Madras High Court
Govindasamy vs V. Shanmugam on 3 March, 2021
CMA No.3428 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 03.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
CMA.No.3428 of 2013
Govindasamy ... Appellant/ claimant
Vs.
1. V. Shanmugam
2. The National Insurance Co. Ltd.
rep by its Divisional Manager,
Divisional Officer-7, No.50,
Janpath, New Delshi 100 001. ... Respondents/ Respondents
This Civil Miscellaneous Appeal has been filed under
Section 173 of the Motor Vehicles Act, 1988, against the decree and
judgment dated 03.04.2012 passed in M.C.O.P.No.465 of 2007 by the
Additional District Judge, Motor Accident Claims Tribunal,
Dharmapuri.
For Appellant : Mr. M. Selvam
For respondents : Mr.D. Bhaskaran for R2
R1 - Refused
Page 1 of 11
http://www.judis.nic.in
CMA No.3428 of 2013
JUDGMENT
Not satisfied with the quantum of compensation awarded
by the Tribunal and also against the liability fixed on the part of the
owner of the vehicle, the claimant is before this court for enhancement
and also to direct the insurance company to pay the compensation.
2. The claimant has filed a claim petition before the
Tribunal seeking compensation of Rs.5,00,000/- for the injuries
sustained by him in a road accident that took place on 05.07.2006.
3. The brief case of the claimant is as follows: On
05.07.2006 at 5.00 a.m., the claimant was riding his motorcycle bearing
registration No.TN-29-E-3030 along Thippampatty-Karimangalam
Main road and while nearing Mottupatty junction, a speedy motorcycle
bearing registration No.TN-29-A-4041 coming from opposite side
dashed against him, thereby he sustained fracture and also grievous
injuries all over his body, According to the claimant, the rash and
negligent riding of the rider of the motorcycle bearing registration
http://www.judis.nic.in
CMA No.3428 of 2013
No.TN-29-A-4041 was the cause of accident and since the first
respondent/ owner of the vehicle insured his motorcycle with the
second respondent/ insurance company, both of them are liable to pay
compensation.
4. The claim petition was resisted by the second
respondent/ insurance company by filing counter affidavit.
5. Before Tribunal, on the side of the claimant, the claimant
and Dr.Ravisankar were examined as PW1 and PW2 and Ex.P1 to
Ex.P5 were marked. On the side of the respondents, two witnesses
were examined and Ex.R1 to Rx.R5 were marked.
6. After analysing the evidence on record, the Tribunal has
awarded a sum of Rs.64,000/- as compensation to the claimant and also
directed the owner of the vehicle to pay compensation and dismissed
the claim petition as against the insurance company. The compensation
awarded under various heads, which is extracted hereunder.
http://www.judis.nic.in
CMA No.3428 of 2013
Sl Heads Amount in
No Rs.
1 Disability (5 x 2000) 10,000
2 Pain and sufferings 25,000
3 Loss of consortium 20,000
4 Mental agony 5,000
5 Extra Nourishment and 4,000
transportation charges
Total 64,000
Aggrieved over the award passed by the Tribunal, the claimant has
filed the present appeal.
7. Heard the learned counsel for the appellant and the
counsel appearing for the insurance company and I have perused the
materials on record.
8. The learned counsel appearing for the appellant
submitted that the disability suffered by the claimant has assessed by
the Doctor (PW2) as 10%, and he has given disability certificate Ex.P5,
however, the Tribunal has fixed disability only at 5%, without any
basis. Further he submitted that without considering the evidence
on record and the nature of injuries sustained by the claimant, the
http://www.judis.nic.in
CMA No.3428 of 2013
Tribunal has awarded a very meagre amount, and hence he prayed for
enhancement of compensation. According to the appellant, the
insurance company is liable to pay compensation under whom, the
offending vehicle was insured, but, the Tribunal has erred in directing
the owner of the vehicle to pay compensation to the claimant.
9. The learned counsel appearing for the second
respondent/ insurance company submitted that after analysing the
evidence and the documents on record, the Tribunal has awarded a just
and reasonable compensation and therefore, the award passed by the
Tribunal does not warrant any interference by this court.
10. Now the point for consideration is
(i) Whether the compensation awarded by the Tribunal has
to be enhanced.
(ii) Whether the insurance company is liable to pay
compensation?
http://www.judis.nic.in
CMA No.3428 of 2013
The contention of the learned counsel appearing for the
appellant is that the insurance company has to indemnify the
compensation amount, but the Tribunal has absolved the insurance
company from paying the compensation amount on the ground that the
driver of the vehicles did not possess valid driving license to drive the
motorcycle.
12. At this juncture, it is relevant to rely upon a decision
rendered by the Honourable Supreme Court in Kempaiah and others
Vs. S.S.Murthy and another reported in 2017(1) TNMAC 737 (SC),
wherein, it is held thus:
11. In National Insurance Co. Ltd. Vs. Swaran Singh and others,
2004 (1) TN MAC 104(SC): 2004(3) SCC 297, this court has inter alia,
observed as follows:
" The breach of policy condition e.g. disqualification of the
Driver or invalid driving licence of the driver, as contained in
sub-Section (2) (a)(ii) of Section 149, has to be proved to have
been committed by the insured for avoiding liability by the
insurer. Mere absence, fake or invalid driving licence or
disqualification of the driver for driving at the relevant time, are
not in themselves defences available condition of the policy
http://www.judis.nic.in
CMA No.3428 of 2013
regarding use of vehicles by a duly licensed driver or one who
was not disqualified to drive at the relevant time"
In the light of the above decision, the insurance company cannot escape
from its liability to pay valid compensation to the claimant, merely
because the driver did not possess valid licence. Therefore, the
insurance company is liable to pay compensation at the first instance to
the claimant and then recover the same from the owner of the vehicle.
13. As far as the quantum of compensation is concerned,
both the counsels advanced their respective arguments on merits. The
learned counsel appearing for the appellant fairly admitted that this is a
case of injury, however, the Tribunal has wrongly awarded a sum of
Rs.20,000/- towards " Loss of consortium". Further, he submitted that
no amount was awarded towards "loss of amenities" and " Attender's
charges" and hence the compensation awarded by the Tribunal may be
enhanced.
14. Considering the above said submission and also taking
into account the evidence of the Doctor PW2 and the disability
http://www.judis.nic.in
CMA No.3428 of 2013
certificate Ex.P5, the disability suffered by the claimant is fixed at 10%
and accordingly, a sum of Rs.20,000/- (10 x 2000) is awarded towards
"Disability". Further, a sum of Rs.3,000 is awarded towards " Loss of
amenities" and a sum of Rs.10,000/- is awarded towards " Attender's
charges". Accordingly, the revised compensation awarded under the
various heads is extracted hereunder.
Sl. Heads Compensation Compensation
No Awarded by the enhanced/ Awarded
Tribunal by this court
1 Disability 10,000 20,000
2 Pain and sufferings 25,000 25,000
3 Loss of consortium 10,000 -
4 Mental agony 5,000 5,000
5 Extra Nourishment and 4,000 4,000
Transportation charges
6 Loss of amenities - 3,000
7 Attender's charges - 10,000
Total 64,000 67,000
This amount shall carry interest at the rate of 7.5% per annum from the
date of claim petition till the date of deposit.
15. In the result,
(i) The Civil Miscellaneous Appeal is partly allowed and
http://www.judis.nic.in
CMA No.3428 of 2013
the award passed by the Tribunal is enhanced from Rs.64,000/- to
Rs.67,000/-. No costs.
(ii) The second respondent/insurance company is directed
to deposit the revised compensation of Rs.67,000/- with interest at the
rate of 7.5.% p.a. from the date of claim petition till the date of deposit,
less the amount if already deposited, within a period of six weeks from
the date of receipt of a copy of this order and they are at liberty to
recover the same from the owner of the vehicle.
(iii) On such deposit being made by the insurance
company, the claimant is entitled to withdraw the same, after following
due process of law.
03.03.2021
Index:Yes/No
Internet:Yes/No
Speaking/non Speaking order
mst
To
1. The Additional District Judge. Motor Accident Claims Tribunal,
Dharmapuri.
http://www.judis.nic.in
CMA No.3428 of 2013
2. Section Officer, V.R.Section, Madras High Court, Chennai-104.
http://www.judis.nic.in
CMA No.3428 of 2013
D. KRISHNAKUMAR, J.
mst
CMA. No.3428 of 2013
03.03.2021
http://www.judis.nic.in
