Dismissed

M/S. the New India Assurance v. Gandhi Pillai(Since Died)

Madras HC18 Sept 2013CMA/3717/2012

Case brief

AI extract

What is this about?

Insurance company appealed the compensation quantum awarded by the Motor Accidents Claims Tribunal. The court held the appeal maintainable pending a larger Bench decision on broader insurer rights. Rejecting the plea that adult siblings were not dependants due to the deceased being a bachelor, the appeal was dismissed.

What did the court decide?

Appeal dismissed; Tribunal award of Rs.7,17,000/- confirmed.

M/S. the New India Assurance Vs Gandhi Pillai(Since Died) — Motor Accident Claims | Madras HC (2013)

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HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 18.09.2013

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CORAM :

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THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI

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Civil Miscellaneous Appeal No.3717 of 2012

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and M.P.No.1 of 2012

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The New India Assurance Company Ltd No.149, Bharatiyar Road, Karaikal ...Appellant/2nd Respondent

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1.Gandhipillai (deceased) 2.Krishnaveni 3.Ratinagirivelan 4.Sathyabama 5.Minor.Kasiviswanathan (Rep.by her mother and guardian Krishnaveni) 6.M. Guruprakash 7.Ganesan ...Respondents/Petitioner/ Respondents 1 and 3

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Civil Miscellaneous Appeal filed under section 173 of the Motor Vehicles Act 1988 against the decree and judgment dated 21.12.2011 passed in MCOP No.2399 of 2007 by the Motor Accidents Claims Tribunal, (Principal District Judge), Cuddalore.

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For Appellant : Mr.Michael Visuvasam For R.2, 3 & 5 : Mr.U. Minnavadi JUDGMENT

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Civil Miscellaneous Appeal filed against the decree and judgment dated 21.12.2011 passed in MCOP No.2399 of 2007 by the Motor Accidents Claims Tribunal, (Principal District Judge), Cuddalore

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The Insurance Company is the appellant. The respondents 1 to 5 filed a claim petition before the Motor Accidents Claims Tribunal, (Principal District Judge), Cuddalore, claiming compensation for the

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https://hcservices.ecourts.gov.in/hcservices/

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death of one Venkatesan, aged 31 years, driver by profession. The respondents 1 and 2 are parents, 3 to 5 are brothers and a sister.

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According to the claimants, on 4.8.2007, the said Venkatesan was travelling in his motor cycle, bearing Registration No.TN-010J7501, and at that time, a lorry, owned by the 6^th respondent, insured with the appellant, bearing registration No.TN-35-Z-1042, dashed against Venkatesan. He sustained multiple injuries and died. The claim was made against the owner, insurer and the driver of the lorry. Owner and driver remained ex-parte.

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The Insurance Company took a plea that the alleged offending lorry was not involved in the accident and the deceased himself had contributed to the negligence and therefore, the owner and the Insurance company of the motorcycle ought to have been impleaded. It also took a plea of no driving licence for the driver of the insured vehicle and that the vehicle had no insurance.

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However, the Tribunal after enquiry found that the vehicle, insured with the appellant, was involved in the accident and the driver of the insured vehicle was negligent and there was valid insurance policy. It has also held that the driver of the insured vehicle was possessing valid driving licence.

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Based on those findings, the Tribunal fastened the liability on the Insurance company. Regarding the quantum, the Tribunal found both the parents and the siblings were dependent and the deceased was driver, earning a sum of Rs.6,000/-per month, and deducted ¼ towards personal expenses and applied multiplier 13 as the age of the mother of the deceased is fixed as 50 and arrived a sum of Rs.7,02,000/- as loss of income to the family and including award on the conventional heads, a total sum of Rs.7,17,000/- was awarded. Aggrieved by which, the Insurance Company is before this Court.

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The main ground taken in the appeal is regarding the quantum and as well as the dependency of the respondents 3 to 5 who are the siblings.

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Mr.J. Michael Visuvasan, the learned counsel for the appellant Insurance Company submitted that the income fixed by the Tribunal is not based on evidence and the adult siblings are not dependent on the deceased. He also pointed out that the Tribunal has awarded an exorbitant amount and it has to be reduced by half taking into consideration that the deceased was a bachelor who had left behind only the parents.

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Mr.Minnavadi, the learned counsel who appeared for the claimants, challenged the appeal on the ground that the appeal itself is not maintainable as the insured/owner has not preferred the claim, who is the aggrieved party. The learned counsel relied on

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https://hcservices.ecourts.gov.in/hcservices/

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various case laws on this aspect.

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Countering such argument, the learned counsel for the Insurance company relied on a judgment reported in 2011 ACJ 2729 (United India Insurance Co Ltd vs Shila Datta and Others), where a reference was made to a larger Bench on the following references

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“2. On the said reference made, the following questions arise for our consideration, in regard to the position of an insurer, under the Motor Vehicles Act, 1988 ('the Act' for short):

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(i) Whether the insurer can contest a motor accident claim on merits, in particular, in regard to the quantum, in addition to the grounds mentioned in section 149(2) of the Act for avoiding liability under the policy of insurance?

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(ii) Whether an insurer can prefer an appeal under section 173 of the Motor Vehicles Act, 1988, against an award of the Motor Accidents Claims Tribunal, questioning the quantum of compensation awarded?

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and the court had also considered the five points raised by the Insurance Company and ultimately held as follows:

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Conclusion

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We, accordingly, answer the points arising

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from the reference as under:

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(i) Points (i) and (ii) are held in favour of the insurers. The matters covered by points (i) and (ii) are to be placed before the respective Benches for consideration accordingly.

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(ii) Points (iii) to (v) which may come to conflict with Nicolletta Rohtagi, 2002 ACJ 1950 (SC), are referred to a larger Bench. We, accordingly, direct these matters (that is, cases where the insurer alone was the appellant before the High Court and where the insurer was only a noticee under section 149(2) and not an impleaded respondent in the claim petition), to be placed before the Hon'ble Chief Justice for constituting a larger Bench to consider the points (iii), (iv) and (v) raised by the insurers.

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The parties to file memos indicating whether their cases are covered by points (i) and (ii) or under points (iii) to (v) to enable the Registry to place the matters approximately.

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https://hcservices.ecourts.gov.in/hcservices/

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Therefore, the matter is pending decision by a larger Bench and till such time the insurer is entitled to maintain an appeal against quantum.

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As far as the quantum is concerned, the only grievance of the Insurance company is that the deceased, being a bachelor, the claimants 3 to 5 cannot be considered as dependants. It is admitted that pending appeal, the father/1^st claimant also died.

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There is no other material to show that the siblings are not dependants on the deceased and therefore, I am not inclined to interfere with the award, which is just and reasonable.

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In the result, the civil miscellaneous Appeal is dismissed and the award passed by the Motor Accidents Claims Tribunal, (Principal District Judge), Cuddalore in M.C.O.P.No.2399 of 2007 dated 21.12.2011 is confirmed. No costs. Consequently, connected MP is closed.

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Sd/
Deputy Registrar
/true copy/
Sub Asst.Registrar
sr
To
The Motor Accidents Claims Tribunal,
Principal District Judge, Cuddalore.
+1CC to M/s.U.Minnavadi, Advocate, SR 49418
+1CC to Mr.J.Michael Visuvasam, Advocate SR 49189
CMA No.3717 of 2012

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UG(CO) PSI 25/10/2013

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https://hcservices.ecourts.gov.in/hcservices/

M/S. the New India Assurance v. Gandhi Pillai(Since Died)

Case brief

What is this about?

What did the court decide?

M/S. the New India Assurance v. Gandhi Pillai(Since Died)

Case brief

What is this about?

What did the court decide?

What the court decided

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