Madras High Court
The Oriental Insurance Company Ltd vs Lakshmi on 21 February, 2025
C.M.A(MD)No.126 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.02.2025
CORAM
THE HON'BLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A(MD)No.126 of 2020
The Oriental Insurance Company Ltd.,
Tirunelveli,
Through its Branch Manager,
Tirunelveli. ... Appellant/3rd Respondent
Vs.
1.Lakshmi
2.Pitchumani
3.Arumugam
4.Seethalakshmi
5.Pramu Ammal ... Respondents/Petitioners 1-5
6.Jose Joseph
7.Mydeen @ Mydeen Abdulkhadar ... Respondents/Respondents 1&2
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, to set aside the judgment and decree, dated 14.10.2019
passed in M.C.O.P.No.448 of 2014 on the file of the Additional Motor
Accidents Claims Tribunal, Additional Sub Court, Tenkasi.
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C.M.A(MD)No.126 of 2020
For Appellant : Mr.C.Karthick
For R1 - R5 : Mr.R.T.Arivukumar
For R6 : Mr.L.Siva
for Mr.P.Bala Subramanian
For R7 : No Appearance
JUDGMENT
Challenging the award passed by the Additional Motor Accidents
Claims Tribunal and Additional Sub Court, Tenkasi in M.C.O.P.No.448
of 2014 dated 14.10.2019, the Oriental Insurance Company has filed this
civil miscellaneous appeal.
2. For the sake of convenience, the parties herein are referred to as
per the ranking before the Tribunal.
3. The case is with respect to the accidental death of one Vel
Chettiar who was aged 60 years. On 02.05.2014 at about 16.00 hrs, while
the deceased was riding his cycle along Panbozhi Thirumalaikovil Road
from east to west, the Ashok Leyland lorry bearing Registration No.K.L.
36A9424 was driven in a rash and negligent manner near Nagamman
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Kovil and dashed against the said Vel Chettiar. As a result of which, the
driver had driven the lorry over the head of the deceased and he died in
the spot. The 1st respondent is the owner of the vehicle and the 2nd
respondent is the driver who drove the said lorry at the time of accident.
The Inspector of Police, Achampudur Police Station has registered an
F.I.R in Crime No.90/2014 under Section 304(a) of I.P.C. Claiming
compensation for the death of their father, the legal heirs of the deceased
filed M.C.O.P.No.448 of 2014.
4. The learned Tribunal examined two witnesses on the side of the
petitioner and had marked Exhibits P.1 to P.4. Three witnesses were
examined on the side of the respondents and Exhibits R.1 to R.6 were
marked on the side of the respondents. After hearing the arguments on
either side and perusing the materials available on record, the learned
Tribunal proceeded to pass an award under various heads, to a total
amount of Rs.5,55,000/-. Challenging the said award, the 3rd respondent/
Insurance Company is before this Court by way of this appeal on two
grounds.
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5. The learned counsel appearing for the Insurance Company
submitted that this appeal has been preferred on two grounds more
particularly that the 2nd respondent driver had no driving license at the
time of accident. The second ground for appeal according to him is that,
the notional income of a person who was claimed to have been 60 years
at the time of accident by the claimants, but it was fixed to be 70 years by
the learned Tribunal, was taken as Rs.8,000/- relying upon the arguments
of the claimants that he was working as a daily wager and the said
amount should have been less than Rs.8,000/-. The learned counsel for
the appellant drew my attention to the Motor Insurance Certificate cum
Policy Schedule marked as Exhibit R.2 and pointed out that no claim of
insurance is admissible if driving license is found to be fake or if the
same is not valid even if the same is not in the knowledge of an insured
person. The learned counsel for the appellant submitted that it was only
because of the rash and negligent driving of one Mydeen/2nd respondent
who drove the vehicle the accident had happened and the said Mydeen is
the driver of the 1st respondent who do not have any driving license on
the date of accident. Hence, the Tribunal erred by passing an award in
favour of the claimants without holding the 1st respondent liable adopting
the process of pay and recovery. The Tribunal ought to have passed an
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award of pay and recovery and the appellant is not necessary to make the
payment. However, the same should be recovered from the 1st respondent
thereafter and that is the priority of the Insurance Company. Hence, he
prayed for allowing the appeal.
6. Per contra, the learned counsel appearing for the 1st
respondent/owner submitted that the name of the driver of the 1st
respondent is Veeraperumal. He was examined as D.W.2 before the
Tribunal. On the fateful day when the accident happened, his driver,
namely Veeraperumal had actually parked the vehicle on the side of the
road. However, without his knowledge, the said Maideen had driven the
vehicle, which had resulted in the fatal death of Vel Chettiar. For which,
the 1st respondent cannot be held liable by all means. That apart, he
further submitted that his driver Veeraperumal on coming to know about
the said accident, immediately lodged a complaint before the
Achampudur Police Station and the said complaint, dated 02.05.2014 has
been duly marked as Exhibit R.5. The Tribunal has duly appreciated the
evidence deposed by the driver as D.W.2 and also taken note of it and
had properly observed that the accident had happened only because of
the rash and negligent driving of one Mydeen who was not the actual
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driver of the 1st respondent and that the driver of the 1st respondent had
parked the vehicle and without his knowledge and connivance, the said
Mydeen had driven the vehicle, causing the said accidental death.
Though the said Mydeen was not possessing the valid driving license,
the same will not affect the effect of the policy of the insured i.e. the 1st
respondent which was in subsistent on the date of accident. Considering
the fact that the accident was not committed by the driver of the 1 st
respondent, the Tribunal correctly found it unnecessary to pass an order
of pay and recovery. He prayed for dismissal of the appeal.
7. Heard Mr.C.Karthick, learned counsel for the
appellant/Insurance Company, Mr.R.T.Arivu Kumar, learned counsel for
the respondents 1 to 5/claimants and Mr.L.Siva, learned counsel for the
6th respondent/owner of the vehicle and carefully perused the materials
available on record.
8. The appeal is neither on quantum nor on liability, but only on
insisting for pay and recovery and on notional income. I am not inclined
to interfere with the notional income which has been fixed by the
Tribunal to a tune of Rs.8,000/- per month. However, since the Tribunal
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had elaborately conducted the trial by examining as many as two
witnesses on the side of the petitioners and three witnesses on the side of
the respondents and duly appreciating the evidence deposed by the driver
of the 1st respondent, namely Veeraperumal and marking the complaint
given by him as Exhibit R.5, had diligently arrived at a conclusion by
passing an award of Rs.5,55,000/- and directed the Insurance Company
to comply with the award. I am of the considered opinion that since the
Tribunal had arrived at a fair conclusion after elaborate adjudication and
trial, the same need not be interfered with.
9. Accordingly, this Civil Miscellaneous Appeal stands dismissed.
No costs.
21.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Additional Motor Accidents Claims Tribunal,
Additional Sub Court,
Tenkasi.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.
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L.VICTORIA GOWRI,J.
gbg
Judgment made in
21.02.2025
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