Madras High Court
M.Sivalingam vs Mrs.Revathy on 28 June, 2022
C.M.A.Nos.2154 & 2155 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
C.M.A. Nos.2154 & 2155 of 2014
and M.P.Nos.1 & 2 of 2014
[CMA.No.2154 of 2014]
M.Sivalingam
... 1st Respondent/Appellant
Vs
1.Mrs.Revathy
... 1st Petitioner/ 1st Respondent
2.A.Harshan (minor)
(Rep. by his mother and guardian and next friend Revathy)
...2nd Petitioner/ 2nd Respondent
3.Manivel
...3rd Petitioner/ 3rd Respondent
4.Bajaj Allianz Insurance Co., Ltd.,
No.27 and 28, Prince Tower College,
Nungambakkam,
Chennai - 600032.
...2nd Respondent/ 4th Respondent
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C.M.A.Nos.2154 & 2155 of 2014
[CMA.No.2155 of 2014]
1.Mrs.Revathy
2.A.Harshan, (Minor rep. by his mother Revathy as guardian and N.F.)
3.K.Manivel
... Appellants/ Petitioners
Vs
1.M.Sivalingam
2.Bajaj Allianz Insurance Co.Ltd.,
27 & 28, Prince Towers, College Road,
Nungambakkam, Chennai 34.
... Respondents/ Respondents
PRAYER in CMA No.2154 of 2014: Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the Order and Decreetal Order dated
07.03.2013 and made in MCOP NO.16 of 2011 on the file of the Motor
Accident Claims Tribunal (III Additional District Court, Poonamallee) and
allow the Civil Miscellaneous Appeal.
For Appellant : Mr.S.Mahimai Raj
For Respondents : Mr.K.Suryanarayana [R.1 to R.3]
: Mr.S.Arun Kumar [R.4]
RAYER in CMA No.2155 of 2014: Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgement and decree dated
07.03.2013 and made in MACTOP NO.16 of 2011 on the file of the Motor
Accident Claims Tribunal (III Additional District Court), Poonamallee.
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C.M.A.Nos.2154 & 2155 of 2014
For Appellants : M/s. K.Suryanarayana
For Respondents : Mr.S.Mahimairaj [R.1]
: Mr.S.Arun Kumar [R.2]
COMMON JUDGEMENT
The issue which arises for consideration in the above CMA is whether
bitumen transported in the tanker would constitute a hazardous material and
consequently a driver who did not have the endorsement to carry a hazardous
goods having driven the vehicle would exonerate the insurance company from
indemnifying the injured.
2. The two appeals arises from out of a single claim petition,
M.C.O.P.No.16 of 2011, therefore, a common judgment is being pronounced.
The parties are referred to in the same array as before the lower Court.
3. CMA No.2154 of 2014 is filed by the 1st respondent/ owner of the
vehicle challenging the order of the Tribunal directing the 2nd respondent to
satisfy the decree and thereafter recover the entire amount from the 1st
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C.M.A.Nos.2154 & 2155 of 2014
respondent/owner of the vehicle (Though the fair order would indicate a pay
and recovery, the decreetal order unfortunately does not incorporate the
same).
4. CMA No.2155 of 2015 is filed by the claimants seeking an
enhancement of the award amount.
A brief resume of the facts of the case is herein below set out for more
fully understanding the issue on hand.
5. The claim petition has been filed by the wife, son and father of one
Mr.Ambikapathy who was a System Administrator with Param Tech
Solutions Pvt. Ltd., said to be earning a monthly salary of Rs.35,000/-.
6. The petitioners would contend that on 23.10.2010 at about 2.10 p.m
when the deceased Ambikapathy was riding his motor cycle bearing
Registration No.TN 22 AM 4048 and proceeding from Ambattur to
Villiwakkam on CTH Road, a Tanker Lorry bearing Registration No.TN 04
AE 6494 coming in the opposite direction and driven in a rash and negligent
manner hit the vehicle in which the deceased was travelling as a result of
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C.M.A.Nos.2154 & 2155 of 2014
which the deceased Ambikapathy had sustained fatal injuries. The petitioners
had claimed a compensation of Rs.65,00,000/-.
7. The 1st respondent/ owner of the vehicle did not choose to appear
and contest the OP before the Tribunal and was therefore set ex parte. The
2nd respondent/ insurance company had filed their counter inter alia denying
the allegations contained in the petition and also denying the allegation that
the driver of the tanker lorry had driven the same in a rash and negligent
manner. They had raised a defence that the driver of the tanker lorry did not
possesses a valid and effective driving license at the time of the accident.
They had also denied the age and the occupation of the deceased
Ambikapathy. Therefore, they sought to have the claim petition dismissed.
8. The Tribunal by its order dated 07.03.2013 was pleased to hold that
the accident had occurred only on account of the rash and negligent driving of
the driver of the tanker lorry. The Tribunal, after considering the defence
raised by the insurance company that the driver of the tanker lorry Devaraj
did not possesses a valid license to drive a tanker lorry carrying hazardous
goods and relying upon Ex.R.5 (permit of the offending vehicle) held that the
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C.M.A.Nos.2154 & 2155 of 2014
tanker lorry had the national permit to transport oil and petroleum goods only.
The Tribunal below relying upon Ex.R.2 (Driving license) of Devaraj marked
as Ex.R.2 and Ex.R.8 held that the said Devaraj had a permit to drive a light
motor vehicle and a heavy transport vehicle with a badge number but there
was no endorsement to drive a heavy transport vehicle carrying hazardous
products such as petroleum products. The Tribunal has also considered
Ex.R.3, insurance policy where in the column showing the sub type of the
vehicle, the vehicle has been described as a 'Bitumen tanker'. Therefore, the
Tribunal held that the vehicle had the necessary endorsement/permit for
transporting a petroleum and oil products but however, the driver did not
possesses a badge for carrying hazardous goods as the said permission has
not been endorsed in his driving license and this amounted to a policy
violation. The Tribunal held that "Bitumen" is an hazardous product.
Therefore, the Tribunal held that the compensation awarded would be paid by
the Insurance Company and later recovered from the owner of the Tanker
Lorry, the 1st respondent herein.
9. As regards the quantum of compensation the Tribunal has taken into
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C.M.A.Nos.2154 & 2155 of 2014
account Ex.P.5 (WIN Technology Salary Certificate) to show that a retainer
of Rs.10,000/- was being paid to the deceased. This document by itself will
not show that the petitioners were actually earning the above sum. Therefore,
a notional income of Rs.12,000/- was fixed, deducting 1/3rd towards his
personal expenses the monthly notional income was calculated at a sum of
Rs.8,000/-. Ultimately, a compensation of Rs.16,62,000/- was awarded.
Aggrieved by the fact that the Tribunal below has directed to pay and
recovery, the 1st respondent/owner of the tanker lorry is the appellant before
this Court.
10. Mr. Mahimai Raj learned counsel appearing on behalf of the
appellant in CMA No.2154 of 2014, that is; the owner of the vehicle
submitted that by an order dated 24.01.2018 in the above appeals this Court
had remanded the matter back to the Tribunal to permit the parties to let in
evidence to show that the bitumen which was transported in the lorry was not
a hazardous product so as to enable the Court to come to the conclusion as to
whether the 1st respondent has violated any of the policy conditions. This
Court had directed findings on the 2 issues which is extracted herein below:-
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C.M.A.Nos.2154 & 2155 of 2014
(i) Whether the material transported in the lorry
bearing Registration No.TN 04 AE 6494 on the date of
accident was a hazardous material or not?
(ii) Whether 'bitumen' is a hazardous material which
warrants the driver of the offending vehicle to obtain an
endorsement in his driving licence from the office of the
Regional Transport Authority concerned?
11. Pursuant to this order he would contend that the parties had let in
evidence and a report given by the Indian Institute of Technology, Madras
was marked through R.W.8, Dr.M.Murali Krishnan of IIT Madras. He would
draw the attention of this Court to the report issued by the Bharath Petroleum
Corporation Limited as well as Indian Oil Corporation that the bitumen grade
VG 10 and VG 30 is a non-dangerous petroleum/heavy petroleum and is non-
hazardous. He would also draw the attention of this Court to the report
forwarded by the IIT Madras to this Court dated 26.10.2018 wherein the
Institute has opined that bitumen VG 10 is not a hazardous material if
necessary care regarding its pumping, transportation and storage is
maintained as also the safety precautions. He would submit that R.W.8, the
expert in his cross examination has admitted that it is not a hazardous
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C.M.A.Nos.2154 & 2155 of 2014
product. He would also draw the attention of the Court to the insurance policy
which has been marked as Ex.R.3 where the vehicle for which the 2nd
respondent/insurance company has provided insurance cover has been
described as a bitumen tanker. Therefore, he would contend that the finding
of the Tribunal that the bitumen is a hazardous product is totally erroneous
and consequently the order directing pay and recovery has to be set aside.
12. Per contra, Mr.S.Arun Kumar learned counsel appearing for the
insurance company would submit that even as per the report of the IIT
Madras, the product would remain non hazardous till such time as the safety
measures are adopted. In case the safety measures are not adopted then the
product would definitely becomes a hazardous product and therefore it is
imperative that the person who is transporting the product has to have the
necessary endorsement to transport hazardous products. Therefore, he would
contend that the order of the Tribunal does not require any reversal with
regard to its finding that the bitumen was a hazardous product.
13. As regards the CMA 2155 of 2014, Mr.K.Suryanarayan, learned
counsel appearing on behalf of the claimants/petitioners would submit that the
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C.M.A.Nos.2154 & 2155 of 2014
Tribunal has totally erred in adopting a monthly income of just Rs.12,000/-
and the Tribunal ought to have fixed a monthly notional income of
Rs.15,000/- and he further contended that the Tribunal has not granted any
amount towards future prospects which has to be necessarily granted and that
apart, only a sum of Rs.15,000/- has been granted towards loss of love and
affection and a mere sum of Rs.5,000/- towards loss of consortium. He would
therefore, submit that the award has to be enhanced.
14. Heard the learned counsels on both sides.
15. The issue that engages the attention of this Court is whether
Bitumen is a hazardous product and if so whether the person who is
transporting the same should have an endorsement for carrying such
hazardous products. In the instant case, this Court had directed the experts
namely the IIT Madras to submit their report as to whether bitumen is a
hazardous product. Report has indeed been received not only from the IIT,
Madras but and also from the Petroleum Companies all of which state that
bitumen is not a hazardous product. The report given by the IIT, Madras
would state that it is not a hazardous material if care is taken with regard to
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C.M.A.Nos.2154 & 2155 of 2014
its pumping, transportation and storage maintaining the safety precautions.
Therefore, it is only if the safety measures are not adopted then it would be
considered as a hazardous product. No where in the cross examination the
insurance company has elicited any admission that the vehicle which was
transporting bitumen did not adopt the requisite safety procedures. On the
contrary, a perusal of Ex.R.3 policy would indicate that the insurance
company has extended its cover to the vehicle which is described as a
bitumen tanker.
16. Considering the fact that the tanker by itself is a bitumen tanker it
would definitely possess all the requisite safety measures for transporting the
product. Therefore, once the product is not a hazardous one it would suffice
to consider if the driver of the vehicle had the necessary license to drive a
Heavy Transport Vehicle. The driver of the 1st respondent's tanker possessed
such an endorsement is evident from a perusal of Ex.R.2 & Ex.R.8 which are
(Ex.R.2 - RTI reply given by Information Officer, RTO, Perambalur to 4th
Respondent, Ex.R.8 - Driving License particular of Devarasu). Therefore the
order of the Tribunal directing pay and recovery has to be set aside.
Consequently, CMA 2154 of 2014 is allowed and the insurance company is
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C.M.A.Nos.2154 & 2155 of 2014
directed to pay the compensation without recovering it from the 1st
respondent.
17. As regards the enhancement, the Tribunal below has taken into
consideration the oral evidence of the P.W.2 and P.W.3 and Ex.P.4, Ex.P.5
and Ex.P.10 and Ex.P.11 to fix an income of Rs.12,000/- per month. This
could be enhanced to Rs.12,500/- since the deceased was admittedly working
with an IT Company and would have at least earn a sum of Rs.12,500/- as a
monthly income. Therefore, the monthly income is re-fixed at Rs.12,500/-.
The deceased was aged about 34 years at the time of his death, however, the
Tribunal has not awarded any amount towards future prospects. Taking into
account his age 40% should be added towards future prospects. Therefore,
the notional monthly income would be a sum of Rs.17,500/- of this 1/3rd has
to be deducted towards personal expenses and ultimately a sum of
Rs.11,670/- would be available to the family as monthly income. The relevant
multiplier is ‘17’, therefore, the amount under the head of loss of income
would be Rs.11,670 x 12 x 17 = Rs.23,80,680/- and therefore, the amount
under the head of loss of dependency would be enhanced to a sum of
Rs.23,80,680/-. The 1st petitioner is entitled to a loss of consortium of
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Rs.40,000/-. Therefore, the amount granted is enhanced from Rs.5,000/- to
Rs.40,000/-. It is not known if the 3rd respondent is alive since even at the
time of the filing of the petition he was aged about 70 years, therefore the
amount under the head of loss of love and affection is granted only to the 2nd
respondent as against the Rs.15,000/- earlier granted. The amount under the
head of funeral expenses is enhanced to a sum of Rs.15,000/- as against the
Rs.10,000/- and a further sum of Rs.15,000/- is added to the head of loss of
estate which was not granted by the Tribunal. The revised award would be as
follows:-
S.No Description Amount Amount Award confirmed
awarded by awarded by or enhanced or
Tribunal this Court granted or reduced
(Rs) (Rs)
1. Loss of dependency 16,32,000/- 23,80,680/- Enhanced
2. Funeral Expenses 10,000/- 15,000/- Enhanced
3. Loss of love and affection 15,000/- 40,000/- Enhanced
4. Loss of Consortium 5,000/- 40,000/- Enhanced
5. loss of estate NIL 15,000/- Granted
TOTAL 16,62,000/- 24,90,680/- Enhanced by
Rs.8,28,680/-
18. Consequently, both the Civil Miscellaneous Appeals are allowed
and the award of the Tribunal be and hereby is enhanced to a sum of
Rs.24,90,680 /- from Rs.16,62,200/- together with interest @ 7.5 % per
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C.M.A.Nos.2154 & 2155 of 2014
annum from the date of petition till the date of deposit. In all other aspects the
award of the Tribunal is confirmed. The 2nd respondent/insurance company
[in CMA.No.2155 of 2014] is directed to deposit the said amount
(Rs.24,90,680/-) to the credit of M.C.O.P.No.16 of 2011 on the file of the
Motor Accident Claims Tribunal, (II Additional District Judge), Poonamallee
together with interest @ 7.5% per annum from the date of claim petition till
the date of deposit and costs as awarded by the Tribunal, less, the amount, if
any already deposited, within a period of eight weeks from the date of receipt
of a copy of this Judgment. On such deposit being made,
appellants/petitioners 1 & 3 [in CMA.No.2155 of 2014] are permitted to
withdraw their respective shares as apportioned by the Tribunal below. Since
the 2nd appellant/petitioner [in CMA.No.2155 of 2014] being a minor in
M.A.C.T.O.P.No.16 of 2011, his respective share of award amount as
apportioned by the Tribunal shall be deposited in an interest bearing fixed
deposit in any Nationalized bank till he attains majority. However, the
accrued interest under the fixed deposit shall be permitted to be withdrawn by
the guardian/mother once in 6 months directly from the bank. If the minor has
attained the age of majority, it is open to him to file formal petition before the
Tribunal to get his shares of apportionment. The claimants shall pay the Court
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C.M.A.Nos.2154 & 2155 of 2014
fee for the enhanced amount, if payable. The Tribunal shall not disburse of
the amount till such time as the certified copy showing proof of entire
payment of Court fee has been produced. No costs. Consequently, connected
Miscellaneous Petitions are closed.
28.06.2022
Index : Yes/No
Internet: Yes/No
Speaking / Non-Speaking
shr
To
1. The Motor Accident Claims Tribunal,
(III Additional District Court, Poonamallee)
2.The Section Office,
V.R.Section,
High Court, Madras.
P.T. ASHA, J,
shr
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C.M.A.Nos.2154 & 2155 of 2014
C.M.A. Nos.2154 & 2155 of 2014
and M.P.Nos.1 & 2 of 2014
28.06.2022
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