Madras High Court
The Branch Manager vs Muneeswari ... 1St on 8 October, 2021
C.M.A.(MD) No.1347 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
C.M.A.(MD) No.1347 of 2011
and
M.P.(MD) No.3 of 2011
The Branch Manager,
National Insurance Company Limited,
Rajapalayam Town,
Virudhunagar District. ... Appellant /2nd respondent
-vs-
Parvathi (Died)
1.Muneeswari ... 1st Respondent/Petitioners
2.K.J.Srirengaperumal Raja ... 2nd Respondent/1st Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, against the fair and decreetal order dated 28.07.2010 made in
M.C.O.P.No.108 of 2004, on the file of the Motor Accident Claims Tribunal (Sub
Court), Srivilliputtur.
For Appellant : Mr.D.Sivaraman
For 1st Respondent : Mr.M.Ashok Kumar
1/8
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C.M.A.(MD) No.1347 of 2011
For 2nd Respondent : Mr.PT.S.Narendravasan
JUDGMENT
In this appeal, the appellant/Insurance Company challenges the award of
the Motor Accident Claims Tribunal, Sub Court, Srivilliputtur, dated 28.07.2010,
passed in M.C.O.P. No.108 of 2004.
2. The brief facts of the case are that, the deceased one Nainar, was a driver
of a stage carriage bearing registration No.TN-67-Z-4665, running between
Aruppukkottai and Rajapalayam. On 25.05.1992, both the driver and conductor of
the bus permitted some passengers to carry unlicensed explosives in the bus.
Unfortunately, it got fired and more than 30 persons died including the driver of
the bus. Hence, claiming compensation of Rs.3,00,000/- the claim petition was
filed by his legal heirs.
3.The Insurance Company contested the claim petition on the ground that
the accident took place due to the negligent act of both driver and conductor.
They illegally permitted some of the passengers to carry unlicensed explosives in
the bus, against the policy conditions, due to which, the accident has taken place.
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C.M.A.(MD) No.1347 of 2011
That apart, for that, the claimants cannot seek compensation under Motor
Vehicles Act, 1988, and they can only claim compensation under the Workmen's
Compensation Act, 1923.
4.During trial, before the Tribunal, on behalf of the claimants, two
witnesses were examined and 2 documents were marked. No oral and
documentary evidence was adduced on behalf of the respondents in the claim
petition. After analysing the evidence, the Tribunal has held that the accident
occurred due to Act of God, and since the driver was working under the 2nd
respondent herein and the 2nd respondent insured the vehicle with the appellant
Insurance Company, directed the insurance company to pay compensation to the
claimant.
5. So far as the quantum of compensation is concerned, the Tribunal has
fixed the monthly income of the deceased at Rs.1,350/- per month and after
deducting 1/3rd towards his personal expenses, calculated annual income of the
deceased at Rs.10,800/- and by applying multiplier '11', awarded Rs.1,18,800/- as
loss of income. In addition, the Tribunal has awarded Rs.10,000/- towards loss of
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C.M.A.(MD) No.1347 of 2011
love and affection, Rs.3,000/- towards funeral expenses and Rs.1,000/- towards
transport expenses and awarded total compensation of Rs.1,32,800/- along with
interest at the rate of 7.5% per annum. Questioning the same, the present appeal
has been filed by the Insurance Company.
6. Mr.D.Sivaraman, learned counsel appearing for the appellant / Insurance
Company would contend that, the accident had happened only due to the
negligent act of the (driver) deceased and the conductor, who permitted the
passengers to carry explosive substances in the bus, which ultimately resulted in
the accident, in which, about 30 persons have died. The deceased in this case
being the driver of the bus, the claimants cannot maintain the claim under the
Motor Vehicles Act and their remedy is available before the Workmen's
Compensation Act. However, the Tribunal wrongly awarded compensation under
Motor Vehicles Act. Hence, the award of the Tribunal is liable to be set aside.
7. Per contra, Mr.D.Venkatesh, learned counsel appearing for the first
respondent/claimant would submit that the deceased was a driver, and he has no
occasion to see that any passenger carrying explosive substances in the bus.
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C.M.A.(MD) No.1347 of 2011
Hence, there was no negligence on the part of the deceased driver. Considering
those circumstances, the Tribunal only awarded a meagre sum of Rs.1,32,800/- to
the first respondent/second claimant and that need not be interfered with.
8. We have considered the submissions of the learned counsel for the
appellant and the learned counsel for the respondents and perused the materials
available on record.
9. As rightly contended by the learned counsel appearing for the appellant,
the deceased being the driver of the bus, and considering the nature of accident,
claim petition under Motor Vehicles Act is not maintainable, and the remedy
available to the claimants is only under Workmen's Compensation Act. However,
considering the fact that the claim was made in the year 2004, and the Tribunal
awarded only a meagre compensation of Rs.1,32,800/-, and also considering the
fact that all the other claims were processed and the insurance company already
paid the compensation to other claimants, at this distant point of of time, the
claimants need not be driven to file a fresh claim under the Workmen's
Compensation Act. In such circumstances, this Court converts the claim as one
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C.M.A.(MD) No.1347 of 2011
made under Workmen's Compensation Act. Considering the fact and
circumstances of the case, and the compensation awarded by the Tribunal is just
and fair compensation, this Court inclined to confirm the award amount of
Rs.1,32,800/-.
10. In the result, the Civil Miscellaneous Appeal is dismissed, confirming
the award of the Motor Accident Claims Tribunal (Sub Court), Srivilliputtur,
dated 28.07.2010, made in M.C.O.P.No.108 of 2004. As the award amount has
already been deposited by the Insurance Company, the claimant is permitted to
withdraw the entire award amount along with accrued interests and costs by filing
appropriate application before the Tribunal. No costs. Consequently, connected
Miscellaneous Petition is closed.
08.10.2021
Index : Yes / No
Internet : Yes / No
sj
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD) No.1347 of 2011
To
The Motor Accident Claims Tribunal (Sub Court),
Srivilliputtur.
Copy to
The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD) No.1347 of 2011
V.BHARATHIDASAN, J.
sj
C.M.A.(MD) No.1347 of 2011
08.10.2021
https://www.mhc.tn.gov.in/judis/
