Madras High Court
The United India Insurance Company Ltd vs Ramathilakam on 5 January, 2024
C.M.A.(MD).No.417 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 27.11.2023
PRONOUNCED ON : 05.01.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.417 of 2018
and
C.M.P.(MD)No.5282 of 2018
The United India Insurance Company Ltd.,
1170, Mettur Road, 2nd Floor,
Muthaiah Complex, Erode District.
Branch Office: Divisional Manager,
Divisional Office,
The United India Insurance Company Unit – I,
Promenade Road, Cantonment,
Tiruchy. ... Appellant
Vs.
1.Ramathilakam
2.Minor Mahamuni @ Devaraj
(2nd Minor Respondent is represented by
his mother and next friend,
the first respondent/Ramathilakam)
3.Muthusamy
4.Periyakkal
1/14
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.417 of 2018
5.Muthukumar ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the judgment and decree of the
Claims Tribunal in M.C.O.P.No.4422 of 2013 dated 24.06.2017 on the
file of the Motor Accident Claims Tribunal, Special District Court
(MCOP), Tiruchirappalli.
For Appellant : Mr.J.S.Murali
For R1 to R4 : Mr.N.Sudhakar Nagaraj
For R5 : No Appearance
JUDGMENT
This Civil Miscellaneous Appeal has been directed as against the
judgment and award passed by the learned Motor Accident Claims
Tribunal, Special District Judge, at Tiruchirappalli in M.C.O.P.No.4422
of 2013 dated 24.06.2017, by the appellant/second respondent/insurance
company, challenging the award passed by the learned Tribunal.
2.For the sake of convenience, the parties are addressed herein as
per the rank in M.C.O.P.No.4422 of 2013.
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3.The factual matrix of the present case, briefly stated, are as
under:-
The first petitioner is the wife, the second petitioner is the minor
son and the third and fourth petitioners are the parents of the deceased.
On 22.03.2006 at about 05.00 p.m., the deceased Murugesh @
Murugesan employed under the first respondent on his instructions, took
the two wheeler bearing registration No.TN-33-K-0678 belonging to the
first respondent and went for money collection along Erode - Karur
Byepass road from north south direction and when he came near
Kollakattumedu P & C Pipe company, a dog suddenly crossed the road.
As the result of which, the deceased lost balance and fell down.
Immediately he was taken to Erode Government Hospital for first aid and
thereafter, shifted to Government Headquarters Hospital, Trichy wherein
he was admitted as inpatient from 22.03.2006 to 24.03.2006. However,
he died on 24.03.2006. At the time of accident, the deceased Murugesh
@ Murugesan was 30 years old. The petitioners filed claim petition in
M.C.O.P.No.4422 of 2013 seeking compensation of Rs.10,00,000/-.
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4.The first respondent is the owner of the vehicle. The second
respondent is the insurance company for which the first respondent
vehicle was insured. The second respondent has filed a counter refuting
the allegation put forth in the claim petition. It was further contended that
the deceased who was riding the motor cycle, had no valid driving
licence to drive the motor cycle at the time of the accident and he dashed
against the road side tamarind tree on his own volition and hence, it is
not necessary to extend the insurance cover for the rider of two wheeler
as per Section 147 of the Motor Vehicles Act.
5.The learned Tribunal framed two issues. Three witnesses were
examined P.W.1 to P.W.3 and Ex.P1 to Ex.P3 were examined on the side
of the petitioners. Two witnesses were examined as R.W.1 and R.W.2 and
Ex.R1 on the side of the respondents and Ex.X1 were marked. The first
respondent was set exparte before the learned Tribunal. On the basis of
the evidence deposed by the witnesses and documents available on
record and on the basis of the arguments submitted by the petitioners and
the second respondent, the learned Tribunal came to a conclusion that the
negligence of the deceased was not proved and the second
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respondent/insurance company was made liable. Hence, the learned
Tribunal held that both the respondents 1 and 2 are liable to pay
compensation. Since the avocation of the deceased was not proved, a
notional monthly income of the deceased was fixed as Rs.4,000/-. After
deducting 1/3 towards personal expenses, a notional income of Rs.
2,667/- was arrived at. Considering the age of the deceased to be 30
years, the multiplier '17' was adopted. The loss of dependency was
arrived at Rs.5,44,068/- (2667x12x17). The quantum of award is decided
by the learned Tribunal is as follows:-
Head Compensation awarded
(i)Loss of dependency: Rs.5,44,068/-
(ii)Funeral expenses and Rs.15,000/-
transportation expenses:
(iii)Love and affection: Rs.1,00,000/-
(iv)Consortium: Rs.1,00,000/-
Total compensation awarded: Rs.7,59,068/- with interest @
7.5 % from the date of the claim
until the realization and costs.
6.Challenging the same, the second respondent insurance company
had filed this Civil Miscellaneous Appeal.
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7.In the instant case, only vehicle involved in the accident is the
two wheeler bearing registration No.TN-33-K-0678 driven by the
deceased. However, the cause of the accident is due to the sudden
crossing of the dog. As the result of which, the deceased dashed against
the Tamarind tree and sustained grievous injuries and after treatment,
passed away.
8.The learned counsel appearing for the appellant vehemently
submitted that the deceased himself being a tort feasor, the dependants
are not entitled for compensation.
9.The pertinent question to be decided is whether the legal heirs of
the deceased are entitled for compensation. The learned counsel
appearing for the appellant vehemently relying upon the case of
Divisional Manager v. Nagarathinam and others reported in 2021 (2)
TNMAC 314, submitted that the deceased was driving the vehicle
belonging to the first respondent. While riding in order to avoid hitting a
dog which crossed the road unexpectedly, he hit against the tamarind tree
and fell down and sustained grievous injuries. As the result of which, he
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died after taking treatment for a couple of days. The deceased driving a
borrowed vehicle and he himself being a tort feasor, the claim petition
under Section 163A is not maintainable and the insurer is not liable to
pay compensation to the petitioners. The relevant portion of the judgment
is extracted as follows:-
“16.From the materials on record, it is seen that it is the
contention of the respondents 1 to 6 that the deceased was
employed by the 8 th respondent as driver in harvesting
tractor. On the date of accident, the deceased parked the
harvesting tractor, travelled in the motorcycle belonging to the
7 th respondent to find out the paddy field and after locating
the paddy field, while returning, the deceased in order to avoid
hitting the pedestrian, who suddenly tried to cross the road,
dashed on the back side of the bullock cart. It is the contention
of the respondents 1 to 6 that the accident did not occur due to
negligence of the deceased, but only due to the pedestrian who
suddenly crossed the road. To substantiate this contention, the
respondents 1 to 6 examined the 1 st respondent as P.W.1 and
an eye-witness to the accident as P.W.2. P.W.2 deposed as
claimed by the respondents 1 to 6. On the other hand, it is the
contention of the appellant that the accident has occurred only
due to negligence on the part of the deceased and the
appellant is not liable to pay any compensation even when the
claim petition is filed under Section 163-A of the Act. The
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Tribunal considering the evidence of P.W.2 held that the
accident did not occur due to negligence on the part of the
deceased and directed the appellant and the 7 th respondent
being insurer and owner of the motorcycle, to pay the
compensation. The Tribunal has committed an error in holding
that it cannot be termed that the accident occurred due to
negligence of the deceased. The Tribunal failed to consider
that the F.I.R. is registered against the deceased and charge
sheet was laid against the deceased. The final report was filed
stating that the charges against the deceased were abated due
to the death of the rider of the motorcycle in the accident. It is
pertinent to note that no other vehicle is involved in the
accident. Even when a pedestrian tried to cross the road
suddenly, had the deceased was riding the motorcycle
cautiously, he could have avoided the accident by hitting on
the bullock cart. From the above materials, it is clear that the
accident has occurred only due to negligence on the part of the
deceased.
17.The respondents 1 to 6 filed the claim petition under
Section 163-A of the Motor Vehicles Act claiming
compensation for the death of one Annamalai, who died in the
accident that took place on 11.03.2007.
18.The issues to be decided in the present appeal are:
(i) Whether the claim petition filed by the respondents 1 to 6
under Section 163-A of the Act is maintainable against the
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Insurance Company of the Motorcycle when the deceased who
borrowed the vehicle was responsible for the accident and
when he was the tort-feasor?
(ii) Whether the respondents 1 to 6 are entitled to
compensation under Employees Compensation Act on the
notional theory of extension of employment and whether the 9
th respondent is liable to pay compensation to the respondents
1 to 6 as insurer of harvesting tractor.
20.As per this Section, the owner and insurer are liable
to pay compensation as per II Schedule of the Act. As per
Section 163-A (2) of the Act, the claimant is not required to
plead and establish any wrongful act or negligence or default
of the owner of the vehicle or vehicle concerned or any other
person. The issue whether the owner and driver of the vehicle
who is the tort-feasor can claim compensation from the owner
and insurer was considered by the Hon'ble Apex Court in
number of cases, wherein the Hon'ble Apex Court held that
owner and driver of the vehicle who was a tortfeasor can not
claim compensation from the Insurance Company.”
10.Per contra the learned counsel appearing for the respondents 1
to 4 /petitioners/claimants relied upon the judgment of the Hon'ble Apex
Court in the case of United India Insurance Co. Ltd., v. Sunil Kumar
and another reported in 2017 (2) TNMAC 753(SC) and the relevant
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portion of which, is extracted as follows:-
“1. Unable to agree with the reasoning and the
conclusion of a two judge bench of this Court in National
Insurance Co. Limited v. Sinitha and Ors.
[MANU/SC/1374/2011 : (2012) 2 SCC 356] a coordinate
bench of this Court by order dated 29th October, 2013 has
referred the instant matter for a resolution of what appears to
be the following question of law.
“Whether in a claim proceeding Under Section 163 A
of the Motor Vehicles Act, 1988 (hereinafter referred to as
"the Act") it is open for the Insurer to raise the defence/plea
of negligence?”
3.In Sinitha's case (supra), a two judge bench of this
Court understood the scope of Section 163A of the Act to be
enabling an Insurer to raise the defence of negligence to
counter a claim for compensation. The principal basis on
which the conclusion in Sinitha's case (supra) was reached
and recorded is the absence of a provision similar to Sub-
section (4) of Section 140 of the Act in Section 163A of the
Act. Such absence has been understood by the Bench to be a
manifestation of a clear legislative intention that unlike in a
proceeding Under Section 140 of the Act where the defence of
the Insurer based on negligence is shut out, the same is not
be the position in a proceeding Under Section 163A of the
Act.
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8.From the above discussion, it is clear that grant of
compensation Under Section 163-A of the Act on the basis of
the structured formula is in the nature of a final award and
the adjudication thereunder is required to be made without
any requirement of any proof of negligence of the
driver/owner of the vehicle(s) involved in the accident. This is
made explicit by Section 163A(2). Though the aforesaid
Section of the Act does not specifically exclude a possible
defence of the Insurer based on the negligence of the
claimant as contemplated by Section 140(4), to permit such
defence to be introduced by the Insurer and/or to understand
the provisions of Section 163A of the Act to be contemplating
any such situation would go contrary to the very legislative
object behind introduction of Section 163A of the Act, namely,
final compensation within a limited time frame on the basis of
the structured formula to overcome situations where the
claims of compensation on the basis of fault liability was
taking an unduly long time. In fact, to understand Section
163A of the Act to permit the Insurer to raise the defence of
negligence would be to bring a proceeding Under Section
163A of the Act at par with the proceeding Under Section 166
of the Act which would not only be self-contradictory but also
defeat the very legislative intention.
9.For the aforesaid reasons, we answer the question
arising by holding that in a proceeding Under Section 163A
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of the Act it is not open for the Insurer to raise any defence of
negligence on the part of the victim.”
11.He further relied upon the order passed by this Court in the case
of Divisional Manager v. Amudha and others in C.M.A.(MD)No.649
of 2017 dated 12.03.2020, wherein this Court has held that 'as per law
precedents, if a larger bench has given a ratio, the latest decisions of the
Honourable Division Bench may not be taken into consideration and
only the law laid down by the Full Bench decision of the Honourable
Supreme Court alone can be taken into consideration.'
12.Further the learned counsel for the appellant relied upon the
recent judgment of the Single Judge of this Court reported in 2021 (2)
TNMAC 314. However, the Hon'ble Full Bench of the Hon'ble Apex
Court in the case of United India Insurance Co. Ltd., v. Sunil Kumar
and another reported in 2017 (2) TNMAC 753(SC) has meticulously
decided the question whether in the claim proceedings under Section
163A of Motor Vehicles Act, 1988, if it is open for an insurer to raise a
defence - plea of negligence on the victim and has categorically held that
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the question arising by holding that in a proceeding Under Section 163A
of the Act, it is not open for the Insurer to raise any defence of
negligence on the part of the victim. To specifically distinguish the
instant case in hand, the accident happened not due to negligence on the
part of the deceased/victim but it happened only exclusive due to the
sudden crossing of the dog unexpectedly in the course of his driving. As
the result of which, he inevitably dashed as against the nearby tamarind
tree and thereby, sustaining grievous injury.
13.In the light of the order passed by the Hon'ble Apex Court, I am
not inclined to interfere with the award passed by the learned Tribunal.
This Civil Miscellaneous Appeal stands dismissed. There shall be no
order as to costs. Consequently connected miscellaneous petition is
closed.
05.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
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L.VICTORIA GOWRI, J.
Mrn
To
1.The Motor Accident Claims Tribunal,
Special District Court (MCOP), Tiruchirappalli.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
05.01.2024
https://www.mhc.tn.gov.in/judis
