Madras High Court
The National Insurance Company ... vs Kala on 7 March, 2023
C.M.A.(MD).No.797 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.797 of 2016
and
C.M.P(MD) No.7688 of 2016
The National Insurance Company Limited,
Represented by its Branch Manager,
Office Big Street,
Kumbakonam Town. ..... Appellant / Respondent No.2
-vs-
1. Kala .... Respondent No.1/ Petitioner No.1
2. Pushparani .... Respondent No.2/ Petitioner No.2
3. Ramesh .... Respondent No.3/ Petitioner No.3
4. Lalitha .... Respondent No.4/ Petitioner No.4
5. Arulmari ... Respondent No.5/ Respondent No.1
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree made in
M.C.O.P.No.2 of 2013, dated 27.02.2014 by the Motor Accidents Claims
Tribunal, Additional Sub Court, Kumbakonam.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.797 of 2016
For Appellant : Mr.D.Sivaraman
For Respondents : Mr.B.Anandan – for R1to R4
: No appearance – for R5
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the Insurance
Company, challenging the award passed by the Motor Accidents Claims
Tribunal, Additional Sub Court, Kumbakonam mainly on the ground that
offending vehicle was driven by a person who was not having valid licence at
the time of accident.
2. One Selvam, who was an employee in bricklin factory met with an
accident on 19.07.2012 and died due to head injuries. The legal heirs of the
said Selvam filed a claim petition contending that while the said Selvam was
driving his bicycle, a Hero Honda Splendor bike came from back side, hit the
bicycle, resulted in throwing away of the said Selvam and he succumbed to
the injuries after reaching the hospital. The wife and the children of the
deceased are the claimants. According to the claimants, the deceased was
earning a sum of Rs.9,000/- (Rupees Nine Thousand only) per month by
working in a bricklin factory run by P.W.3, one Kaliyamoorthy and they
claimed a sum of Rs.50,00,000/- (Rupees Fifty Laks only) as compensation.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.797 of 2016
3. The first respondent viz., owner of the vehicle remained ex-parte.
The second respondent Insurance Company filed a counter contending that
the deceased alone was responsible for the accident by rashly and negligently
crossing the road. The Insurance Company has further contended that the
offending vehicle was driven by a person without proper driving license and
therefore, the Insurance Company is not liable to pay the compensation. The
Insurance Company has further contended that the rider of the two wheeler
has admitted before the Court of law that he was not in a possession of valid
driving license at the time of accident and he has paid a fine of Rs.300/-
(Rupees Three Hundred only). The Insurance Company has also disputed the
quantum of compensation.
4. The Tribunal after considering the oral or documentary evidence, has
arrived at a finding that the Insurance Company has not let in any evidence
with regard to the alleged contributory negligence on the part of the deceased
person. The Tribunal has also arrived at a finding that the accident has taken
place only due to the rash and negligent driving of the offending vehicle
belonging to the first respondent in the claim petition.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.797 of 2016
5. The claimants have marked Ex.P-5 Salary Certificate of the deceased
person which indicates that the deceased was receiving a salary of Rs.9,000/-
(Rupees Nine Thousand only) per month from the owner of bricklin. The
petitioner has also examined the owner of the said bricklin as P.W.3, in order
to prove the said salary certificate. Based upon the salary certificate, the
Tribunal has arrived at a finding that the deceased was drawing Rs.9,000/-
(Rupees Nine Thousand only) as salary per month. Since he had left his wife
and three other legal heirs, ¼ of the income was deducted. Under the head of
loss of dependency a sum of Rs.7,29,000/- (Rupees Seven Lakhs Twenty
Nine Thousand only) was awarded. The Tribunal has proceeded to award a
sum of Rs.11,000/- (Rupees Eleven Thousand only) towards funeral
expenses, Rs.10,000/- (Rupees Ten Thousand only) towards loss for love and
affection for each one of the claimants, totally a sum of Rs.7,80,000/- (Rupees
Seven Lakhs Eight Thousand only) was awarded as compensation with 7.5%
interest per annum.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.797 of 2016
6. The learned counsel appearing for the appellant /Insurance Company
had contended that the driver of the offending Motor Vehicle is not having
any valid driving license to drive the two wheeler at the relevant point of
time. In order to establish the said fact, they have marked Ex.R.1, dated
04.10.2013 viz., the letter of R.T.O. Kumbakonam. However, no oral
evidence has been let in on the side of the Insurance Company. The Insurance
Company has also examined the Junior Assistant of R.T.O Office as R.W.1 to
establish the contents of Ex.R1. The owner of the vehicle viz., the first
respondent in the claim petition neither filed a counter nor contested the
proceedings to prove that the driver of the Motor Vehicle at that point of time
was having valid driving license.
7. Even though notice has been served in the present appeal, the owner
of the vehicle/ fifth respondent has neither appear before this Court in person
or through his counsel.
8. In view of the marking of Ex.R.1 and examination of R.W.1, this
Court arrives at a finding that the driver of the offending vehicle was not
having valid driving license at the relevant point of time. This Court does not
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.797 of 2016
find that the quantum of compensation is exorbitant, unreasonable under any
one of the heads under which they have been awarded.
9. In view of the above said fact, the award passed by the Tribunal with
regard to quantum is confirmed. The appellant/ Insurance Company is
directed to pay the compensation to the claimants at the first instance and they
are entitled to recover the same from the fifth respondent/owner of the vehicle
by filing execution proceedings in the present M.C.O.PNo.2 of 2013, on the
file of the Motor Accidents Claims Tribunal/Additional Sub-Court,
Kumbakonam.
10. With the above said modification, this Civil Miscellaneous Appeal
stands partly allowed. There shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
07.03.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.797 of 2016
To
1. The Motor Accident Claim's Tribunal/
The Additional Sub Court,
Kumbakonam.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.797 of 2016
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.797 of 2016
07.03.2023
https://www.mhc.tn.gov.in/judis
