Madras High Court
Reliance General Insurance vs V.Thangaiah(Died) on 13 August, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
2024:MHC:3114
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
AND
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN
C.M.A(MD)No.554 of 2024
and
C.M.P(MD)No.7077 of 2024
Reliance General Insurance,
Office No.10/4/4-Second Floor, Thaha Plaza,
South Bye Pass Road,
Vannarpettai,
Tirunelveli – 627 003. ... Appellant/Second Respondent
.Vs.
V.Thangaiah(died)
1.T.Radha ...Ist Respondent/Petitioner
2.K.Subha ...Second Respondent/Ist Respondent
3.V.Samudram ...Third Respondent/Third Respondents
4.The United India Insurance Company Limited,
No.10, First Floor BSNL CSC Building,
Urkad Road, Ambasamudram,
Tirunelveli – 627 401. ...4th Respondent/4th Respondent
1/11
https://www.mhc.tn.gov.in/judis
PRAYER: Civil Miscellaneous Appeal filed under Section 176 of the Motor
Vehicles Act against the award made in M.C.O.P.No.6 of 2019, dated 3.7.2023, on
the file of the Motor Accidents Claims Tribunal Judge(Subordinate
Judge),Ambasamudram.
For Appellant : Ms.K.R.Shivashankari
For Respondents : No appearance
1 and 2
For Respondent-4 :Mr.C.Jawahar Ravindran
JUDGMENT
(Order of the Court was made by P.VELMURUGAN,J)
The Civil Miscellaneous Appeal is directed against the award made in
M.C.O.P.No.6 of 2019, dated 3.7.2023, on the file of the Motor Accidents Claims
Tribunal Judge(Subordinate Judge),Ambasamudram.
2.The Insurance Company is the appellant. The case of the claimant is that
the first respondent is the father of the deceased Vignesh and the second
respondent is his mother. . On 28.4.2018 at about 16.00 hours at Papanasam
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Ambasamudram Road, while the deceased was driving the vehicle bearing
Registration No. TN 59 V 0747 Boxer proceeding in West to east direction along
with one Arunkumar as pillion rider to pick up his sister from Ambasamudram
Railway Station, the vehicle bearing Registration No. TN 76 AW 3045 Tipper
Vehicle proceeding from east to west driven by its driver in a rash and negligent
manner dashed against the above said vehicle and cause the death. In this regard
a case was registered in Crime No.187 of 2018, on the file of Ambasamudram
Police and the same is pending on the file of learned Judicial Magistrate,
Ambasamudram. At the time of accident, the deceased was aged about 23 years
and employed as Company Trade Apprentice in a private company and earning a
sum of Rs.14,739/- and thus, claimed a sum of Rs.75 lakhs as compensation.
3.The case of the respondents 1 to 4 therein is that the claim petition has
been filed suppressing the material facts and due to the rash and negligent driving
of the deceased vignesh, the accident had occurred and the driver of the first
respondent is not responsible for the accident and prayed for dismissal of the
claim petition.
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4.The learned counsel for the appellant Insurance Company submitted that
the driver of the insured vehicle is not holding due, valid and effective driving
licence to drive the vehicle at the time of accident. The driver of the insured
vehicle at the time of accident is without any valid driving licence drove the said
vehcile is in contravention of the provisions of the Motor Vehicles Act and the
Motor Vehicle Rules. Under Section 37 of the Motor Vehicles Act, the person
holding valid and subsisting driving licence should drive the vehicle and further
he would submit that the driver of the insured vehicle is not the cause for the
accident.
5.As far as the quantum of compensation is concerned, the claimant
produced the salary certificate Ex.P12. As per Ex.P12, the monthly salary of the
deceased at the time of accident is Rs.14,739/- but whereas, the Tribunal fixed the
monthly income at Rs.18,000/- which is against the provisions of law and also
Ex.P12 shows only as Stiphend Certificate and there is no permanent
employment and therefore the Tribunal ought have fixed the notional income
only below Rs.14,000/- and not at Rs.18,000/-. Further he would submit that the
Insurance Company is not liable to indemnify on behalf of the owner of the
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offending vehicle bearing Registration No.TN 76 AW 3045 when the driver of
the insured vehicle was not holding duly valid and effective driving licence on
the date of the alleged accident and hence, there is no direct liability on the part
of the appellant to pay any compensation amount and only the owner of the
alleged insured vehicle is liable to pay the compensation. The initial burden of
proving that the driver of the insured vehicle was not holding duly valid and
effective driving licence at the time of accident and the onus is shifted on the
owner of the vehicle to prove that he is possessing valid driving licence and he
has not breached the conditions of policy and the quantum fixed by the Tribunal
is on higher side and it does not reflect the just and fair compensation. Therefore
the appeal is liable to be allowed and the judgment and decree passed by the
Tribunal is liable to be set aside.
6.Though the accident is not in dispute and the deceased died due to the
accident is also not in dispute,the specific case of the appellant is that the
Petitioner has suppressed the true facts to file the claim petition. The accident
happened on 28.4.2018 on account of the fact that the deceased without
following the basic traffic rules drove the vehicle and dashed against the lorry
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driven by the driver of the first respondent and as such, the driver of the first
respondent is not responsible for the said accident.
7.The further case of the appellant is that the insurance coverage of the
said vehicle bearing Registration No. TN 76 AW 3045 owned by the first
respondent is not in force at the time of accident. Therefore, the appellant is not
liable to indemnify the first respondent. The driver of the vehicle bearing
Registration as aforesaid was not having valid and effective driving licence at
the time of accident and the first respondent handed over the possession of the
vehicle to the said driver and therefore, the appellant is not liable to indemnify
the same.
8.Though the learned Tribunal ordered for ‘’Pay and recovery’’ for
violation of policy condition, however, the learned Tribunal failed to consider the
fact that the accident was due to the rash and negligent driving of the deceased
and therefore the appellant is not liable to pay the quantum as fixed by the
Tribunal which is on higher side.
https://www.mhc.tn.gov.in/judis
9.As already stated, the accident is admitted and the death of the deceased
due to the accidental injury is also not in dispute. The appellant has taken a
defense that the accident is due to the rash and negligent driving of the deceased
and the appellant has not examined the driver of the offending vehicle bearing
Registration No. TN 76 AW 3045 and that a criminal case was also registered
against him in Crime No.187/2018 under Section 279 and 304(A) of IPC and
therefore ther driver of the above said vehicle has not filed any case. Though he
has stated that the deceased only came with rash and negligence and dashed
against the offending vehicle bearing Registration No. TN 76 AW 3045 but he
was not examined as a witness and the eye witness was examined on the said of
the claimant. He has categorically stated about the manner of the accident and
nothing was elucidated during the cross examination.Therefore once the
claimant pleaded that the accident had occurred due to the rash and negligent
driving of the offending vehicle bearing Registration No. TN 76 AW 3045 and in
order to prove the same, he also examined the eye witness,the onus has been
shifted to the respondent/appellant herein, whereas in this case, though a case
was registered against the driver of the offending vehicle, that may not be the sole
ground to fix the liability on him, but however, no witness was examined on their
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side, even otherwise, the driver of the offending vehicle was also not examined.
Therefore there is no contra evidence to the claimant’s evidence regarding the
manner of the accident and negligence on the part of the driver of the offending
vehicle.Therefore from the perusal of oral and documentary evidence and from
the evidence of P.W.2, this Court finds that the accident had occurred only due to
the rash and negligent driving of the driver of the offending vehicle, which is
insured with the appellant at the time of accident. .From the oral evidence, it is
seen that there is only violation of policy condition.The Tribunal has also ordered
for pay and recovery. This Court, as an appellate Court, a final court of fact
finding Court, on reappreciation of evidence finds that the accident had
happened only due to the rash and negligent driving of the driver of the
offending vehicle.
10.As far as the quantum of compensation is concerned, admitedly, the
deceased at the time of accident was working as Apprentice and getting stiphend
of Rs.14,739/-.Ex.P12 clearly shows that he was getting stiphend during the
relevant point of time. Since he is a qualified person getting stiphend, soon after
completing the same, he would get a good job and he would earn not less than
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Rs.18,000/- and the Tribunal fixed Rs.18,000/- as monthly income. Since the
deceased died as a bachelor and mother is the legal heir at the time of death of the
deceased and as the deceased is 23 years at the time of accident, considering the
qualification and also the scope of employment and source of income, the
Tribunal has fixed the notional income at Rs.18,000/- which is not on higher
side and seems to be reasonable. At the time of accident, the deceased was aged
23 years and the Tribunal adopted multiplier of 18 and 50% of his income was
deducted towards personal expenditure, as he was a bachelor at the time of
accident. Further considering the age and future prospectus, following the
decision of the Honourable Apex Court in National Insurance Company
Limited .vs. Pranay Sethi and others reported in 2017(2) TNMAC 609 (SC),
40% of the income is added towards future prosepctus fixed the loss of
dependency at Rs.27,21,600, which seems to be just and reasonable. A Perusal of
the award under other heads also seems to be just and reasonable, which in the
considered opinion of this Court is not on higher side. Therefore for all these
reasons, this Court finds no merit in the appeal and the appeal is liable to be
dismissed.
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11.Accordingly, the Civil Miscellaneous Appeal is dismissed confirming
the award of the Tribunal. No costs. Consequently connected Miscellaneous
Petition is closed.
(P.V.,J.) (K.K.R.K.,J.)
13.08.2024
NCS : Yes/No
Index : Yes / No
Internet : Yes / No
vsn
To
1.The Motor Accidents Claims Tribunal,
(Subordinate Judge),
Ambasamudram.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
P.VELMURUGAN,J.
and
K.K.RAMAKRISHNAN,J.
vsn
JUDGMENT MADE IN
and
13.08.2024
https://www.mhc.tn.gov.in/judis
