IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.01.2011 CORAM: THE HON'BLE MR.JUSTICE B.RAJENDRAN C.M.A. No. 2896 of 2007 United India Insurance Co Ltd., Divisional Office No.2, Dr. Sankaran Road Namakkal ... Appellant/2nd Respondent Versus 1. Poongodi 2. Minor. Ganapathi 3. Minor. Vigneswaran (Minors 2 and 3 are represented by their mother and next Friend first respondent) 4. Sellappa Gounder 5. Kaliammal 6. K. Samiappan (6th respondent was set exparte before the court below and therefore issuance of notice was dispensed with to him) ... Respondents /Petitioners 1 to 5 and 1st Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree in MCOP No. 244 of 2004 dated 11.01.2007 on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.3, Namakkal. For Petitioner : Mr. M.B. Gopalan For Respondents : Mr. Ma. P. Thangavel for RR1 to 5 JUDGMENT The insurance company has come forward with this appeal questioning the quantum of compensation awarded by the court below at Rs.3,95,000/- in favour of the claimants/respondents 1 to 5 herein for the death of the deceased Manokaran as against the claim of Rs.10,00,000/- made in the claim petition. 2. The facts which led to the filing of the claim petition was that on 17.01.2004 at about 10.30 hours, at Sandamangalam Main Road, in a well opposite to Sellappa Colony diversion road, the deceased was driving a Tourist Taxi vehicle bearing Registration No. TN-28-K-3334, which was owned by the first respondent/sixth https://hcservices.ecourts.gov.in/hcservices/ respondent in this appeal. According to the claimants, even though the deceased drove the vehicle carefully, in order to avoid dashing against a cyclist, the deceased turned the vehicle to the further left side of the road and lost control, in the result, he plunged into the well along with the vehicle and he died on the spot. At the time of the accident, the deceased was aged 42 years, working as a Driver under the sixth respondent herein and earning Rs.5,000/- per month as salary apart from Rs.100/- per day as batta. Therefore, for the death of the deceased, the claimants have claimed compensation of Rs.10,00,000/-. 3. The learned counsel for the appellant/insurance company resisted the claim of the claimants by contending that since the deceased drove the vehicle in a rash and negligent manner, during the course of discharge of his work under the first respondent/sixth respondent herein, the claim petition before the court below is not maintainable and if at all, as per the decision of the Division Bench of this Court reported in (New India Assurance Co., Ltd. vs. Geeta Sinha and others) 2004 ACJ 190, the claimants ought to have invoked the provisions of the Workmen Compensation Act and filed the claim petition before the Commissioner of Labour. 4. The learned counsel for the claimants/respondents 1 to 5 herein would contend that the deceased was a paid employee under the sixth respondent herein. The vehicle was insured with the appellant insurance company. The accident had occurred due to the sudden darting of a cyclist and in order to avoid the cyclist from being hit, the deceased attempted to take a left turn and in that process, the vehicle was plunged into the open well. Therefore, it is clear that the accident had occurred only when the deceased attempted to take a left turn of the vehicle to avoid hitting the cyclist. Under those circumstance, the deceased being a paid employee under the sixth respondent, the claimants are entitled to get compensation from the insurance company for the death of the deceased. Merely because the claimants have approached the Tribunal by filing Claim Petition invoking the Motor Vehicles Act, it will not disentitle them from getting compensation from the insurance company. Therefore, under law, the claimants, who are the legal heirs of the deceased Manokaran are entitled to get compensation from the insurance company. 5. Heard both sides. The short point for consideration in this appeal is whether the insurance company is liable for payment of compensation for the death of the deceased, during the course of his employment as a Driver, a paid employee under the sixth respondent herein, before the Tribunal. 6. The insurance company has admitted the date, time and manner in which the accident took place, but only disputes the liability to pay the compensation amount on the ground that for the death of the deceased, the claimants have chosen a wrong forum seeking compensation. The appellant would contend that the deceased, being a paid employee under the sixth respondent and the accident had taken place during the course of employment of the deceased with the sixth respondent, the only recourse open to the https://hcservices.ecourts.gov.in/hcservices/ appellants was to file the claim petition before the Commissioner of Labour by invoking the provisions of the Workmen compensation Act and not before the Motor Accidents Claims Tribunal. However, the learned counsel for the appellant fairly submitted that the vehicle was insured with the insurance company and the risk coverage covers the driver of the vehicle as well. 7. The learned counsel for the insurance company relied on the decision of the Division Bench of this Court reported in (Oriental Insurance Co. Ltd., vs. Krishnan and others) 2004 ACJ 1790 wherein in para Nos. 5 and 6, it was held as follows:- "5. Counsel also invited our attention to a judgment of this Court in the case of Oriental Insurance Co. Ltd. vs.Kaliya Pillai, 2003 ACJ 1021 (Madras), where this Court took the view that even the liability under the Workmen's Compensation Act, 1923 may be determined by this Court having regard to the extent of the coverage under the policy after it was found that the claim made before the Tribunal under the Motor Vehicles Act is not maintainable. The insurer appellant does not dispute the fact that the policy covers the liability of the insured to his employee under Workmen's Compensation Act. Under Section 3 of the Act, negligence of the Workmen who dies in an accident arising out of and in the course of his employment does not absolve the employer of the obligation to pay compensation in accordance with the provisions of that Act. 6. Having regard to this position, we deem it just to hold that insurer is liable to pay compensation payable in accordance with the provisions of Workmen's Compensation Act, 1923. If the amount of such compensation is higher than the amount of 'no fault liability' under Section 140 of the Motor Vehicles Act, the insurer will not be liable to make the payment under Section 140 (5) of the Motor Vehicles Act. If the amount of no fault liability is higher, then no amount need be paid under Workmen's Compensation Act, as the claimant is entitled to the higher of the two amounts, but not both. The order under appeal which directs payment of Rs.2,00,000/- to the parents of the deceased on the reasoning that though the negligent employee could not have claimed compensation, nevertheless, his parents, can, is set aside. 8. Relying on the above said judgment of the Division Bench of this Court, the learned counsel for the appellant mainly contended that emphasis was placed on the vehicle and it's involvement in the accident and not on the negligence in the use of the vehicle. https://hcservices.ecourts.gov.in/hcservices/ 9. It is seen from the decision of the Division Bench of this Court cited supra that compensation, as determined under the Workmen Compensation Act, can be decided and granted by the Tribunal and therefore, the Tribunal is entitled to entertain the claim petition filed by the claimants. Moreover, the insurance company also admits the accident and further admits that the deceased being a paid employee, the claimants are entitled for compensation under the Workmen compensation Act. 10. In this back ground, if we apply the ratio laid down by the Division Bench of this Court, it has to be seen what would be the compensation which the claimants are entitled to as per Workmen Compensation Act for the death of the deceased. The deceased was aged 42 years at the time of accident and he was admittedly earning Rs.3,000/- per month as salary and Rs.100/- per day as batta. Under the Workmen Compensation Act, the minimum wages payable to a driver would be Rs.4,000/-. Applying the factor for 42 years of age, the compensation amount can be determined at 178.49 X 4000 X 50 / 100 = Rs.3,56,980/-. The court below granted Rs.3,95,000/-. Following the decision of the Division Bench of this Court and taking into consideration that the policy covers the driver, who died in the course of his employment, the award passed by the Tribunal is modified and fixed at Rs.3,56,980/-. 11. As far as interest is concerned, following the decision of the Honourable Supreme Court reported in (Kerala State Electricity Board vs. Valsala) 2000 ACJ 5 (SC) and the decision of Division Bench of this Court reported in (N. Ganesan vs. Thilagavathi and others) 2010 2 TNMAC 80 (DB), I hold that the interest for compensation would accrue 30 days after the date of accident, which interest is fixed at 12% per annum. 12. In the result, the appeal filed by the Insurance Company is partly allowed reducing the quantum of compensation payable to the claimants/ respondents 1 to 5 herein at Rs.3,56,980/- along with accrued interest at the rate of 12% per annum and such interest amount will accrue after one month from the date of accident. No costs. 13. It is represented that the insurance company had deposited the entire compensation amount as per the award passed by the court below. In view of the determination of the award amount by this Court with enhanced interest rate, the difference amount, if any, shall be deposited by the insurance company within a period of six weeks from the date of receipt of a copy of this judgment and on such deposit, the claimants are permitted to withdraw the amount. rsh Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accidents Claims Tribunal Fast Track Court No.3 Namakkal + 1 cc to M/s. Ma.P. Thangavel, Advocate SR No.3012 + 1 cc to Mr. M.B. Gopalan, Advocate SR No.3333 KSK(CO) SR/28.2.2011 CMA No. 2896 of 2007 https://hcservices.ecourts.gov.in/hcservices/