be exonerated. However,
when the claim petition is filed under Motor Vehicles Act, the Insurance
Company may be directed to pay and recover the compensation amount
from the owner of the vehicle. Accordingly, the order of the Tribunal
exonerating the liability of the Insurance Company is hereby set aside
and the Insurance Company is directed to pay the quantum of
compensation fixed hereunder and recover the same from the owner of
the vehicle.
10.On the point of quantum of compensation heard both sides.
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C.M.A(MD)No.819 of 2021
11.As per Ex.P7-certificate of daily wages of deceased
Thavaselvan by the Chittanathan Viboothi Manufacturing Company
Viputhi manufacturing company, the deceased was earning Rs.12,000/-
per month as an average and the deceased was 29 years old at the time of
the accident. However, he has not produced any valid document and
evidence to prove the same. Hence, in support of Ex.P7 no one was
examined from the employer side, which also assumes to be significence.
12.Taking into consideration the facts pleaded by the appellants,
I am of the considered view that the date of the accident being
28.07.2019, the monthly income of the deceased is fixed at Rs.8,000/-.
Since he is aged about 27, following the Pranay Sethi's Case, he is
entitled for 50% towards future prospectus. The proper multiplier to be
adopted in the instant case is 17 as per the decision rendered in
Sarlavarma and others vs. Delhi Transport Corporation and another
reported in (2009) 6 SCC 121. Since there are four dependents
depending on the income of the deceased, 1/4th has to be deducted
towards his personal expenses.
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C.M.A(MD)No.819 of 2021
Calculation
Notional income = Rs.8,000/-
50% Future Prospects = Rs.4,000/-
Total = Rs.8,000 + Rs.4,000 = Rs.12,000/-
Loss of dependency
= Rs.12,000 X 12 X 17 - 1/4 deduction
= Rs.18,36,000/-
13.Apart from the above amount, the claimants are entitled to a
sum of Rs.15,000/- towards 'funeral expenses' and a sum of Rs.15,000/-
towards 'Transport Expenses'. The first appellant herein is entitled to a
sum of Rs.40,000/- towards 'loss of consortium'. The appellants 2 to 4
herein are entitled to a sum of Rs.40,000/- each, towards 'loss of love
and affection'.
14. Accordingly, the award of the Tribunal in M.C.O.P.No. 247 of
2017 is modified as follows:-
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C.M.A(MD)No.819 of 2021
Sl. Particulars Amount granted Amount granted
No. by the Tribunal by this Court
1 Loss of dependency Rs.10,71,000/- Rs.18,36,000/-
2. Funeral Expenses Rs.20,000/- Rs.15,000/-
3. Transport Expenses Rs.20,000 /- Rs.15,000 /-
Loss of love and Rs.30,000/- Rs.1,20,000/-
4. affection
Loss of Consortium to Rs.50,000/- Rs.40,000/-
5. the first appellant
Total Rs.11,91,000/- Rs.20,26,000/-
The compensation awarded by the Tribunal is enhanced from
Rs.11,91,000/- to Rs.20,26,000/- which shall carry interest at the rate of
7.5% per annum.
15.In the result, this Civil Miscellaneous Appeal is partly allowed.
The quantum of compensation awarded by the Tribunal is enhanced from
Rs.11,91,000/- to Rs.20,26,000/- which shall carry interest at the rate of
7.5% per annum. The appellants/claimants are directed to pay the Court
fee, if any, for the enhanced compensation amount and the Registry is
directed to draft the decree only after the receipt of Court fee. The
second respondent herein - National India Assurance Company Limited
is directed to deposit the entire compensation of Rs.20,26,000/- (if not
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C.M.A(MD)No.819 of 2021
already deposited) together with interest at the rate of 7.5% per annum
from the date of claim petition till the date of deposit to the credit of
M.C.O.P.No.247 of 2017 on the file of the learned Additional District
and Sessions Court (Fast Track Court), Palani, within a period of eight
weeks from the date of receipt of a copy of this order and then to
'recover' the same from the owner of the vehicle, in the manner known to
law. On such deposit being made by Insurance Company, the appellants
1, 3, and 4 herein are at liberty to withdraw the same, as apportioned by
the Tribunal, after following due process of law. The second appellant
herein is a minor, and therefore, her share of compensation amount is
ordered to be deposited in any one of the nationalized bank until she
attains majority and the first appellant is permitted to withdraw the
interest directly from the bank, once in three months in order to maintain
the minor. No costs.
22 .03.2022
Index:Yes/No
Internet:Yes/No
cp
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C.M.A(MD)No.819 of 2021
To
1.The Additional District and Sessions Judge (Fast Track Court),
Palani.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.819 of 2021
RMT.TEEKAA RAMAN.,J.
cp
JUDGMENT MADE IN
C.M.A(MD)No.819 of 2021
22.03.2022
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