Bajaj Allianz General Insurance Co. Ltd. v. K. Rajalakshmi
2014-10-07
S.VAIDYANATHAN
body2014
DigiLaw.ai
Judgment 1. The present appeal has been filed by the insurance company, challenging the award dated 03.02.2009 made in M.C.O.P.No.115 of 2006 on the file of the Motor Accidents Claims Tribunal, Sub Court, Udumalpet. 2. Respondents 1 to 4 are the claimants before the Tribunal. The first respondent is the wife of the deceased, second, third and fourth respondents are the children of the deceased. The fifth respondent is the owner of the vehicle involved in the accident and the sixth respondent is the driver of the vehicle. 3. It is the case of the claimants before the Tribunal that on 04.11.2004 at about 12.30 p.m., while the deceased R. Krishnasamy was riding his TVS Champ bearing registration No. TN 41 09339, from east to west direction on Udumalpet Palani Main Road, and when he was nearing the petrol bunk, a Bajaj Boxer Bike, bearing Registration No. TN-41 X 3859, belonging to the fifth respondent and driven by the sixth respondent and insured with the appellant insurance company, came in a rash and negligent manner from the opposite direction and dashed against the deceased, due to which, the deceased sustained multiple injuries all over the body. He was immediately taken to the Government hospital, Udumalpet, where he was given first aid. As the injuries were very fatal, he was directed to the Coimbatore Government Hospital for intensive treatment. However, he died on 05.11.2004. Hence, respondents 1 to 4 made a claim as against the insurance company and the fifth and the sixth respondents, claiming a sum of Rs.10,00,000/- as compensation. 4. The said claim was resisted by the insurance company contending that the rider of the Bajaj Boxer Bike bearing Registration No. TN-41 X 3859, insured with the insurance company, did not have valid driving licence to drive the vehicle and he has violated the terms and conditions of the policy. Therefore, the insurance company is not liable to pay the compensation amount. That apart, the insurance company has also taken a defence that the amount of Rs.10,00,000/-claimed by the claimants is extremely on the higher side and the same requires reduction. 5. In order to prove the claim, the first claimant, the wife of the deceased examined herself as P.W.1, besides examining one Rajasekaran as P.W.2 and Dhamodharan as P.W.3 and marked 12 documents as Exs.P.1 to P.12.
5. In order to prove the claim, the first claimant, the wife of the deceased examined herself as P.W.1, besides examining one Rajasekaran as P.W.2 and Dhamodharan as P.W.3 and marked 12 documents as Exs.P.1 to P.12. On the side of the insurance company, one Krishnakumar was examined as R.W.1 and 3 documents were marked as Exs.X.1 to X.3. 6. The Tribunal after analysing the entire evidence, both oral and documentary, has come to the conclusion that the accident was the result of rash and negligent driving of the rider of the vehicle bearing Registration No. TN-41 X 3859, insured with the insurance company and thus, fixed the liability on the part of the insurance company to pay the compensation amount. By coming to such a conclusion, the Tribunal has calculated the compensation on different heads and passed an award for a total sum of Rs.3,57,000/-. Aggrieved over the same, the present appeal has been filed. 2. The learned counsel for the appellant Insurance Company submitted that on two grounds, the award of the Tribunal is liable to be quashed. Firstly, the pay and recovery aspect has not been specifically ordered, and the Tribunal has shifted the responsibility on the appellant to pay and recover the compensation from the owner and driver of the vehicle, being the 5th and 6th respondents, in case the 5th respondent fails to prove that the 6th respondent herein possessed a valid licence on the date of the accident. Secondly, since the age of the deceased was 50 years at the time of accident, 11 multiplier ought to have been applied in view of the tabular statement at paragraph No.40 of the Judgment of the Hon'ble Apex Court reported in 2009(6) SCC 121 (Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and another), however, the Tribunal has taken 13 as multiplier for arriving at the compensation and hence, according to the learned counsel for the appellant, a sum of Rs.72,000/- awarded by the Tribunal is in excess. 3. With regard to the liability fixed on the appellant insurance company to pay the compensation amount, it is the contention of the learned counsel appearing for the appellant insurance company that at the time of accident, the rider of the vehicle bearing registration No.TN-41 X 3859, insured with the insurance company did not possess a valid driving licence.
3. With regard to the liability fixed on the appellant insurance company to pay the compensation amount, it is the contention of the learned counsel appearing for the appellant insurance company that at the time of accident, the rider of the vehicle bearing registration No.TN-41 X 3859, insured with the insurance company did not possess a valid driving licence. Therefore, there is violation of terms and conditions of the policy and hence, the insurance company is not liable to pay the compensation amount. 4. In reply, the learned counsel for respondents 1 to 4/claimants contended that the award of the Tribunal is very specific that the appellant can recover the amount from respondents 5 and 6 being the owner and driver of the vehicle and hence, there is no need for any clarification. However, he has stated that though it is true that the age of the deceased was 50 years on the date of the accident, as the Insurance Company has produced Exs.X1 and X2 before the Tribunal, the compensation awarded in the other two heads viz., for love and affection and consortium was very low. Hence, the learned counsel submitted that he would be satisfied if the award is confirmed and the amount of Rs.72,000/-which, according to the learned counsel for the Insurance Company is in excess in view of wrong multiplier adopted, is distributed in the other two heads stated supra. 5. Heard the learned counsel on either side and perused the materials available on record. The above contentions were made without prejudice to the contention that the Insurance Company is not at all liable for any amount payable to the legal representatives of the deceased. 6. As per the dictum laid down by the Hon'ble Apex Court in the case of S. Iyyapan vs. United India Insurance Co.Ltd, reported in (2013) 7 Supreme Court Cases 62, non-possession of the valid driving licence cannot be a ground for the insurance company to disown its liability to pay the compensation to third party. At the maximum, this Court can give liberty to the insurance company to recover the compensation amount from the owner of the vehicle after paying the same to the victim / claimants.
At the maximum, this Court can give liberty to the insurance company to recover the compensation amount from the owner of the vehicle after paying the same to the victim / claimants. Even in the present case, the Tribunal has given liberty to the appellant insurance company to recover the amount from the owner of the vehicle, insured with them and also from the driver if the owner fails to prove that the driver was not possessing a valid driving licence on the date of the accident. In view of the dictum laid down by the Hon'ble Apex Court in the decision cited supra, this Court is not inclined to set aside the finding of the Tribunal. 7. However, with regard to wrong adoption of multiplier, since the proper multiplier is 11 as per the Sarla Verma's case cited supra, by taking the income as 3000 and by applying 11 as multiplier, the claimants are entitled to a sum of Rs.,2,64,000/- as loss of income. 8. As far as award amount under the other heads "loss of love and affection" and "loss of consortium" are concerned, even though in Rajesh and Others Vs. Rajbir Singh and Others (2013(3) CTC 883), the Honourable Supreme Court has held that compensation to be awarded towards loss of consortium, must not be merely a token amount but must be substantial and in Para No.20, it is held as follows:- "20. ...... In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. ......... By Loss of Consortium, the Courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head.
Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the Courts award at least rupees one lakh for Loss of Consortium." since according to the learned counsel for the claimants that they would be satisfied with the amount of compensation granted by the Tribunal and the amount deducted under the heading "loss of income" may be distributed in the other two heads, taking note of the submissions of both parties, I am of the view that a sum of Rs.20,000/- each can be granted to the claimants under the heading loss of "love and affection" and a sum of Rs.33,000/-under the heading "loss of consortium". 9. In view of the above, the compensation awarded by the Tribunal is modified as follows:- Sl. No. Heads Amount(Rs.) 1 Loss of Income 3000 x 12 x11 x 2/3 2,64,000 2 Loss of Consortium 33,000 3 Loss of Love & Affection 3 x 20000 60,000 Total 3,57,000/- The appellant Insurance Company is directed to deposit the entire award amount less the amount already deposited before the Tribunal, within a period of four weeks from the date of receipt of a copy of this order together with interest at 7.5% p.a. The amount already lying in deposit shall be permitted to be withdrawn by the claimants, by filing proper application on production of a copy of this order. As far as the remaining amount which is going to be deposited by the Insurance Company within the time stipulated supra, the claimants shall file a separate application for withdrawal of the same. It is made clear that the claimants shall be permitted to withdraw their respective shares as apportioned by the Tribunal. 10. Since the award of the Tribunal with regard to pay and recovery is vague and the submission of the learned counsel for the Insurance Company is supported by the decision of the Hon'ble Apex Court in the case reported in 2004 (2) CTC 464 (SC) (Oriental Insurance Co. Ltd., vs. Shri Nanjappan and Others, wherein in paragraph No.7 it is held as follows:- "7.
Ltd., vs. Shri Nanjappan and Others, wherein in paragraph No.7 it is held as follows:- "7. For the purpose of recovering the compensation amount from the insured, the Insurer shall not be required to file a Suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the Insurer and the insured was the subject matter of determination before the Tribunal and as if the issue is decided against the owner and in favour of the Insurer. A notice shall be issued to the insured to furnish security for the entire amount. The offending vehicle shall be attached as a part of the security. If necessity arises, the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured/owner of the vehicle shall make payment to the Insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property of the insured". it is open to the Insurance Company to approach the appropriate forum or file an Execution Petition for recovering the compensation from respondents 5 and 6 who were parties before the Tribunal. In case, the 5th respondent is able to produce evidence to the effect that the 6th respondent driver was possessing licence on the date of accident, the forum before which the Insurance Company approaches can decide the matter afresh, as it is the duty of the 6th respondent to establish before the forum that he possess proper valid licence on the date of the accident. The Civil Miscellaneous Appeal is disposed of accordingly. No costs. Connected miscellaneous petition is closed.