Madras High Court
The Branch Manager vs Ramesh ...1St on 5 January, 2022
C.M.A.(MD)No.816 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.01.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD)No.816 of 2021
and
C.M.P.(MD)No.7513 of 2021
The Branch Manager,
TATA AIG General Insurance Company
Limited,
Peninsula Business Park, Tower A,
15th Floor, G.K.Marg, Lower Parle,
Mumbai – 400 013. ...Appellant/2nd Respondent
Vs.
1.Ramesh ...1st Respondent/Petitioner
2.The Headmaster,
Laurel High School,
Kurumbakadu,
Aranthangi Taluk,
Pudukkottai District. ...2nd Respondent/1st Respondent
PRAYER: Civil Miscellaneous Petition is filed under Section 173 of
M.V.Act, 1988, to set aside the judgment and decree made in M.C.O.P.No.25
of 2016, dated 18.01.2021 on the file of the Motor Accidents Claims
Tribunal, Principal Subordinate Court, Pudukkottai.
For Appellant : Mr.J.S.Murali
For Respondents: No Appearance
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.816 of 2021
JUDGMENT
The appellant / TATA AIG General Insurance Company Ltd., the
second respondent in M.C.O.P.No.25 of 2016 on the file of the Motor
Accidents Claims, Principal Subordinate Court, Pudukkottai has filed the
present appeal. The first respondent/claimant has filed the claim petition
seeking compensation of Rs.50,00,000/- for the death of one Ramesh, in a
road accident, which occurred on 10.02.2016.
2. It is a case of accident, which took place on 10.02.2016, while the
deceased Ramesh was riding in a two wheeler proceeding towards south to
north at Aranthangi to Pattukottai Road, at about 09.00 a.m. and when the
two wheeler came opposite to Dharun Tiffin Centre, a school bus bearing
Registration No.TN-55-Y-6001 came in a same direction with rash and
negligent manner and dashed against the deceased motorcycle. Due to the
impact of which, the deceased fell down from the motorcycle and sustained
head injury. He took treatment in the Meenakshi Mission Hospital, Thanjavur
and continuously he treated as out patient.
3.The claimant has filed a petition in M.C.O.P.No.25 of 2016 on the
file of the Motor Accidents Claims Tribunal/Principal Subordinate Court,
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C.M.A.(MD)No.816 of 2021
Pudukkottai, seeking compensation of Rs.50,00,000/-.
4.Before the Tribunal, on the side of the claimant one witness was
examined as P.W.1 and marked eight documents as Ex.P1 to Ex.P8. On the
side of the respondents, two witnesses were examined as R.Ws.1 and 2 and
marked seven documents as Ex.R1 to Ex.R7.
5.The Tribunal, after considering the pleadings, oral and documentary
evidences and the arguments of the counsels for the appellant and claimant
and also on appreciating the evidences on record, directed the
appellant/insurance company to pay a sum of Rs.11,07,555/- as
compensation. Against which, the appellant/Insurance Company alone has
preferred this appeal.
6.Heard Mr.J.S.Murali, the learned counsel appearing for the appellant.
Eventhough the respondents names were printed in the cause list, no one
appeared on behalf of them and perused the materials available on record.
7.The learned counsel appearing for the appellant contended that at the
time of accident the driver of the bus possess only HMV license, but the
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C.M.A.(MD)No.816 of 2021
driver did not possess a valid and effective driving license to drive the
vehicle. As per evidence of RWI (RTO official), the driver has obtained
HMV license with Badge endorsement from the RTO office only after the
accident on 20.06.2019. But the Tribunal fastened the liability on the
appellant/ Insurance Company and therefore, he prayed this Court that 'pay
and recovery' may be ordered by this Court.
8.On perusal of records, it shows that before the Tribunal, the
appellant/ Insurance Company examined the staff of R.T.O., as R.W1. A copy
of driving license issued from the R.T.O. Office, which was marked as
Ex.R2. It is clearly proved that the driver of the school bus bearing
Registration No.TN-55-Y-6001 drove the bus without proper HMW license.
The owner of the school bus remained absent before the Tribunal and
therefore he was set ex-parte. So the appellant/Insurance Company clearly
proved that there was no valid license for the injured on the date of accident.
Hence, the Tribunal ought to have ordered pay and recovery. Only on that
ground, the appellant filed this present appeal.
9.In the judgment reported in (2004)13 SCC 224 in the case of
Oriental Insurance Co. Ltd., Vs. Nanjappan and others, the Hon'ble Apex
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C.M.A.(MD)No.816 of 2021
Court made the following observations:-
“8.Therefore, while setting aside the
judgment of the High Court we direct in terms of
what has been stated in baljit Kaur's case (supra)
that the insurer shall pay the quantum of
compensation fixed by the Tribunal, about which
there was no dispute raised, to the respondent-
claimants within three months from today. For the
purpose of recovering the same from the insured,
the insurer shall not be required to file a suit. It may
initiate a proceeding before the concerned
Executing Court as if the dispute between the
insurer and the owner was the subject matter of
determination before the Tribunal and the issue is
decided against the owner and in favour of the
insurer. Before release of the amount to the
insured, owner of the vehicle shall be issued a
notice and he shall be required to furnish security
for the entire amount, which the insurer will pay to
the claimants. The offending vehicle shall be
attached, as a part of the security. If necessity
arises the Executing court shall, take assistance of
the concerned Regional Transport authority. The
Executing Court shall pass appropriate orders in
accordance with law as to the manner in which the
insured, owner of the vehicle shall make payment to
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C.M.A.(MD)No.816 of 2021
the insurer. In case there is any default it shall be
open to the Executing court to direct realization by
disposal of the securities to be furnished or from
any other property or properties of the owner of the
vehicle, the insured. The appeal is disposed of in
the aforesaid terms, with no order as to costs.”
10. In the facts and circumstances of the present case, the award passed
by the Tribunal directing the Insurance Company to pay the award amount is
liable to be set aside and accordingly set aside. Therefore, the appellant/
Insurance Company Limited, is directed to pay the award amount to the first
respondent/ claimant in the first instance and then recover the same from the
owner of the school bus.
11. As far as the quantum of compensation is concerned, the Tribunal
has awarded Rs.6,000/- as monthly income of the injured and had wrongly
adopted multiplier as '18' and awarded Rs.9,33,120/- towards loss of income.
Considering the age of the injured, it should be '17' as per the decision in
Sarlavarma and others vs. Delhi Transport Corporation and another
reported in (2009) 6 SCC 121. Hence, loss of income comes to Rs.6,000/- x
12 x 17 x 72/100 = Rs.8,81,280/-.
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C.M.A.(MD)No.816 of 2021
12.Accordingly, the claimant is entitled for compensation as follows:
S. Description Amount awarded by Award
No. Tribunal this Court confirmed /
enhanced /
granted
1. For loss of Income Rs.9,33,120/- Rs.8,81,280/- modified
2. Medical Expenses Rs.1,69,435/- Rs.1,69,435/- confirmed
3. For pain and sufferings Rs. 5,000/- Rs. 5,000/- confirmed
Total Rs.11,07,555/- Rs.10,55,715/-
with interest at 7.5% p.a., as awarded by the Tribunal, from the date of claim
petition till the date of realization.
13.In view of the said modification, this Civil Miscellaneous Appeal is
partly allowed and the compensation awarded by the Tribunal is modified
Rs.10,55,715/-. The appellant/Insurance Company Limited is directed to pay
the award amount to the claimant in the first instance and then, recover the
same from the owner of the school bus, bearing Registration No.TN-55-
Y-6001 on the same cause of action. The first respondent/claimant is
permitted to withdraw the amount now fixed by this Court by filing necessary
application before the Tribunal. No costs. Consequently, connected
Miscellaneous petition is closed.
05.01.2022
vsd
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.816 of 2021
S.ANANTHI, J.
vsd
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
1.The Motor Accidents Claims Tribunal,
Principal Subordinate Court,
Pudukkottai.
2. The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
C.M.A.(MD)No.816 of 2021
and
C.M.P.(MD)No.7513 of 2021
05.01.2022
https://www.mhc.tn.gov.in/judis
