The New India Assurance Co. Ltd v. Minor Raviganesh

JUDGMENT These appeals arises out of the common Award passed by the Tribunal in MCOP Nos.398, 399, 400, 401, 402, 1887 of 2018 and the Award passed in all the claim petitions have been put to challenge in these appeals by the Insurance Company. Hence, this common judgement is passed.

2.MCOP Nos.398, 399, 400, 401 and 402 of 2018 are injury cases and MCOP No.1887 of 2018 is a fatal case. The Insurance Company has questioned the very liability that has been saddled against the Insurance Company on the ground that the car was registered as a private car and it is covered under the terms and conditions of a Private Car Package Policy and the Insurance Company is only bound by the contractual liability under the terms of the

policy. In the instant case, the car was put to hire which is not covered under the contractual liability. Therefore, the Insurance Company has questioned the finding of the Tribunal by invoking the principle of pay and recovery. Insofar as the MCOP No.1887 of 2018, the Insurance Company has also questioned the quantum of compensation awarded by the Tribunal.

3.Heard Mr.S.Dhakshnamoorthy, learned counsel appearing on behalf of the appellant, Mr.N.Chandrasekar, learned counsel appearing on behalf of the respondents 1 to 5 in CMA No.1101 of 2023 and Mr.J.Prithivi, learned counsel appearing on behalf of the 2nd respondent in CMA Nos.915, 1093, 1096, 1097 & 1099 of 2023 and appearing on behalf of the 6th respondent in CMA No.1101 of 2023.

4.This Court has carefully considered the submissions made on either side and also the materials available on record.

5.The case of the claimants is that on 07.01.2018, the claimants and the deceased Ramasamy were travelling in a omni van at Harur-Thanipadi main road and this omni van was driven in a rash and negligent manner and at about

9.30 a.m., omni van dashed on a road side coconut tree. One of the passenger

viz., Ramasamy died during the accident and all the other claimants sustained serious injuries. It is under these circumstances, the claim petitions came to be filed before the Tribunal.

6.The Tribunal on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the accident in this case had taken place only due to the rash and negligent driving on the part of the driver who drove the omni van. Having rendered the above finding, the Tribunal fixed the total compensation in each claim petition as follows: S.No MCOP Nos. Awarded Amount MCOP No.398 of 2018 Rs.3,85,000/-MCOP No.399 of 2018 Rs.3,05,200/-MCOP No.400 of 2018 Rs.1,00,000/-MCOP No.401 of 2018 Rs.90,000/-MCOP No.402 of 2018 Rs.90,000/-MCOP No.1887 of 2018 Rs.15,18,500/-

7.The above compensation was directed to be paid by the Insurance Company with interest at the rate of 7.5% per annum and the Insurance Company was also permitted to pay the compensation and recover the same

from the owner of the omni van on the ground of violation of policy condition.

8.The first issue to be gone into is with regard to the finding of the Tribunal applying the principle of pay and recover in this case. The learned counsel for the Insurance Company submitted that one of the witness who was examined before the Tribunal had specifically admitted in his evidence that the driver of the van was none other than the brother of the owner of the van and he had taken it on hire and had driven the van. In view of the same, the policy does not cover the van being used under hire or for reward. Therefore, it was contended that the Tribunal ought not to have applied the pay and recovery principle.

9.To appreciate the submission made by the learned counsel for the appellant, it is necessary to consider the oral evidence of the witnesses as well as Ex.P1 which is the FIR that was registered based on the complaint given by the owner of the vehicle.

10.One Senthil who was examined on the side of the claimants has stated in the cross-examination as follows: fhiy 8/00 kzpastpy; 1k; vjph;kDjhuhpd;

Xl;Ldh; ntid kuj;jpy; bfhz;Lngha; nkhjptpl;lhh;/ ntdpy; Xl;LdUld; nrh;e;J bghpath;fs; MW ngUk; rpwpath;fs; K:d;W ngUk; gazk; bra;njhk;/ nkw;glp ntd; Xl;Ldh; re;jpudpd; jk;gpf;F brhe;jkhdJ/ re;jpudpd; jk;gp ahh; vd;W bjhpahJ/

11.One Lakshmi has stated during the cross-examination as follows: vd; taJ. tUkhdk;. bjhHpy; Fwpj;j Mtzk; jhf;fy; bra;atpy;iy/ eh';fs; gazk; bra;j thfdk; vd; j';ifapd; fzthpd; jk;gpapd; thfdk;/ mth; bgah; a[tuh$;/ vg;glp tpgj;J Vw;gl;lJ vd;W vdf;F bjhpahJ/

12.One Perumal in his cross-examination has stated as follows: 1k; kDjhuhplk; mtuJ jk;gpahd re;jpud; vd;gth; thlif ngrp thfdj;ij Xl;lpr;brd;whh; vd;why; rhpjhd;/ brhe;j thfdj;ij thliff;fhf gad;gLj;j KlpahJ vd;why; vdf;F bjhpahJ/ 1k; kDjhuh; jug;gpy; ghyprp tjpkPwy; ,Ug;gjhy; 1k; kDjhuh;jhd; ,Hg;gPL tH';fntz;Lk; vd;why; rhpay;y/

13.It will also be relevant to take note of the specific allegation that was

made in the FIR that was marked as Ex.P1 and the same is extracted hereunder: TN30-AH-8434 vd;w mkpdp ntd; brhe;jkhf itj;J Xl;lp tUfpnwd; vdJ kidtp bgah; ghyRfd;ah v';fSf;F nkhfth;c&dp. bjdpc&;fh vd;w ,uz;L kfs;fs; cs;sdh;/ nkw;glp vz; ntid vd; cld; gpwe;j mz;zd; re;jpud; s/o nfhtpe;jrhkp vd;gtUk; rkaj;jpy; Xl;Lthh; ,d;W 07/01/2018 njjp nkw;glp ntdpy; nky;kiyaD}h; Fybja;t nfhtpYf;F rhkp Fk;gpl tz;lpia vd; mz;zd; re;jpud; vd;gth; Xl;l tz;lpapy; v';fsJ cwtpdh;fs; filak;gl;lp fpuhkj;ij nrh;e;j brd;uhad; kfd; uhkrhkp g{rhhpgl;lpia nrh;e;j u';fd; kfd; bgUkhs;. g{$h j/bg/ bgUkhs; utpfnzc&; j/bg/ bgUkhs; rpd;djk;gp kfd; bre;jpy; kw;Wk; v';fs; mz;zd; re;jpud; kfd; nfhFyfpUc&;zd; Mfpnahh; gazk; bra;jdh;/ ntd; v';fs; Chpy; ,Ue;J fhiy Rkhh; 5/00 kzpastpy; g[wg;gl;L nky;kiyaD}h; nfhtpYf;F brd;W bfhz;lpUe;jnghJ fhiy Rkhh; 9/30 kzp mstpy; mU:h; to jhdpg;ghlp nuhl;lpy; Fngugl;lpdk; fpuhkk; jpUg;gjp

vd;gthpd;

epyj;jpw;F

vjphpy; mjpntfkhft[k;

m$hf;fpuijahft[k;

v';fs; mz;zd; ntid Xl;lp te;jjhYk; rw;W fz; mre;J tpl;ljhYk; nuhlpd; ,lJ gf;fk; ,Ue;j bjd;idkuj;jpy; nkhjp tpl;Ls;shh;/ ,e;j tpgj;jpy; nkw;glp egh;fs; midtUf;Fk; ,uj;j fha';fs;

Vw;gl;L vy;nyhiua[k; mU:h; muR kUj;Jtkidapy; rpfpr;irf;F nrh;j;J cs;sjhf jfty; nfs;tpgl;L ehDk; vd; cwtpdh;fSk; kUj;Jtkidapy; te;J ghh;j;njhk;/ tpgj;jpy; uhkrhkpf;F ,uz;L fhy;fspYk; gyj;j

fha';fs;

Vw;gl;lpUe;jjhy;

mtiu nky;rpfpr;irf;fhf

nfhak;g[j;J}h;

f';fh kUj;Jtkidf;F mDg;ggl;Ls;shh;/ vd;Dila ntd; Kd;gFjp KGtJk; nrjkile;jJ/ vdnt nkw;glp tpgj;J Fwpj;j jh';fs; eltlpf;if vLf;FkhW gzpt[ld; nfl;Lf;bfhs;fpnwd;/

14.The Tribunal on appreciation of the above evidence has taken note of one stray statement made by the above said Perumal and has come to a conclusion that one Chandran who is the younger brother of the owner of the van had taken a van on hire and had driven the van and the accident had taken place. While undertaking the exercise of appreciation of evidence, one stray statement cannot be taken and the Court is expected to appreciate the entire evidence and come to a conclusion.

15.The earliest version regarding the accident which took place on

07.01.2018 was the version of the owner of the van. This is found in the FIR that was marked as Ex.P1. The relevant portions have already been extracted

supra. The owner of the van has specifically stated that he had given the van to his brother Chandran and the said Chandran had taken the relatives in the van to a temple. Unfortunately, the van dashed on a tree and met with an accident. There is no doubt that the said Chandran is the brother of the owner of the van and it was the said Chandran who had driven the van at the time of the accident. The fact that Chandran alone drove the van at the time of the accident has also been spoken by the other witnesses. One of the witness while being confronted with a leading question that Chandran had taken the van on hire from the owner of the vehicle, has mechanically stated as 'Yes'. This answer by itself cannot result in coming to a conclusion that the omni van was taken on hire by Chandran from his own brother. Even if this Court is to appreciate the evidence from the stand point view of a prudent man, it is too unnatural for the own brother to have taken the van on hire. This is more so since that the persons who had travelled in the van were all relatives and therefore, it is quite ill-logical to conclude them the brother Chandran had taken the van on hire from his own brother and had driven the van along with his relatives to the temple. In view of the same, the conclusion arrived at by the Tribunal as if Chandran had taken the van on hire and therefore, there was violation of the policy condition by the owner of the van, is hereby set aside.

16.In the light of the above finding, it cannot be said that there was any violation of the terms of the policy. Chandran was authorised to drive the van by the owner of the vehicle and he is a representative of the owner of the van. Therefore, it cannot be held that there is violation of terms of the policy. In view of the same, the Insurance Company alone must pay the compensation fixed by the Tribunal and the same cannot be recovered from the owner of the van.

17.Insofar as the quantum of compensation is concerned, there is no serious challenge to the compensation that has been fixed in the injury cases in MCOP Nos.398, 399, 400, 401 and 402 of 2018. The main challenge is with regard to the compensation that was fixed in MCOP No.1887 of 2018 which was filed by the claimants/legal representatives of the deceased Ramasamy. The learned counsel for the appellant submitted that the Tribunal had wrongly fixed the age of the deceased as 60 years. To substantiate the same, the learned counsel brought to the notice of this Court, the evidence of one Perumal who is one of the son of the deceased. During cross-examination, a question was put to him to the effect that the mother was aged about 60 years and therefore, the father must be elder by at-least 15 years and therefore, his age must be 75 years and for this question, this witness mechanically says 'Yes'. It must be borne in mind that the Court is dealing with the evidence of rustic villagers. Many a

times, they do not understand the question properly and they mechanically give their answers without any application of mind. The Tribunal had taken into consideration Ex.P5 which was the Post-mortem Certificate and in that, it has been specifically stated that the age of the deceased was 60 years. Therefore, in the absence of any contra-evidence, there is no scope to come to a conclusion that the deceased must have been aged about 75 years based on the evidence of Perumal.

18.The learned counsel for the claimants in MCOP No.1887 of 2018 submitted that the Tribunal ought to have ordered a sum of Rs.6,92,739/- towards medical bills based on Ex.P12 and whereas, the Tribunal had ordered only a sum of Rs.5,50,000/- That apart, the learned counsel also questioned the compensation fixed under the head of loss of love and affection and contended that the same is on the lower side.

19.The learned counsel for the appellant submitted that the Tribunal ought to have deducted 1/3rd towards the personal expenditure of the deceased considering the fact that all the daughters and son were married and were not dependent on the deceased. Therefore, it was contended that while calculating the compensation under the head of loss of income/dependency, the Tribunal

ought to have deducted 1/3rd towards personal expenditure of the deceased.

20.The Tribunal had fixed the age of the deceased as 60 years. The claimants had put-forth a stand that the deceased was an agriculturist and was also drawing pension and he was earning not less than Rs.20,000/-per month. There was no evidence to substantiate this stand taken by the claimants. Therefore, the Tribunal had fixed the notional monthly income at Rs.10,000/-This Court finds that the notional monthly income fixed by the Tribunal is reasonable. The Tribunal while calculating the compensation under the head of loss of income has deducted 1/4th towards the personal expenditure of the deceased. As rightly contended, except the wife, all the other children are major and strictly speaking, they may not be dependants on the deceased. Therefore, this Court is of the view that 1/3rd ought to have been deducted towards personal expenditure of the deceased. Thus, the compensation under the head of loss of income is calculated as follows: Rs.10,000/-x 12 x 9 x 1/3 = Rs.7,20,000/-

21.The next issue pertains to the compensation granted under the head of medical expenses. This Court carefully went through Ex.P12 and it is seen that the total expenditure towards medical bills runs to Rs.6,92,739. Therefore, there

is no reason to reduce it to Rs.5,50,000/- The finding of the Tribunal to that effect is hereby set aside.

22.The other issue is with regard to the compensation fixed under the head of loss of love and affection and loss of consortium. This Court is inclined to consolidate both the heads and grant compensation under a single head viz., Loss of Love and Affection and for each of the claimant, this Court is inclined to fix a sum of Rs.40,000/-. Accordingly, the total compensation under this head works out to a sum of Rs.2,00,000/- (Rs.40,000 x 5).

23.The Tribunal has fixed a sum of Rs.25,000/- under the head of funeral expenses and the same is reduced to Rs.15,000/-. The Tribunal has not granted any compensation under the head of Loss of Estate and this Court is inclined to fix a sum of Rs.15,000/- under this head.

24.In the light of the above discussion, the compensation awarded by the Tribunal in MCOP No.1887 of 2018 is modified as follows: S.No Compensation awarded under the head Amount (in Rs.)

¶1Loss of Income 7,20,000

S.No Compensation awarded under the head Amount (in Rs.) Rs.10,000/- x 12 x 9 x 1/3 =

¶2Loss of Love and Affection 2,00,000

¶3Medical Expenses 6,92,739

¶4Transportation Charges 18,500

¶5Funeral Expenses 15,000

¶6Loss of Estate 15,000 Total 16,61,239

25.Insofar as CMA Nos.915, 1093, 1096, 1097 and 1099 of 2023, the compensation fixed by the Tribunal shall be deposited along with interest, less the amount already deposited, together with interest at 7.5% p.a. from the date of claim petition till the date of deposit within a period of four weeks from the date of receipt of this judgment On such deposit, the claimants will be entitled to withdraw the same. Accordingly, the above appeals are dismissed.

26.Insofar as CMA No.1101 of 2023 is concerned, the compensation awarded by the tribunal at Rs.15,18,500/- is enhanced to Rs.16,61,239/-. The appellant insurance company is directed to deposit the enhanced compensation, less the amount already deposited, together with interest at 7.5% p.a. from the date of claim petition till the date of deposit within a period of four weeks from the date of receipt of this judgment. Insofar as the enhanced compensation is

concerned, the deficit court fee, if not paid, shall be paid by the claimants. The other directions issued by the Tribunal with regard to the mode of payment of

N. ANAND VENKATESH.,

J ssr compensation remains unaltered. Accordingly, CMA No.1101 of 2023 is dismissed. In view of the order passed in CMA No.1101 of 2023, the Cross Objection petition is allowed. No Costs. Consequently, connected miscellaneous petitions are closed.

04.07.2024 Index : Yes/No Speaking Order/Non-Speaking Order ssr To The Motor Accident Claims Tribunal, Special District Court, Salem. CMA Nos.915, 1093, 1096, 1097, 1099 & 1101 of 2023 and CMP Nos.8470, 10479, 10558, 10515, 10541 & 10546 of 2023 and Cros.Obj.No.38 of 2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.07.2024 CORAM THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH CMA Nos.915, 1093, 1096, 1097, 1099 & 1101 of 2023 and CMP Nos.8470, 10479, 10558, 10515, 10541 & 10546 of 2023 and Cros.Obj.No.38 of 2024 CMA No.915 of 2023 The New India Assurance Co., Ltd., Divisional Office Sethu Krishna Trade Centre, Trichy Main Road, Gugai, Salem – 6. ..Appellant .vs. 1.Mion Raviganesh 2.Yuvaraj ..Respondents [Minor rep. by N-F/Guardian her motther Lakshmi] Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the order dated 14.03.2022 made in MCOP No.402 of 2018 on the file of Motor Accident Claims Tribunal, Special District Court, Salem. For Appellant : Mr.S.Dhakshnamoorthy in all CMAs For Respondents : Mr.N.Chandrasekar for R1 to R5 in CMA No.1101 of 2023 Mr.J.Prithivi for R6 in CMA No.1101 of 2023 Mr.J.Prithivi for R2 in CMA Nos.915, 1093, 1096, 1097 & 1099 of 2023 Cros.Obj.No.38 of 2024 in CMA No.1101 of 2023 1.Thangam 2.R.Perumal 3.Yasutha 4.R.Kamalakannan 5.Vijayalakshmi ..Appellants .vs. 1.The New India Assurance Co., Ltd., Divisional Office Sethu Krishna Trade Centre, Trichy Main Road, Gugai, Salem – 6. 2.Yuvaraj ..Respondents Prayer: This petition filed under Section Order 41 Rule 22 of C.P.C.,, to enhance the compensation amount awarded in the judgment and Decree dated 14.03.2022 made in MCOP No.1887 of 2018 on the file the Motor Accident Claims Tribunal/Special District Court, Salem. For Appellants : Mr.N.Chandrasekar For Respondents : Mr.S.Dhakshnamoorthy for R1