The Branch Manager v. D.Saroja

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.09.2017

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU C.M.A(MD)No.1927 of 2013 and C.M.P.(MD)No.8503 of 2017 and M.P(MD)No.3 of 2013 The Branch Manager, National Insurance Company Limited, North Car Street Anguvilas Building, Nagercoil, Agastheeswaram Taluk, Kanyakumari District.

... Appellant /Respondent No.3 Vs.

1.D.Saroja ... Respondent No.1/Petitioner No.1 2.D.Jabaraj ... Respondent No.2/Petitioner No.2 3.D.Nesaraj ... Respondent No.3/Petitioner No.3 4.D.Jeevaraj ... Respondent No.4/Petitioner No.4 5.Rosammal ... Respondent No.5/Petitioner No.5 6.B.Vinesh ... Respondent No.6/Respondent No.1 7.K.P.Balakrishnan ... Respondent No.7/Respondent No.2 PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree made in M.C.O.P.No.43 of 2009 dated 25.07.2012 by the Motor Accidents Claims Tribunal, Sub Court, Kuzhithurai.

For Appellant : Mr.D.Sivaraman For R-1 to R-4 : Mr.Saji Bino

J U D G M E N T

This Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company against the judgment and decree made in M.C.O.P.No.43 of 2009 dated 25.07.2012 by the Motor Accidents Claims Tribunal, Sub-Court, Kuzhithurai.

2. It is a case of fatal accident, which took place on 14.07.2008 at about 5.45 p.m., at Arumanai -Melpuram road near SNS Textiles.

3. It is the case of the claimants before the Tribunal that on the date of accident, when the deceased was going home, the two wheeler bearing registration No.T.N.75 5977 was driven by its rider in a rash and negligent manner and dashed against the deceased and caused the accident. In the said accident, the deceased sustained grievous injuries and thereafter succumbed to the injuries.

4. The claimants filed an application in M.C.O.P. No.43 of 2009 on the file of the Motor Accidents Claims Tribunal, SubCourt, Kuzhithurai, seeking compensation. 5.Before the Tribunal, the claimants examined one witness as P.W.1 and marked twenty documents as Ex.P.1 to Ex.P.10. On the side of the Insurance Company, one witness was examined as R.W.1 and marked three documents as Ex.R.1 to R3.

6.The Tribunal, after considering the pleadings, oral and documentary evidence and the arguments advanced on either side and also appreciating the evidence on record, held that the accident occurred only due to the rash and negligent riding of the twowheeler, belonging to the seventh respondent and insured with the appellant and therefore, directed the appellant/Insurance Company to pay the compensation at the first instance and then, recover the said amount from the owner of the vehicle and awarded a sum of Rs.6,30,092/-.

7.Against which, the appellant/Insurance Company has filed this present appeal challenging the liability as well as quantum. 8.I have heard the learned Counsel appearing for the appellant and the learned counsel for the respondents 1 to 4 and perused all the materials available on record.

9. On evidence, the Tribunal held that the accident took place only due to the rash and negligent riding of the minor son of the seventh respondent namely the sixth respondent herein and further, the sixth respondent did not have the valid driving licence at the time of the accident and therefore, there is clear violation of policy conditions.

10. In view of the above, Tribunal has rightly directed the appellant to pay compensation at the first instance and then, recover the same from the sixth and seventh respondents. There is no error in the said finding. It is well settled law that the claimant should not suffer even after obtaining an order for compensation. The provisions relating to the award of compensation are benevolent provisions in favour of claimant. The Hon'ble Apex Court in various Judgments have formulated the policy of "pay and recovery". In the present case, there is no reason to deviate from the principle of "pay and recovery".

11. In respect of quantum, it is contended on the side of the appellant/Insurance Company that the Tribunal without any documentary evidence has fixed a sum of Rs.7,000/- as monthly income of the deceased and calculated the loss of income and therefore, the same is to be reduced.

12. A perusal of the award passed by the Tribunal clearly shows that the Tribunal after considering the oral and documentary evidences, the Tribunal has awarded the compensation of Rs.6,30,092/-. In my considered view, the compensation awarded by

the Tribunal is very low and if the latest judgments are applied, the compensation will be more. Therefore, I do not want to interfere with the award passed by the Tribunal.

13. In the result, this Civil Miscellaneous Appeal is dismissed and the appellant/Insurance Company is directed to pay the amount awarded by the Tribunal at the first instance and then, recover the same from the respondent Nos.6 and 7. The appellant/Insurance Company shall deposit the award amount to the credit of M.C.O.P., on the file of claims Tribunal within a period of eight weeks from the date of receipt of a copy of this order and in the later stage, the appellant/Insurance Company is entitled to recover the same from the owner of the vehicle, by way of Execution Petition, without actually filing a suit as held by Hon'ble Apex Court in the judgment reported in 2004(2)CTC 464 (Oriental Insurance Co., Ltd., vs. Shri Nanjappan and others).

On such deposit being made, the respondents 1 to 4/claimants 1 to 4 are permitted to withdraw their respective shares as apportioned by the Tribunal, with proportionate interests and costs. Since the fifth respondent/mother of the deceased died, her share may be apportioned equally to the respondent Nos.1 to 4. No Costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar(CS-I) /True Copy/ Sub Assistant Registrar To, 1.The Motor Accidents Claims Tribunal, Sub Court, Kuzhithurai.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

+1cc to M/S.J.ASHOK, Advocate SR.No.80612 +1cc to M/S.D.SIVARAMAN, Advocate SR.No.80646 pm MAS/JC/SAR2:09.11.2017:3P-5C C.M.A(MD)No.1927 of 2013 and C.M.P.(MD)No.8503 of 2017 and MP(MD)No.3 of 2013 22.09.2017