Madras High Court
Bhuvaneswari vs Karthikeyan on 26 September, 2024
Author: R.Hemalatha
Bench: R. Hemalatha
CMA.No.1889 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2024
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.M.A.No.1889 of 2024
1.Bhuvaneswari
2.Bharathkumar ... Appellants
vs.
1.Karthikeyan
2.The New India Assurance Company Limited,
Salem. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Award dated 19.09.2023 in
M.C.O.P.2138 of 2019 on the file of the Motor Accident Claims Tribunal,
Special District Court, Salem.
For Appellants : Mr.Ma.Pa.Thangavel
For R1 : Mr.M.R.Thangavel
For R2 : Mr.M.Krishnamoorthy
1/16
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CMA.No.1889 of 2024
JUDGMENT
The appellants are the claimants in M.C.O.P.2138 of 2019 on
the file of the Motor Accident Claims Tribunal, Salem. They filed the
claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking
compensation of Rs.20,00,000/- for the death of one Ganesan ( husband
of claimant 1 and father of claimant 2) in a road accident that occurred on
15.10.2012.
2. The brief case of the appellants / claimants is as follows :
On 15.10.2012, Ganesan (since deceased) was standing on the
left hand side of the road near Jeyashyam - PLR Grand Hotel at Tirupathi
and at about 10.00 p.m., a speeding tourist bus bearing Registration
Number TN-30-AA-7778 belonging to the first respondent, hit him, as a
result of which, he sustained injuries all over his body. He was
immediately rushed to Government Hospital, Tirupathi. Subsequently, he
was shifted to Kurunchi Hospital, Salem, where his left leg was
amputated. Though he was discharged on 05.11.2012, he died on
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15.12.2012.
3. According to the claimants, the rash and negligent driving of
the driver of the bus bearing Registration Number TN-30-AA-7778 was
the cause of the accident and that since the said vehicle was insured with
the second respondent, the New India Assurance Company Limited, the
owner of the vehicle and the insurer are jointly and severally liable to pay
compensation to them.
4. The Tribunal vide its orders dated 18.02.2021, fastened
negligence on the part of the driver of the bus bearing Registration
Number TN-30-AA-7778 and awarded compensation of Rs.2,70,190/- to
the appellants (claimants) together with interest at the rate of 7.5% per
annum from the date of petition till the date of realisation.
4.1. Questioning the quantum of compensation awarded by the
Tribunal, the claimants have filed C.M.A.No.2399/2021 before a Division
Bench of this Court. The Division Bench vide its orders dated 16.03.2023
remanded the matter back to the Tribunal and directed the Tribunal to
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dispose of the said case within a period of twelve weeks from the date of
the order after affording opportunity to the owner of the tourist bus
bearing Registration Number TN-30-AA-7778. Thereafter, the Tribunal
vide its orders dated 19.09.2023 dismissed the entire claim petition on the
ground that the involvement of the tourist bus bearing Registration
Number TN-30-AA-7778 has not been proved by the claimants.
Aggrieved over the same, the appellants (claimants) have filed the present
appeal under Section 173 of the Motor Vehicles Act, 1988.
5. Heard Mr.Ma.Pa.Thangavel, learned counsel appearing for
the appellants, Mr.M.R.Thangavel, learned counsel appearing for the first
respondent and Mr.M.Krishnamoorthy, learned counsel appearing for the
second respondent.
6. Mr.Ma.Pa.Thangavel, learned counsel appearing for the
appellants contended that an FIR (Ex.P1) in Crime No.133/2012 was
registered against the driver of the tourist bus bearing Registration
Number TN-30-AA-7778 for the offence punishable under Section 337
IPC by the Traffic Investigation Wing, Tirupathi. He also relied on a copy
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of the Accident Register (Ex.P2) issued by the Casuality Medical Officer,
S.V.R.R.G.G. Hospital, Tirupati, wherein it is clearly mentioned that the
deceased Ganesan sustained injuries in a road accident that occurred on
15.10.2012. The registration number of the offending vehicle was also
indicated in the Accident Register (Ex.P2). However, the Tribunal had
dismissed the entire claim petition without any basis, is the contention of
the learned counsel for the claimant.
7. Per contra Mr.M.R.Thangavel, learned counsel appearing for
the first respondent / owner of the vehicle would contend that the bus
bearing Registration Number TN-30-AA-7778 was not involved in the
accident as alleged by the claimants and that the bus was actually on
Thiruvannamalai - Salem Road. He further contended that the Tribunal
had rightly concluded that the owner of the bus and its insurer are not
liable to pay compensation to the claimants and dismissed the claim
petition.
8. Mr.M.Krishnamoorthy, learned counsel appearing for the
second respondent, the New India Assurance Company Limited in its
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counter dated 29.04.2015 filed before the Tribunal had stated that they
engaged a private investigator to find out the facts and they were informed
by the investigator that the driver of the bus bearing Registration Number
TN-30-AA-7778 was actually driving his vehicle at Tirupathi carefully and
that the deceased Ganesan alone suddenly crossed the road unmindful of
vehicular traffic.
9. The counter filed by the second respondent is totally in
contradiction to the averments of the first respondent, the owner of the
vehicle, who had contended that the bus was plying in the route
Thriuvannamalai - Salem with passengers and not in Tirupathi. It is
pertinent to point out that the trip sheet has not been filed by the first
respondent, the owner of the vehicle.
10. The learned IV Additional Junior Civil Judge, Tirupathi,
took the final report filed by the police in Crime No.133/2012 against
S.Vijayakumar, the driver of the bus in C.C.No.10/2013 and acquitted the
accused vide her judgment and orders dated 28.08.2014 on the ground
that the prosecution has not proved that the driver of the bus was rash and
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negligent in driving his vehicle. A perusal of the judgment shows that the
Manager of the first respondent was examined as P.W.3 and he had stated
that he received an intimation from Tirupathi Police that their bus bearing
Registration Number TN-30-AA-7778 met with an accident. He also
admitted that the accident had happened on 15.10.2012 at Tirupathi. In
the circumstances, it cannot be stated that the bus bearing Registration
Number TN-30-AA-7778 was not at Tirupathi on the date of accident.
The owner of the bus relied upon the permit which was granted to the bus
to ply between Thiruvannamalai and Salem and had taken a stand that the
bus was not at Tirupathi. Actually the owner has deviated from the permit
granted to the bus and thus violated policy conditions. The police records
including the judgment of the IV Additional Junior Civil Judge, Tirupathi,
clearly shows that the bus was at Tirupathi on 15.10.2012 and was
involved in the accident.
11. In this regard, Mr.Ma.Pa.Thangavel, learned counsel
appearing for the appellants / claimants relied on the decision in Rani and
Others vs National Insurance Company Limited and Others reported in
(2018) 8 SCC 492 and contended that even in a case where there is no
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valid permit the insurer should be directed to pay the award amount in the
first instance and then recover the same from the owner of the vehicle. He
also relied on the decision in Amrit Paul Singh and Another vs Tata AIG
General Insurance Company Limited and Others reported in (2018) 7
SCC 558 wherein it has been held thus :
" 24. In the case at hand, it is clearly demonstrable from the
materials brought on record that the vehicle at the time of the
accident did not have a permit. The appellants had taken the
stand that the vehicle was not involved in the accident. That
apart, they had not stated whether the vehicle had temporary
permit or any other kind of permit. The exceptions that have
been carved out under Section 66 of the Act, needless to
emphasise, are to be pleaded and proved. The exceptions
cannot be taken aid of in the course of an argument to seek
absolution from liability. Use of a vehicle in a public place
without a permit is a fundamental statutory infraction. We are
disposed to think so in view of the series of exceptions carved
out in Section 66. The said situations cannot be equated with
absence of licence or a fake licence or a licence for different
kind of vehicle, or, for that matter, violation of a condition of
carrying more number of passengers. Therefore, the
principles laid down in Swaran Singh [National Insurance
Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC
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(Cri) 733] and Lakhmi Chand [Lakhmi Chand v. Reliance
General Insurance, (2016) 3 SCC 100 : (2016) 2 SCC (Civ)
45] in that regard would not be applicable to the case at
hand. That apart, the insurer had taken the plea that the
vehicle in question had no permit. It does not require the
wisdom of the “Tripitaka”, that the existence of a permit of
any nature is a matter of documentary evidence. Nothing has
been brought on record by the insured to prove that he had a
permit of the vehicle. In such a situation, the onus cannot be
cast on the insurer. Therefore, the Tribunal as well as the
High Court had directed that the insurer was required to pay
the compensation amount to the claimants with interest with
the stipulation that the insurer shall be entitled to recover the
same from the owner and the driver. The said directions are
in consonance with the principles stated in Swaran Singh
[National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC
297 : 2004 SCC (Cri) 733] and other cases pertaining to pay
and recover principle."
12. Following the above said decisions the second respondent,
the New India Assurance Company Limited is directed to pay the award
amount in the first instance and then recover the same from the owner of
the vehicle under the same cause of action. (Pay and Recover)
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Quantum :
13. According to the claimants, Ganesan (deceased) was
working as a heavy motor vehicle driver earning a sum of Rs.15,000/- per
month. He was aged 50 years on the date of accident. In the accident his
left leg was amputated and subsequently, he died on 15.12.2012.
Therefore, the death of Ganesan is the proximate cause of the accident.
13.1. The claimants have not adduced any satisfactory evidence
to prove the actual income of the deceased. Considering the age of the
victim and the year of the accident, this Court is of the opinion that fixing
notional monthly income of the deceased at Rs.15,000/- would meet the
ends of justice. As per the decision of the Supreme Court of India in
National Insurance Co. vs Pranay sethi and others reported in 2017 (2)
TNMAC 601, 10% is added towards future prospects of the deceased.
Since there are two dependents, 1/3rd of the deceased's income should be
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deducted towards his personal expenses. The proper multiplier to be
adopted in the instant case is 13 as per the decision rendered in Sarla
Verma and others vs. Delhi Transport Corporation and another
reported in (2009) 6 SCC 121.
Calculation
Notional Income = Rs.15,000/-
10% Future Prospects = Rs.16,500/-
After 1/3 deduction = Rs.11,000/-
Loss of dependency
= Rs.11,000/- x 12 x 13
= Rs.17,16,000/-
In addition to that the claimants are entitled to Rs.80,000/- (40,000 x 2),
Rs.15,000/- and Rs.15,000/- for 'Loss of Consortium', 'Loss of Estate' and
'Funeral Expenses' respectively as per the decision in National Insurance
Co. vs Pranay sethi and others (cited supra). Thus, the claimants are
entitled to a total compensation of Rs.20,96,190/- ( 17,16,000 + 80,000 +
15,000 + 15,000 + 2,70,190 = 20,96,190) as shown in the following
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tabular column.
S.No. Head Amount granted
by this court
1. Loss of dependency Rs.17,16,000/-
2. Loss of consortium Rs.80,000/-
(Rs.40,000/- x 2)
3. Funeral expenses Rs.15,000/-
4. Loss of Estate Rs.15,000/-
5. Medical Expenses Rs.2,70,190
TOTAL Rs.20,96,190/-
14. In the result,
i. The Civil Miscellaneous Appeal is allowed. No costs.
ii. The orders dated 19.09.2023 in M.C.O.P.2138 of 2019 on the file
of the Motor Accident Claims Tribunal, Special District Court,
Salem, is hereby set aside.
iii. The appellants / claimants are directed to pay the court fee for the
compensation amount, within a period of four weeks from the date
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of this order and the Registry is directed to draft the decree only
after receipt of the Court fee.
iv. The second respondent, the New India Assurance Company
Limited, Salem, is directed to deposit the compensation amount of
Rs.20,96,190/- together 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.2138 of 2019 on the file of the Motor Accident
Claims Tribunal, Special District Court, Salem, in the first instance
and then recover the same from the owner of the vehicle under the
same cause of action. (Pay and Recover)
v. Apportionment :
1st claimant / Wife Rs.15,96,190/-
(with costs and interest)
2nd claimant / Son Rs.5,00,000/-
vi. On such deposit being made, the appellants (claimants) are at
liberty to withdraw the same as per the apportionment made by this
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Court.
vii.The appellants (claimants) are not entitled to claim interest for the
period of delay of 48 days in filing this appeal.
26.09.2024
Index : Yes/No
Speaking/Non-speaking order
mtl
To
1.The Motor Accidents Claims Tribunal,
Special District Court, Salem.
2.The New India Assurance Company Limited,
Salem.
3.The Section Officer, VR Section, Madras High Court, Chennai.
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R.HEMALATHA, J.
mtl
https://www.mhc.tn.gov.in/judis
26.09.2024
https://www.mhc.tn.gov.in/judis
