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2022 DIGILAW 1061 (MAD)

New India Assurance Co. Ltd. v. V. Harikrishnan

2022-04-29

K.KALYANASUNDARAM, V.SIVAGNANAM

body2022
JUDGMENT : V.SIVAGNANAM, J. PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act 1988 to set aside the Judgment and Decree in MCOP No.6609 of 2013 dated 11.04.2019 on the file of the Motor Accident Claims Tribunal (II Judge, Court of Small Causes) at Chennai. The appeal is directed against the award and Decree passed in MCOP No.6609 of 2013 dated 11.04.2019 by the Motor Accident Claims Tribunal (II Judge, Court of Small Causes) at Chennai. 2. Facts necessary for disposal of the appeal are narrated herein under:- The appellant is the insurer of the second respondent/Sanco Trans Ltd. The claimant/Harikrishnan was an employee of the Sudarsan Logistics Private Limited and working at Chennai Port Trust, CIPL Plot as 'Gate Checker'. On 16.03.2013, at about 10.15 hours, when he was checking container lorry, a Crane bearing Reg.No.TN-01-0001, driven by its driver came on the reverse direction in a rash and negligent manner and dashed against him. In the impact, he sustained crush injuries. Immediately, he was admitted at Government Stanley Hospital, Chennai. In consequence of the injuries, his right leg and right hand were amputated. The Government Institute of Medicine issue disability certificate stating that he sustained 90% disability. Hence, the claimant filed the claim petition before the Tribunal claiming compensation of Rs.2,34,00,000/-. 3. The claim petition was resisted by the appellant by filing a counter disputing the manner of accident, age, income and avocation of the claimant and nature of injuries sustained by him. 4. Before the Tribunal, the claimant examined four witnesses and filed 26 documents as Exs.P.1 to P.26 On the side of the appellant/Insurance Company, one Stephen was examined as R.W.1 and Exs.R.1 to R.5 were marked. 5. The Tribunal, after considering the oral and documentary evidence, held that the driver of the first respondent was responsible for the accident and awarded compensation of Rs.45,60,000/- under the following heads:- S.No. Heads Amounts (Rs.) 1 Loss of earning (8500+3400(40%)x12x17x90/100) 21,84,840/- 2 Medical Expenses 2,25,000/- 3 Pain and Suffering 3,00,000/- 4 Future Medical Expenses 2,00,000/- 5 Loss of amenities 2,00,000/- 6 Transportation 25,000/- 7 Extra Nourishment 25,000/- 8 Loss of life Expectancy 3,00,000/- 9 Loss of Marital Life 3,00,000/- 10 For Artificial Limb 8,00,000/- Total 45,59,840/- Rounded off 45,60,000/- Aggrieved by this award, the appellant/Insurance Company filed this appeal challenging the quantum and liability. 6. 6. The learned counsel appearing for the appellant Mr.M.Krishanmoorthy submitted that since the claimant is an employee under Employees' State Insurance Act, he took treatment at ESI Hospital and availed medical reimbursement and also received monthly compensation under E.S.T Act. In view of the Section 53 of the E.S.I Act, he is barred to claim compensation before the Motor Accident Claims Tribunal and the appellant insurance company need not pay any compensation. He further submitted that the Tribunal failed to frame any specific issue in this regard and the Tribunal has not considered the objection raised by the appellant/Insurance Company with regard to bar under Section 53 of the Employees' State Insurance Act. He further submitted that the owner of the Crane/first respondent had committed breach of policy condition by allowing a person who has not possessed valid driving licence to operate his insured Crane. He further submitted that the Tribunal erred in awarding excess amount of Rs.40,60,000/- as compensation for the injuries sustained by the claimant without any supporting evidence. 7. In support of his arguments, the learned counsel placed the following decisions:- (i) National Insurance Co. Ltd. vs. Mastan and another [2005(2) TN MAC (SC) 264]. (ii) Oriental Insurance Co. Ltd. vs. Dyamavva and other [2013(1) TN MAC 161 (SC)]. 8. The learned counsel appearing for the claimant Mr.K.Suryanarayan supported the award of the Tribunal. He contended that the provision of Sections 53 to 61 of the Employees' State Insurance Act contained bar an action by an injured employee under tort for compensation against the third party. Section 53 of the Act construed in such way to prevent the employee from bringing about an action in tort/MCOP Act. The learned counsel appearing for the claimant submitted that Section 53 of the Act did not totally prevent from claiming or receiving or recovering any compensation on damages under any other law against third person. The general law of tort or special law in Motor Vehicles Act and Workmen Compensation Act provided remedy for damages the coverage of insurance under the Employees State Insurance Act. The Insurance Coverage under the Employees Insurance Scheme gives the benefits only to the insured person and their dependence. Further, the insurance coverage is only to the person who sustained injury during employment as defined by Section 2(8) of the Act. The Insurance Coverage under the Employees Insurance Scheme gives the benefits only to the insured person and their dependence. Further, the insurance coverage is only to the person who sustained injury during employment as defined by Section 2(8) of the Act. In support of his argument, the learned counsel relied on the following decisions:- (i) New India Assurance Co. Ltd; Smt. Bid Ami and others vs. Smt. Bidami Devi and others; Bhimsen and others [2010(1) TN MAC 645 (Raj)] (ii) New India Assurance Co. Ltd. vs. S.Govindaraj [2012(2) TN MAC 245 (Mad)] (iii) The Branch Manager, Tata AIG General Insurance Co. Ltd., vs. Jothilakshmi and others (CMA No.2926 of 2018 dated 27.02.2020) (iv) United India Insurance Co. Ltd., vs. Vipin Kumar and others [CM Nos.3607/2015, 26690/2019 in MAC.APP.207/2015 dated 31.07.2019 (High Court, Delhi) (v) Divisional Manager, New India Assurance Co. Ltd., vs. Astalingam; Valli; and others [2018(2) TN MAC 517 (Mad)]. 9. We have considered the rival submissions of both the parties and perused the materials available on record. 10. It is seen from the records that the claimant was a contract labourer worked under UNISPEC Service Private Limited. He was paid Rs.8,500/- per month, which is proved by Ex.P.12-Salary Certificate. In the accident, the claimant sustained 90% disability, which is proved by Ex.P.15-Disability Certificate. The accident is not disputed. Hence, the Tribunal rightly fixed the negligence upon the driver of the Crane. The contention of the learned counsel for the appellant that the driver of the crane did not possess valid driving licence, is not established before the Tribunal. Hence, the Tribunal rightly rejected the contention in this regard. We confirm the finding of the Tribunal on this aspect. 11. Further, as per Section 53 of the Employees' State Insurance Act, an insured person or his dependents is not be entitled to receive or recover whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923. In the case on hand, the claimant was not an employee of the first respondent Company and he has not claimed any amount from his employer. Since the claimant was not covered under the Employees' State Insurance Act, the said Act is not applicable. In this case, there is no evidence that the claimant employed at UNISPEC Private Limited was an insured person under the Employees' State Insurance Act. Since the claimant was not covered under the Employees' State Insurance Act, the said Act is not applicable. In this case, there is no evidence that the claimant employed at UNISPEC Private Limited was an insured person under the Employees' State Insurance Act. In the absence of any evidence to show that the claimant is an insured person under the said Act, the Bar under Section 53 of the said Act cannot be applied. 12. Further, P.W.4-Thiyagarajan, who is the Manager of the claimant's Company, deposed that the claimant was a contract labourer and his monthly salary was Rs.8,500/-. After the accident, the claimant did not work in their company. He did not depose anything about the insurance of the claimant under the Employees' State Insurance Act. From his evidence, it is seen that the claimant was not insured person and he was not paid any amount from his employer. In the absence of any evidence, it is not possible to hold that the claimant was covered under the Employees' State Insurance Act. Hence, the Bar under Section 53 of the Act cannot be invoked against the claimant before Tribunal. Hence, we find no force in the argument of the learned counsel for the appellant. 13. Insofar as the quantum is concerned, we are of the view that the Tribunal rightly fixed the monthly income of the injured as per the Salary Certificate (Ex.P.12). We find no error in fixing the monthly salary of the claimant. The amount awarded under the remaining heads is also just, fair and reasonable and hence, they are confirmed. The rate of interest fixed by the Tribunal as 7.5% per annum is unaltered. 14. The decisions relied on by both the parties with regard to Section 53 of the Employees' State Insurance Act are not helpful in this case since the claimant is not an insured person under the said Act. 15. In such view of the matter, this Civil Miscellaneous Appeal is dismissed and the award passed in MCOP No.6609 of 2013 dated 11.04.2019 by the Motor Accident Claims Tribunal (II Judge, Court of Small Causes) Chennai is confirmed. The appellant/Insurance Company is directed to deposit the award amount with accrued interest and costs, less the amount already deposited, if any, within a period of eight weeks from the date of receipt of a copy of this Judgment. The appellant/Insurance Company is directed to deposit the award amount with accrued interest and costs, less the amount already deposited, if any, within a period of eight weeks from the date of receipt of a copy of this Judgment. On such deposit, the claimant is permitted to withdraw the amount, less the amount already withdrawn, if any, together with interest and costs. No costs. Consequently, connected miscellaneous petition is closed.