Madras High Court

United India Insurance Co Ltd vs Hari Sai on 18 August, 2023

                                                                C.M.A.Nos.1293 of 2022 & 168 of 2023
                                                                          and C.M.P.No.9379 of 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 18.08.2023

                                                    CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                        C.M.A.No.1293 of 2022 & 168 of 2023
                                            and C.M.P.No.9379 of 2022

                     C.M.A.No.1293 of 2022

                     United India Insurance Co Ltd.,
                     No.134, Silingi Building,
                     No.134 Greams Road,
                     Chennai – 600 006.                                        ... Appellant

                                                       Versus

                     1.Hari Sai
                     2.M.Hari Krishnan                                         ... Respondents

C.M.A.No.168 of 2023

Hari Sai ... Appellant

Versus

1.M.Hari Krishnan

2.United India Insurance Co Ltd., No.134, Silingi Building, No.134 Greams Road, Chennai – 600 006. ... Respondents

https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1293 of 2022 & 168 of 2023 and C.M.P.No.9379 of 2022

COMMON PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 24.01.2022 passed in M.C.O.P.No.1996 of 2016, by the Motor Accident Claims Tribunal, III Small Causes Court, Chennai.

                                  In C.M.A.No.1293 of 2022
                                  For Appellant            : Mr.C.Paranthaman

                                  For R1                   : Unclaimed

                                  For R2                   : Mr.K.Varadhakamaraj

                                  In C.M.A.No.168 of 2023
                                  For Appellant            : Mr.K.Varadhakamaraj

                                  For R1                   : Unclaimed

                                  For R2                   : Mr.C.Paranthaman

                                                    COMMON JUDGMENT

C.M.A.No.1293 of 2022 has been filed by the appellant/Insurance

Company challenging the direction issued by the Tribunal to pay the

compensation in M.C.O.P.No.1996 of 2016, dated 24.01.2022.

C.M.A.No.168 of 2023 has been filed by the appellant/Claimant

challenging the compensation awarded by the Tribunal in

M.C.O.P.No.1996 of 2016, dated 24.01.2022.

https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1293 of 2022 & 168 of 2023 and C.M.P.No.9379 of 2022

2.For the sake of convenience, the parties are referred as per their

rank in the claim petition.

3.The claim petition was filed stating that on 31.01.2016 at about

08.20 hrs, when the claimant was riding a motorcycle bearing

Registration No.TN-22-AZ-6752 from South to North near a road

junction at Koyambedu Market, Kaliyamman Koil Street, Chennai, at

that time another motorcycle bearing Registration No.TN-85-A-1248

proceeding from North to South direction ridden by its rider in a rash and

negligent manner at high speed, dashed against the claimant's

motorcycle, due to which, the claimant sustained right leg fracture and

multiple grievous injuries all over the body; that thus, the claimant was

entitled for compensation.

4.The 1st respondent/owner cum rider of the offending vehicle

remained ex-parte before the Tribunal.

5.The 2nd respondent/Insurance Company filed a counter denying

all the averments made in the claim petition and stated that the claimant

https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1293 of 2022 & 168 of 2023 and C.M.P.No.9379 of 2022

must prove all the averments made by him; that the office of the alleged

insurer mentioned in the address does not issue policies to motor

vehicles, only the Branch Manager and Divisional Offices issues policies

and that the claimant has to furnish correct address of the 2 nd respondent;

that in any case, the compensation claimed was excessive and prayed for

dismissal of the claim petition.

6.Before the Tribunal, the claimant examined himself as P.W.1 and

marked Ex.P.1 to Ex.P.11 on his side. The 2nd respondent examined one

witness on their side and marked Ex.R1 to Ex.R3. The disability

certificate issued to the claimant by the Regional Medical Board, Govt,

Royapettah Hospital, Chennai was marked as Ex.C1.

7.The Tribunal after considering the oral and documentary

evidence held that the accident occurred due to the rash and negligent

riding by the rider of the offending vehicle and being the insurer of the

motorcycle belonging to the 1st respondent, directed the 2nd respondent to

pay a sum of Rs.3,44,169/- as compensation to the claimant.

https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1293 of 2022 & 168 of 2023 and C.M.P.No.9379 of 2022

8.Aggrieved over the award passed by the Tribunal, the 2nd

respondent has filed C.M.A.No.1293 of 2022 questioning the liability

fixed on them by the Tribunal to pay the compensation amount and the

claimant has filed the C.M.A.No.168 of 2023 seeking enhancement of

compensation.

9.The learned counsel for the 2nd respondent submitted that the

Tribunal on the basis of evidence had found that the 1st respondent had

violated the policy condition since he rode the motorcycle without any

valid license. The 2nd respondent had examined its officials and marked

Ex.R1-legal notice sent to the 1st respondent stating about the violation of

policy condition. The learned counsel relying upon the Judgment of the

Hon'ble Division Bench of this Court in the case of Reliance General

Insurance Co. Ltd., vs. Devi and others reported in 2021 (2) TN MAC

742 (DB), submitted that since the 1st respondent had not produced any

valid license, it is sufficient to infer violation of policy condition and the

Tribunal ought to have granted permission to recover the compensation

amount from the insured and prayed for allowing the appeal in

C.M.A.No.1293 of 2022.

https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1293 of 2022 & 168 of 2023 and C.M.P.No.9379 of 2022

10.The learned counsel for the claimant/appellant in

C.M.A.No.168 of 2023 submitted that the compensation awarded

towards pain and suffering, transportation and extra nourishment needs

enhancement considering the nature of injuries suffered by the claimant.

The learned counsel further submitted that the award under other heads

are just and reasonable and prayed for allowing the appeal in

C.M.A.No.168 of 2023.

11.Notice sent to the 1st respondent has been returned with an

endorsement “Unclaimed”.

12.The questions involved in the instant appeals are as follows:

(i)Whether the Tribunal ought to have granted permission to the 2nd

respondent/Insurance Company to recover the compensation amount

from the 1st respondent/insured for the violation of policy condition?

(ii)Whether the compensation awarded by the Tribunal is just and

reasonable?

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C.M.A.Nos.1293 of 2022 & 168 of 2023 and C.M.P.No.9379 of 2022

13.As regards the first question, the 2nd respondent examined

R.W.1, its official and marked Ex.R1-legal notice issued to the 1st

respondent informing about the violation of policy conditions. The

Tribunal on consideration of evidence found that the 1st respondent had

ridden the offending vehicle without valid driving license and hence,

violated the terms of insurance policy. Having held so, this Court is of

the view that the Tribunal ought to have permitted the 2nd respondent to

pay the compensation at the first instance and thereafter recover the same

from the 1st respondent. This Court in Reliance General Insurance Co.

Ltd., vs. Devi and others reported in 2021 (2) TN MAC 742 (DB) has

held as follows:

“8.A perusal of the records shows that the Insurance Company issued notice to the owner and rider of the offending motorcycle to produce the driving license and in spite of receipt of the said notice, the fifth respondent/owner of the vehicle did not produce the driving license and also remained absent before the Tribunal and was set ex-parte and had not appeared even before this Court inspite of newspaper publication.

https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1293 of 2022 & 168 of 2023 and C.M.P.No.9379 of 2022

9.We find some force in the submissions made by the learned counsel for the appellant/Insurance Company. When a notice was issued by the Insurance Company, it is for the owner of the vehicle to produce the driving license, but the Tribunal held that it is for the Insurance Company to summon the RTO and produce the license. Therefore, we are of the opinion that the finding rendered by the Tribunal is liable to be set aside on this score. The onus is on the appellant/Insurance Company to initially pay the compensation to the claimants and thereafter recover the same from the owner of the offending vehicle in question.”

14.The above observation is squarely applicable to the facts of the

present case. Since, the 1st respondent did not possess valid driving

license at the time of accident, this Court is of the view that the 2nd

respondent shall pay the compensation amount to the claimant at the first

instance and thereafter recover the same from the 1st respondent.

15.As regards the second question - quantum of compensation, the

learned counsel for the claimant is unable to point out any error except

stating that the award under the heads pain and sufferings, transportation https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1293 of 2022 & 168 of 2023 and C.M.P.No.9379 of 2022

and extra nourishment may be enhanced.

16.Considering the nature of injuries, the amount awarded under

the head pain and suffering is enhanced to Rs.30,000/- and the amount

awarded under the head extra nourishment and transportation is enhanced

to Rs.25,000/-. The amounts awarded by the Tribunal under other heads

is just and reasonable and hence the same are confirmed. Thus, the

compensation awarded by the Tribunal is modified as follows:

                        S.         Description          Amount          Amount            Award
                        No                             awarded by     awarded by       confirmed or
                                                        Tribunal       this Court      enhanced or
                                                          (Rs)            (Rs)           granted
                        1.         Disability              1,05,000        1,05,000      Confirmed
                        2.         Attender Charges           3,150           3,150      Confirmed
                        3.         Loss of Amenities         20,000          20,000      Confirmed
                        4.         Pain and                  20,000          30,000      Enhanced
                                   Sufferings
                        5.         Extra                     15,000          25,000      Enhanced
                                   Nourishment and
                                   Transportation
                        6.         Damages of                 1,000           1,000      Confirmed
                                   Clothes
                        7.         Loss of Income            75,000          75,000      Confirmed
                                   for 5 months
                        8.         Medical Bills           1,05,019        1,05,019      Confirmed
                                   Total                   3,44,169        3,64,169     Enhanced by

https://www.mhc.tn.gov.in/judis

                                                                     C.M.A.Nos.1293 of 2022 & 168 of 2023
                                                                               and C.M.P.No.9379 of 2022


                                                    rounded off to     rounded off      Rs.20,000/-
                                                      Rs.3,44,200       to 3,64,200

17.With the above modification, these Civil Miscellaneous

Appeals are partly allowed and the compensation awarded by the

Tribunal at Rs.3,44,200/- is hereby enhanced to Rs.3,64,200/- together with

interest at 7.5% per annum (excluding the default period, if any) from the

date of petition till the date of deposit. The 2nd respondent/Insurance

Company is directed to deposit the award amount now determined by this

Court along with interest and costs, less the amount already deposited, if

any, within a period of four (4) weeks from the date of a receipt of copy

of this Judgment, at the first instance and thereafter, recover the same

from the 1st respondent. On such deposit, the claimant is permitted to

withdraw the entire award amount along with interest and cost, less

amount already withdrawn, if any. The claiman is directed to pay the