Madras High Court
The Manager vs N.P.Perumal on 17 July, 2025
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
2025:MHC:1701
C.M.A(MD)No.1009 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 20.06.2025
Pronounced on : 17.07.2025
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A.(MD)No.1009 of 2023
&
C.M.P.(MD)No.13965 of 2023
The Manager,
MAGMA HDI General Insurance Company Ltd.,
MAGMA House,
No.24, Park Street,
Kolkotta – 700 016. ... Appellant/ 2nd Respondent
Vs.
1.N.P.Perumal
2.Ponnammal ...Respondents 1 & 2 / Petitioners
3.P.Lingaraj ...3rd Respondent / 1st Respondent
4.The Manager,
Oriental Insurance Company,
Divisional Office – 2, K.J.R Complex,
No.16, North Veli Street,
Madurai. ...4th Respondent / 3rd Respondent
1/17
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C.M.A(MD)No.1009 of 2023
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of
the Motor Vehicles Act, 1988, to set aside the fair and decreetal order
dated 19.04.2022 made in M.C.O.P.No.157 of 2019 on the file of Motor
Accident Claims Tribunal, (Additional District and Sessions Court,
(FTC)), Theni and allow this Civil Miscellaneous Appeal.
For Appellant : Mr.S.Sankar
for Mr.B.Vijay Karthikeyan
For Respondents : Mr.Arjun Varman – for R1 & R2
Mr.C.Karthik – for R4
Notice returned unclaimed – R3
JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
The Appellant / 2nd Respondent / Insurance Company has
filed this Civil Miscellaneous Appeal against the fair order and decreetal
order dated 19.04.2022 passed in M.C.O.P.No.157 of 2019 by the Motor
Accident Claims Tribunal, Additional District and Sessions Court, (FTC),
Theni.
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2. Brief facts of the petition filed by the claimants before the
Tribunal are as follows:
(a) On 28.07.2023 at about 10.30 p.m., the deceased
Vignesh, who is the son of the petitioners / respondents 1 & 2 herein, was
returning to his room at Choolaimedu. He was riding two wheeler
bearing Registration No.TN 60 K 4884 accompanied by his friend
Mandiramoorthy. When they reached Pudupettai Adithanar Road near
Cindathiripettai Koovam bridge at W.S.S. Naveen Towers, a van bearing
Registration No.TN 31 AU 1882 which was attached with concrete
pumping machine driven by its driver in a rash and negligent manner,
came from behind and crashed with the two wheeler. As a result, Vignesh
and his friend Mandiramoorthy lost their balance and fell down. The tyre
of the vehicle ran over the thigh and torso region and the concrete
pumping machine attached to the vehicle dragged him upto 20 metres.
On witnessing the accident, Javeed, son of Hussain, who is the resident
of Sembiyam Mohammed Street, Perambur, Chennai raised alarm. Hence
the van driver had immediately stopped the vehicle and fled away from
the scene of occurrence. Thereafter, the public along with Javeed rushed
near the injured persons, contacted the ambulance and reported the
incident. In the said accident, Vignesh had sustained injuries on his right
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and left thigh, stomach, left cheek, testicles and also suffered bone
fracture on his right thigh. Mandiramoorthy also had sustained some
injuries. Both were taken in an ambulance to Rajiv Gandhi Government
Hospital for treatment. They were admitted in ICU and surgery was
performed on both of the victims and when they were taking treatment,
on 03.01.2019 Vignesh succumbed to injury. The petitioners after receipt
of intimation about the accident, had gone to Rajiv Gandhi Government
Hospital on 27.12.2018.
(b) The eyewitness Javeed had lodged a complaint before the
Sub Inspector of Police, D6 Anna Square Police Station, Traffic
Investigation Branch, and the complaint was registered in Crime No.
536/T1/2018 for the offences under Section 279, 338 (2 counts), 134(a)
r/w.187, 190(1), 66(1) r/w 192-A CMV Rules 108 A r/w 177 of Motor
Vehicles Act the same is pending for enquiry. After death of Vignesh,
provision was altered into Section 304(a) IPC.
(c) The deceased Vignesh is an Engineering graduate. He
was working as an Associate – QA in Boltree Software International
Private Limited, at W.S.S. Towers, Chennai. On 02.07.2013 he had
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derived a sum of Rs.16,369/- as salary. Taking into consideration of his
efficiency and hard work, his salary was increased from time to time. At
the time of accident, he received a sum of Rs.34,605/-. If he would have
been alive, he would have got a sum of Rs.2,000/- etc., in each month as
an increment. He would receive a sum of Rs.7,20,000/- at the age of his
retirement.
(d) The 1st respondent vehicle was insured with the 2nd
respondent and the policy was in force during the time of accident. The
two wheeler in which the deceased Vignesh was travelling, was insured
with 3rd respondent. The accident has occurred due to the rash and
negligent act of the 1st respondent's driver. The deceased was holding
light vehicle license as well as heavy vehicle license.
(e) The deceased Vignesh is the only son of the petitioners.
Both the parents were depending upon his income. Since they lost their
only son, they are now living in poverty. Both the respondents are
jointly and severely liable to pay compensation to the petitioners at
Rs.96,00,000/- .
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3. Brief averments contained in the counter filed by the
second respondent, are as follows :
(i) The driver of first respondent has no license to drive the
particular type of vehicle, which was driven at the time of accident, they
had attached one concrete pumping machine with the vehicle at the time
of accident, without having valid permit, which is in violation of the
terms and conditions of the insurance policy. This respondent is not
liable to pay any amount as compensation to the petitioners.
(ii) The accident had not happened due to fault of the 1st
respondent's driver. The deceased had driven the vehicle bearing
Registration No.TN-60-K-4884, without wearing helmet and without
following the traffic rules of the road in a rash and negligent manner and
invited the accident, therefore the deceased was liable for contributory
negligence .
4. The brief averments contained in the counter filed by third
respondent are as follows :
The accident occurred due to the rash and negligent act of
the 1st respondent's van driver. Both the first and second respondents are
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liable to pay compensation. This respondent is not liable to pay any
compensation and this respondent is only a formal party to the petition.
5. During the trial, on the side of the petitioners, P.W.1 to
P.W.3 were examined and Ex.P1 to Ex.P21 were marked. On the side of
the respondents, R.W.1 to R.W.4 were examined and Ex.R1 and Ex.X1
and Ex.X6 were marked.
6. After hearing all the parties, the Tribunal allowed the
petition and awarded a sum of Rs.53,24,514/- as compensation. The
learned Judge directed the appellant/2nd respondent-Insurance Company
to pay the entire award amount within a period of two months.
7. Aggrieved by the said order, the present Civil
Miscellaneous Appeal has been filed by the Insurance Company, who is
the 2nd respondent before the Tribunal against the negligence and
quantum with the following among other grounds :
a)That the Tribunal failed to note that the insured vehicle was
attached with a trolley containing concrete pumping machine and though
heavy license is required to drive the same, the driver was not having
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heavy license at the time of the accident.
b) That the Tribunal failed to note that the official witness
from the RTO Office examined as R.W.1 has deposed that to drive the
insured vehicle, heavy license is required and the driver was not having
the heavy license at the time of accident and the vehicle was not having
valid permit to ply on the public road and therefore the appellant
insurance company is not liable to pay the compensation.
c) That the Tribunal failed to note that the deceased drove
the vehicle in a rash and negligent manner and invited the accident. The
Tribunal ought to have fixed contributory negligence on the deceased.
d) That the Tribunal failed to note that the salary certificate
was not marked through the employer of the deceased and therefore, it
cannot be taken into consideration for fixing the monthly income of the
deceased.
e) That the Tribunal failed to note that the deceased was
neither has permanent job nor employed as permanent employee hence,
the addition of 50% towards future prospects cannot be sustained.
h) In any event, the award of total compensation of
Rs.53,24,514/- is highly excessive and needs to be modified. Hence, the
appellant seeks to set aside the judgment of the trial Court and allow the
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Civil Miscellaneous Appeal.
8. Heard the learned counsel on either side and perused the
material available on records.
9. Now, this court has to decide the following points for
consideration :
(1) whether the accident occurred due to the rash
and negligent act of the driver of the 3rd respondent/1st
respondent or due to contributory negligence of the
deceased ?
(2) Whether the insured violated the policy
conditions ?
(3) Whether the compensation amount awarded to
the respondents 1 and 2 /claimants is excessive ?
10. Point Nos.1 to 3 :
Ex.P1 is the FIR in crime No.536 of 2018 was registered by
TIW Anna Square Police Station for the offence under Sections 134(a)
r/w.187, 190(1), 66(1) r/w 192-A CMV Rules 108 A r/w 177 of Motor
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Vehicles Act against the driver of the first respondent's Tata van bearing
Registration No.TN 31 AU 1882, by one Javeed. P.W.1 in the complaint
clearly stated that the first respondent's Tata van attached with concrete
pumping machine driven by its driver in a rash and negligent manner and
dashed the two wheeler and the deceased who was travelling in the two
wheeler bearing Registration No.TN 60 K 4884 along with a pillion rider
fell down and sustained grievous injuries. He took them for treatment,
but the deceased died due to severe injuries. Ex.P2 is the postmortem
certificate issued to the deceased Vignesh also supported the version of
PW1. Ex.P3 is the Motor vehicle Inspection report issued by the Motor
Vehicle Inspector Grade-I, RTO, Chennai, had certified that the accident
was not happened due to any mechanical defects of the offending
vehicle. Ex.P18 the final report filed by the Inspector of Police, TIW-
Anna Square, Chennai East is against the driver of the first respondent,
namely, Parasuraman under sections 279, 338 of IPC and sections 134(a),
187, 190(1), 66, 192(A), 177 of MV Act, and 304(A) of IPC.
11. The complainant / eyewitness was examined as P.W.2,
who has clearly deposed about the manner of accident and stated that the
accident occurred due to the negligent act of the first respondent's driver.
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12. The respondents examined the driver of the Tata Van
bearing Registration No.TN 31 AU 1882, as R.W.3. In his chief
examination, he admitted that the deceased was driving the vehicle by
following the traffic rules, but stated that the deceased carelessly dashed
against the concrete pumping machine and fell down. He further asserted
that the accident could have been avoided, had the deceased driven the
vehicle more carefully. However, during his cross examination, he
admitted that he did not lodge any complaint against the deceased for his
negligence. He further admitted that, he fled away from the place of
accident, which clearly establishes that he is negligent and responsible
for the occurrence. The driver of the said vehicle was employed with the
first respondent, hence the 1st respondent is vicariously liable to pay
compensation for the employee. It is also proved that the first
respondent's vehicle was insured with the second respondent and the
same was in force at the time of accident. Accordingly the insurance
company is also liable to indemnify the 1st respondent and compensate
the claimants.
13. The learned counsel for the appellant argued that the
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insured vehicle was attached with a trolley containing concrete pumping
machine for which the first respondent not obtained any valid permit and
to drive the same, heavy vehicle license is required, but the driver was
not having any heavy vehicle license. On the side of the insurance
company R.W.1, the official from the Regional Transport Office was
summoned and, he admitted that the first respondent's driver did not
possessed any heavy vehicle license at the time of accident. He further
deposed that they issued permit to the first respondent's Tata Van bearing
Registration No.TN 31 AU 1882 but no permit was issued to the
concrete pump machine attached to the vehicle.
14. Even though the vehicle involved in the accident was
covered by a valid permit, but the concrete pumping machine attached to
the vehicle was not permitted to ply in the road and the driver did not
possess any valid driving license at the time of accident, it is well settled
that the insurance company cannot absolve its liability to compensate the
third party victim. It is for the insurance company, to pay the
compensation to the legal heirs of the deceased with liberty to recover
the same from the owner of the vehicle.
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15. In this connection we refer the following judgments:-
i) The legal principle laid down by the Hon'ble Supreme
Court in National Insurance Company Limited Vs. Swaran Singh and
Others reported in 2004 (3) SCC 297, which is a land mark judgment
regarding the liability insurance company in motor vehicle claims under
the Motor Vehicles Act, 1988 particularly when there is a breach of
policy conditions such as the driver not having valid driving license,
where the insurer is directed to pay first and recover later from the
vehicle owner, if there is a breach of policy condition.
ii) In Amrit Paul Singh and another Vs. Tata AIG General
Insurance Company Ltd., and Others reported in 2018 (7) SCC 558,
wherein the Hon'ble Supreme Court has held as follows :
''Having regard to S. 66(1) of MV Act. 1988
which prescribes that no owner of a motor vehicle
shall use or permit the use of the vehicle as a
transport vehicle in any public place whether or not
such vehicle is actually carrying any passengers or
goods save in accordance with the conditions of a
permit granted or countersigned by a Regional or
State Transport Authority or any prescribed
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authority, held, use of a vehicle as a transport
vehicle in public place without a permit is a
fundamental statutory infraction - Though S. 66(3)
of MV Act, 1988 carves out certain exceptions to S.
66(1), in order to invoke those exceptions the same
must be pleaded and proved - Said exceptions cannot
be taken aid of in the course of argument to seek
absolution from liability - In present case, no
material brought on record by owner of offending
vehicle (i.e. insured) to prove that he was having a
permit of offending vehicle on date of accident -
Hence held, insurer not liable in such a case -
However, order passed by courts below in such a
situation directing insurer to pay compensation
amount to claimants with interest with the
stipulation that insurer must be entitled to recover
the same from owner and driver of vehicle, held, was
proper. being in consonance with principle of pay
and recover''
16. On the other aspects, namely, fixation of salary, adoption
of future prospects, deduction for personal expenses and application of
multiplier, the Tribunal has followed the judgment of the Hon’ble
Supreme Court in National Insurance Co. Ltd., Vs. Pranay Sethi
reported in (2017) 16 SCC 680 and Smt. Sarla Verma and Ors Vs. Delhi
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Transport Corporation & Anr reported in (2009) 6 SCC 121. We
therefore, do not see any reason to interfere with the said fixation.
17. On the compensation under the non-conventional heads
also, we find that the amount granted by the Tribunal is within the limits
fixed by the Hon’ble Supreme Court in Pranay Sethi’s case. We
therefore, do not see any reason to interfere with the amount awarded by
the Tribunal. Even accepting the case of the insurance company that the
rider of the van bearing Registration No.TN 31 AU 1882 did not have a
valid driving licence, at best, only pay and recovery can be ordered. The
Tribunal has failed to order that. The Point Nos.1 to 3 are answered
accordingly.
18. In the result, the Civil Miscellaneous Appeal fails and
accordingly, the same is dismissed. However, in view of the fact that the
insurance company has established that the driver of the van insured with
the appellant did not possess a valid driving licence at the time of the
accident, it is open to the insurance company to pay the award amount
and recover it from the owner of the van by executing the award against
the owner of the van. The appellant/insurance company shall deposit the
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compensation within a period of eight (8) weeks from today, if not
already deposited. The apportionment made by the Tribunal is also
confirmed. No costs. Consequently, connected miscellaneous petition is
closed.
(A.D.J.C., J.) & (R.P., J.)
17.07.2025
Index : Yes / No
NCC : Yes / No
RM
To
1.The Additional District and Sessions Court,
(FTC), Motor Accident Claims Tribunal,
Theni.
Copy to
1.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.D.JAGADISH CHANDIRA, J.
AND
R.POORNIMA, J.
RM
Judgment in
17.07.2025
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