Madras High Court
Branch Manager vs R.Vijayashanthi on 19 October, 2024
C.M.A(MD)No.16 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 02.08.2024
Pronounced on : 19.10.2024
CORAM
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
C.M.A(MD)No.16 of 2021
and
C.M.P(MD)No. 264 of 2021
Branch Manager
The Oriental Insurance Company Ltd.,
360/21, Sathyamoorthy Road,
Second Floor, Pudukottai. ... Appellant / 2nd Respondent
Vs.
1.R.Vijayashanthi
2.Minor.Dwaraka
3.Minor.Athirai
4.4.V.K.Mani
5.M.Valli
6.M.Vellaichamy
7.Radhika
(Respondents 2 and 3 are represented
by mother and guardian the 1st respondent)
... 1 to 7 respondents / Claimants 1 to 7
1/9
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.16 of 2021
8.Karuppaiah
9.Alagusundaram ... 8 and 9 Respondents / Respondents 1 and 3
PRAYER :-
This Civil Miscellaneous Appeal is filed under Section 173 Motor
vehicles Act to set aside the order of the Motor Accidents Claims Tribunal
cum Additional District Judge, Pudukottai, made in M.C.O.P.No.258 of 2013
dated 15.07.2020.
For Appellant : Mr.E.Chandrasekaran
For RR1 to 5 & 7 : Mr.K.C.Maniyarasu
For RR6 & 8 : No appearance
JUDGMENT
This Civil Miscellaneous Appeal is filed to set aside the order of the
Motor Accidents Claims Tribunal cum Additional District Judge, Pudukottai,
made in M.C.O.P.No.258 of 2013 dated 15.07.2020.
2. The case of the claimants is that on 18.03.2012 at about 4.00 p.m.,
the deceased Ravichandran was riding a four wheeler from east to west
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direction, at that time, there was a ditch dug on the left hand side of the road.
There was no indication about the ditch. So it capsized on the ditch and
Ravichandran died on the spot. He was aged about 30 at the time of the
occurrence and he is a driver by profession and earning Rs.70,500/- per
month. He was aged about 30 at the time of the occurrence. Claiming
compensation amount of Rs.50 Lakhs, claim application was filed by the
claimants against the respondents.
3. That was resisted by the appellant herein by filing counter. The
deceased was not owning proper driving license at the time of the occurrence.
The first respondent permitted the vehicle to be driven by an unlicensed
person. Since the deceased was responsible for the accident, the claimants are
not entitled for any compensation from the insurance company.
4. Regarding the first aspect of negligence, the Tribunal recorded a
finding that the occurrence took place because of the rash and negligent
driving on the part of the deceased himself. The age of the deceased was
fixed at 30 and the notional income was fixed at 7,500/-. 40% was added to
the future prospects and 1/5 of the amount was deducted considering the
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number of dependants and finally the loss of dependency was fixed at
Rs.8,400/- per annum. Since he was aged about 30 at the time of accident,
multiplier 17 was adopted. The loss of dependency was fixed at
Rs.17,13,600/-. To that other customary amounts were added and finally
awarded a sum of Rs.18,93,600/-. 50% was ordered to be deducted towards
contributory negligence. So, the balance amount of Rs.9,46,800/- was
ordered to be paid and deposited by the second respondent on behalf of the
first and third respondent against which this appeal is preferred by the
insurance company.
5. Heard both sides.
6. Learned counsel for the appellant would submit that there was no
driving license for the deceased. Since the occurrence took place because of
his own negligence, if at all the claimants are entitled only for personal
accident coverage.
7. Per contra, learned counsel for the respondent would submit that, he
is the driver of the vehicle which belongs to the first respondent herein. It is
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not the case of the claimants that the deceased was employed under the first
respondent or the third respondent, as the case may be. On what ground the
deceased drove the vehicle is not stated by him properly. Now we will go to
the evidence of P.W.1 on this aspect. During cross examination, he has stated
that he was a driver by profession. But it is not clearly stated as he was
working as driver under the first respondent. It was suggested to the claimant
that she ought to have filed claim application before the Workmen
Compensation Forum.
8. The respondents 1 and 3 remained ex parte before the Tribunal. It is
now stated that if the employer - employee relationship is proved and there is
sufficient evidence for the same, even in case of the claim under the Motor
Vehicles Act, the Tribunal is at liberty to assess the compensation on the basis
of provisions of Workmen Compensation Act. The Hon'ble Division Bench
of this Court has held in the case of United India Insurance Co. Ltd., Vs.
Krishnaveni and two others, reported in 2020 (2) TN MAC 630 that even in
case, where M.C.O.P. petitions are filed, there is no bar for the Tribunal to
convert the same into one under the provisions of Workmen Compensation
Act, if the employer - employee relationship is not disputed. But here,
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absolutely, there is no evidence on record to show that the person was
working as an employee under the first respondent or the third respondent as
the case may be. In the petition, it has been stated as follows:
4/ ,we;J nghd utpr;re;jpud; 30 taJs;sth;/
jplfhj;jpuj;JlDk;.Mnuhf;fpaj;JlDk; ,Ue;jhh;/ ,we;Jnghd
utpr;re;jpud; gp/v!;/rp. gl;ljhhp/ brhe;jkhf oiutuhf
gzpg[hpe;J khjk; 1?f;F U:/17.500-?k; tiu rk;ghjpj;J
te;jhh;/ ,we;Jnghd utpr;re;jpud; jpUkak; gFjpapy; ed;F
ghpr;rkhdth;/ Mdhy; mtUf;F tUlk; KGtJk; ntiy
ghh;j;Jf;bfhz;nl ,Uf;Fk;/ ,we;Jnghd utpr;re;jpud; jhd;
rk;ghjpj;j gzk; KGtija[k; jd; FLk;gj;jpw;nf bfhLj;J
jd; FLk;gj;ij ey;y epiyf;F bfhz;Ltu ntz;Lk; vd;W
nauhJ ghLgl;Lf;bfhz;oUe;jhh;/ me;j ntiyapy; ,e;j
nfhu tpgj;jpy; utpr;re;jpud; ,wf;fhky;
capUld; ,Ue;jpUe;jhy; mtuJ FLk;gj;ij ey;y epiyf;F
bfhz;L te;jpUg;ghh;/
So this portion of the petition shows that it is not pleaded that he was working
under the first respondent or the third respondent. When it is not the plea in
the claim petition, even Workmen Compensation Act cannot be invoked.
9. Now coming to the aspect of possession of driving license, learned
counsel for the appellant as stated above submitted that there is no driving
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license for the deceased. When there is a finding by the Tribunal, the
deceased did not own any proper driving licence. But no driving licence was
produced by the claimant either before the trial Court or before this Court. It
was simply suggested to R.W.2 that the license could have been obtained by
the deceased from some other district. But it is not so here. It was not
suggested by R.W.1 that the deceased was owning the proper driving licence.
Inspite of the above suggestion made to R.W.1, the claimant not produced the
copy of the driving licence of the deceased.
10. In view of the above said observation, the claimants are not entitled
for any compensation to be payable by the insurance company namely the
appellant herein. Sofar as, the personal accident coverage is also concerned,
it is also submitted that no coverage is available. So the insurance company
can be absolved of its liability. Since the deceased himself is a tortfeaser, the
claimants are not entitled for any compensation. The order of the Tribunal is
not legal, per contra, it is per se illegal.
11. Accordingly, this Civil Miscellaneous Appeal is allowed, the award
passed by the Motor Accidents Claims Tribunal cum Additional District
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Judge, Pudukottai, made in M.C.O.P.No.258 of 2013 dated 15.07.2020, is set
aside and the claim application of the claimant is dismissed. Consequently,
connected miscellaneous petition stands closed. No costs.
19.10.2024
NCC: Yes / No
Index: Yes / No
Internet : Yes / No
pnn
To
1.The Motor Accidents Claims Tribunal cum Additional District Judge,
Pudukottai.
2.The Section Officer, Vernacular Records Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J.
pnn
Pre-Delivery Judgment made in
and
19.10.2024
https://www.mhc.tn.gov.in/judis
