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2025 DIGILAW 889 (MAD)

Malarkodi v. Susila

2025-02-10

S.SOUNTHAR

body2025
JUDGMENT : 1. CMA.No.2374 of 2021 and CMA.No.2375 of 2021 are filed by the Insurance company/2 nd second respondent in the claim petitions. CMA.No.2856 of 2021 and CMANo.2857 of 2021 are filed by the claimants seeking enhancement. 2. It is the case of the claimants that on 18.08.2016, the husband of the first claimant and the father of the second claimant in CMA.No.2856 of 2021, travelled in a two wheeler bearing registration No. TN 42 U 7094 as a pillion rider. The two wheeler was driven by one Palanivel, son of claimants in CMA.No.2857 of 2021. It is the case of the appellants that the rider of the two wheeler, Palanivel, drove the vehicle in a rash and negligent manner and lost his control. As a result of the same, both the driver and pillion rider fell down on the road. At this juncture, an unknown lorry came in the opposite direction ran over them and hence, both of them died instantly. Claiming that driver of the two wheeler was responsible for the accident, the claim petition was filed by the above mentioned claimants against the first respondent, owner of the two wheeler and the second respondent/ Insurance company. 3. The first respondent, owner of the two wheeler, remained ex-parte before the Tribunal. The second respondent, insurer of the two wheeler filed a counter affidavit and resisted the claim by denying various averments found in the claim petition. It was claimed by the second respondent that the accident had occurred due to the unknown vehicle. Therefore, the claim petition filed against the owner and the insurer of the two wheeler was not maintainable. The second respondent also denied the age and the income of the deceased person and sought for dismissal of the claim. 4. Before the Tribunal, the wife of the pillion rider was examined as PW1, the mother of the driver of the two wheeler was examined as PW2. An eyewitness was examined as PW3 and the co-worker of the pillion rider was examined as PW4. On behalf of the claimants, 19 documents were marked as Exhibit P1 to Exhibit P19. On behalf of the second respondent, the Investigation Officer, who conducted investigation of the criminal case was examined as RW1. The Branch Manager of the second respondent/the Insurance company was examined as RW2. On behalf of the claimants, 19 documents were marked as Exhibit P1 to Exhibit P19. On behalf of the second respondent, the Investigation Officer, who conducted investigation of the criminal case was examined as RW1. The Branch Manager of the second respondent/the Insurance company was examined as RW2. The final report filed by the police and the Insurance policy were marked as Exhibit R1 and Exhibit R2. 5. The Tribunal, based on the evidence available on record, came to the conclusion that the accident had occurred due to the rash and negligent driving of the driver of the two wheeler and hence, as an insurer, the second respondent was liable to pay compensation amount. The Tribunal awarded a sum of Rs.5,06,000/- as compensation to the parents of the driver of the two wheeler and Rs.13,30,000/- as compensation to the wife and child of the deceased pillion rider. 6. Questioning the liability, the Insurance company/2 nd Respondent has filed two appeals in CMA.Nos.2374 of 2021 and 2375 of 2021. Not satisfied with the quantum of compensation awarded by the Tribunal, the claimants in both the claim petitions have filed appeals in CMA.No.2856 and 2857 of 2021. 7. The learned counsel for the Insurance Company/ appellant in CMA.Nos.2374 and 2375 of 2021, vehemently contended that the accident was caused by an unknown lorry and therefore, the Tribunal committed a serious error in concluding that accident had occurred due to the negligence on the part of the driver of the two wheeler. The learned counsel submitted that the claim petition filed under Section 163-A of the Motor Vehicles Act by the parents of the driver of the vehicle is not maintainable when he himself was a Tortfeasor. He further submitted that the quantum of compensation awarded by the Tribunal was very much on higher side taking into consideration the date of the accident and the evidence available on record. 8. The learned counsel for the claimants/ appellants in CMA.Nos.2856 and 2857 of 2021 submitted that in petition filed under Section 163-A of Motor Vehicles Act, the claimants need not prove the negligence and therefore, the Tribunal was justified in awarding compensation. 8. The learned counsel for the claimants/ appellants in CMA.Nos.2856 and 2857 of 2021 submitted that in petition filed under Section 163-A of Motor Vehicles Act, the claimants need not prove the negligence and therefore, the Tribunal was justified in awarding compensation. He further submitted that the FIR as well as the charge sheet filed before the Tribunal clearly proved that accident occurred due to the negligence of the driver of the two wheeler and therefore, the Tribunal was perfectly justified in holding that the driver of the two wheeler was negligent and hence, the second respondent, as an insurer, is liable to pay compensation to the dependents of the pillion rider. In support of his contentions, the learned counsel for the claimants relied on the judgment of this court in the case of Divisional Manager, National Insurance Company Limited Vs. A. Kumaran and another, 2022 (2) TN MAC 408 for the proposition that in case of package policy, the insurer is liable to pay compensation to the occupants/ passenger of the vehicle. It is the submission of the learned counsel that the pillion rider shall be treated as a passenger of the two wheeler. Therefore, the second respondent, who issued package policy covering the two wheeler involved in the accident, is liable to pay compensation. 9. The Exhibit P1 is the FIR. A perusal of the same would suggest that the driver of the two wheeler lost control of the vehicle and as a result of which, both the driver and the pillion rider fell down on the road. It is further stated in the FIR that when both of them fell down on the road, a lorry that came in the opposite direction ran over the victims. 10. The Exhibit P4 is the final report filed by RW1. A close reading of the final report would also indicate that the accident had occurred due to the negligence on the part of the driver of the two wheeler. It is clearly mentioned in the final report that the driver of the two wheeler lost control of the vehicle and as a result of which, both the driver and the pillion rider fell down on the road. 11. The Investigation Officer was examined as RW1. It is clearly mentioned in the final report that the driver of the two wheeler lost control of the vehicle and as a result of which, both the driver and the pillion rider fell down on the road. 11. The Investigation Officer was examined as RW1. He also in his evidence clearly deposed that both the driver and the pillion rider of the two wheeler fell down on the road due to the negligent driving of the two wheeler by its driver. Therefore, it is clear that evidence of RW1 and exhibits P1 and P4 establish the proximate cause of the accident and the root cause for the accident is negligent driving of the driver of the two wheeler. Merely because the victims received crushed injury and died due to the unknown lorry, we cannot come to a conclusion that accident had happened due to the negligence on the part of the lorry driver. The said mishap would not have happened had the driver of the two wheeler driven his vehicle carefully. The lorry ran over the victims only because of the negligence on the part of the driver of the two wheeler. Since both of them fell on the path of the lorry, they were run over by the heavy vehicle. Taking into consideration the evidence available on record, the Tribunal rightly came to the conclusion that the accident had occurred due to the negligence on the part of the driver of the two wheeler. The said conclusion reached by the Tribunal is confirmed by this court. 12. This Court in Divisional Manager, National Insurance Company Limited Vs. A. Kumaran and another case cited supra by relying on the judgment of the Hon'ble Apex Court in Ram Khiladi and another Vs. United India Insurance Company Limited held that the principle of No Fault Liability, by its very meaning implies that the injury or the death of the claimant is a result of the involvement of a third party and not on account of the fault of the claimant. 13. In the case on hand, the evidence discussed above make it clear that the accident had occurred due to the negligence of the driver of the two wheeler namely Palanivel. Therefore, the Tribunal ought not have entertained the claim made by the dependents of the Tortfeasor himself. 13. In the case on hand, the evidence discussed above make it clear that the accident had occurred due to the negligence of the driver of the two wheeler namely Palanivel. Therefore, the Tribunal ought not have entertained the claim made by the dependents of the Tortfeasor himself. Therefore, the award passed by the Tribunal in favour of the claimants in MCOP.No. 26 of 2017 is not sustainable and accordingly, the award passed by the Tribunal in MCOP.No.26 of 2017 is set aside and the CMA.No 2374 of 2021 stands allowed. As a necessary consequence, the appeal filed by the claimants in MCOP.No 26 of 2017 in CMA.No. 2857 of 2021 stands dismissed. 14. This court already came to the conclusion that the accident had occurred due to the negligence on the part of the driver of the two wheeler. A perusal of the Exhibit P8, Insurance policy would indicate that second respondent issued a package policy in respect of the two wheeler involved in the accident. Therefore, as per the law laid down in Divisional Manager, National Insurance Company Limited Vs A. Kumaran and another cited supra, the occupant of the vehicle is covered. In the case on hand, the pillion rider is the occupant of the two wheeler and therefore, the Insurance company is liable to compensate the dependents of the deceased pillion rider. Accordingly, the MCOP.No.109 of 2017 filed by the dependents of the pillion rider needs to be allowed and the Tribunal rightly fixed the liability on the Insurance company and passed the award. 15. As far as the quantum of compensation awarded to the claimants of the pillion rider is concerned, the Tribunal fixed Rs.9000/- as the income of the deceased pillion rider. It is seen from the evidence available on record that he was aged about 45 years at the time of accident and working as JCB operator. Even assuming that there is no evidence available on record to prove the income of the deceased, if we follow the decision in the case of Andal and Others Vs. Avinav Kannan and another, MANU/TN/6368/2018 , the notional income applicable for the year 2015-2016 would be Rs.12,798/-. Taking into consideration the evidence available on record, this Court fixes Rs.13,000/- as the income for the deceased. He is entitled to 25% enhancement towards future prospects as per the law laid down in the Pranay Sethi case. Avinav Kannan and another, MANU/TN/6368/2018 , the notional income applicable for the year 2015-2016 would be Rs.12,798/-. Taking into consideration the evidence available on record, this Court fixes Rs.13,000/- as the income for the deceased. He is entitled to 25% enhancement towards future prospects as per the law laid down in the Pranay Sethi case. Considering the age of the deceased as 45 years, the applicable multiplier would be 14. Since there are two dependents, one-third of the amount shall be deducted towards the personal expenses of the deceased. Therefore, the claimant is entitled to Rs.18,20,000/- under the head 'loss of dependency' and the same is calculated as follows:- Rs.16,250 x 12 x 14 x 2/3= Rs.18,20,000/- 16. The Tribunal has not awarded any amount towards loss of love and affection to the 2 nd claimant/minor. The minor child of the deceased, namely the 2 nd claimant, is entitled to a sum of Rs.40,000/- towards loss of 'love and affection'. The 3 rd claimant mother of deceased is entitled to Rs.40,000/- towards parental consortium. In view of the same, the award passed by the Tribunal is enhanced and modified as follows:- S. No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed, enhanced or granted 1 Loss of dependency 12,60,000/- 18,20,000/- Enhanced 2 Funeral Expenses 15,000/- 15,000/- Confirmed 3 Loss of Consortium 40,000/- 40,000/- Confirmed 4 Loss of Estate 15,000/- 15,000/- Confirmed 5 Loss of love and affection Nil 40,000/- Granted 6 Parental Consortium Nil 40,000/- Granted Total 13,30,000/- 19,70,000/- Enhanced by Rs. 6,40,000/- 17. Accordingly, the CMA.No.2856 of 2021 filed by the dependents of the pillion rider stands Partly Allowed and the compensation awarded by the Tribunal at Rs.13,30,000 /- is hereby enhanced to Rs.19,40,000/- The Civil Miscellaneous Appeal filed by the Insurance company in CMA.No.2375 of 2021 stands dismissed. The appellants/claimants are entitled to interest at the rate of 7.5% per annum (excluding the default period, if any) from the date of filing of the claim petition till the date of realization. The 2 nd respondent/Insurance company is directed to deposit the enhanced sum along with interest and costs, less the amount already deposited, if any, within a period of four weeks from the date of receipt of copy of this judgment. 18. The 2 nd respondent/Insurance company is directed to deposit the enhanced sum along with interest and costs, less the amount already deposited, if any, within a period of four weeks from the date of receipt of copy of this judgment. 18. At this juncture, the learned counsel for the appellants/claimants in CMA.No. 2856 of 2021 would submit that the 2 nd claimant has attained majority. Therefore, the claimants may be permitted to withdraw the entire amount along with interest and costs, less the amount if any, already withdrawn on deposit of the enhanced sum by the Insurance company. The claimants are permitted to file an appropriate application before the Tribunal and withdraw the amount after satisfying the Tribunal about the attainment of the majority by the 2 nd claimant. The appellants/claimants are directed to pay the necessary Court Fee, if any, on the enhanced award amount. No costs.