IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2511 of 2003 Branch Manager National Insurance Co., Ltd., Kumbakonam .. Appellant/3rd Respondent Vs 1.Sumathi 2.Minor Babitha 3.Minor Santhosh 4.Minor Harita 5.Devaki 6.Tamil Nadu State Express Transport Corporation rep.by its Managing Director Pallavan Salai, Chennai 7.S.Pitchaivanniar .. Respondents/Petitioners (R2 to R4 rep.by their mother and 1 to 5 Respondents 1 & 2 next friend R1 R7 ex parte in Lower Court) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 21.04.2003, made in M.C.O.P.No.825 of 2001, on the file of the Motor Accident Claims Tribunal, Principal District Court, Nagapattinam. For appellant : Mr.N.Vijayaraghavan For respondents : Mr.D.Veerasekaran No Appearance for 6th Respondent J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Award and Decree, dated 21.04.2003, made in M.C.O.P.No.825 of 2001, on the file of the Motor Accident Claims Tribunal, Principal District Court, Nagapattinam, awarding a compensation of Rs.3,94,120/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. https://hcservices.ecourts.gov.in/hcservices/ 2.Aggrieved by the said Award and Decree, the appellant/respondent has filed the above appeal praying to set aside the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: The deceased Balakrishnan, aged about 35 years was employed as a driver of the second respondent's lorry and was working under the employment of the second respondent. On 03.08.2001, at about 03.45 a.m. in the morning, when the (deceased) Balakrishnan was driving the second respondent's lorry bearing registration No.TN51 Z9799 on the extreme left side of the Panrutti to Chennai road, from south to north and when the lorry was nearing Rajapalayam, the first respondent's bus coming in the opposite direction, on the same road, from north to south, bearing registration No.TN07 N9349 and driven by its driver in a rash and negligent manner and at high speed, dashed the front right portion of the bus against the front side of the lorry and caused the accident. Due to the said accident, both the vehicle drivers died on the spot. Many passengers in the bus also sustained injuries due to the above accident. The deceased Balakrishnan's body was taken to Panrutti Government Hospital, wherein post-mortem was conducted on the body of the deceased and handed over to the petitioners. 4.The deceased Balakrishnan was employed as a driver under the second respondent and was earning an income of Rs.6,000/- per month. Due to the sudden demise of the said Balakrishnan, the petitioners have lost their source of income. The first petitioner is the wife of the deceased, the second, third and fourth petitioners are the children of the deceased and the fifth petitioner is the mother of the deceased. 5.Hence, the petitioners have claimed a compensation of Rs.15,00,000/- together with interest and costs from the first respondent, the owner of the bus, the second respondent, the owner of the lorry and third respondent, the insurer of the lorry under Section 166 of the Motor Vehicles Act. 6.Regarding the said accident, a criminal case has been filed at Panrutti Police Station in Crime No.501 of 2001, as against the driver of the lorry, under Sections 279, 337 and 304(A) of I.P.C. 7.The first respondent, in his counter, has resisted the claim stating that the driver of the first respondent's bus bearing registration No.TN07 N9349, had started the trip at Bangalore and was proceeding towards Nagapattinam. When the bus was nearing Rajapalayam, the second respondent's lorry titled 'Pattammal' bearing registration No.TN51 Z9799 coming in the opposite direction and driven at a high speed and in a rash and negligent manner by its driver, had suddenly shifted to the right side of the road and dashed against the bus resulting in the death of the driver of the bus on the spot. Some passengers in the bus had also sustained severe injuries due to this collision. It has also been stated that a criminal case has been registered at the Panrutti Police Station in https://hcservices.ecourts.gov.in/hcservices/ Crime No.501 of 2001, as against the driver of the second respondent's lorry. It has been submitted that as the accident had been caused by the rash and negligent driving of the driver of the second respondent's lorry only the second and third respondents being the owner and insurer of the said lorry are liable to pay compensation to the petitioners. It was also submitted that as the claim is excessive, the petitioners should prove the averments in their claim regarding the age and income of the deceased. 8.The third respondent, in his counter, has resisted the claim stating that the details regarding the said accident had not been informed to them by the second respondent. The third respondent has also submitted that the second respondent's lorry had not been covered under a valid policy of insurance with them and that the driver of the second respondent's lorry did not have a valid driving licence at the time of accident. It was also submitted that the FIR has been registered at the Police Station only as against the driver of the first respondent's bus and that the FIR has not been registered as against the driver of the second respondent's lorry as alleged in the claim. Hence, the third respondent has submitted that they cannot be held liable to pay compensation to the petitioners. It has also been submitted that as the driver of the second respondent's lorry, died in the said road accident during the course of his duty and while he was under the employment of the second respondent, the petitioners are not entitled to claim third party compensation from them. It has also been submitted that as the claim is excessive, the petitioners should prove their averments in the claim regarding the age, income and occupation of the deceased through documentary evidence. 9.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident? (ii) Are the petitioners entitled to get compensation? If so, what is the quantum of compensation, which they are entitled to get? 10.On the petitioners' side two witnesses were examined as PW1 and PW2 and seven documents were marked as Exs.P1 to P7. On the respondents' side two witnesses were examined as Rw1 and RW2 and no documents were marked. 11.On scrutiny of the Ex.P1, the copy of the FIR, it is seen that the complaint regarding the said accident had been registered by the conductor of the first respondent's bus. It has been stated in the FIR that on 03.08.2001, at about 03.45 a.m. when the first respondent's bus bearing registration No.TN07 N9349 was proceeding of the Villupuram-Panrutti main road from north to south and when it was nearing Rajapalayam, the lorry titled 'Pattammal' bearing registration No.TN51 Z9799 coming in the opposite direction from Panrutti towards Chennai and driven at a high speed and in a rash and negligent manner by its driver had dashed against the right front portion of the bus and caused the accident. Due to this accident, https://hcservices.ecourts.gov.in/hcservices/ the driver of the bus sustained grievous injuries and died on the spot. The passengers in the bus had also sustained injuries. It has also been stated that the lorry driver had also been crushed to death. 12.The legal heirs of the deceased bus driver had filed a Motor Accident Claims Original Petition in M.C.O.P.No.161 of 2002 before the Tribunal and it is seen from the Judgment of the Tribunal given on 01.08.2002 that the driver of the lorry had been held guilty of causing the accident. As such, the Tribunal in the instant case, held that the accident had been caused by the fault of the driver of the second respondent's lorry. 13.It has been stated in the claim petition that the deceased Balakrishnan was aged about 35 years at the time of accident. On scrutiny of the Post-mortem Report, it is seen that the age of the deceased has been stated as 35 years. As such, the Tribunal held that the age of the deceased Balakrishnan was 35 years at the time of accident. It has been stated that the deceased Balakrishnan had been employed as a lorry driver and earning a sum of Rs.6,000/- per month. The driving licence of the deceased Balakrishnan has been marked as Ex.P6. The Tribunal, on considering that both the drivers of the vehicles involved in the said accident had died on the spot and further considering that the accident had been caused only due to the fault of the lorry driver held that the compensation could be paid only under the Workmen's Compensation Act. The Tribunal, on holding that the income of the deceased stated as Rs.6,000/- per month in the claim was excessive held that the notional income of the deceased Balakrishnan could be taken only as Rs.4,000/- per month as per the Workmen's Compensation Act. On considering that the respondents had also admitted that the deceased Balakrishnan was a lorry driver and hold that the monthly contribution of income by deceased is 50% of his salary and adopting a multiplier of 197.06 as per Workmen Compensation Rules, the Tribunal assessed the compensation payable to the petitioners as Rs.2,000/- X 197.06 = Rs.3,94,120/-. 14.It has been stated in Column No.16 of the claim petition that the second respondent's lorry had been covered under a valid policy of insurance with the third respondent. The third respondent has also not denied this claim. As such, the Tribunal held that the compensation to the petitioners should be paid by the second and third respondents. Accordingly, the Tribunal directed the second and third respondents to jointly or severally deposit the above said compensation, into the credit of the M.C.O.P.No.825 of 2001, on the file of the Motor Accident Claims Tribunal, Principal District Court, Nagapattinam, within a period of one month from the date of its Order. The Tribunal further apportioned a sum of Rs.1,04,120/- from and out of the award amount to the first petitioner and also apportioned a sum of Rs.80,000/- each, from and out of the award amount to the second, third and fourth petitioners and apportioned a sum of Rs.50,000/- to the fifth petitioner. 15.Further, after such deposit was made into Court, the apportioned share of award of the first and fifth petitioner was to be invested in a nationalised bank as fixed deposit, for a period of https://hcservices.ecourts.gov.in/hcservices/ three years and the first and fifth petitioners were permitted to withdraw interest on their deposit, once in three months, directly from the bank. 16.The apportioned share of the second, third and fourth minor petitioners were to be deposited in a nationalised bank, as fixed deposit, until such time, the minor petitioners attain the age of a major and the first petitioner being the mother and natural guardian of the minor petitioners was permitted to receive the interest on the minor petitioners deposit, once in three months for the education of welfare of the minor petitioners. The Advocate fees was fixed at Rs.10,000/-. The petitioners were directed to bear the cost of Rs.13,451/-. 17.Learned counsel appearing for the appellant has contended in his appeal that the lower Court had grossly erred in fastening liability on the insurer in a case, where the deceased happened to be the driver of the lorry, who was held to be at fault, for the occurrence of the accident. It has been pointed out that the lower Court ought to have seen that no such claim was sustainable before the Tribunal, since the claim cannot lie arising out of fault of the deceased himself. It has also been contended that the finding of the lower Court to grant an award as per provisions of the Workmen's Compensation Act, 1923, even in the absence of jurisdiction, is contrary to the decision of the Hon'ble Supreme Court reported in 2003(2) CTC 509. 18.As such, it has been contended that the other reasoning of the lower Court in fastening liability on the Insurance Company are unsustainable and liable to be interfered with in the interest of Justice. 19.In support of his contentions, the learned counsel appearing for the appellant has cited a case law in 2003(2) CTC 509, Supreme Court of India, Tamil Nadu State Transport Corporation v. Natarajan, the relevant head notes of which are as follows: "Motor Vehicles Act, 1939, Section 110-A – Motor Vehicles Act, 1988 – Section 166 – Claim for compensation – State Transport Corporation Bus collided with Private Bus coming from opposite direction – Driver of State Transport Corporation Bus suffered multiple fracture on his right leg which was amputated – Driver of State Transport Corporation Bus filed claim petition for compensation against private bus operator and Insurance company – Tribunal found that claimant was guilty of contributory negligence to the extent of 50% - Tribunal determined total amount of compensation as Rs.1,20,000 and since claimant was guilty of contributory negligence, compensation payable to him was determined as Rs.60,000 – Claimant filed appeal to High Court and sought enhancement of compensation – Learned Judge dismissed appeal – On Letters Patent Appeal https://hcservices.ecourts.gov.in/hcservices/ to Division Bench of High Court, Division Bench suo motu impleaded State Transport Corporation and enhanced compensation payable to Rs.2,90,800 – Division Bench of High Court held that compensation awarded shall be borne equally by insurer of private bus and State Transport Corporation – On appeal to Supreme Court it was held that there was no justification to implead suo motu the State Transport Corporation – Claimant himself being guilty of contributory negligence, Corporation as employer cannot be held vicariously liable – State Transport corporation was not at fault and accident was caused due to contributory negligence of claimant – No claim was made under Workmen Compensation Act – Claim is also not based on no fault liability – Claim petition was filed only against owner and insurer of private bus – Claimant has been offered compensate appointment on suitable alternative job – Claimant never desired to obtain compensation from employer – Division Bench of High Court committed serious error in apportioning liability and fastening 50% liability of compensation on State Transport Corporation – Order of Division Bench of High Court set aside – Compensation amount awarded was reduced by 50% to Rs.1,04,900 to be paid by insurer of private bus – Order directing payment of compensation by State Transport Corporation was set aside – Amount of compensation was directed to be paid by insurer of private bus with 9% interest from date of filing of claim petition." 20.Learned counsel appearing for the respondents argued that the compensation awarded by the Tribunal is fair and equitable. The Tribunal has only taken 50% of notional income fixed by it in computation of assessment of compensation, whereas normally in such cased, 60% of notional income is taken to assess the compensation payable. In support of their contentions, the learned counsel appearing for the respondents has cited a case law in 2004 ACJ 1790, High Court of Madras, Oriental Insurance Co., Ltd. V. Krishnan and others, the relevant head notes of which are as follows: "Motor Vehicles Act, 1988, section 140 and Workmen's Compensation Act, 1923, section 3 (1) – Motor insurance – Liability of insurance company – Death of driver in the course of his employment when he met with accident due to his own negligence while driving the vehicle – Insurance company disclaimed its liability on the ground that no liability is cast on owner of the vehicle when the driver is himself guilty of rashness and negligence and, therefore, insurance company is also not liable – Policy covers liability of the insured to his employee under Workmen's https://hcservices.ecourts.gov.in/hcservices/ Compensation Act – Whether insurance company is liable to no fault liability under section 140 of Motor Vehicles Act or liability as per compensation payable under Workmen's Compensation Act, whichever is higher, but not both – Held: yes. 21.Considring the facts and circumstances of the case, findings of the Tribunal and after hearing arguments advanced by the learned counsel appearing on either side, this Court is of the view that as the deceased's age was 35 years and that his notional income was Rs.4,000/- as fixed by the Tribunal and also considering that the claimants are 5 in number, including three minor female children, the award of Rs.3,94,120/- granted by the Tribunal as compensation is fair and equitable considering the facts and circumstances of the case. 22.Though the third respondent has claimed in their grounds of appeal that no liability can be fixed on them as the driver of the lorry is himself guilty of rashness and negligence, it is evidence that the policy covers liability of the insured to his employee under Workmen's Compensation Act. Even as per Section 3 of the Workmen's Compensation Act, the negligence of the workman, 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. 23.Having regard to this position, this Court deems it just to hold that the 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 the Workmen's Compensation Act, as the claimants are entitled to the higher of the two amounts, but not both. 22.This Court imposed a condition on 28.10.2003 on the appellant to deposit the entire compensation amount including interest into the credit of the M.C.O.P.No.825 of 2001, on the file of the Motor Accident Claims Tribunal, Principal District Court, Nagapattinam. Further, this Court permitted the major claimants to withdraw 50% of their respective share amount. 23.Now, this Court hereby permits all the major claimants to withdraw their apportioned balance share of award amount, lying in the credit of the M.C.O.P.No.825 of 2001, on the file of the Motor Accident Claims Tribunal, Principal District Court, Nagapattinam, after filing necessary payment out application, in accordance with law, subject to deduction of withdrawals made, if any, as per the order of this Court, made earlier. https://hcservices.ecourts.gov.in/hcservices/ 24.The first petitioner is permitted to withdraw the interest on the fourth claimant minor share amount, once in six months, till the minor fourth claimant becomes a major. As soon as the fourth claimant becomes a major, she is permitted to withdraw her apportioned share of award. 25.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree dated 21.04.2003, in M.C.O.P.No.825 of 2001, passed by the Motor Accident Claims Tribunal, Principal District Court, Nagapattinam, is confirmed. There shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. krk To 1. The Motor Accident Claims Tribunal, Principal District Court, Nagapattinam. 2. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.N.Vijayaraghavan, Advocate SR 21535 + 1 cc to Mr.D.Veerasekaran, Advocate SR 21478 + 1 cc to Mr.P.Jayadeeswaran, Advocate SR 21430 Order in C.M.A.No.2511 of 2003 GV (CO) RH (13.4.10) https://hcservices.ecourts.gov.in/hcservices/