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The United India Insurance Company Limited, through its Assistant Manager, Regional Office, Madurai and Others Vs. F. Rosammal and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.M.A (MD)No. 213 of 2005 & C.M.P(MD)No. 1351 of 2005 & Cross Objection(MD)NO. 31 of 2007
Judge
AppellantThe United India Insurance Company Limited, through its Assistant Manager, Regional Office, Madurai and Others
RespondentF. Rosammal and Others
Excerpt:
.....motor accident claims tribunal(principal subordinate judge), padmanabhapuram.) 1. the appellant/insurance company has preferred this appeal challenging the award passed by the tribunal m.c.o.p.no.57 of 1998, dated 02.08.2004 on the ground of liability and quantum. 2. the claimants 1 to 8 have filed cross-objection to modify the judgement and decree passed in m.c.o.p.no.57 of 1998, dated 02.08.2004, on the file of the motor accident claims tribunal(principal subordinate judge), padmanabhapuram. 3. according to the appellant that the respondents 1 to 8 are claimants-wife and children of deceased francis, who died in the motor accident that took place on 31.12.1997. the deceased is a contractor, aged about 54 years old. the first respondent is the wife, second respondent is the.....
Judgment:

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the order passed M.C.O.P.No.57 of 1998, dated 02.08.2004 on the file of the Motor Accident Claims Tribunal(Principal Subordinate Judge), Padmanabhapuram.

Cross Objection filed under Order 41 Rule 22 of Civil Procedure Code praying this Court to modify the judgement and decree passed in M.C.O.P.No.57 of 1998, dated 2.8.2004, on the file of the Motor Accident Claims Tribunal(Principal Subordinate Judge), Padmanabhapuram.)

1. The appellant/Insurance Company has preferred this appeal challenging the award passed by the Tribunal M.C.O.P.No.57 of 1998, dated 02.08.2004 on the ground of liability and quantum.

2. The claimants 1 to 8 have filed cross-objection to modify the judgement and decree passed in M.C.O.P.No.57 of 1998, dated 02.08.2004, on the file of the Motor Accident Claims Tribunal(Principal Subordinate Judge), Padmanabhapuram.

3. According to the appellant that the respondents 1 to 8 are claimants-wife and children of deceased Francis, who died in the motor accident that took place on 31.12.1997. The deceased is a contractor, aged about 54 years old. The first respondent is the wife, second respondent is the son(unemployed), respondents 3 and 4 are married daughters and respondents 6 to 8 are unmarried and there are six dependants. The respondents 1 to 8 filed a claim petition in M.C.O.P.No.57 of 1998 before the Motor Accident Claims Tribunal, Padmanabhapuram, claiming compensation of Rs.20,05,980/-.As per the claim petition, the deceased is a contractor earning a sum of Rs.40,000/- per year. The appellant is the third respondent in the claim petition, United India Insurance Company Limited. The first respondent in the claim petition, 9th respondent herein is the owner of the lorry bearing Registration No.TN 37-3705. The 10th respondent is the driver of Tahsildar, who drove the vehicle at the time of accident, who is the second respondent in the claim petition. Ex.P1 to P6 were marked to show that the accident had occurred due to negligence of the 10th respondent. Ex.P7 to Ex.P12 were marked out of which Ex.P12 is the letter written by the Executive Engineer to the effect that the deceased is a P.W.D Contractor.

4. After appreciating the oral and documentary evidence, the Tribunal has passed an award to the tune of Rs.1,72,000/- and joint liability was fastened on the appellant as well as the 11th respondent. According to the appellant that the Insurance Company is not liable to pay compensation amount. At the time of accident, the lorry bearing Registration No.TN 37-3705 was abandoned near the river bed of Kuzhithurai with illicit sand. The said vehicle was seized by the Tahsildar of Vilavancode Taluk, Kanyakumari District. The vehicle lorry was driven by the Government Jeep driver/second respondent in the claim petition as per the order of the Tahsildar concerned. The same Government Jeep driver has been ranked as 10th respondent in this appeal. When the vehicle was about to enter the office premises of Tahsildar-Vilavancode, which met with a fatal accident on 31.12.1997 and one Francis died in that accident, who is the husband of the first Respondent/Rosammal. The Insurer of the said vehicle is the appellant herein. The Collector has been ranked as 11th respondent in this appeal.

5. According to the learned counsel for the appellant/Insurance Company, the vehicle was driven by the driver of Tahsildar, Vilavancode. Therefore there is no employer-employee relationship. Moreover, the vehicle was under the custody of the department. Therefore the appellant/Insurance Company is not liable to pay any compensation to the claimants. It is an admitted fact that the policy was in force at the time of accident and in this case the insurer can very well discharge their liability, because the vehicle has clandestinely involved in the transport of illicit sand. Therefore no liability could be fastened on the appellant Insurance Company to pay compensation to the claimants. The learned counsel for the appellant also relied on a decision of the Honourable Apex Court in the case of National Insurance Company .vs. Deepadevi and others reported in (2008) 1 SCC 414, wherein, in para Nos. 10 and 19, in similar circumstances, the State Government was made liable to pay the amount of compensation to the claimants.

6. Per contra, the learned counsel for the claimants 1 to 8, wife and children of the deceased Francis who died in the road accident on 31.12.1997, submits that the contention of the learned counsel for the appellant/Insurance Company that the award amount is excessive and no liability can be fastened on them is not correct. The first respondent in the claim petition is the owner of the vehicle which is insured with the third respondent and that the policy is in force. The vehicle is driven by the second respondent in the claim petition, who is the driver of the Tahsildar, vilavancode and that the liability was denied due to the violation of Policy condition. The contention of the appellant/Insurance Company that the vehicle was driven by the driver of Tahsildar and that there is no employer-employee relationship between R9-owner of the vehicle and R10-driver who drove the vehicle. Further it is stated that there is a policy in force and the vehicle was insured with the appellant/Insurance Company by the owner of the vehicle and hence the appellant/Insurance Company is liable to pay compensation to the claimants. Further, it is submitted that the appellant/Insurance Company can pay the compensation at the first instance and then to recover the same from the concerned department. The dispute is between the appellant/Insurance Company and 11th respondent herein. For that, the claimants 1 to 8 should not be dragged on getting the claim amount. It is an admitted fact that the 9th respondent has insured the vehicle with the appellant/Insurance Company. There is also a policy for payment of compensation amount to the claimants. Therefore, the contention of the appellant/insurance company cannot be accepted by this Court. As far as the 11th respondent is concerned, they have contended that the 9th respondent's vehicle is insured with the appellant Insurance Company. Therefore as per the policy, they have to pay compensation amount to the claimants. Even though the said vehicle was in the custody of the department and driven by the driver of the department, once the policy is covered under the Insurance Company, the appellant/Insurance Company is liable to pay compensation to the claimants.

7. Heard the learned counsel appearing on either side and perused the material papers on record including the award of the Tribunal.

8. Now the main contention of the appellant is that whether the Appellant/ Insurance Company is liable to pay compensation to the claimants or the State Government is liable to pay compensation to the claimants?

9. Admittedly, the lorry bearing Registration No. TN 37 3705 belongs to the 9th respondent and was insured with the appellant/ Insurance Company. The above said vehicle is abandoned near the river bed of Kuzhithurai with illicit sand. The said vehicle was seized by the Tahsildar of Vilavancode Taluk, Kanyakumari District and the vehicle was driven by the Government Jeep driver/second respondent in M.C.O.P.No.57 of 1998, at the instruction of the Tahsildar, Vilavancode and at that time on 31.12.1997, the vehicle met with an accident and the deceased Francis died in the accident. Therefore the vehicle was driven by the driver, who worked in the Government Department. Therefore there is no employee-employer relationship, who is 9th respondent(owner of the vehicle).At that time the vehicle was under the custody of the Government Department. Therefore the liability is fastened against the department to pay compensation to the claimants. Admittedly, the policy was in force at the time of accident in this case. As per the policy, the claimants are entitled to get compensation against the appellant/Insurance Company. As per the decision reported in (2008) 1 SCC 414 cited supra, wherein it has been held that the State can be made liable to pay compensation to the claimants and relevant portion of Para 10 and 19 reads as under:

''10.........While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of the owner of the vehicle but he has to driver as per the direction of the Officer of the State, who is put in charge thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control thereover. He has no say as to whether the vehicle should be driven at a given point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. For the period the vehicle remains under the control of the State and/or its officers, the owner is only entitled to payment of compensation therefor in terms of the Act but he cannot (sic) exercise any control thereupon.........''.

19. We, therefore, are of the opinion that the State shall be liable to pay the amount of compensation to the claimants and not the registered owner of the vehicle and consequently the appellant herein.''

10. In the light of the decision of the Honourable Apex Court cited above, only the State Government is liable to pay compensation to the claimants. Admittedly, there is a policy with the appellant/Insurance company. The Tribunal has fastened joint liability against the Insurance Company as well as the State Government. Therefore liability can be fastened only against the State Government. Even though there is a policy for the said vehicle, the said vehicle is under the custody of the department. Hence the appellant Insurance company to pay compensation to the claimants at the first instance and then to recover the same from the State Government, in the light of the decision of the Honourable Apex Court in the case of Jawahar Singh .vs. Bala Jain and others reported in 2011 7 MLJ Page 833(SC), wherein, the Honourable Apex Court has held that the Insurance Company has to pay the compensation to the claimant/s at the first instance and then to recover the same from the owner of the vehicle.

11. As far as the liability is concerned, the Tribunal has fixed the income of the deceased as Rs.15,000/- per annum and adopted the multiplier '11' and after deducting one third income towards the personal expenses of the deceased, calculated the loss of income as Rs.15,000 x 11 x 1/3= Rs.1,10,000/- and also awarded a sum of Rs. 5,000/- towards loss of consortium and Rs.2,000/- towards funeral expenses and in total awarded a sum of Rs.1,17,000/- with interest at 9% p.a. from the date of claim petition till the date of deposit. Out of which, the first claimant/wife is entitled to Rs.19,000/- and the claimants 2 to 8 are entitled to get Rs.14,000/- each.

12. The aforesaid award amount has been modified to the tune that, for loss of income the claimants are entitled to a sum of Rs.1,65,000/-, loss of consortium Rs.10,000/-, funeral expenses Rs.2,000/- and for love affection for claimants 1 to 8, each Rs.5,000/-, a total sum of Rs.40,000/- and accordingly, the total award amount is enhanced to Rs.2,17,000/-. As far as the interest portion is concerned, the Tribunal has fixed the rate of interest at 9% p.a. and the said interest rate is modified to 7% p.a., which is the prevailing rate of interest, as of now.

13. Further the learned counsel for the claimants has relied on a judgement reported in (2011 7 MLJ 833(SC), for the proposition of Pay and recovery.

14. Considering the above reasonings, the appellant/Insurance Company is directed to pay a sum of Rs.2,17,000/- to the claimants as compensation, with interest at 7.5% p.a from the date of claim petition till the date of deposit and then to recover the same from the 11th respondent/State Government. The appellant/Insurance Company is directed to deposit the enhanced award amount as afore-stated, less the amount already deposited if any, within a period of six weeks from the date of receipt of a copy of this order. On such deposit being made, the claimants 1 to 8 are entitled to withdraw the same, as per the ratio of apportionment made by the Tribunal, by filing appropriate application before the Tribunal.

15. Accordingly, the Civil Miscellaneous Appeal is dismissed and the cross-objection is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.


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