United India Insurance Co Ltd v. Vanitha
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 08.12.2017
CORAM:
THE HONOURABLE MR.JUSTICE A.SELVAM and THE HONOURABLE MR.JUSTICE P.KALAIYARASAN C.M.A.No.2768 of 2017 and C.M.P.No.15780 of 2017 United India Insurance Co., Ltd., Divisional Office-I, 104A, Peramanur Main Road, Salem - 636 007.
.... Appellant / 2nd Respondent Vs.
1. Vanitha
2. Minor Santhanalakshmi
3. Minor Gayathridevi
4. Poomani
5. Dharani .... Respondents 1 to 5 / Petitioners
6. M/s. Prabal Motors Private Ltd., Kanthampatti Bye Pass 76/2, West Service Road, Salem - 636 005.
.... Respondent No.6 / 1st Respondent Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Award and Decree, dated 20.12.2016 made in M.C.O.P.No.385 of 2013 on the file of the Motor Accident Claims Tribunal (Special District Court), Salem. For Appellant : Mr. S.Arunkumar For Respondents : Mr. SP.Yuvaraj for R1 to R5 NA for R6
JUDGMENT
(Judgement of the Court was delivered by P.KALAIYARASAN, J) This Civil Miscellaneous Appeal has been directed against the Award passed by the Motor Accident Claims Tribunal (Special District Court), Salem, dated 20.12.2016 in M.C.O.P.No.385 of 2013 at the instance of the Insurance Company.
2. It is averred in the claim petition that when the deceased Annamalai was on duty inside his company, the driver of the lorry bearing Chasis No.MecZ 121 CGCP000189 drove the lorry in a rash and negligent manner and hit against him. He was taken to the private Hospital at Salem and he succumbed to injuries. The claimants are his dependants, namely wife, minor children and parents. At the time of accident, the deceased was working as a parts incharge in the first respondent company, who is dealer of Bharat Benz lorry and was earning a monthly salary of Rs.12,105/-. The offending vehicle was insured with the second respondent. The claimants claim Rs.80,00,000/- as compensation.
3. The appellant / second respondent in his counter denied the manner of accident. The accident occurred within the campus of a Private Ltd., Company, namely the first respondent and is not a
road accident. The driver of the offending lorry drove the same at the time of accident without driving license. There is violation of policy condition. The first respondent alone is liable to pay even if there is any compensation awarded by the Tribunal.
4. On the side of the claimants, three witnesses were examined and 21 Exhibits marked. On the side of the appellant / second respondent, 5 witnesses were examined and 5 Exhibits marked. Ex.X.1 and Ex.X.2 have also been marked through the witnesses.
5. The Motor Accident Claims Tribunal after analysing the evidence awarded compensation of Rs.23,73,900/- with 7.5% interest to the claimants and directed the appellant / second respondent to pay the sum and recover from the first respondent. Aggrieved by the said Award, the second respondent / Insurance company preferred this Civil Miscellaneous Appeal.
6. The learned counsel appearing for the appellant argued that the appellant / Insurance company issued policy to the sixth respondent / first respondent covering the transit risk for the offending vehicle from Chennai to Salem and the vehicle started
from Chennai on 29.08.2012 and reached Salem on 30.08.2012. The accident occurred on 02.09.2012 and therefore the contract between the Insurance company and the insured was not in existence on the date of accident. It is also contended that the rashness and negligence has not been established through acceptable evidence and the driver also drove the vehicle without valid driving license at the time of accident and the quantum of compensation awarded is also high.
7. The learned counsel appearing for the respondents 1 to 5 / claimants argued that the vehicle was insured for a period of one year with the appellant / insurance company and the insurance was in force on the date of accident and the Motor Accident Claims Tribunal after analysing the evidence has rightly awarded the compensation directing the appellant / insurance company to pay and recover from the insured and the same does not warrant any interference.
8. The eye witness to the occurrence has been examined as P.W.3. He says in his evidence that when he was on painting work in the company where the occurrence took place the New Chasis lorry was driven by the Driver rashly and negligently and hit
against the deceased. The above evidence could not be shattered in any way by the appellant during cross-examination. The copy of the FIR, rough sketch and charge sheet have been marked as Ex.P.1, Ex.P.7 and Ex.P.8. From the above evidence, it is clear that the accident occurred due to rash and negligent driving of the driver of the lorry.
9. Human Resource Officer of the sixth respondent / first respondent examined as R.W.1 says that the person who drove the offending lorry at the time of accident was not possessing valid driving license. The insurance policy has been marked as Ex.R.1. Though the period of insurance is from 28.08.2012 to 27.08.2013, there is specific clause which reads thus :
"Limitation as to use Use in connection with the Insured business whilst the vehicle is in transit from Chennai to Prabal Motors (P) Ltd., Salem."
The name of the policy is "Motor Trade (Road Transit Risk) Package policy". Therefore the coverage is provided under the policy while vehicle is in transit from Chennai to Prabhal Motors (P) Ltd., Salem. Admittedly the gate pass was issued to the offending vehicle on 29.08.2012 at Chennai and the vehicle reached the premises of Prabal Motors Private Limited at Salem, namely the sixth
respondent on 30.08.2012. The accident occurred on 02.09.2012. Therefore the appellant / insurance company cannot be fastened with any liability under the contract of insurance.
10. There is no dispute that the deceased succumbed to the injuries sustained by him in the accident. The postmortem certificate is marked as Ex.P.5. The first claimant, wife of the deceased examined as P.W.1 has deposed that her husband was working in the sixth respondent / first respondent as a permanent employee and earned Rs.12,105/- per month. The Appointment letter is marked as Ex.P.15. R.W.1, the Human Resource Officer of the sixth respondent / first respondent says that the monthly salary of the deceased was Rs.12,105/-. The age of the deceased is 38 years at the time of accident as could be seen from the Transfer Certificate, Ex.P.13.
11. As per the Judgment, dated 31.10.2017 of the Constitutional Bench of the Hon'ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi and Ors., in SLP (Civil) No.25590 of 2014 etc., batch, considering the fact that the deceased was on a fixed salary, an addition of 50% of the established income should be the warrant towards future prospects.
The Tribunal has rightly arrived at the quantum after addition of 50% towards future prospects and by deducting 1/3rd for his personal expenses and also taking the multiplier 15. The quatum and the apportionment awarded by the Tribunal is reasonable and the same does not require any interference.
12. For the aforesaid reasons, the sixth respondent / first respondent is liable to pay the compensation and the appellant cannot be fastened with any liability.
This Civil Miscellaneous Appeal is allowed in part without costs. The Award, dated 20.12.2016 passed in M.C.O.P.No.385 of 2013 by the Motor Accident Claims Tribunal (Special District Court), Salem is modified as follows :
The respondents 1 to 5 / claimants are entitled to get compensation of Rs.23,73,900/- (Rupees Twenty Three lakhs seventy three thousand and nine hundred) along with 7.5% interest from the sixth respondent / first respondent. The sixth respondent is directed to deposit the entire award amount together with interest to the credit of M.C.O.P.No.385 of 2013 on the file of the Motor Accident Claims Tribunal (Special District Court), Salem, within a period of two months from the date of receipt of a copy of
this order. In respect of other aspects mentioned in the award, there is no modification and the M.C.O.P.No.385 of 2013 is dismissed as against the appellant / second respondent without costs. Consequently, connected miscellaneous petition is closed. (A.S., J.) (P.K., J.) 08.12.2017 Index : Yes / No tsvn To The Motor Accident Claims Tribunal / Special District Judge, Salem.
A.SELVAM, J.
AND P.KALAIYARASAN, J.
tsvn Pre-Delivery Judgment in C.M.A.No.2768 of 2017 08-12-2017