Oriental Insurance Co.Ltd v. Latha,W/O.Jayavelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.01.2025
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI and C.M.P.Nos.20079 and 15383 of 2016, 20533 and 23477 of 2019 Prayer in C.M.A.No.2128 of 2016 Oriental Insurance Company Limited, Rep.by its Branch Manager, 3rd party claim, Vijayalakshmi Complex, 1st Floor, HUB, Sathuvathari, 32/312, 13th Street, Phase-II, Vellore.
... Appellant Vs.
1.Latha 2.Jayavelu 3.V.Arunjaya Immanuvel 4.The Managing Director, APSRTC Limited, Bus Bhavan, APSRTC Bus Station Complex, Kurnool-518 001 AP. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 07.04.2016 made in M.C.O.P.No.2 of 2013 on the file of the Motor Accident Claims Tribunal (Subordinate Court), Vaniyambadi. For Appellant :
Mr.D.Bhaskaran For Respondents :
Mr.C.Munusamy for R1 and R2 R3-Dismissed vide order dated 21.07.2023.
Mrs.G.V.Shoba for R4 Prayer in C.M.A.No.2770 of 2016 Oriental Insurance Company Limited, Rep.by its Branch Manager, 3rd party claim, Vijayalakshmi Complex, 1st Floor, HUB, Sathuvathari, 32/312, 13th Street, Phase-II, Vellore.
... Appellant Vs.
1.Vasantha 2.Sundaramoorthy 3.V.Arunjaya Immanuvel
4.The Managing Director, APSRTC Limited, Bus Bhavan, APSRTC Bus Station Complex, Kurnool-518 001 AP. ... Respondents PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 18.04.2016 made in M.C.O.P.No.3 of 2013 on the file of the Motor Accident Claims Tribunal (Subordinate Court), Vaniyambadi. For Appellant :
Mr.D.Bhaskaran For Respondents :
R1 to R3-Dismissed vide order dated 21.07.2023.
Mrs.G.V.Shoba for R4 Prayer in C.M.A.No.3499 of 2019 The Managing Director, APSRTC Limited, Bus Bhavan, APSRTC Bus Station Complex, Kurnool-518 001 Andhra Pradesh. ... Appellant Vs.
1.Latha
2.Jayavelu 3.V.Arunjaya Immanuvel 4.The Oriental Insurance Company Limited, Rep.by its Branch Manager, 3rd party claim, Vijayalakshmi Complex, 1st Floor, HUB, Sathuvachari, 32/312, 13th Street, Phase-II, Vellore. ... Respondents PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 07.04.2016 made in M.C.O.P.No.2 of 2013 on the file of the Motor Accident Claims Tribunal (Subordinate Court), Vaniyambadi. For Appellant :
Mrs.G.V.Shoba For Respondents :
Mr.C.Munusamy for R1 and R2 Mr.D.Baskaran for R4 R3-No appearance Prayer in C.M.A.No.4154 of 2019 The Managing Director, APSRTC Limited, Bus Bhavan, APSRTC Bus Station Complex, Kurnool-518 001, Andhra Pradesh. ... Appellant
Vs.
1.Vasantha 2.Sundaramoorthy 3.V.Arunjaya Immanuvel 4.The Oriental Insurance Company Limited, Rep.by its Branch Manager, 3rd party claim, Vijayalakshmi Complex, 1st Floor, HUB, Sathuvathari, 32/312, 13th Street, Phase-II, Vellore. ... Respondents PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 18.04.2016 made in M.C.O.P.No.3 of 2013 on the file of the Motor Accident Claims Tribunal (Subordinate Court), Vaniyambadi. For Appellant :
Mrs.G.V.Shoba For Respondents : No appearance for R1 to R3 Mr.D.Baskaran for R4 Prayer in C.M.A.No.4184 of 2019 The Managing Director, Andhra Pradesh State Road Transport Corporation Bus Station Complex, Kurnool-518 001, A.P. ... Appellant
Vs.
1.V.Arunjaya Immanuvel 2.The Oriental Insurance Company Limited, Rep.by its Branch Manager, 3rd party claim, Vijayalakshmi Complex, 1st Floor, HUB, Sathuvathari, 32/312, 13th Street, Phase-II, Vellore. ... Respondents PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 18.04.2016 made in M.C.O.P.No.4 of 2013 on the file of the Motor Accident Claims Tribunal (Subordinate Court), Vaniyambadi. For Appellant :
Mrs.G.V.Shoba For Respondents :
R1-No appearance Mr.D.Baskaran for R2 C O M M O N J U D G M E N T While CMA Nos. 3499, 4154 and 4184 of 2019 have been filed by the Transport Corporation challenging the award passed in M.C.O.P.Nos.2, 3 and 4 of 2013, in and by which, the Tribunal had directed
payment of compensation by the appellant/Transport Corporation, C.M.A.Nos.2128 and 2720/2016 have been filed by the Insurance Company challenging the order passed in MCOP Nos. 2 and 3 of 2013 in and by which negligence has been fixed on the driver of the vehicle insured with the insurer and compensation has been quantified. As all the appeals arise out of the very same accident, they are taken up together and disposed of by this common judgment.
2. For the sake of convenience, the respective appellants would be referred to as the Transport Corporation and insurer.
3. On 09.12.2012 when the deceased was returning in the unnumbered motorcycle belonging to the 1st respondent in CMA No.2128/2016 (who shall hereinafter be referred to as 'the owner of the vehicle') and insured with the insurer, with two pillion riders in a slow and cautious manner at about 16.30 hours, in front of Natrampalli Old Petron Bunk 'U' Turn in Krishnagiri to Vaniyambadi Bye-Pass Road, at that time,
the bus bearing Regn. No.AP-21-Z-0348 belonging to the Transport Corporation was driven by its driver in a rash and negligent manner, without blowing the horn and without following the traffic rules, tried to 'U' Turn without any signal and the driver lost control of the bus and the back wheel dashed against the motor cycle due to which the deceased and the pillion riders were thrown out and while the driver of the motor cycle and one pillion rider sustained grievous injuries and died on the spot, the owner of the vehicle, who was also riding in the pillion suffered grievous injuries. But for the reckless and negligent driving by the driver of the bus, the accident would not have happened. Hence, seeking compensation, the injured victim as also the legal heirs of the deceased had filed the respective claim petitions.
4. Before the Tribunal, witnesses were examined on behalf of the parties and documents were also marked and on the basis of the oral and documentary evidence, the Tribunal while awarding compensation in the respective claim petitions directed the insurer and the Transport Corporation
to pay the compensation jointly and severally along with interest at 6% p.a. from the date of claim petition, viz., 2.1.2013 till date of deposit and granted time of two months to deposit the amount while apportioning the compensation in respect of the legal heirs of the deceased, as shown in the award. Aggrieved by the said award, the respective appeals have been preferred by the insurer and the Transport Corporation.
5. Learned counsel appearing for the insurer questioned the award only on the aspect of negligence by submitting that when the Tribunal has recorded a categorical finding that it is only the bus belonging to the Transport Corporation, which was driven in a rash and negligent manner, which had caused the accident and no negligence was attributed to the driver of the motor cycle, however, had erroneously fixed the responsibility on the insurer also to jointly and severally compensate the claimants along with the Transport Corporation and, therefore, the said portion of the order requires interference and the insurer be absolved of any liability to pay the compensation.
6. Per contra, the learned Standing Counsel appearing for the Transport Corporation submitted that two persons had travelled in the pillion of the motorcycle along with the driver of the motorcycle, which is the reason for the accident and the negligent act of triple riding had resulted in the accident and no negligence is attributable to the driver of the bus belonging to the Transport Corporation. It is further submitted that no evidence has been placed to show that the bus was driven in a rash and negligent manner and attention of this Court was drawn to Ex.P-1, FIR, in which it has been recorded that the driver of the motorcycle was at fault and that it was driven in a rash and negligent manner, which had resulted in causing the accident and, therefore, the Transport Corporation should be absolved of its liability to pay the compensation.
7. On the above contentions, this Court heard the learned counsel appearing for the claimants and perused the materials available on record.
8. The manner in which the accident had happened is not disputed. Equally there is no dispute about the fact that three persons were riding the motorcycle, of which one is the owner of the vehicle. The moot question that therefore falls for consideration of this Court is as to which of the vehicle is attributable with rash and negligent driving or whether both the vehicles contributed to the accident due to rash and negligent driving.
9. It is to be pointed out at the outset that FIR is not an encyclopaedia and whatever is said therein is not the gospel truth to be relied upon to write a verdict. In the present case, a perusal of the materials reveal that P.W.2 is the defacto complainant, who is the friend of the deceased, who is an eye witness to the occurrence and had given the complaint, which had been captured in the FIR. A careful perusal of the evidence of P.W.2 in Court reveals that the statements of P.W.2 in his complaint have been interpolated in the FIR and it has been shown that the stress of the deceased had led to the accident. When the defacto complainant himself had disowned the statements given in the FIR, it becomes
incumbent on the part of the Transport Corporation to prove that negligence was attributable to the deceased. However, no witnesses have been examined to establish the negligence on the part of the deceased. Further, for reasons best known to the Transport Corporation, the driver of the bus has not been examined as a witness, who is the best person to speak about the accident; rather, the conductor of the bus had been examined as R.W.2. In the absence of any material placed before the Court to prove the negligence on the part of the deceased, the court below had not only faulted the investigation, but has also held that there is no material to show contributory negligence. Further, there is also no material evidencing that the driver of the motorcycle was in a drunken state and the evidence of P.W.s 1 and 2 coupled with the other infirmities pointed out above, the Tribunal has rightly held that it was the driver of the bus, who was completely at fault and the negligence is wholly attributable to the driver of the Transport Corporation.
10. Though the Tribunal has held that the negligence is on the part of the driver of the bus belonging to the Transport Corporation, yet, after rendering the said finding, has erroneously held that the insurer, along with the Transport Corporation, is jointly and severally liable to pay the compensation. When the negligence has been fastened only on the Transport Corporation and not on the driver of the two wheeler insured with the insurer, liability cannot be fastened on the owner of the vehicle to make the insurer indemnify the owner of the vehicle. Therefore, the liability of the insurer to pay the compensation along with the Transport Corporation cannot be sustained and, accordingly, the said finding is set aside.
11. The other ground advanced by the learned counsel for the Transport Corporation that three persons had travelled in the motorcycle and, therefore, negligence is on their side which is the cause for the accident also cannot be accepted for the reason that P.W.2, the defacto complainant has spoken clearly that the deceased was driving the vehicle cautiously and it was the Transport Corporation bus, which had been driven rashly and
negligently. Merely because three persons had travelled in the vehicle cannot be the sole basis to hold that there was rash and negligent driving by the driver of the motorcycle. Triple riding in a motorcycle may be a violation of policy conditions insofar as the insurer is concerned, but that would not be a caveat for the Transport Corporation to claim that such triple driving was rash and negligent act so as to absolve the liability from the Transport Corporation. In the absence of any corroborative evidence to sustain the rash and negligent driving, but for the triple riding, by the driver of the motorcycle, the mere submission that there was rash and negligent driving by the rider of the motorcycle cannot be sustained and the said contention deserves to be rejected.
12. On the aforesaid discussion, this Court holds that the negligence is wholly on the Transport Corporation and the Transport Corporation is alone liable to compensate the claimants for the accident.
13. Coming to the compensation awarded by the Tribunal to the claimants in the various appeals of which in two appeals, the legal heirs of
the deceased are the claimants and one appeal is against the compensation awarded to the owner of the vehicle, who is an injured in the accident, the Tribunal has considered the materials and awarded the following compensation :
M.C.O.P.No.2 of 2013 Sl.No.
Compensation awarded under the head Amount (in Rs.) 1.
Loss of dependency 10,49,184/- 2.
Loss of Estate 1,00,000/- 3.
Funeral Expenses 25,000/- 4.
Loss of love and affection 1,00,000/- 5.
Transport Expenses 3,000/- Total 12,77,184/- M.C.O.P.No.3 of 2013 Sl.No.
Compensation awarded under the head Amount (in Rs.) 1.
Loss of dependency 11,47,536/- 2.
Loss of Estate 1,00,000/- 3.
Funeral Expenses 20,000/- 4.
Loss of love and affection 1,00,000/- 5.
Transport Expenses 3,000/- Total 13,70,536/- M.C.O.P.No.4 of 2013
Sl.No.
Compensation awarded under the head Amount (in Rs.) 1.
Loss of earnings due to permanent disability 25,000/- 2.
Partial loss of earnings 75,000/- 3.
Medical Expenses 10,446.56/- 4.
Future medical expenses 50,000/- 5.
Transport Expenses 4,000/- 6.
Damages to bike 5,000/- 7.
Compensation for pain and suffering 50,000/- 8.
Commendation loss of amenities Rs.50,000/- Total 2,69,446.56/-
14. The Transport Corporation has questioned the manner in which the compensation has been arrived at. The fixation of the monthly income of the deceased and that of the victim are under attack. This Court has gone through the manner in which the compensation has been awarded, more particularly, with reference to the fixation of monthly income of the deceased and loss of income to the family due to the death of the deceased. 15.C.M.A.Nos.2128/2016 & 3499/2019 [M.C.O.P.No.2 of 2013]
In view of the above discussion, the monthly income of the deceased is calculated as follows:
Monthly Income :
Rs. 7,300/- Add: 40% future prospects :
Rs. 2,920/- ------------------ Rs. 10,220/- Less: Personal expenses (1/2):
Rs. 5,110/- ------------------ Rs. 5,110/- Annual Income (5110 *12) :
Rs. 61,320/- Multiplier :
x 18 ------------------ Loss of dependency :
Rs.11,03,760/- ------------------ The compensation towards loss of love and affection awarded by the Tribunal at Rs.1,00,000/- is reduced to Rs.80,000/- [Rs.40,000/- to each of the claimants]. Similarly, the compensation of Rs.1,00,000/- and Rs.25,000/- awarded towards loss of estate and funeral expenses respectively is reduced to Rs.15,000/- and Rs.15,000/-. This Court is of the view that the compensation of Rs.3,000/- awarded towards transport expenses is unwarranted and hence, the same is set aside.
Sl.No.
Compensation awarded under the head Amount (in Rs.) 1.
Loss of dependency 11,03,760/- 2.
Loss of Estate 15,000/- 3.
Funeral Expenses 15,000/- 4.
Loss of love and affection 80,000/- Total 12,13,760/- 16.C.M.A.Nos.2770 of 2016 and 4154 of 2019 [M.C.O.P.No.3 of 2013] In view of the above discussion, the monthly income of the deceased is calculated as follows:
Monthly Income :
Rs. 7,970/- Add: 40% future prospects :
Rs. 3,188/- ------------------ Rs. 11,158/- Less: Personal expenses (1/2):
Rs. 5,579/- ------------------ Rs. 5,579/- Annual Income (5579 *12) :
Rs. 66,948/- Multiplier :
x 18 ------------------ Loss of dependency :
Rs.12,05,064/- ------------------
The compensation towards loss of love and affection awarded by the Tribunal at Rs.1,00,000/- is reduced to Rs.80,000/- [Rs.40,000/- to each of the claimants]. Similarly, the compensation of Rs.1,00,000/- and Rs.20,000/- awarded towards loss of estate and funeral expenses respectively is reduced to Rs.15,000/- and Rs.15,000/-. This Court is of the view that the compensation of Rs.3,000/- awarded towards transport expenses is unwarranted and hence, the same is set aside. Sl.No.
Compensation awarded under the head Amount (in Rs.) 1.
Loss of dependency 12,05,064/- 2.
Loss of Estate 15,000/- 3.
Funeral Expenses 15,000/- 4.
Loss of love and affection 80,000/- Total 13,15,064/- 17.C.M.A.No.4184 of 2019 [M.C.O.P.No.4 of 2013] Considering the nature of injury suffered by the claimant, this Court is of the view that compensation awarded under the heads 'loss of earning due to permanent disability', 'future medical expenses' and 'Commendation loss of amenities' at Rs.25,000/-, Rs.50,000/- and
Rs.50,000/- respectively is unwarranted and accordingly, the same is set aside. However, a sum of Rs.20,000/- is awarded under the head 'loss of earnings during treatment period'. The medical expenses of Rs.10,446.56 is rounded off to Rs.10,500/-. The compensation of Rs.4,000/- awarded towards transport expenses is enhanced to Rs.20,000/-. This Court finds that no sum has been granted towards attender charges and extra nourishment and hence, a sum of Rs.20,000/- and Rs.30,000/- is awarded under such heads respectively. The compensation awarded under the other heads is hereby confirmed. Accordingly, the modified compensation would be: Sl.No.
Compensation awarded under the head Amount (in Rs.) 1.
Partial loss of earnings 75,000/- 2.
Loss of earnings during treatment period 20,000/- 3.
Medical Expenses 10,500/- 4.
Transport Expenses 20,000/- 5.
Damages to bike 5,000/- 6.
Pain and sufferings 50,000/- 7.
Attender Charges 20,000/- 8.
Extra Nourishment 30,000/- Total 2,30,500/-
18. In the result, the Civil Miscellaneous Appeal Nos.2128 and 2770 of 2016 filed by the Insurance Company are allowed and the Civil Miscellaneous Appeal Nos.3499, 4154 and 4184 of 2019 filed by the Transport Corporation are partly allowed by reducing the award amount from Rs.12,77,184/- to Rs.12,13,760/- in respect of C.M.A.No.3499 of 2019 (M.C.O.P.No.2 of 2013) and from Rs.13,70,536/- to Rs.13,15,064/- in respect of C.M.A.No.4154 of 2019 (M.C.O.P.No.3 of 2013) and from Rs.2,69,446.56/- to Rs.2,30,500/- in respect of C.M.A.No.4184 of 2019 (M.C.O.P.No.4 of 2013). The transport Corporation is directed to deposit the compensation now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.
Nos.2 to 4 of 2013 on the file of the Subordinate Court, Motor Accident Claims Tribunal, Vaniyambadi.
fixed by the Tribunal. The other directions issued by the Tribunal with regard to the mode of payment of compensation remains unaltered. There shall be no order as to costs. Connected miscellaneous petitions are closed. 23.01.2025 NCC : Yes / No Index : Yes / No Speaking Order : Yes / No ssb To
1. The Subordinate Court, Motor Accidents Claims Tribunal, Vaniyambadi.
2. The Section Officer, V.R. Section, High Court, Chennai.
M.DHANDAPANI, J.
ssb 23.01.2025
M.DHANDAPANI, J.
The matters are listed today under the caption "for being mentioned" at the instance of the Registry.
2. It is brought to the notice of this Court that there is no specific direction with regard to the deposit made by the Insurance Company in the judgment dated 23.01.2025. Therefore, clarification is sought for by the Registry with regard to the said fact.
3. This Court perused the paragraph No.18 of the judgment dated 23.01.2025 and finds that there is no specific direction with regard to the refund of the amount deposited by the Insurance Company. In such circumstances, paragraph No.18 of the judgment dated 23.01.2025 shall stand replaced as follows:
" 18. In the result, the Civil Miscellaneous Appeal Nos.2128 and 2770 of 2016 filed by the Insurance Company
are allowed and the Civil Miscellaneous Appeal Nos.3499, 4154 and 4184 of 2019 filed by the Transport Corporation are partly allowed by reducing the award amount from Rs.12,77,184/- to Rs.12,13,760/- in respect of C.M.A.No.3499 of 2019 (M.C.O.P.No.2 of 2013) and from Rs.13,70,536/- to Rs.13,15,064/- in respect of C.M.A.No.4154 of 2019 (M.C.O.P.No.3 of 2013) and from Rs.2,69,446.56/- to Rs.2,30,500/- in respect of C.M.A.No.4184 of 2019 (M.C.O.P.No.4 of 2013). The transport Corporation is directed to deposit the compensation now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.Nos.2 to 4 of 2013 on the file of the Subordinate Court, Motor Accident Claims Tribunal, Vaniyambadi. On such deposit, the claimants are permitted to withdraw the award amount now determined by this Court, along with
interest and costs, less the amount if any, already withdrawn, by making proper application before the Tribunal, as per the apportionment fixed by the Tribunal. Insofar as the compensation amount, if any, deposited by the Insurance Company is concerned, it is open to the Insurance Company to file an appropriate application before the Tribunal seeking refund of the said amount. The other directions issued by the Tribunal with regard to the mode of payment of compensation remains unaltered. There shall be no order as to costs. Connected miscellaneous petitions are closed.
4. The Registry is directed to carry out necessary correction in the judgment dated 23.01.2025 and issue fresh order copy to the parties. 10.07.2025 ssb
M.DHANDAPANI, J.
ssb 10.07.2025