Madras High Court
Royal Sundaram Alliance ... vs N.Palaniammal on 9 March, 2021
C.M.A.No.3717 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 9.3.2021
CORAM:
THE HON'BLE Mr.JUSTICE D.KRISHNAKUMAR
Civil Miscellaneous Appeal No.3717 of 2013
M.P.No.1 of 2013
Royal Sundaram Alliance Insurance Co. Ltd.,
3rd Floor, Subramaniam Buildings,
No.1, Club House Road, Chennai – 2. ... 2nd Respondent/Appellant
..Vs..
1. N.Palaniammal
2. Pushpalatha
3. N.Sivakumar ... Petitioners/ Respondents 1to3
4. Cargo Wings Madras Pvt. Ltd.,
NH 40, Opp. Bharat Petroleum Pump,
Bilaspur, Gurgaon, Haryana. ... 1st Respondent/Respondent-4
Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the Judgement and decree dated 28.6.2013 made in M.C.O.P.No.908 of
2010 on the file of Subordinate Judge (Motor Accidents Claims Tribunal)
Sathyamangalam.
For Appellant : Mr.K.Vinoth for
M/s.E.Veera Ravichandran
For Respondent No.1&2 : Mr.Ma.Pa.Thangavel
For Respondent No.3 : Notice served
*****
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C.M.A.No.3717 of 2013
JUDGMENT
Brief facts of the claimants' case is as follows:
On 15.10.2010 at about 10.45 a.m., while the deceased Natarajan
was riding his motorcycle bearing registration No.TN-38-AD 5980 at Coimbatore to
Avinashi NH-47 road near Dhanalakshmi Sizing Mill from west to east direction
on the extreme left side of the road, a container lorry bearing registration No.HR-
55-F-4897 driven by its driver in the opposite direction, in a rash and negligent
manner with high speed and without using horn without observing the road rules,
hit against the deceased's motorcycle and thereby caused accident, resulting in
the deceased Natarajan sustained fatal injuries all over the body and died on the
spot itself. The petitioner was shifted to Government hospital, Hosur where he
had taken treatment as inpatient. A case has been registered by Karumathampatty
Police in Cr.No.1112 of 2010 under Sec.279, and 304(A) of I.P.C. Thus, the legal
heirs of the deceased have filed a claim petition claiming Rs.20,00,000/- as
compensation from the respondents.
2. On the side of the claimants, P.W.1 to 3 were examined and
Ex.P1 to P-15 were marked. On the side of the respondent, R.W.1 to 3 were
examined no document was marked. 4th respondent herein remained exparte
before the tribunal.
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C.M.A.No.3717 of 2013
3. Tribunal, based on the oral and documentary evidence adduced
by both sides, has came to the conclusion that due to rash and negligent driving of
the container lorry by its driver, the accident occurred and while awarding a sum
of Rs.10,05,000/- as compensation to the claimants along with interest at the rate
of 7.5% per annum from the date of claim petition till realization and directed the
appellant/ Insurance Company to pay the award amount to the claimants and
recover the said amount from the owner of the vehicle. The tribunal has fixed the
notional income of the deceased at Rs.10,000/- and after deducting 1/3rd towards
personal expenses, tribunal arrived income of the deceased as Rs.80,000/- p.a.
and adopted 11 multiplier. Thus, the total compensation awarded by the tribunal
under various heads are as follows:
Heads Compensation
awarded by the
tribunal in Rs.
Loss of dependency 8,80,000/-
Rs.80,000 x 11
Loss of Consortium 10,000/-
Love & affection Rs.10,000/- each 30,000/-
Funeral expenses 5,000/-
Loss of estate 10,000/-
Total 10,05,000/-
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C.M.A.No.3717 of 2013
4. Challenging the said award, Insurance Company has filed the
present appeal both against the liability as well as the quantum of compensation
awarded by the tribunal.
5. Heard the learned counsel appearing for the appellant/Insurance
Company, learned counsel appearing for the respondents/claimants and perused
the materials available on record.
6. The respondent/claimant filed a claim petition claiming
Rs.20,00,000/- as compensation for the death of husband of the first respondent
and father of the respondents 2 and 3. The main contention of the appellant is
that since the driver of the container lorry had no valid driving licence and
therefore, there was clear violation of policy condition and hence, the
appellant/Insurance Company is not liable to pay compensation.
7. The Hon'ble Supreme Court in the case of NATIONAL INSURANCE
CO. LTD VS. SWARAN SINGH & ORS [ SPECIAL LEAVE PETITION (CIVIL) 9027
OF 2003 ] has held as follows:
(iii) The breach of policy condition e.g.,
disqualification of driver or invalid driving licence of
the driver, as contained in sub-section (2)(a)(ii) of
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C.M.A.No.3717 of 2013
section 149, have 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 to the
insurer against either the insured or the third parties.
To avoid its liability towards insured, the insurer has to
prove that the insured was guilty of negligence and
failed to exercise reasonable care in the matter of
fulfilling the condition of the policy regarding use of
vehicles by duly licensed driver or one who was not
disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with
a view to avoid their liability must not only establish the
available defence(s) raised in the said proceedings but
must also establish 'breach' on the part of the owner of
the vehicle; the burden of proof wherefor would be on
them.
(v) The court cannot lay down any criteria as to
how said burden would be discharged, inasmuch as the
same would depend upon the facts and circumstance of
each case.
(vi) Even where the insurer is able to prove
breach on the part of the insured concerning the policy
condition regarding holding of a valid licence by the
driver or his qualification to drive during the relevant
period, the insurer would not be allowed to avoid its
liability towards insured unless the said breach or
breaches on the condition of driving licence is/ are so
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C.M.A.No.3717 of 2013
fundamental as are found to have contributed to the
cause of the accident. The Tribunals in interpreting the
policy conditions would apply "the rule of main
purpose" and the concept of "fundamental breach" to
allow defences available to the insured under section
149(2) of the Act.
(vii) The question as to whether the owner has
taken reasonable care to find out as to whether the
driving licence produced by the driver, (a fake one or
otherwise), does not fulfil the requirements of law or not
will have to be determined in each case.
(viii) If a vehicle at the time of accident was
driven by a person having a learner's licence, the
insurance companies would be liable to satisfy the
decree.''
8. In the judgment cited supra, the Hon'ble Supreme Court
categorically stated that even where the insurer is able to prove breach on the part
of the insured concerning the policy condition regarding holding of a valid licence
by the driver or his qualification to drive during the relevant period, the insurer
would not be allowed to avoid its liability towards insured unless the said breach or
breaches on the condition of driving licence contributed to the cause of the
accident.
9. In the case on hand, admittedly, the vehicle involved in the
accident is container lorry bearing registration No.HR-55F-4897 insured with the
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C.M.A.No.3717 of 2013
appellant/Insurance Company and the driver of the offending insured vehicle is
having licence to drive light motor vehicle only and drove the aforesaid container
lorry. It was not proved by the appellant/Insurance company before the tribunal
that the breach of policy conditions contributed to the cause of accident.
Therefore, the appellant/Insurance Company cannot be allowed to avoid its
liability.
10. In sofar as the quantum of compensation, according to the
respondents/claimants, the deceased was doing Real Estate business, agriculture,
Milk vending, hotel business and earned Rs.5,00,000/- per annum and furnished
Bank account statements and the same were marked as Ex.P14 and P15 to show
that transaction was done for a sum of Rs.6,56,789/- and Rs.6,17,886/- in the
deceased bank account during the relevant period. However, the tribunal has
fixed Rs.10,000/- per month as notional income of the deceased and adopted 11
multiplier as per Sarala Varma case and awarded Rs.8,80,000/- towards loss of
dependency. Rs.80,000/- towards loss of estate, Rs.10,000/- each to the
petitioners towards love and affection Rs.10,000/- towards loss of consortium and
Rs.5,000/- for funeral expenses. Therefore, this Court is of the view that the
tribunal has awarded just and reasonable compensation to the claimants.
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C.M.A.No.3717 of 2013
11. In view of the foregoing reasons and the decision cited, there is
no warrant to interfere with the award of the tribunal and as such, the award
passed by the tribunal is confirmed.
12. Consequently, the appeal stands dismissed. No costs. Connected
miscellaneous petition is closed.
9.03.2021
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
vaan
To
1. The Subordinate Judge (Motor Accidents Claims Tribunal) Sathyamangalam.
2. Royal Sundaram Alliance Insurance Co. Ltd., 3rd Floor, Subramaniam Buildings,
No.1, Club House Road, Chennai – 2.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
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C.M.A.No.3717 of 2013
D.KRISHNAKUMAR, J.
vaan
Civil Miscellaneous Appeal No.3717 of 2013
M.P.No.1 of 2013
Dated: 9.03.2021
https://www.mhc.tn.gov.in/judis/
