Tata AIG General Insurance Company Ltd. v. N. Manjula @ Geetha
2020-07-29
ALOK ARADHE, E.S.INDIRESH
body2020
DigiLaw.ai
JUDGMENT : ALOK ARADHE, J. 1 In this appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) the appellant insurer has assailed the validity of the judgment dated 19.11.2015 passed by the Motor Accidents Claims Tribunal (hereinafter referred to as the Tribunal for short). 2. Facts giving rise to the filing of the appeal briefly stated are that on 14.09.2014, the deceased N. Janardhana was driving a motorcycle and proceeding from Madanapalle town towards Ramasamudram town along with his friend namely Raghunath @ Raghu. When they reached near Gajjalavaripalle cross on Ramasamudram Madanapalle road at about 5.30 p.m., an Eicher tempo bearing registration No.AP-12 W-0987 came from opposite direction which was being driven by its driver in a rash and negligent manner and dashed against the motorcycle. As a result of the aforesaid accident, the driver of the motorcycle as well as the pillion rider sustained grievous injuries. The deceased was immediately taken to a private hospital at Madanapalle. Thereafter, the deceased was shifted to Tirupathi and he succumbed to his injuries at 8 p.m. on that very day. 3. Thereupon, the claimants filed a petition under Section 166 of the Act inter-alia on the ground that the accident has taken place on account of the rash and negligent driving of the tempo driver. It was further pleaded that on the date of accident, deceased was aged about 40 years and was employed as submersible mechanic and was drawing a monthly salary of Rs.15,000/-. The claimants accordingly claimed compensation. Despite service of notice, the respondent No.1 did not enter appearance and was proceeded ex-parte. The respondent No.2 filed written statement and denied the averments made in the petition. The involvement of the tempo and rash and negligent act on the part of its driver was also denied. However, it was admitted that the vehicle in question was insured. It was also pleaded that the tempo was being plied without permit and in breach of the terms and conditions of the policy. Therefore, the respondent No.2 is not liable to indemnify the insured. 4. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined two witnesses namely N. Manjula and Dr.
Therefore, the respondent No.2 is not liable to indemnify the insured. 4. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined two witnesses namely N. Manjula and Dr. Raghunath as PW-1 and PW-2 and got exhibited documents namely Ex.P1 to Ex.P8. The respondents got examined one witness namely Mr. Raghu Martoor and got exhibited documents namely Ex.R1 to Ex.R6. The Claims Tribunal, by the impugned judgment, inter-alia, held that the accident took place on account of rash and negligent driving of the driver of the tempo, as a result of which, the deceased sustained grievous injuries and expired. The Tribunal further held that the claimants are entitled to a compensation of Rs.20,92,500/- along with interest at the rate of 9% p.a. from the date of petition till realization from respondent No.2. Being aggrieved, the appellant is in appeal before us. 5. Learned counsel for the appellant has urged that the accident took place on 14.09.2014. While inviting the attention of this Court to paragraphs 41 to 45 of the judgment of the Claims Tribunal, it is argued that the Claims Tribunal itself has recorded a finding that the permit was valid for a period from 05.11.2014 to 04.11.2019 that is for the period subsequent to the date of accident and therefore, as on the date of accident, there was no permit and in the absence of any permit on the date of the accident, the Insurance Company could not be held liable. However, the aforesaid aspect has not been appreciated by the Claims Tribunal. In support of the aforesaid submission, learned counsel for the appellant has placed reliance to the decision of the Supreme Court in the case of National Insurance Co. Ltd. vs. Challa Bharathamma and Others, (2004) ACJ 2094 and Pareed Pillai vs. Oriental Insurance Co. Ltd. (2019) ACJ 16 and has also invited the attention of this Court to Explanation 149 of the Act. It is also urged that the Claims Tribunal grossly erred in adding 50% on account of future prospects and it ought to have added 25% as the deceased was aged about 40 years.
Ltd. (2019) ACJ 16 and has also invited the attention of this Court to Explanation 149 of the Act. It is also urged that the Claims Tribunal grossly erred in adding 50% on account of future prospects and it ought to have added 25% as the deceased was aged about 40 years. It is also argued that 1/4th of the amount should have been deducted towards personal expenses instead of 1/6th and the amount awarded under other heads is on the higher side. 6. On the other hand, learned counsel for the claimants has supported the award passed by the Claims Tribunal. 7. We have considered the submissions made by the learned counsel for the parties and have perused the record. The Supreme Court in the case of National Insurance Co. Ltd. supra has held that in case the insured had not obtained the permit to ply the vehicle, the Insurance Company cannot be held liable to pay the amount. However, it has been held by the Supreme Court that in such a case, the Insurance Company can be directed to deposit the amount and to recover the same from the insured by initiating proceedings before the Executing Court. Similar view has been taken by the Supreme Court in the case of Amrit Paul Singh and Others vs. Tata AIG General Insurance Company Limited and Others, (2018) 7 SCC 558 . Similarly, a special bench of Kerala High Court has held that in the absence of a valid permit, the Insurance Company is entitled to recover the amount from the insured (See Pareed Pillai, supra). 8. In the backdrop of the aforesaid well settled legal position, the facts in hand may be seen. Admittedly, the accident took place on 14.09.2014. The permit in respect of the tempo in question was obtained for a subsequent period that is from 05.11.2014 to 04.11.2019 which is evident from Ex.P2. Thus, it is axiomatic that on the date of accident, there was no valid permit. Therefore, in view of the law laid down by the Supreme Court in the decisions referred to supra, the Insurance Company could not have been held liable to make payment of the amount of compensation.
Thus, it is axiomatic that on the date of accident, there was no valid permit. Therefore, in view of the law laid down by the Supreme Court in the decisions referred to supra, the Insurance Company could not have been held liable to make payment of the amount of compensation. Therefore, we set aside the finding recorded by the Claims Tribunal and direct the Insurance Company to deposit the amount in question before the Claims Tribunal with liberty to recover the same from the insured. 9. Now, we may deal with the question of quantum of compensation. Admittedly, on the date of accident, the deceased was aged about 40 years and was employed as submersible mechanic and was drawing a monthly salary of Rs.15,000/-. The claimants have not adduced any evidence with regard to the income of the deceased. Therefore, as per the chart prepared by the Karnataka State Legal Services Authority, the notional income of the deceased is assessed at Rs.7,500/- p.m. To the aforesaid amount, 25% has to be added on account of future prospects in view of the law laid down by the Supreme Court in National Insurance Company Limited vs. Pranay Sethi and Others, (2017) AIR SC 5157. Thus, the monthly income comes to Rs.9,375/-. Out of the aforesaid amount, 1/4th is required to be deducted on account of personal expenses and therefore, the monthly dependency comes to Rs.7,031/-. Taking into account the age of the deceased, the multiplier of 15 will have to be adopted. Therefore, the claimants are entitled to a sum of Rs.12,65,580/- on account of loss of dependency. In view of the law laid down by the Supreme Court in Magma General Insurance Co. Ltd. vs. Nanu Ram, (2018) ACJ 2782 which has been subsequently clarified by the Supreme Court in United India Insurance Co. Ltd. vs. Satinder Kaur and Others in Civil Appeal No. 2705/2020 Dated 30.06.2020, the widow as well as children and parents are entitled to Rs.40,000/- each as loss of consortium and loss of love and affection. Thus, the total amount of compensation under this head is assessed at Rs.2,40,000/-. In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are entitled to total compensation of Rs.15,35,580/-. 10. To the aforesaid extent, the award passed by the Claims Tribunal is modified. 11.
Thus, the total amount of compensation under this head is assessed at Rs.2,40,000/-. In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are entitled to total compensation of Rs.15,35,580/-. 10. To the aforesaid extent, the award passed by the Claims Tribunal is modified. 11. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. 12. The amount in deposit be transmitted to the Claims Tribunal. 13. In the result, the appeal is disposed of.