Madras High Court
Iffco Tokio General Insurance ... vs M. Vijaya on 8 October, 2021
CMA.No.934 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.10.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No. 934 of 2020
and
C.M.P. No.5849 of 2020
IFFCO TOKIO General Insurance Company Limited,
Rep. by its Branch Manager,
GSN Arcade, II Floor,
Near Vemala Kalyanamandapam,
Byepass Road, Hosur, Krishnagiri District. ... Appellant
Vs.
1. M. Vijaya
2. Minor M. Karthika
3. Minor M. Piruthika
(Minors 2 & 3 represented by
their N.F. / Guardian Mother M. Vijaya)
4. K. Madhaiyan ...Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the judgment and decree made in M.C.O.P.
No.212 of 2017, dated 15.11.2018 on the file of the Motor Accidents
Claims Tribunal, Special District Court, For Motor Accident Claims
Cases, Krishnagiri.
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1/8
CMA.No.934 of 2020
For Appellant : Mr. E. Rajadurai
for M/s.M.B.Gopalan Associates
For Respondents : Mr. Mukund R. Pandian
JUDGMENT
This appeal has been filed by the Insurance Company challenging
the impugned award dated 15.11.2018 passed by the Motor Accidents
Claims Tribunal, Special District Court (FAC) in MCOP No.212 of
2017.
2. Heard Mr.E. Rajadurai, learned counsel for the appellant /
Insurance Company and Mr.Mukund R. Pandian, learned counsel for the
respondents.
3.The Insurance Company has challenged the impugned award on
the ground that the Tribunal has erroneously awarded compensation
under Section 166 of the Motor Vehicles Act. According to them, the
death was caused by the Driver only due to the Stones being thrown on
him from outside while he was driving the insured commercial passenger
car. The Tribunal under the impugned award has directed the appellant /
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CMA.No.934 of 2020
Insurance Company to pay a compensation of Rs.15,82,000/- to the
respondents / claimants who are the dependants of the deceased as
detailed hereunder :
Heads Amount awarded
by the Tribunal
(Rs.)
Loss of dependency 15,12,000
Loss of consortium 40,000
Loss of estate 15,000
Funeral expenses 15,000
Total 15,82,000
4. As seen from the impugned award, the Tribunal has given a
categorical finding that only during the course of the employment of the
deceased Manjunathan, the accident had happened. The appellant /
Insurance Company has also not disputed the same. Even though the
respondents / claimants are not entitled to seek compensation under
Section 166 of the Motor Vehicles Act, since there was no involvement
of a third party vehicle, the respondents / claimants are entitled to claim
compensation under the Employees Compensation Act since the
accident happened only during the course of the employment of the
deceased. The deceased was hit by a stone thrown from outside, the
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CMA.No.934 of 2020
commercial passenger car, while he was driving the same. For such an
incident, claim cannot be made against the owner or the insurer under
Section 167 of the Motor Vehicles Act. In Motor Vehicles Act
contemplates claim under Section 166 on the basis of fault or under
Section 163 (A) without proof of fault. But there can be no claim under
Section 167 of Motor Vehicles Act, which is a substantive provision that
bars claim under Motor Vehicles Act and Employees Compensation Act.
It is not a provision for making a claim like Section 166 or Section 163A
of the Motor Vehicles Act.
5. However, the claim can be considered as one filed by a
workman / Driver under the Employees Compensation Act, 1923 as held
by the Division Bench of this Court in the case of The Oriental
Insurance Co. Ltd., Namakkal vs. Krishnan and four others reported in
2003 – 2 L.W. 73. The relevant paragraph of the said judgment reads as
follows :-
5. Counsel also invited our attention to a judgment
of this Court in the case of Oriental Insurance Co. Ltd.,
Vs. Kalliya Pillai and others, 2002 (4) CTC 469 = 2001 –
1 – L.W. 113, where the Court took the view that even the
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CMA.No.934 of 2020
liability under Workmen's Compensation Act, 1923 may be
determined by this Court having regard to the extent of the
coverage under the policy after it was found that the claim
made before the Tribunal under the Motor Vehicles Act is
not maintainable. The Insurer appellant does not dispute
the fact that the policy covers the liability of the insured
to his employee under the Workmen's Compensation Act.
Under Section 3 of that Act negligence of the workmen
who dies in an accident arising out of and in the course
of his employment does not absolve the employer of the
obligation to pay compensation in accordance with the
provisions of that Act.
6. In the case on hand, a categorical finding has been given by the
Tribunal under the impugned award that the deceased died only during
the course of his employment. The appellant / Insurance Company is
also not disputing the same. Therefore, the decision referred to supra
squarely applies to the facts of this case also. Therefore, this Court is of
the considered view that the assessment of the compensation by the
Tribunal under Section 167 of the Motor Vehicles Act is not a correct
assessment and the assessment can be made only under the provisions of
the Employees Compensation Act, 1923. If assessment of
compensation is made under Employees Compensation Act, for an
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CMA.No.934 of 2020
accident that took place on 14.09.2016, the compensation payable to the
respondents / claimants as per the formula which is not disputed by the
learned counsel for the Appellant Insurance Company is as follows :-
Rs.8,000/- x 50% x 194.64 = Rs.7,78,560/- + Funeral expenses
Rs.5,000/- = Rs.7,83,560/-.
7. For the foregoing reasons, the compensation awarded by the
Tribunal is reduced from Rs.15,82,000/- to Rs.7,83,560/-. Accordingly,
this Civil Miscellaneous Appeal stands partly allowed. No costs.
Consequently, connected miscellaneous petition is closed.
8. It is made clear that the respondents / claimants are entitled for
12% interest per annum from the date of claim petition till the date of
realization as per the Employees Compensation Act.
9. The Appellant / Insurance Company is directed to deposit the
reduced award amount, as assessed by this Court together with interest at
12% p.a. from the date of claim petition till the date of realization, less
the amount, if any, already deposited to the credit of MCOP No.212 of
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CMA.No.934 of 2020
2017 on the file of the Motor Accidents Claims Tribunal, Special District
Court, Krishnagiri, within a period of four weeks from the date of
receipt of a copy of this Judgment. On such deposit being made, the
Tribunal is directed to transfer the award amount directly to the bank
account of the 1st respondent / 1st claimant as per the ratio of
apportionment fixed by the Tribunal through RTGS, within a period of
two weeks thereafter. Insofar as the share of the 2 nd and 3rd respondents
/ minor claimants are concerned, the same shall be deposited in Fixed
deposit in any one of the Nationalised Banks, till they attain the age of
majority and the interest accrued thereon shall be withdrawn by the
guardian of the minor claimants once in three months, directly from the
Bank.
08.10.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
ab/vsi2
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CMA.No.934 of 2020
ABDUL QUDDHOSE, J.
ab
To
1. The Special District Judge (FAC),
Special District Court,
Motor Accidents Claims Tribunal,
Krishnagiri.
2. The Section Officer,
V.R. Section,
High Court, Madras.
CMA.No.934 of 2020
and
C.M.P. No.5849 of 2020
08.10.2021
https://www.mhc.tn.gov.in/judis/
