The Manager v. Minor T Kishore Kumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.06.2019

CORAM:

THE HON'BLE Mr. JUSTICE R.MAHADEVAN Civil Miscellaneous Appeal No.560 of 2006 & CMP No.2172 of 2006 The Manager, New India Assurance Co. Ltd., Motor Third Party Cell, 45 Moore Street, Chennai - 1 ... Appellant/2nd Respondent ..vs..

1. Minor T.Kishore Kumar

2. Minor. T.Kirthika

3. Minor. T.Sandhya (R-1 to R-3, minors, rep. by their guardian and grand father, Johnson) ...1 to 3 Respondents/ Petitioners

4. J.David Johnson ...4th Respondent/ 1st Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the award and decree, dated 22.09.2004 made in M.C.O.P.No.880 of 2003 on the file of the Motor Accident Claims Tribunal, Sub Court, Tiruvallur.

For Appellant :

Mr. S.Manohar.

For Respondents:

No Appearance.

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J U D G M E N T

This Civil Miscellaneous Appeal has been filed by the Insurance Company, challenging the negligence as well the quantum of compensation awarded by the Claims Tribunal. Brief facts:

2. On 01.09.2002 at about 10.15 hrs, the deceased was going at Siruvanoor Granite Company, as a Pillion rider, in the motor cycle bearing Registration No.TSH 4792. At that time, suddenly buffalos crossed the road by fighting themselves. Due to that, the motorcycle driver applied brake and collapsed. At the time of accident, the said motorcycle was driven by the first respondent herein. Due to the said accident, the deceased sustained head injuries and succumbed to the injuries at General Hospital, Chennai. In the said accident, her child and driver of the motorcycle also sustained injuries. The accident was solely due to the rash and negligent driving of the motorcycle bearing No.TSH4792 by its driver. Stating so, the Legal Representatives of the deceased have claimed the compensation of

Rs.4,00,000/-. As against the said claim, the Tribunal has awarded a sum of Rs.3,36,000/- as total compensation, against which, the Insurance Company has filed the Appeal.

3. The Tribunal, based upon the facts, materials and evidence, has calculated the loss of income at Rs.2,16,000/-, by taking into account the annual loss of income at Rs.12,000/- and multiplier at '18'. Further, awarding Rs.5,000/- towards funeral expenses, Rs.40,000/- towards loss of happiness, Rs.50,000/- towards loss of love and affection and Rs.25,000/- towards shock and mental agony, the total compensation has been estimated at Rs.3,36,000/-.

4. The learned counsel for the appellant / Insurance Company submitted that the accident was caused by none other than the fourth respondent herein, who is the father of the claimants / respondents 1 to 3 herein and hence when he himself was the tortfeasor anyone claiming under him cannot maintain the claim. The learned counsel further submitted that the award passed by the Claims Tribunal on all the heads are disproportionate and excessive.

5. This Court considered the said submissions made by the learned counsel for both sides and perused the materials available on record.

6. According to Halsbury's Laws of England, 3rd Edn. Vol 32 at Paragraph 751 at p. 366 the nature of insurance required is stated as follows:

"The conditions to be fulfilled in order to render the use of a motor vehicle lawful are: (1) that there must be policy of insurance in force in relation to the use of the vehicle on the road; (2) that it must be a policy complying with the relevant statutory requirement."

6.1. At paragraph 752, at page 366, the general nature of liabilities required to be covered are stated as under:- "In order to comply with the statutory requirements, a policy must provide insurance cover in respect of any liability which may be incurred by such person, persons or classes of persons as are specified in the policy, in respect of the death of, or bodily injury to, any person (subject to specific exceptions) caused by, or arising out of, the use of the vehicle on a road."

6.2. The above passages hold good uptill now, which clearly indicate that the nature of the liability required to be covered is the liability which may be incurred by or arising out of the

use of the vehicle on a road by a person. Admittedly, in this case, it is the case of both sides that there is a policy and it provides insurance cover in respect of liability. Hence, the Insurance Company is liable to pay the compensation.

7. Further, as far as the quantum of compensation awarded by the Claims Tribunal is concerned, this Court is of the opinion that the the same is reasonable, weight of evidence and based on settled principles and thus there is no ground to interfere with the judgment passed by the Tribunal below. The compensation awarded by the Tribunal is just, fair and reasonable.

8. In the result, this Civil Miscellaneous Appeal is dismissed. No costs. The appellant / Insurance Company shall deposit the entire compensation amount, along with interests and costs, as awarded by the Claims Tribunal, less the amount already deposited, if any, within a period of four weeks, from the date of receipt of a copy of this judgment. The ratio of apportionment shall be as ordered by the Claims Tribunal. The minor claimants should have attained majority as on now. Therefore, on such petition being taken out to declare the minor claimants, as majors, the claims Tribunal shall pay the compensation to the RTGS Accounts of the claimants and if not, their respective share amounts shall be deposited in any one of the Nationalised Banks and interest accrued thereon shall be withdrawn by the guardian of the minor claimants. Consequently, the connected CMP is closed.

-s/d- Assistant Registrar True Copy Sub-Assistant Registrar srk

To

1. Motor Accident Claims Tribunal, Subordinate Tiruvallur.

2. The Section Officer, V.R.Section, Madras High Court, Chennai 104 +1 cc to Mr.S.Manohar Advocate sr51317 C.M.A.No.560 of 2006 & CMP No.2172 of 2006 ca(co) aa12/11/2019