Branch Manager, v. R. Vijayashanthi,

JUDGMENT This Civil Miscellaneous Appeal is filed to set aside the order of the Motor Accidents Claims Tribunal cum Additional District Judge, Pudukottai, made in M.C.O.P.No.258 of 2013 dated 15.07.2020.

¶2The case of the claimants is that on 18.03.2012 at about 4.00 p.m., the deceased Ravichandran was riding a four wheeler from east to west direction, at that time, there was a ditch dug on the left hand side of the road. There was no indication about the ditch. So it capsized on the ditch and Ravichandran died on the spot. He was aged about 30 at the time of the occurrence and he is a driver by profession and earning Rs.70,500/- per month. He was aged about 30 at the time of the occurrence. Claiming compensation amount of Rs.50 Lakhs, claim application was filed by the claimants against the respondents.

¶3That was resisted by the appellant herein by filing counter. The deceased was not owning proper driving license at the time of the occurrence. The first respondent permitted the vehicle to be driven by an unlicensed person. Since the deceased was responsible for the accident, the claimants are not entitled for any compensation from the insurance company.

¶4Regarding the first aspect of negligence, the Tribunal recorded a finding that the occurrence took place because of the rash and negligent driving on the part of the deceased himself. The age of the deceased was fixed at 30 and the notional income was fixed at 7,500/-. 40% was added to the future prospects and 1/5 of the amount was deducted considering the number of dependants and finally the loss of dependency was fixed at Rs.8,400/- per annum. Since he was aged about 30 at the time of accident, multiplier 17 was adopted. The loss of dependency was fixed at Rs.17,13,600/-. To that other customary amounts were added and finally awarded a sum of Rs.18,93,600/-. 50% was ordered to be deducted towards contributory negligence. So, the balance amount of Rs.9,46,800/- was ordered to be paid and deposited by the second respondent on behalf of the first and third respondent against which this appeal is preferred by the insurance company.

¶5Heard both sides.

¶6Learned counsel for the appellant would submit that there was no driving license for the deceased. Since the occurrence took place because of his own negligence, if at all the claimants are entitled only for personal accident coverage.

¶7Per contra, learned counsel for the respondent would submit that, he is the driver of the vehicle which belongs to the first respondent herein. It is not the case of the claimants that the deceased was employed under the first respondent or the third respondent, as the case may be. On what ground the deceased drove the vehicle is not stated by him properly. Now we will go to the evidence of P.W.1 on this aspect. During cross examination, he has stated that he was a driver by profession. But it is not clearly stated as he was working as driver under the first respondent. It was suggested to the claimant that she ought to have filed claim application before the Workmen Compensation Forum.

¶8The respondents 1 and 3 remained ex parte before the Tribunal. It is now stated that if the employer - employee relationship is proved and there is sufficient evidence for the same, even in case of the claim under the Motor Vehicles Act, the Tribunal is at liberty to assess the compensation on the basis of provisions of Workmen Compensation Act. The Hon'ble Division Bench of this Court has held in the case of United India Insurance Co. Ltd., Vs. Krishnaveni and two others, reported in 2020 (2) TN MAC 630 that even in case, where M.C.O.P. petitions are filed, there is no bar for the Tribunal to convert the same into one under the provisions of Workmen Compensation Act, if the employer - employee relationship is not disputed. But here, absolutely, there is no evidence on record to show that the person was working as an employee under the first respondent or the third respondent as the case may be. In the petition, it has been stated as follows: 4/ ,we;J nghd utpr;re;jpud; 30 taJs;sth;/ jplfhj;jpuj;JlDk;.Mnuhf;fpaj;JlDk; ,Ue;jhh;/ ,we;Jnghd utpr;re;jpud; gp/v!;/rp. gl;ljhhp/ brhe;jkhf oiutuhf gzpg[hpe;J khjk; 1?f;F U:/17.500-?k; tiu rk;ghjpj;J te;jhh;/ ,we;Jnghd utpr;re;jpud; jpUkak; gFjpapy; ed;F ghpr;rkhdth;/ Mdhy; mtUf;F tUlk; KGtJk; ntiy ghh;j;Jf;bfhz;nl ,Uf;Fk;/ ,we;Jnghd utpr;re;jpud; jhd; rk;ghjpj;j gzk; KGtija[k; jd; FLk;gj;jpw;nf bfhLj;J jd; FLk;gj;ij ey;y epiyf;F bfhz;Ltu ntz;Lk; vd;W nauhJ ghLgl;Lf;bfhz;oUe;jhh;/ me;j ntiyapy; ,e;j nfhu

tpgj;jpy;

utpr;re;jpud;

,wf;fhky; capUld; ,Ue;jpUe;jhy; mtuJ FLk;gj;ij ey;y epiyf;F bfhz;L te;jpUg;ghh;/ So this portion of the petition shows that it is not pleaded that he was working under the first respondent or the third respondent. When it is not the plea in the claim petition, even Workmen Compensation Act cannot be invoked.

¶9Now coming to the aspect of possession of driving license, learned counsel for the appellant as stated above submitted that there is no driving license for the deceased. When there is a finding by the Tribunal, the deceased did not own any proper driving licence. But no driving licence was produced by the claimant either before the trial Court or before this Court. It was simply suggested to R.W.2 that the license could have been obtained by the deceased from some other district. But it is not so here. It was not suggested by R.W.1 that the deceased was owning the proper driving licence. Inspite of the above suggestion made to R.W.1, the claimant not produced the copy of the driving licence of the deceased.

¶10In view of the above said observation, the claimants are not entitled for any compensation to be payable by the insurance company namely the appellant herein. Sofar as, the personal accident coverage is also concerned, it is also submitted that no coverage is available. So the insurance company can be absolved of its liability. Since the deceased himself is a tortfeaser, the claimants are not entitled for any compensation. The order of the Tribunal is not legal, per contra, it is per se illegal.

¶11Accordingly, this Civil Miscellaneous Appeal is allowed, the award passed by the Motor Accidents Claims Tribunal cum Additional District Judge, Pudukottai, made in M.C.O.P.No.258 of 2013 dated 15.07.2020, is set aside and the claim application of the claimant is dismissed. Consequently, connected miscellaneous petition stands closed. No costs.

19.10.2024 NCC: Yes / No Index: Yes / No Internet : Yes / No pnn To

1.The Motor Accidents Claims Tribunal cum Additional District Judge, Pudukottai.

2.The Section Officer, Vernacular Records Section, Madurai Bench of Madras High Court, Madurai. C.M.A(MD)No.16eofe2021 G.ILANGOVAN,oJ. pnn Pre-DeliveryoJudgmentomadeoin C.M.A(MD)No.16oofo2021 and C.M.P(MD)No.o264oofo2021

19.10.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 02.08.2024 Pronounced on : 19.10.2024 CORAM THE HONOURABLE MR.JUSTICE G.ILANGOVAN and C.M.P(MD)No. 264 of 2021 Branch Manager The Oriental Insurance Company Ltd., 360/21, Sathyamoorthy Road, Second Floor, Pudukottai. ... Appellant / 2nd Respondent Vs. 1.R.Vijayashanthi 2.Minor.Dwaraka 3.Minor.Athirai 4.4.V.K.Mani 5.M.Valli 6.M.Vellaichamy 7.Radhika (Respondents 2 and 3 are represented by mother and guardian the 1st respondent) ... 1 to 7 respondents / Claimants 1 to 7 8.Karuppaiah 9.Alagusundaram ... 8 and 9 Respondents / Respondents 1 and 3 PRAYER :- This Civil Miscellaneous Appeal is filed under Section 173 Motor vehicles Act to set aside the order of the Motor Accidents Claims Tribunal cum Additional District Judge, Pudukottai, made in M.C.O.P.No.258 of 2013 dated 15.07.2020. For Appellant : Mr.E.Chandrasekaran For RR1 to 5 & 7 : Mr.K.C.Maniyarasu For RR6 & 8 : No appearance