Madras High Court
The Branch Manager vs )D.Krishnammal on 23 September, 2021
CMA(MD)No.137 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.09.2021
CORAM :
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CMA(MD)No.137 of 2021
and
CMP(MD)No.1147 of 2021
The Branch Manager,
Oriental Insurance Company Limited,
1548, Tenkasi Road,
Rajapalayam,
Virudhunagar District. ... Appellant
vs.
1)D.Krishnammal
2)S.Sivaniammal
3)S.Sangilikalai
4)K.Murugan ... Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the decree and judgment dated 09.08.2019 passed in MCOP.No.
33/2019 on the file of the Motor Accidents Claims Tribunal/Chief
Judicial Magistrate Court, Virudhunagar District Camp at Srivilliputhur.
For Appellant : Mr.C.Karthik
For R1 to R3 : Mr.M.Thirunavukkarasu
For R4 : No appearance
1/9
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.137 of 2021
JUDGMENT
(Judgment of the Court was made by V. BHARATHIDASAN, J.)
Challenging the award, passed by the Motor Accidents Claims
Tribunal/Chief Judicial Magistrate Court, Virudhunagar District Camp at
Srivilliputhur, in MCOP.No.33/2019, dated 09.08.2019, the insurance
company has filed this appeal.
2.The case of the claimants, before the Tribunal, is that, the
deceased in this case, one Duraipandian, was working as a Typist, in the
Public Works Department. On 14.06.2014, at about 09.00 a.m., while he
was travelling in a two wheeler, bearing registration No.TN 67AT-2147,
TVS XL Super, on Alangulam-Rajapalayam main road, a Tractor bearing
registration No.TN 67 AL-2583, belongs to the 1st respondent, driven by
its driver, in a rash and negligent manner, came from the opposite
direction and dashed against the two wheeler, in which, he suffered head
injury and died. Contending that the accident has taken place due to the
rash and negligent driving of the 1st respondent, wife and parents of the
deceased, filed a claim petition, before the Tribunal, claiming
compensation of Rs.30 lakhs. To prove the case, the claimants examined
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CMA(MD)No.137 of 2021
3 witnesses and marked as many as 24 documents and on the side of the
appellant, 3 witnesses were examined and insurance policy was marked
as Ex.R1.
3.The Tribunal, after considering the evidence available on record,
has come to the conclusion that the accident has taken place, due to the
rash and negligent driving of the driver of the Tractor, as the vehicle is
insured with the appellant insurance company, fixed the liability on the
appellant. Sofaras the quantum of compensation is concerned, the
deceased was working as a Typist in Public Works Department, and
getting monthly salary of Rs.16,510/-, and at the time of accident, he was
49 years old. Hence, the Tribunal adding 30% of salary, towards future
prospects, fixed the annual income of the deceased at Rs.21,463/-. Since
there are 3 claimants, 1/3rd of the salary has been deducted, towards the
personal expenses, and applying multiplier of 13, arrived at the loss of
estate of the deceased at Rs.22,32,152/- and granted Rs.90,000/- towards
loss of love and affection and Rs.15,000/- each, towards loss of goods
and funeral expenses. Out of the total award amount of Rs.23,52,152/-, a
sum of Rs.14,00,000/- has been apportioned to the 1st respondent/wife of
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CMA(MD)No.137 of 2021
the deceased, Rs.5,00,000/- to the 2nd respondent/mother of the deceased
and Rs.4,52,000/- to the 3rd respondent/father of the deceased. Now,
challenging the award, the appellant insurance company has filed this
appeal.
4.Mr.C.Karthik, learned counsel for the appellant, vehemently
contended that at the time of accident, the Tractor was alone insured with
the appellant insurance company, with the condition that the Tractor
should be used only for agricultural purposes and the Trailer was not
insured with them. However, the owner of the Tractor used the vehicle,
for commercial purpose and used it as a water carrying Tractor, thereby
violated the policy condition. Hence, the insurance company is not liable
to pay the compensation, without considering the same, the Tribunal
fixed the liability on the appellant. To support his contention, the learned
counsel relied upon the FIR, filed in this case, wherein, the Tractor is
stated as 'water carrying Tractor' which clearly shows that the Tractor has
been used for commercial purpose. Regarding quantum, the learned
counsel fairly submits that the Tribunal has correctly awarded the
quantum, taking into account the monthly income of the deceased.
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CMA(MD)No.137 of 2021
5.Per contra Mr.M.Thirunavukkarasu, learned counsel for the
respondents 1 to 3/claimants, would contend that, PW3, eye witness to
the occurrence, also went along with the deceased, in another two
wheeler, he has clearly stated that only the Tractor came in a wrong
direction, dashed against the two wheeler and caused the death of the
deceased. Absolutely, there is no material to show that the Tractor has
been used for commercial purpose. The learned counsel further
submitted that even the RW3, official, examined on behalf of the
insurance company, did not state that the Tractor was used for
commercial purpose. Considering all those materials, the Tribunal
rightly fixed the liability, on the insurance company and there is no
infirmity in the judgment.
6.We have considered the rival submissions.
7.The appellant insurance company has filed this appeal primarily,
questioning the liability. The primordial contention of the learned
counsel for the appellant, is that, as per the policy condition, the Tractor
should be used only for agricultural purpose, whereas, the owner of the
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CMA(MD)No.137 of 2021
vehicle, used it, for commercial purpose and violated the policy
condition. Hence, no liability can be fixed, on the appellant insurance
company. From the careful perusal of record, it could be seen that, PW3,
eye witness to the occurrence, has clearly stated that, only the Tractor
came in the wrong direction, dashed against the two wheeler and caused
the death of the deceased. The FIR filed by the brother of the deceased,
also clearly states that only the Tractor and Trailer came in the opposite
direction and dashed against the deceased's two wheeler. Absolutely,
there is no material available on record, to show that the Tractor has been
used for commercial purpose. Merely because in the FIR, it is stated as
''water carrying Tractor'', it does not mean that the Tractor was used for
commercial purpose. Apart from that, there is no evidence available on
record to show that the Tractor was attached with water tanker and used
for commercial purpose. Hence, the contention of the learned counsel
for the appellant, cannot be countenanced.
8.Sofaras the quantum of compensation is concerned, the deceased
is a salaried employee, working in the Public Works Department and
getting the monthly salary. The Tribunal, rightly fixed the quantum of
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CMA(MD)No.137 of 2021
compensation based on his salary and the learned counsel for the
appellant, also very fairly submitted that the quantum is just and fair.
Sofaras the apportionment is concerned, the learned counsel for the
claimants would submit that the 1st respondent wife of the deceased, is
suffering from cancer and she needs money for her medical treatment.
Considering the facts and circumstances of the case, the compensation
amount, is apportioned as follows:-
The 1st respondent/wife of the deceased is entitled to Rs.
18,00,000/-;
the 2nd respondent/mother of the deceased is entitled to Rs.
3,00,000/-; and
the 3rd respondent/father of the deceased is entitled to Rs.
2,52,152/-
with respective proportionate accrued interest and costs. It is stated that
the entire award amount with interest, has already been deposited by the
insurance company. Hence, the respondents/claimants are permitted to
withdraw the award amount, as per the above said apportionment.
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CMA(MD)No.137 of 2021
9.In the result, the Civil Miscellaneous Appeal is dismissed.
Consequently, connected miscellaneous petition is closed.
[V.B.D.,J.] & [J.N.B.,J.]
23.09.2021
Index : Yes / No
Internet : Yes / No
bala
Issue order copy on 27.09.2021
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.137 of 2021
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
bala
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.
To
The Chief Judicial Magistrate
Motor Accidents Claims Tribunal,
Virudhunagar District Camp at Srivilliputhur.
JUDGMENT MADE IN
CMA(MD)No.137 of 2021
DATED : 23.09.2021
https://www.mhc.tn.gov.in/judis/
