Madras High Court
The Branch Manager vs Chellapillai on 27 November, 2023
C.M.A. No. 2220 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
C.M.A. No. 2220 of 2021
and
C.M.P. No. 12248 of 2021
The Branch Manager,
M/s. The New India Assurance Co. Ltd.,
B.O. 720703 at 99/C-3, I Floor,
Opp. to New Bus Stand, Permabalur. ... Appellant / 2nd Respondent
Vs.
1. Chellapillai
2. Saroja ... Respondents / Petitioners
3. Bharath Agencies,
No.223, Attur Road,
Madanagopalapuram,
Perambalur - 621 212. ... Respondent / 1st Respondent
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
Act, 1988 against the Judgment and decree dated 28.01.2020 passed in
M.C.O.P. No.267 of 2014 on the file of the Sessions Judge, Mahila Court,
Motor Accident Claims Tribunal, Perambalur.
1/12
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C.M.A. No. 2220 of 2021
For Appellant : Mr. M. Krishnamoorthy
For RR1 & 2 : Mr. T. Gobinath
For R2 : Mr. G. Ilamurugan
*******
JUDGMENT
This Civil Miscellaneous appeal has been filed by the insurance
company challenging the liability to pay compensation awarded in M.C.O.P.
No.267 of 2014, dated 28.01.2020 on the file of the Sessions Judge, Mahila
Court, Motor Accident Claims Tribunal, Perambalur, wherein the appellant-
insurance company is directed to pay compensation to the claimant herein.
2. For the sake of convenience, the parties are referred herein
according to their litigative status and rank before the Tribunal.
3. The case of the claimants, who are the parents of the deceased
Sathishkumar is that on 23.10.2020 at about 04:00PM, the deceased
Sathishkumar has drove the Maruti Swift car bearing Registration No.TN-
06-C-7312 belongs to the first respondent-company on the extreme left hand
side of the road, while the deceased reached near the bend of
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Koneripalayam, a dog suddenly crossed the road, hence, the deceased had
applied sudden brake, in which car was capsized and the deceased
sustained fatal injuries and was died on the way to the hospital. A criminal
case was also registered in Cr.No.1060/2013, u/s. 304A of I.P.C on the file
of the Perambalur Police Station. Since, the deceased Sathishkumar was a
Salesman cum driver of the first respondent and the second respondent being
the insurer of the above car, the claimants have filed a claim petition seeking
compensation for a sum of Rs.15,00,000/- along with interest under Section
163-A of the Motor Vehicle Act, before the Motor Accident Claims Tribunal.
4. The first respondent, under whom the deceased Sathishkumar
was working as a Salesman cum driver filed a counter and denied the
manner in which the accident has taken place and contended that the
deceased is responsible for the accident and also stated that his car is insured
with the second respondent and the deceased had a valid driving licence at
the time of accident, hence, the second respondent is liable to pay any
compensation to the claimants.
5. The second respondent - insurance company has filed a counter
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and contended that the accident was taken place only due to the negligent act
on the part of the deceased, hence, claim is not maintainable under Section
163-A of the Motor Vehicle Act and disputed the age, income of the
deceased and dependency of the claimants.
6. Before the Tribunal, on the side of the claimants, P.W.1 and
P.W.2 were examined and Exs.P.1 to P.21 were marked and on the side of
the respondents, R.W.1 to R.W.3 were examined and Exs.R.1 to R.9 were
marked.
7. Based on the evidence placed on record, the Tribunal in point
no.1, has held that, though there was no third party involvement in the
accident, but the deceased died during the course of his employment under
the first respondent that too in a road accident and the car, which involved in
the occurrence is also insured with the second respondent - insurance
company, the claimants are entitled to get compensation from the
respondents. In point no.2, the Tribunal has quantified and granted
compensation for a sum of Rs.10,12,800/- along with interest @ 7.5% per
annum from the date of filing of petition till the date of realization payable
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by the second respondent - insurance company to the claimants.
8. Aggrieved over the liability fixed on the insurance company to
indemnify the first respondent, who is owner of the car bearing Registration
No.TN-06-C-7313, the insurance company has filed this appeal.
9. The learned counsel appearing for the insurance company has
submitted that case has been filed u/s. 163-A of Motor Vehicles Act and also
relying Section.167 of Motor Vehicles Act. The claim made under section
163-A of Motor Vehicles Act, the claimants need not prove the negligence or
fault on the part of the respondent for claiming compensation. However, in
this case, the deceased himself is a tortfeasor, then section 163-A could not
be invoked to claim compensation since it is based on the fault liability. The
Hon'ble Apex Court judgment in Ram Khiladi and another vs. the United
India Insurance Co. Ltd. and another [2020 (1) TNMAC 1 (SC)] and
subsequent judgments followed by this High Court has held that the
claimants are not entitled to get compensation from the insurer if there is no
involvement of any third party vehicle in the accident. In this case, the
claimants have stated that the accident has taken place without involvement
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of any third party and the accident was caused only due to the tortious act on
the part of the deceased, hence, the claim made under section 163-A is not
permissible. The deceased was working only as a Salesman not as a driver
and he was not supposed to drive the car, which is not related to his
employment.
10. The learned counsel appearing for the claimants submitted that
the deceased was engaged to sell the tyres of the first respondent Unit,
accordingly, he used to travel to various places as a Salesman and also he
drives the car as a capacity of driver cum Salesman, hence prays to confirm
the award of the Tribunal.
11. Heard the submissions made on both sides and perused the
materials placed on record:
12. On perusal of the evidence of P.W.1, who is the father of the
deceased, it shows that his son was a M.B.A. Graduate and he has obtained
a driving licence however, in his evidence, he has deposed that they do not
have car with them and further deposed that his son has not completed his
studies and he has joined with the first respondent company, who owns a
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Petrol Bunk and also sell tyres. In his evidence, he further denied the
suggestion that his son was selling only the tyres of the first respondent unit
and he was not engaged for driving the car and he has also denied the fact
that his son was not having a valid driving licence and not qualified to drive
the car. However, the licence and the appointment order of the deceased was
not produced before the Tribunal to show that the deceased was a Salesman
cum driver of the first respondent company.
13. The second respondent – insurance company has also examined
the Officials of the Road Transport Office as R.W.3., who has stated that
based on the address belongs to the deceased, there is no driving licence
available in their Office. The first respondent has also not come forward to
produce any appointment order to show the nature of employment of the
deceased. The second respondent have also relied on the evidence of the Sub
Inspector of Police, who investigated the criminal case registered related to
the accident and according to him, in the F.I.R., which is marked as Ex.P.1,
it has been stated that the deceased was working as a Salesman and no
where it is stated that he was engaged as a driver. The insurance policy,
which is marked as Ex.P.21 shows that the policy also covers the driver of
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the car and also there is a coverage for the employees, who drives the car. In
this case, the deceased himself has driven the car and there is no evidence
placed on record to show that he is having a valid driving licence to drive the
car. Per contra, there is a evidence placed on record by the second
respondent – insurance company that the deceased was not possessing a
valid driving licence at the time of accident, which is based on the records
maintained by the concerned Road Transport Office. This shows that the
deceased himself has driven the car without valid driving licence and also his
tortious act has resulted in the accident. Based on the evidence, the nature of
the work carried by the deceased also shows that he was working only as a
Salesman in the first respondent company and not a Salesman cum driver.
14. On perusal of the insurance policy, it shows that the car, which
was involved in the accident registered in the name of the first respondent
company and it is a private owned car, which is used for personal purposes.
The award of the Tribunal has not discussed all the above aspects and
proceeded without discussing the relationship between the parties more
particularly the employee – employer relationship and regarding the nature
of the work carried out by the deceased and the reason for engagement of the
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deceased to drive the car belongs to the first respondent. The evidence
adduced by the insurance company shows that the deceased was only
engaged as a Salesman and he is not engaged as a “Salesman cum driver”
and there is also no evidence placed on record to prove that the nature of
work of the deceased involves driving of car in selling the tyres of the first
respondent unit.
15. Based on the above aspects, in this case, the deceased himself is
termed as a tortfeasor since, the accident has taken place without
involvement of any third party, the claimants are not entitled to claim
compensation under Section 163-A of the Motor Vehicle Act. Further, it is
established by the insurance company that the deceased was not having a
valid driving licence, which is a clear violation of insurance policy condition
and engagement of the deceased by the first respondent to drive the car that
too without a valid driving licence is not permissible.
16. Hon'ble Apex Court in Beli Ram Vs. Rajinder Kumar and Ors.
[MANU/SC/0993/2020] has held that, if the owner of the vehicle failed to
take precaution of verifying the driving licence of his employee, is not
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entitled to get coverage of insurance policy. According to the first
respondent, he has engaged the deceased as Salesman cum Driver, even
though there is no evidence placed on record to show that the deceased was
engaged not only as salesman but also to drive the car, the compensation
shall be payable only by the first respondent. The insurance company is not
liable to indemnify the first respondent, even if the claim is maintainable
under Workman Compensation Act. Accordingly, the first respondent, who
is the employer of the deceased alone is liable to pay the compensation to the
claimants herein and the second respondent – insurance company is not
liable to indemnify the first respondent. The award of the Tribunal in fixing
the liability on the second respondent - insurance company is not valid and
this Court directs the first respondent, who is the employer of the deceased
to pay the compensation awarded by the Tribunal to the claimants.
17. In the result, this Civil Miscellaneous Appeal is allowed. The
first respondent is directed to deposit the entire compensation awarded by
the Tribunal along with interest and cost within a period of six weeks from
the date of receipt of this order. Consequently, connected civil miscellaneous
petition stands closed. No cost.
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27.11.2023
stn
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
To:
1. The Sessions Judge, Mahila Court,
Motor Accidents Claims Tribunal,
Perambalur.
2. The Section Officer,
V.R.Section,
High Court, Chennai.
K. RAJASEKAR, J.
stn
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27.11.2023
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