Madras High Court
Cholamandalam Ms General Insurance ... vs M. Arokkiyam on 10 September, 2024
Author: R.Hemalatha
Bench: R. Hemalatha
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.09.2024
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
C.M.A. No.619 of 2023
Cholamandalam MS General Insurance Company Limited
II Floor, Shaw Wallace Building,
154, Thambu Chetty Street
Parry's Corner, Chennai 600 001. ... Appellant
vs.
1. M. Arokkiyam
2. John Kennedy
3. A. Sophia Mary
4. A. Joisy
5. Sebasthiyan ... Respondents
C.M.A. No.620 of 2023
Cholamandalam MS General Insurance Company Limited
II Floor, Shaw Wallace Building,
154, Thambu Chetty Street
Parry's Corner, Chennai 600 001. ... Appellant
vs.
1. Kanikkaimary
2. Minor S. Salethbenita
3. Minor S. Margiret
4. Minor S. Jerome
1/18
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
5. Sebasthiyan ... Respondents
PRAYER in C.M.A.No.619 of 2023: Civil Miscellaneous Appeal filed
under Section 173 of the Motor Vehicles Act, 1988 against the Award
dated 21.12.2021 in M.C.O.P.2192/2017 on the file of the Principal
Subordinate Court, Motor Accident Claims Tribunal, Cuddalore.
PRAYER in C.M.A.No.620 of 2023: Civil Miscellaneous Appeal filed
under Section 173 of the Motor Vehicles Act, 1988 against the Award
dated 21.12.2021 in M.C.O.P.2191/2017 on the file of the Principal
Subordinate Court, Motor Accident Claims Tribunal, Cuddalore.
Appearance in both the appeals
For Appellant : Ms.C.Harini
For R1 to R4 : Mrs. Ramya V. Rao
R5 : No appearance.
COMMON JUDGMENT
The appellant, the Cholamandalam MS General Insurance
Company Limited, Chennai is the second respondent in M.C.O.P.
No.2191/2017 and M.C.O.P. No.2192/2017 on the file of the Principal
Subordinate Court, Motor Accident Claims Tribunal, Cuddalore.
2. The respondents 1 to 4 in both the appeals filed the claim
petitions in M.C.O.P. No.2191/2017 and M.C.O.P. No.2192/2017 under
Section 166(3) of the Motor Vehicles Act seeking compensation of
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
Rs.15,00,000/- each for the death of one Sengolrayar
(M.C.O.P.2191/2017) and Alangaramary @ Rani (M.C.O.P.2192/2017) in
a road accident that occurred on 28.09.2015.
3. According to the claimants Sengolrayar and Alangaramary
@ Rani (since deceased) were travelling in a TATA Ace Goods Vehicle
bearing Registration No.TN-48-U-1908 on Vridhachalam-Jayankondam
Main Road. The driver of the vehicle drove the same in a rash and
negligent manner as a result of which the vehicle capsized resulting in the
instantaneous death of Sengolrayar and Alangaramary @ Rani.
4. According to the claimants, the accident took place due to the
rash and negligent driving of the driver of the TATA Ace Goods Vehicle
bearing Registration Number TN-48-U-1908 and that since the said
vehicle was insured with the present appellant, the Cholamandalam MS
General Insurance Company Limited, the owner and the insurer are jointly
and severally liable to pay compensation to them.
5. In the Tribunal, the owner of the TATA Ace Goods Vehicle
remained absent and was set exparte. The appellant/Insurance Company
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C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
resisted the claim petitions on all the grounds available to the insurer
under Section 170 of the Motor vehicles Act.
6. The Tribunal, after analysing the evidence on record,
fastened negligence on the part of the driver of the TATA Ace Goods
Vehicle bearing Registration number Number TN-48-U-1908. However,
since the driver of the said vehicle did not have a valid driving license on
the date of accident, the Tribunal directed the appellant Insurance
Company to pay compensation to the claimants, as stated below, together
with interest at the rate of 7.5% per annum from the date of petition till the
date of realisation, in the first instance, and then recover the same from the
first respondent, the owner of the vehicle, under the same cause of action,
vide its orders dated 21.12.2021.
MCOP No. Award amount
2191/2017 14,77,900/-
2192/2017 14,77,900/-
7. Questioning the liability to pay compensation, the present
appeals have been filed by the by the Cholamandalam MS General
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C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
Insurance Company Limited.
8. Heard Ms.C. Harini, learned counsel for the appellant and
Mrs.Ramya V Rao, learned counsel for the respondents 1 to 4 in both the
appeals.
9. Ms. C.Harini, learned counsel for the appellant Insurance
Company contended that the seating capacity in the TATA Ace Goods
vehicle is two including the driver and that the Insurance policy covers
only the owner and the driver of the vehicle. It is her further contention
that admittedly both the deceased were travelling along with six others in
the load area of the vehicle with the goods and in the circumstances, the
Tribunal was wrong in directing the Insurance Company to pay the Award
in the first instance and then recover the same from the owner of the
vehicle. She also relied on the decision of this Court in Royal Sundaram
Alliance General Insurance Company Limited vs. P. Ayyakannu and
others reported in MANU/TN/1344/2009 and contended that no person
shall be carried in the cabin of a goods carriage beyond the number for
which there is a seating accommodation and that in the instance case both
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C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
the deceased were travelling in the load area and therefore the Insurance
Company is not liable to pay compensation. She therefore, prayed for
setting aside the order of the Tribunal.
10. Per contra, Mrs. Ramya V Rao learned counsel for the
respondents/claimants in both the appeals contended that the deceased
were actually travelling as owners of the goods and therefore, they are
entitled to claim compensation from the appellant Insurance Company.
She, therefore, prayed for dismissal of the present appeals.
11. A perusal of the records shows that around 8 persons were
travelling in TATA Ace Goods vehicle and Sengolrayar and
Alangaramary @ Rani died in the accident. A perusal of the Policy of
Insurance (Ex.R3) shows that the insurance covers only the driver and the
owner of the goods. In the decision in Royal Sundaram Alliance
General Insurance Company Limited vs. P. Ayyakannu and others (cited
supra), it has been held thus:
"Rule 236 provides that no person shall be carried in the
cabin of a goods carriage beyond the number for which there
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C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
is a seating accommodation, In the paragraph extracted
above from Anjana Shyam's case, the Supreme Court held
that Section 149 cannot be understood as imposing a liability
on the insurere to make payment even in respect of those who
have been loaded into the vehicle against the terms of the
permit and against the terms of the condition of registration
of the vehicle and that though the insurer is bound to cover
the third party risks in respect of passengers, the risks can
only be understood to mean risks of passengers authorized or
permitted to be carried in the said vehicle. We are bound by
this judgment and therefore, we hold that the insurer is liable
to indemnify the liability only with regard to Ayyakannu who
sat in the cabin of the vehicle and along with the driver and
whose liability alone the insurer was bound to cover."
In the instant case, two persons died and the Insurance Company can be
directed to pay compensation only for one deceased since the seating
capacity in the vehicle was two including the driver. A perusal of the
records shows that in M.C.O.P. No.2191/2017 there are three minor
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
claimants for the deceased Sengolrayar and therefore the Insurance
Company can be directed to pay compensation to the claimants. As far as
the claimants in M.C.O.P No.2192/2017 is concerned, the owner of the
TATA Ace Vehicle is liable to pay compensation and the Insurance
Company is absolved of its liability.
11.1 As far as the quantum of compensation awarded by the
Tribunal is concerned, the Tribunal had followed proper multiplier as per
the decision rendered in Sarla Verma and others vs. Delhi Transport
Corporation and another reported in (2009) 6 SCC 121 and awarded
Rs.11,97,900/- towards loss of income. However, the Tribunal has
awarded a sum of Rs.2,00,000/- towards loss of love and affection and
Rs.40,000/- towards loss of consortium. This is not as per the dictum laid
down by the Hon'ble Supreme Court of India in National Insurance Co.
vs Pranay sethi and others reported in 2017 (2) TNMAC 601. Therefore a
sum of Rs.1,60,000/- (40,000 x 4), Rs.15,000/- and Rs.15,000/- for 'loss of
Consortium', 'loss of Estate' and 'funeral Expenses' respectively are
awarded as per the decision in National Insurance Co. vs Pranay sethi
and others (cited supra).
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
12. The modified amount under the different heads in both the
M.C.O.Ps are detailed hereunder:
S.No. Head Amount granted
by this court (Rs.)
1. Loss of dependency 11,97,900/-
2. Loss of consortium 1,60,000/-
(40,000x4)
3. Funeral expenses 15,000/-
4. Loss of Estate 15,000/-
Total 13,87,000/-
This amount shall carry interest at the rate of 7.5% per annum from the
date of claim petition till the date of deposit.
13. In the result,
i. The Civil Miscellaneous Appeal is partly allowed. No costs.
Consequently connected miscellaneous petition is closed.
ii. The quantum of compensation awarded by the Tribunal is scaled
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
down to Rs.13,87,000/- from Rs.14,77,900/-.
iii. The appellant/Insurance company is directed to deposit a sum of
Rs.13,87,000 /-with interest at the rate of 7.5% per annum from the
date of claim petition till the date of deposit, within a period of four
weeks from the date of receipt of a copy of this order, to the credit
of M.C.O.P.2191/2017 on the file of the Motor Accidents Claims
Tribunal, Principal Subordinate Court, Cuddalore.
iv. The modified compensation amount of Rs.13,87,000/-, is
apportioned to the claimants as stated below:
Kanikkaimary (first claimant) Rs.4,87,000/-
with costs and
interest
Minor. S. Salesthbenita (second Rs.3,00,000/-
claimant)
Minor S, Margiret (third Rs.3,00,000/-
claimant)
Rs.3,00,000/-
Minor S. Jerome
v. On such deposit being made, the first claimant is at liberty to
withdraw her share as per the apportionment made by this Court,
with costs and interest, after filing a proper petition for withdrawal.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
Since the claimants 2 to 4 are minors, their share, shall be
deposited in a fixed deposit in any one of the Nationalised banks
until they attain majority.
i. The Civil Miscellaneous Appeal is allowed. No costs.
Consequently connected miscellaneous petition is closed.
ii. The order of the Tribunal is set aside.
iii. The quantum of compensation awarded by the Tribunal is scaled
down to Rs.13,87,000/- from Rs.14,77,900/-.
iv. The owner of the TATA Ace Goods Vehicle, the fifth respondent
herein, is liable to pay compensation of Rs.13,87,000/- to the
claimants and is directed to pay the said amount with interest at the
rate of 7.5% per annum from the date of claim petition till the date
of deposit, within a period of four weeks from the date of receipt of
a copy of this order, to the credit of M.C.O.P.2192/2017 on the file
of the Motor Accident Claims Tribunal, Principal Subordinate
Court, Cuddalore.
v. On such deposit being made, the respondents 1 to 4/claimants are at
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C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
liberty to withdraw their share as per the apportionment made by the
Tribunal.
10.09.2024
Index : Yes/No
Speaking/Non-speaking order
Neutral Citation : Yes / No
bga
To
1. Motor Accidents Claims Tribunal,
Principal Subordinate Court, Cuddalore.
2.The Section Officer, VR Section, Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
R.HEMALATHA, J.
bga
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
10.09.2024
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
C.M.A.Nos.619 and 620 of 2023
and
C.M.P.Nos.5107 and 5109 of 2023
R. HEMALATHA,J.
This Civil Miscellaneous Appeal is posted today under the
caption "for being mentioned” at the instance of the learned counsel
appearing for the appellant.
2. The learned counsel appearing for the appellant Insurance
Company contended that in the order passed by this Court on 10.09.2024
in the above appeals, in paragraph number 11 and 13 (iii) (C.M.A.
No.620/2023), the Insurance Company was directed to pay compensation
to the claimants in M.C.O.P. No. 2191/2017 (C.M.A. No.620 of 2023)
though the driver of TATA Ace vehicle did not have a valid licence on
the date of accident.
3. Registry is directed to replace paragraph number 11 and 13
(iii) (CMA No.620/2023) as follows:
"11. A perusal of the records shows that around 8 persons were
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C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
travelling in TATA Ace Goods vehicle and Sengolrayar and
Alangaramary @ Rani died in the accident. A perusal of the Policy of
Insurance (Ex.R3) shows that the insurance covers only the driver and the
owner of the goods. In the decision in Royal Sundaram Alliance
General Insurance Company Limited vs. P. Ayyakannu and others
(cited supra), it has been held thus:
"Rule 236 provides that no person shall be carried in
the cabin of a goods carriage beyond the number for
which there is a seating accommodation, In the
paragraph extracted above from Anjana Shyam's case,
the Supreme Court held that Section 149 cannot be
understood as imposing a liability on the insurere to
make payment even in respect of those who have been
loaded into the vehicle against the terms of the permit
and against the terms of the condition of registration of
the vehicle and that though the insurer is bound to cover
the third party risks in respect of passengers, the risks
can only be understood to mean risks of passengers
authorized or permitted to be carried in the said vehicle.
We are bound by this judgment and therefore, we hold
that the insurer is liable to indemnify the liability only
with regard to Ayyakannu who sat in the cabin of the
vehicle and along with the driver and whose liability
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
alone the insurer was bound to cover."
In the instant case, two persons died and the Insurance Company can be
directed to pay compensation only for one deceased since the seating
capacity in the vehicle was two including the driver. A perusal of the
records shows that in M.C.O.P. No.2191/2017 there are three minor
claimants for the deceased Sengolrayar. Since the driver of the TATA
Ace Vehicle did not have a valid driving license on the date of accident,
the Insurance Company can be directed to pay the Award amount to the
claimants in the first instance and then recover the same from the owner of
TATA Ace Vehicle (fifth respondent herein), under the same cause of
action (pay and recover). As far as the claimants in M.C.O.P
No.2192/2017 is concerned, the owner of the TATA Ace Vehicle (fifth
respondent herein) is liable to pay compensation and the Insurance
Company is absolved of its liability."
"13. In the result,
-----
iii) The appellant/Insurance company is directed to deposit a
sum of Rs.13,87,000 /-with interest at the rate of 7.5% per annum from the
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
date of claim petition till the date of deposit, in the first instance, within a
period of four weeks from the date of receipt of a copy of this order, to
the credit of M.C.O.P.2191/2017 on the file of the Motor Accident Claims
Tribunal, Principal Subordinate Court, Cuddalore, and then recover the
same from the owner of TATA Ace Vehicle (fifth respondent herein),
under the same cause of action."
4.The Registry is directed to carry out the above said
corrections and issue fresh order copy incorporating the above.
23.09.2024
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
R. HEMALATHA,J.
bga
C.M.A.Nos.619 and 620 of 2023 and
C.M.P.Nos.5107 and 5109 of 2023
23.09.2024
https://www.mhc.tn.gov.in/judis
