Madras High Court
National Insurance Company Limited vs Maheswari on 30 November, 2023
C.M.A.(MD)No.191 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 12.09.2023
Pronounced on : 30.11.2023
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
C.M.A.(MD)No.191 of 2019
National Insurance Company Limited,
Branch – II,
Jerome Building,
Fort Station Road,
Tiruchirappalli. ...Appellant/
2nd Respondent
Vs.
1. Maheswari
2. Balasubramani ...Respondents 1&2/
Petitioners
3. Peer Ahamed Sha ...Respondent-3/
Respondent-1
Prayer : This Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to set aside and modify the judgment and decree dated
11.10.2017 and made in M.C.O.P.No.5390 of 2013 on the file of the Motor
Accident Claims Tribunal / Special District Judge, Tiruchirappalli.
1/20
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.191 of 2019
For Appellant : Mr.R.Rajamani
For R1 & R2 : Mr.N.Sudhagar Nagaraj
For R3 : Mr.S.T.Sasidharan Tamilkani
JUDGMENT
The Civil Miscellaneous Appeal is directed against the award
passed in M.C.O.P.No.5390 of 2013 dated 11.10.2017 on the file of the
Motor Accident Claims Tribunal/Special District Court for MCOP cases,
Tiruchirappalli.
2. The appellant/insurer, who was made liable to pay compensation
of Rs.8,15,000/- (Rupees Eight Lakhs and Fifteen Thousand only) with
interest at 7.5% per annum to the respondents 1 and 2/claimants for the
death of 13 year old Harikrishnan, consequent to an accident occurred on
22.09.2012, challenged the liability mulcted on it and also the quantum of
compensation awarded at, by the Tribunal.
For the sake of convenience and brevity, the parties herein after will
be referred to as per their status/ranking in the Tribunal.
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3. The case of the claimants is that on 22.09.2012 at about
02.45 p.m., when the deceased Harikrishnan was travelling as a pillion
rider in a motorcycle bearing Registration No.TN-63-E-2209 driven by his
father in Madurai – Trichy main road, near Paganur a lorry bearing
Registration No.TN-45-AF-7272 came in the same direction and its driver
suddenly had overtaken the two wheeler and at that time dashed against
the two wheeler and as a result of which, the pillion rider sustained serious
injuries and died on the spot and that the accident was occurred only due
to the rash and negligent driving of the first respondent's lorry driver.
4. It is their further case that the deceased Harikrishnan was aged
13 years at the time of accident and that he was hale and healthy and was
studying 8th standard in Mary Madha Higher Secondary School, South
Paganur, Trichy District.
5. The defence of the second respondent is that the second claimant-
father of the deceased Harikrishnan drove his motorcycle in a rash and
negligent manner without possessing valid driving licence and caused the
accident, that they had issued a Liability Policy to the said lorry, that the
first respondent has deliberately and consciously violated the terms and
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conditions of the policy issued to him as well as the Motor Vehicles Act by
allowing his driver S.A.George to drive the lorry without valid and
effective driving licence on the date of accident and that in view of the
fundamental breach committed by the first respondent, the second
respondent is not liable for the claim.
6. It is their further case that the compensation claimed by the
claimants is exorbitant, disproportionate and without any basis.
7. During trial, the claimants have examined the second claimant
Balasubramani as P.W.1 and exhibited 6 documents as Ex.P.1 to Ex.P.6.
The second respondent has examined 2 witnesses as R.W.1 and R.W.2 and
exhibited 4 documents as Ex.X.1 to Ex.X.4.
8. The learned trial Judge, upon considering the evidence both oral
and documentary and on hearing the arguments of both the sides, has
passed the impugned award dated 11.10.2017 by holding that the first
respondent's lorry driver was responsible for the accident, mulcted joint
and severe liability on the respondents 1 and 2 and directed them to pay
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compensation of Rs.8,15,000/- with interest and costs. Aggrieved by the
impugned award, the second respondent has preferred the present appeal.
9. The learned counsel appearing for the second respondent would
submit that the Tribunal has committed error in fixing the entire liability
on the second respondent as the driver of the vehicle did not hold a valid
or currency of licence, which is a flagrant violation of the terms and
conditions of the policy, that the second respondent has examined the staff
attached to the Regional Transport Office as R.W.1, who deposed that the
driver of the vehicle was not having valid and currency of licence to drive
that vehicle at the time of accident and that the invocation of pay and
recovery in such cases is the rule of thumb.
10. The learned counsel appearing for the second respondent would
further submit that the notional income at Rs.30,000/- per annum on the
death of 13 years old student is irrational, excessive and misconception of
law and that the Tribunal should not have passed awards under the heads
of pecuniary benefits, loss of expectation of life and mental agony at
Rs.1,00,000/-.
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11. The points that arises for consideration are :
1) Whether the Tribunal erred in rendering a finding that the
respondents 1 and 2 are liable for the claim, despite showing
that the first respondent by remaining ex parte has failed to
prove that his driver was possessing valid driving licence at the
time of accident and that the burden was not shifted to the
second respondent?
2) Whether the quantum of compensation arrived at by the Tribunal
is just and proper and is in accordance with law?
Points 1 and 2:
12. The second respondent has summoned and examined a staff
attached to the Regional Transport Office, Trichy as R.W.2 to prove that
the lorry driver was not possessing valid driving licence at the time of
accident. R.W.2 in his evidence would say that no driving licence was
issued to S.A.George. No doubt, when R.W.2 was in witness box, the
licence granted to the lorry driver by the military came to be exhibited as
Ex.P.6 and wherein, it is evident that he was discharged on 31.12.2005 and
was issued with Ex-Servicemen Identity Card and that his driving licence
was renewed lastly on 31.12.2003, but it is not known as to whether the
licence was renewed subsequently and whether the lorry driver was
possessing valid driving licence on the date of accident.
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13. At this juncture, it is necessary to refer the judgment of the
Hon'ble Supreme Court in Pappu and others Vs. Vinod Kumar Lamba
and another reported in TN MAC 2018 (1) 148 SC, wherein, the Hon'ble
Apex Court has specifically held that it is the duty of the owner of the
offending vehicle to furnish particulars about his driver and whether the
driver was authorized to drive the vehicle in question at the relevant time
and on only producing the material for the above, onus will get shifted to
the insurer and the relevant passage is extracted hereunder:-
“11. The question is: whether the fact that the offending
vehicle bearing No.DIL-5955 was duly insured by respondent
No.2 Insurance Company would per se make the Insurance
Company liable? This Court in the case of National
Insurance Co. Ltd. (supra), has noticed the defences available
to the Insurance Company under Section 149(2)(a)(ii) of the
Motor Vehicles Act, 1988. The Insurance Company is entitled
to take a defence that the offending vehicle was driven by an
unauthorised person or the person driving the vehicle did not
have a valid driving licence. The onus would shift on the
Insurance Company only after the owner of the offending
vehicle pleads and proves the basic facts within his
knowledge that the driver of the offending vehicle was
authorised by him to drive the vehicle and was having a valid
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driving licence at the relevant time. In the present case, the
respondent No.1 owner of the offending vehicle merely raised
a vague plea in the Written Statement that the offending
vehicle DIL-5955 was being driven by a person having valid
driving licence. He did not disclose the name of the driver
and his other details. Besides, the respondent No.1 did not
enter the witness box or examine any witness in support of
this plea. The respondent No.2 Insurance Company in the
Written Statement has plainly refuted that plea and also
asserted that the offending vehicle was not driven by an
authorised person and having valid driving licence. The
respondent No.1 owner of the offending vehicle did not
produce any evidence except a driving licence of one
Joginder Singh, without any specific stand taken in the
pleadings or in the evidence that the same Joginder Singh
was, in fact, authorised to drive the vehicle in question at the
relevant time. Only then would onus shift, requiring the
respondent No.2 Insurance Company to rebut such evidence
and to produce other evidence to substantiate its defence.
Merely producing a valid insurance certificate in respect of
the offending Truck was not enough for the respondent No.1
to make the Insurance Company liable to discharge his
liability arising from rash and negligent driving by the driver
of his vehicle. The Insurance Company can be fastened with
the liability on the basis of a valid insurance policy only after
the basic facts are pleaded and established by the owner of
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the offending vehicle - that the vehicle was not only duly
insured but also that it was driven by an authorised person
having a valid driving licence. Without disclosing the name of
the driver in the Written Statement or producing any evidence
to substantiate the fact that the copy of the driving licence
produced in support was of a person who, in fact, was
authorised to drive the offending vehicle at the relevant time,
the owner of the vehicle cannot be said to have extricated
himself from his liability. The Insurance Company would
become liable only after such foundational facts are pleaded
and proved by the owner of the offending vehicle.”
14. In the case on hand, admittedly, the first respondent had
remained ex parte. The second respondent, by taking a specific defence
that the first respondent's lorry driver S.A.George was not possessing any
valid and effective licence on the date of accident, had summoned and
examined R.W.2-staff attached to the Regional Transport Office, Trichy
and shown that the driving licence obtained by the driver was not renewed
subsequently and that he was not possessing valid driving licence at that
time. Since the first respondent, by remaining ex parte, has failed to
furnish the particulars nor produced any document to show that his driver
was possessing valid driving licence, as held by the Hon'ble Apex Court,
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the insurance company can be made liable only after the foundational facts
are proved by the owner of the offending vehicle.
15. The learned counsel appearing for the second respondent would
submit that since the first respondent's lorry driver was not possessing
valid driving licence, the Tribunal ought to have invoked the Doctrine of
pay and recovery. In the same decision of Pappu and others referred
(supra), the Hon'ble Apex Court has observed that,
“14. The next question is: whether in the fact situation
of this case the insurance company can be and ought to be
directed to pay the claim amount, with liberty to recover the
same from the owner of the vehicle (respondent No.1)? This
issue has been answered in the case of National Insurance
Company Ltd. (supra). In that case, it was contended by the
insurance company that once the defence taken by the insurer
is accepted by the Tribunal, it is bound to discharge the
insurer and fix the liability only on the owner and/or the
driver of the vehicle. However, this Court held that even if the
insurer succeeds in establishing its defence, the Tribunal or
the Court can direct the insurance company to pay the award
amount to the claimant(s) and, in turn, recover the same from
the owner of the vehicle. The three-Judge Bench, after
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analysing the earlier decisions on the point, held that there
was no reason to deviate from the said well-settled
principle.”
16. This Court in the case of Reliance General Insurance Co. Ltd.
Vs. Esakkimuthu and others reported in 2021 (1) TNMAC 390 has held
as follows,
“14. The next main contention of the Appellant is that
the second Respondent/First Respondent had no valid Driving
License on the date of accident and that since, there is
violation of main Policy condition, the Insurance Company is
no way responsible for the claim. No doubt the Appellant has
summoned and examined the staff attached to the Regional
Transport Officer, Tirunelveli and through him proved the fact
that the Second Respondent had License to drive the LMV and
HTV, but he had no license to drive the Two-wheelers on the
date of accident. Considering the above, the Trial Court, by
relying on the decision of our Madras High Court reported in
United India Insurance Co. Ltd. v. Giriprasath, 2013 (2) TN
MAC 146, has rightly, applied the Doctrine of Pay and
Recovery and directed the Appellant/Insurance Company to
pay the claim amount to the Claimant and then to recover the
same from the Owner of the vehicle.”
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17. Considering the above, this Court has no hesitation to hold that
it is a fit case to apply the Doctrine of pay and recovery and is applied
accordingly.
18. Now turning to the quantum of compensation, the Tribunal has
fixed the notional income of the deceased at Rs.30,000/- and arrived the
loss of dependency at Rs.4,50,000/-. In the case on hand, the Tribunal,
taking note of the postmortem report, has fixed the age of the deceased as
13 years at the time of accident. The second respondent has not disputed
the said factum. In a similar case where the deceased was aged 13 years,
this Court in Cholamandalam MS General Insurance Co. Ltd., Chennai
Vs. Dhanalakshmi and another (C.M.A.(MD)No.177 of 2018 and
Cros.Obj.(MD)No.22 of 2023 dated 22.09.2023) has observed as follows,
“12. In Lata Wadhwa Vs. State of Bihar reported in
(2001) 8 SCC 197, the Hon'ble Apex Court has held that in
case of death of a child, there is no actual pecuniary benefit
derived by its parents during the life time of the child, but
however, the parents are entitled to claim for the prospective
loss they suffered, that they had a reasonable expectation of
pecuniary benefit had the child lived and that the loss of the
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child to the parents is irrecoupable, and no amount of money
could compensate them. The Hon'ble Supreme Court has
further held that in cases of children between the age of group
of 10-15 years, the annual contribution can be fixed at Rs.
24,000/- and multiplier of 15 be applied. The Hon'ble
Supreme Court in Kishan Gopal and another Vs. Lala and
others reported in 2014 (1) SCC 244, for the death of a 10
year old boy, has fixed the notional income at Rs.30,000/- per
annum and applied multiplier 15. In Meena Devi Vs. Nunu
Chand Mahto alias Nemchand Mahto and others reported in
(2023) 1 SCC 2014, the Hon'ble Supreme Court, for a 12 year
old child, has taken the notional income at Rs.30,000/- per
annum and adopted multiplier 15. In the case of The
Manager, Cholamandalam MS General Insurance Co. Ltd.,
Dharmapuri Vs. Muniyappan and others (C.M.A.No.1647 of
2020 dated 07.12.2020), a learned Judge of this Court, taking
note of the facts that the accident was occurred in the year
2017 and the deceased was aged 3 years at the time of
accident, has fixed the notional monthly income at Rs.3,500/-.
In P.Muthu Selvi and another Vs. The Managing Director,
State Express Transport Corporation Ltd., Chennai (C.M.A.
(MD)No.748 of 2019 dated 29.08.2023), this Court,
considering the fact that the accident was occurred on
16.05.2012 and taking note of the age of the deceased at 2
years, fixed the notional monthly income at Rs.3,000/- and by
applying the decision of the Hon'ble Supreme Court in
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Reshma Kumari Vs. Madan Mohan reported in (2013) 9
SCC 65, multiplier of 15 was adopted. In the case on hand,
the Tribunal has fixed the notional annual income of the
deceased at Rs.30,000/-. Considering the above decisions and
taking note of the fact that the impugned accident was
occurred on 07.05.2013 and the age of the deceased Muthu
Kamatchi at 13 years, this Court fixes the notional monthly
income at Rs.4,000/- and the appropriate multiplier would be
15. Hence, the loss of dependency would be Rs.7,20,000/- (Rs.
4,000/- x 12 x 15).”
19. Considering the fact that the impugned accident was occurred on
22.09.2012 and the age of the deceased is fixed at 13 years, the above
decision is squarely applicable to the case on hand. Accordingly, this
Court fixes the notional monthly income of the deceased at Rs.4,000/- and
by applying the appropriate multiplier 15, the loss of dependency would
be Rs.7,20,000/- (Rs.4,000/- x 12 x 15).
20. The Tribunal has awarded Rs.1,00,000/- for loss of love and
affection, Rs.1,00,000/- for pecuniary benefits and loss of expectation of
life, Rs.1,00,000/- for mental agony, Rs.15,000/- for funeral and
transportation expenses and Rs.50,000/- for loss of estate.
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21. Regarding love and affection, the Tribunal has awarded
Rs.1,00,000/-. Our Hon'ble Supreme Court in National Insurance
Company Limited Vs. Pranay Sethi and others reported in 2017 ACJ
2700, has permitted to award Rs.40,000/- towards spousal consortium.
But, subsequently, the Hon'ble Supreme Court in Magma General
Insurance Company Ltd, Vs. Nanu Ram alias Chuhru Ram and others
reported in (2018) 18 SCC 130, has held that the right to consortium
would include the company, care, help, comfort, love and affection,
guidance, solace, etc., which is a loss to his family. The Hon'ble Supreme
Court interpreted consortium to be a compendious term, which
encompasses (i) spousal consortium, to be awarded to the surviving
spouse, (ii) parental consortium to be awarded to the children upon the
premature death of their parents and (iii) filial consortium to be awarded to
the parents for the loss of their children. Recently, the Hon'ble Apex Court
in The New India Assurance Company Ltd. Vs. Smt.Somwati and
others, has reiterated the above position and further held that the amount
to be awarded for loss of consortium will be as per the amount fixed in
Pranay Sethi's case. But, at the same time, they have specifically observed
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that no amount should be awarded under the separate head of loss of love
and affection.
22. Considering the above, the first claimant being the mother and
the second claimant being the father of the deceased are certainly entitled
to get Rs.40,000/- each towards loss of filial consortium. The claimants
are also entitled to get Rs.15,000/- towards loss of estate and Rs.15,000/-
towards funeral expenses under the conventional heads. Hence, the
amounts awarded under the heads of love and affection, pecuniary benefits
and loss of expectation of life and mental agony cannot be sustained.
Accordingly, the claimants are entitled to get total compensation of
Rs.8,30,000/-.
23. No doubt, the claimants have not challenged the quantum of
compensation. At this juncture, it is necessary to refer the judgment of the
Hon'ble Supreme Court in Surekha and others vs. Santosh and others
(C.A.No.476 of 2020 dated 21.01.2020) wherein, the Hon'ble Apex Court
has held as follows:-
“2. This appeal takes exception to the judgment and
order dated 04.01.2019 passed by the High Court of
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Judicature at Bombay, Bench at Aurangabad in First Appeal
No.2564 of 2016, whereby the High Court, even though
agreed with the stand of the appellants that just
compensation amount ought to be Rs.49,85,376/- (Forty-
Nine Lakh Eighty-Five Thousand Three Hundred Seventy-
Six Only), however, declined to grant enhancement merely
on the ground that the appellants had failed to file cross-
appeal.
3. By now, it is well-settled that in the matter of
insurance claim compensation in reference to the motor
accident, the court should not take hyper technical approach
and ensure that just compensation is awarded to the affected
person or the claimants.”
24. Considering the other facts and circumstances of the case, this
Court further decides that the parties are to be directed to bear their own
costs and the above points are answered accordingly.
25. In the result, the Civil Miscellaneous Appeal is allowed and the
impugned order dated 11.10.2017 passed in M.C.O.P.No.5390 of 2013,
mulcting liability on the appellant/insurer is set aside. The compensation
awarded by the Tribunal at Rs.8,15,000/- (Rupees Eight Lakhs and Fifteen
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Thousand only) is hereby enhanced to Rs.8,30,000/- (Rupees Eight
Lakhs and Thirty Thousand only) together with interest at 7.5% per
annum and costs from the date of petition till the date of realization. The
appellant/insurer is directed to deposit the modified enhanced amount with
interest and costs to the credit of M.C.O.P.No.5390 of 2013 on the file of
the Motor Accident Claims Tribunal/Special District Court (MCOP),
Tiruchirappalli, after deducting the amount already deposited if any,
within a period of four weeks from the date of receipt of a copy of this
judgment. Thereafter, the appellant/insurer is permitted to recover the
same from the third respondent/first respondent. On such deposit being
made, the first respondent/first claimant is entitled to get Rs.5,30,000/-
(Rupees Five Lakhs and Thirty Thousand only) and the second
respondent/second claimant is entitled to get Rs.3,00,000/- (Rupees Three
Lakhs only). Accordingly, the respondents 1 and 2/ claimants are
permitted to withdraw their shares along with interest and costs, less
amount already withdrawn, if any, on due application before the Tribunal.
If the amount was already deposited by the appellant/insurer, the amount
shall be withdrawn by them. Parties are directed to bear their own costs.
The respondents 1 and 2/ claimants are directed to pay the court fee for
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the enhanced compensation, if any, and the Registry is directed to draft the
decree only after the payment of Court fee.
30.11.2023
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1. The Motor Accident Claims Tribunal /
Special District Court (MCOP),
Tiruchirappalli.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
K.MURALI SHANKAR,J.
csm
Pre-Delivery Judgment made in
Dated : 30.11.2023
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