Madras High Court
The Branch Manager vs Sahaya Aruljothi on 26 June, 2023
C.M.A.(MD).No.427 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.06.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD).No.427 of 2023
and
C.M.P.(MD).No.5200 of 2023
The Branch Manager,
TATA AIG General Insurance Company Limited,
North Block, 3rd Floor,
A.A.Towers,
No.4, 5 By-Pass Road,
Madurai.
... Appellant
Vs.
1.Sahaya Aruljothi
2.Minor Arockiyabelsi
3.Minor Jospirishilla
4.Alphonse Mary
Minor respondents 2 and 3 are represented
by their mother and guardian
1st respondent Sahaya Aruljothi.
... Respondents
PRAYER: Civil Miscellaneous Appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree passed in
M.C.O.P.No.320 of 2019, dated 18.08.2022 on the file of the Motor Accident
Claims Tribunal, Additional District Court, Pudukottai.
For Appellant : Mr.J.S.Murali
For Respondents : No appearance
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C.M.A.(MD).No.427 of 2023
JUDGMENT
Challenging the award passed by the Motor Accident Claims Tribunal,
Additional District Court, Pudukottai in M.C.O.P.No.320 of 2019, dated
18.08.2022, the present appeal has been filed by the Insurance Company.
2. The Tribunal has passed the following award:
S. Description Amount awarded by the Tribunal
No
1. Loss of income Rs.18,90,000/-
2. Loss of consortium and loss Rs.55,000/-
of estate
3. Loss of love and affection Rs.1,20,000/-
4. For transportation Rs.10,000/-
5. For funeral expenses Rs.15,000/-
Total Rs.20,90,000/-
After deducting 20% towards contributory negligence on the part of the
deceased, the Tribunal has awarded a sum of Rs.16,72,000/-.
3. The claimants are the legal heirs of the deceased one Charles @
Victorcharles. He died in the accident. It is the case of the claimants that the
deceased was working in Singapore and when he came to native place, he has
borrowed a car bearing Registration No.TN 22 W 7989 from his brother and
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C.M.A.(MD).No.427 of 2023
went to Pudukottai along with his friends. While coming back in the car, the car
capsized. According to the claimants, a two wheeler came in a high speed and
to avoid collusion with the two wheeler, the deceased applied the break, at that
time, the car capsized. The Insurance Company disputed the manner of
accident. It is the contention that the entire accident happened only due to the
rash and negligent driving of the deceased himself and disputed the liability.
4. Before the Tribunal, on the side of the petitioners, P.Ws.1 and 2 were
examined and Exs.P1 to P6 were marked and on the side of the respondents,
R.W.1 was examined and Exs.R1 to R5 were marked.
5. Based on the evidence and materials, the Tribunal has come to the
conclusion that only the deceased was a tort - feasor and he was driven the
vehicle in a rash and negligent manner and as a result, the vehicle capsized and
fixed 20% negligence on the part of the deceased and 80% on the part of the
first respondent and awarded a sum of Rs.16,72,000/- as compensation.
6. The learned counsel appearing for the appellant/Insurance Company
would submit that when the deceased himself as a tort - feasor, the question of
payment of compensation adopting multiplier method does not arise at all. In
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C.M.A.(MD).No.427 of 2023
support of his contention, he has relied on a judgment in the case of
Ramkhiladi and another v. United India Insurance Company and another,
reported in 2020 (1) TN MAC 1 (SC),
7. Despite name printed, none appeared on the side of the respondents.
8. In the light of the above submissions, now the point for consideration
in this appeal is whether the Tribunal is right in awarding the compensation
after holding that the deceased himself as a tort - feasor?
9. It is well settled that when the deceased himself as a tort -feasor, the
method of multiplier and other aspect does not arise at all. The deceased
admittedly borrowed the vehicle from his brother and drove the same in such a
manner and died. When the deceased himself as a tort - feasor, except the
personal accident coverage, he is not entitled to any compensation as settled
position of law. In such a case, he stepped into the shoes of the brother. The
accident took place in the year 2011, much prior to the amendment took place
in the year 2019, for enhancement of P.A.coverage.
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C.M.A.(MD).No.427 of 2023
10. In such a view of the matter, on the date of accident, the policy covers
only Rs.1,00,000/- towards the personal accident coverage and the amount
awarded under the other heads is liable to be set aside. Accordingly, the award
passed by the Tribunal is entirely set aside and the claimants are entitled to a
sum of Rs.1,00,000/-. It is stated that the appellant/Insurance Company has
already deposited the entire award amount. Therefore, except Rs.1,00,000/-,
other amounts shall be refunded to the Insurance Company and they are
entitled to get back the same.
11. In the result, the Civil Miscellaneous Appeal is allowed. No costs.
Consequently, the connected Miscellaneous Petition is closed.
26.06.2023
akv
To
1.The Motor Accident Claims Tribunal,
Additional District Court,
Pudukottai.
2.The Record Keeper,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD).No.427 of 2023
N.SATHISH KUMAR,J.
akv
C.M.A.(MD).No.427 of 2023
26.06.2023
https://www.mhc.tn.gov.in/judis
