Madras High Court
The Manager vs Azeez Beevi on 21 October, 2024
C.M.A.(MD) No.1070 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.10.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.1070 of 2010
The Manager,
Iffco Tokyo General Insurance Company Ltd.,
III Floor, Thulasi Chamber,
T.V.Sami Road (West),
Coimbatore. ... Appellant
Vs.
1.Azeez Beevi
W/o.Abdul Kadar
2.Mohamed Yusuf
S/o.Vavamaideen ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the fair and decreetal order dated
09.03.2010 made in M.C.O.P.No.132 of 2006 on the file of the Motor
Accident Claims Tribunal (Additional Subordinate Court), Tenkasi.
For Appellant : Mr.S.Srinivasa Ragavan
For R1 : Mr.K.Pragadesh Ganapathy
for Mr.R.Subramanian
For R2 : No appearance
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Page No. 1 of 8
C.M.A.(MD) No.1070 of 2010
JUDGMENT
The instant appeal has been filed by the Insurance Company
challenging the award of the Tribunal on the ground that the Tribunal
ought not to have allowed the claim petition filed under the provisions of
the Motor Vehicles Act, 1988.
2. The first respondent had filed a claim petition before the
Tribunal, stating that the deceased was employed as a driver under the
second respondent and that on 28.04.2006, at about 07:00 a.m., while the
deceased was driving the car bearing registration No.TN-76-A-7871,
which belonged to the second respondent and was insured with the
appellant, the vehicle went out of control and collided with a roadside
tree, as a result of which the deceased sustained fatal injuries.
3. The second respondent herein, the owner of the insured vehicle,
remained ex parte before the Tribunal.
4. The appellant had filed a counter before the Tribunal, stating that
since the deceased himself was the tortfeasor, the owner, and
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consequently the appellant, is not liable to pay any compensation under
the provisions of the Motor Vehicles Act, 1988.
5. Before the Tribunal, the first respondent examined herself as
P.W.1 and marked Exs.P1 to P4, and the appellant examined R.W.1 and
marked Exs.R1 and R2.
6. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the accident arose out of the use of a
motor vehicle, and therefore, the appellant is liable to pay compensation
under the provisions of the Motor Vehicles Act, 1988.
7. The learned counsel for the appellant submitted that the claim
petition filed under Section 166 of the Motor Vehicles Act, 1988, is not
maintainable, as the deceased himself was the tortfeasor, and that since
the deceased was employed under the second respondent, the Tribunal
erred in allowing the claim petition filed under the Motor Vehicles Act,
1988, and therefore prayed for setting aside the award of the Tribunal.
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8. The learned counsel for the first respondent, per contra,
submitted that even if the claim petition under the provisions of the Motor
Vehicles Act, 1988 was not maintainable, since the deceased was
employed under the second respondent, who was the insured, the
appellant is liable to pay compensation under the Workmen's
Compensation Act, 1923 and relied upon the judgment of this Court in the
case of M/s.United India Insurance Company Limited Vs. K.Shahidha
Banu and others, dated 15.03.2022 passed in C.M.A.No.2723 of 2019,
wherein, in similar circumstances, this Court in the appeal filed by the
Insurance Company challenging the award under the Motor Vehicles Act,
1988 had awarded the compensation under the Workmen's Compensation
Act, 1923, since the deceased was employed under the insured.
9. The only point for consideration in the instant appeal is whether
this Court, in an appeal filed challenging the award of the Tribunal passed
in the claim petition filed under the provisions of the Motor Vehicles Act,
1988, can invoke the provisions of the Workmen's Compensation Act,
1923, to award compensation.
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10. Concededly, the claim petition before the Tribunal under the
provisions of the Motor Vehicles Act, 1988, was not maintainable, as the
deceased himself was a tortfeasor. However, the deceased was employed
under the second respondent herein, which is not in dispute. Therefore,
this Court can award the compensation by applying the provisions of the
Workmen's Compensation Act, 1923, as the policy covers the liability of
the insured as an employer. This Court, in K.Shahidha Banu's case cited
supra, held that even if the claim petition under the Motor Vehicles Act,
1988, is not maintainable, this Court can pass an award as if the claim is
one under the Workmen's Compensation Act, 1923, if the conditions
invoking the Act are satisfied. Since the condition, namely, the deceased
was employed under the second respondent, is not in dispute, this Court is
of the view that the award can be passed as if the claim is one under the
Workmen's Compensation Act, 1923.
11. As regards the quantum of compensation, the deceased was 25
years old at the time of the accident. Since the claimant had admitted that
the income of the deceased was Rs.6,000/- per month, the said income is
adopted for computation of compensation. Since the age of the deceased
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was 25 years, the factor applicable is 216.91. Thus, the compensation
under the head 'loss of dependency' would be Rs.6,50,730/- [Rs.6,000/- x
50% x 216.91]. The claimant is entitled to a sum of Rs.5,000/- under the
head 'funeral expenses'. The total compensation payable to the first
respondent/claimant would be Rs.6,55,730/- [Rs.6,50,730/- + Rs.5,000/-].
12. In the result, the Judgment and Decree dated 09.03.2010 made
in M.C.O.P.No.132 of 2006 on the file of the Motor Accident Claims
Tribunal (Additional Subordinate Court), Tenkasi, granting compensation
of Rs.2,79,000/- to the first respondent/claimant, is set aside, and a sum of
Rs.6,55,730/- is awarded under the provisions of the Workmen's
Compensation Act, 1923.
13. The appellant, Insurance Company, is directed to deposit the
aforesaid compensation of Rs.6,55,730/- together with interest at 7.5% per
annum from the date of the claim petition till the date of realization, after
deducting the amount already deposited, if any, before the Tribunal,
within a period of four weeks from the date of receipt of a copy of this
Judgment.
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14. On such deposit, the first respondent/claimant is permitted to
withdraw the same along with interest, less the amount already
withdrawn, if any, by filing suitable application before the Tribunal.
15. The first respondent/claimant is directed to pay the court fee for
the modified amount within a period of four weeks from the date of
receipt of a copy of this Judgment.
16. In the result, this Civil Miscellaneous Appeal is partly allowed.
No costs.
21.10.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The Additional Subordinate Judge,
Motor Accident Claims Tribunal,
Tenkasi, Tirunelveli District.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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SUNDER MOHAN, J.
JEN
21.10.2024
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