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2018 DIGILAW 3669 (MAD)

NEW INDIA ASSURANCE CO LTD v. PERUMAL

2018-10-09

V.M.VELUMANI

body2018
JUDGMENT V M VELUMANI, J. 1. This Civil Miscellaneous Appeal has been filed against the Award dated 03.11.2011, passed in M.C.O.P.No.1446 of 2008, by the learned III Additional Subordinate Judge, Motor Accident Claims Tribunal, Tiruchirappalli. 2. In an accident, which occurred on 06.09.2007, at 2.30 p.m. one Balaji @ Thirumalai Kanna died, for which, the parents and unmarried sister of the deceased have claimed compensation of Rs. 15 Lakhs. 3. The appellant, the Insurer of the Tanker Lorry bearing Registration No.TN-49-Z-2592, filed counter disputing the manner of accident and also contended that the driver of the Tanker Lorry did not possess valid and effective driving licence at the time of accident and therefore, the appellant is not liable to pay compensation. 4. Considering the pleadings and both the oral and documentary evidence adduced on either side, the Tribunal fixed the negligence on the driver of the Tanker Lorry and directed the appellant, who is the insurer of the Tanker Lorry to pay compensation of Rs. 8,43,922/- with interest at 7.5% p.a. from the date of claim petition till the date of deposit. However, taking note of the fact that the driver of the Tanker Lorry did not possess valid and effective driving licence, the Tribunal directed the appellant Insurance Company to pay the compensation to the respondents 1 to 3/claimants at the first instance and thereafter, recover the same from the owner of the Tanker Lorry. 5. Aggrieved by the said Award, the appellant Insurance Company has filed this appeal. 6. The learned counsel appearing for the appellant submitted that though the appellant Insurance Company proved that the driver of the Tanker Lorry did not possess valid and effective driving licence at the time of accident by producing Ex.R2 - Notice issued to the driver of the Tanker Lorry to produce the driving licence and Ex.R3 - Acknowledgement Card, the Tribunal instead of exonerating the appellant Insurance Company, erroneously ordered pay and recovery. On the quantum of compensation, the learned counsel appearing for the appellant contended that the Tribunal ought to have adopted multiplier 11' instead of 17' and that fixation of monthly income of the deceased at Rs. 6,000/- is without any proof. 7. I have heard the learned counsel appearing for the parties and perused the materials available on record. 8. The accident and its manner are not in dispute. 6,000/- is without any proof. 7. I have heard the learned counsel appearing for the parties and perused the materials available on record. 8. The accident and its manner are not in dispute. The only question to be decided in this Civil Miscellaneous Appeal is, whether the Tribunal is correct in directing the appellant Insurance Company to pay the compensation to the respondents 1 to 3/claimants at the first instance with a further direction to recover the same from the owner of the Tanker Lorry. 9. With regard to the above question, the appellant Insurance Company contended that they sent notice in Ex.R.2 to the driver of the Tanker Lorry insured with them to produce the driving licence and the same has also been acknowledged and the Acknowledgement Card has been marked as Ex.R.3. The Tribunal observing that despite service of notice, the driver of the Tanker Lorry did not choose to produce the driving licence and he has also been charge-sheeted under Ex.P.10 in criminal proceedings, held that the driver of the Tanker Lorry is liable to pay compensation. 10. It is well settled that even if the Insurance Company is able to discharge their burden that the driver of the offending vehicle did not possess valid and effective driving licence at the time of accident, the only option available to the Insurer is to pay compensation to the claimants at the first instance and thereafter, to recover the same from the owner of the offending vehicle. Therefore, there is no error in the Award of the Tribunal in ordering pay and recovery. The appellant Insurance Company is entitled to recover the award amount as per the following mode of recovery incorporated in Oriental Insurance Co. Ltd., vs. Nanjappan and Others reported in, (2004) 13 SCC 224 . The relevant portion of the said judgment is extracted below: ''8.Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. For the purpose of recovering the same 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 owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount, which the insurer will pay to the claimants. 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 realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs.'' 11. On the quantum of compensation, the respondents 1 to 3/claimants have claimed that deceased was earning a sum of Rs. 11,000/- per month by working as a Sales Executive and driver of the Car in Ganesh Systems, Trichy and Car Owner Ponnesh Kanna. However, in the absence any proof, the Tribunal fixed the monthly income of the deceased at Rs. 6,000/-. Since the deceased was a bachelor at the time of accident, the Tribunal deducted 50% of his income towards personal expenses and applied 17 multiplier according to the age of the deceased as per the Schedule, awarded a sum of Rs. 6,12,000/- towards loss of income. Apart from the above, the Tribunal has awarded a sum of Rs. 10,000/- each towards loss of love and affection, Rs. 5,000/- towards transportation of corpse, Rs. 2,000/- towards Transportation and Rs. 1,94,922/- towards medical expenses duly supported by Exs.P.3 to P.5 Medical Bills. Altogether, the Tribunal has awarded a sum of Rs. 8,43,922/- with interest at 7.5% p.a. from the date of claim petition till the date of deposit. 12. 10,000/- each towards loss of love and affection, Rs. 5,000/- towards transportation of corpse, Rs. 2,000/- towards Transportation and Rs. 1,94,922/- towards medical expenses duly supported by Exs.P.3 to P.5 Medical Bills. Altogether, the Tribunal has awarded a sum of Rs. 8,43,922/- with interest at 7.5% p.a. from the date of claim petition till the date of deposit. 12. From the records, it is seen that the Tribunal has not granted any sum for future prospects. At the time of accident, the deceased was a Bachelor and aged 26 years. Had he been alive, he would have got better employment in enhancement of salary. The compensation awarded by the Tribunal for funeral expenses and transportation is also too meagre. Overall, the quantum of compensation of Rs. 8,43,922/- awarded to the parents, who brought up their son with lot of expectations, but lost him in unfortunate accident, cannot said to be excessive warranting interference by this Court. 13. The appellant Insurance Company is directed to deposit the entire award amount with accrued interest and costs to the credit of M.C.O.P.No.1446 of 2008 on the file of the III Additional Subordinate Court, Motor Accident Claims Tribunal, Tiruchirappalli, within a period of six weeks from the date of receipt of a copy of this judgment. After depositing the compensation amount, the appellant Insurance Company shall recover the award amount from the owner of the Tanker Lorry, as per the mode of recovery incorporated in Nanjappan's case [cited supra]. On such deposit being made, the respondents 1 to 3/claimants are permitted to withdraw their respective shares with proportionate interest and costs, less the amount already withdrawn, if any. 14. In the result, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.