Recent judgments regarding motor accidents claims cases

 

                  Recent Judgments regarding motor accidents claims cases

 

Table of Contents

 

S/n	Cause Title	Citation	Date of Judgment	Short Notes	Page No.
1	Anita Sharma & Others Vs. The New India Assurance Company Limited & Another	2020 (4) TLNJ 581 (Civil)	08.12.2020	Evidence Act – Standard of Proof in Motor Accident Claim cases:- Strict Principles of evidence and Standard of Proof are inapplicable in Motor Accident Claim cases. The Standard of Proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt.	8
2	Kirti & Others Vs. Oriental Insurance Company Limited	CDJ 2021 SC 008	05.01.2021	Motor Accident Compensation:- The death of a dependant of the deceased victim, during the pendency of legal proceedings, ought not to be a reason for reduction of Motor Accident Compensation.	8
3	Kirti and Another Vs. Oriental Insurance Company Ltd	(2021) 1 MLJ 254 (SC)	05.01.2021	Notional Income for Housewife	8
4	New India Assurance Co. Ltd. Vs. Srinivasan and Others	2021 (1) TN MAC 73	18.11.2020	Motor Vehicles Act, 1988, Section 2(34):- If the public had access to the Agricultural Land, the said	9

				Agricultural Land is a public place within the definition of Section 2 (34) of the Motor Vehicles Act, 1988.
				Motor Vehicles
				Act, 1988,
				Sections 168 and
5	Managing Director, Tamil Nadu State Transport Corporation Vs. Ponnusami	2021 (1) TN MAC 32 (DB)	13.01.2020	173:- If the victim got alternative employment for the same salary without discontinuity of service, the compensation for loss of income	9
				cannot be
				calculated by
				applying
				multiplier method.
				Motor Accident
6	G. Prakasam (Died) & Others Vs. G. Ramesh & Others	2020(2) TN MAC 597	10.09.2020	Claims - Non- possession of valid Driving License – Whether the Tribunal can exonerate Insurer	10
				from its liability
				completely ?
				Motor Accident
7	S. Santhiya Vs. T. Shanmugam & Others	2020(2) TN MAC 572(DB)	25.09.2020	ClaimsAssessment of loss of income of the deceased who is aged 27 years and running	10
				a Construction
				Company.
				Motor Accident
8	Pradeepkumar @ SaravananVs. P.Subbu& Others	2020(2) TN MAC 578(DB)	25.09.2020	Claims- The Appellant suffered erectile dysfunction which resulted in loss of marital bliss.	11
				Whether the
				claimant is

				entitled for award towards loss of amenities and loss of marital life?
				Motor Vehicles
				Act, 1988, (59 Of
				1988) Section
				163a - Deceased
	The Branch			driving
	Manager, The			Motorcycle owned
	Oriental			by his wife –
9	Insurance Company Ltd.,	2020(2) TN MAC 637	12.10.2020	Accident due to negligence of deceased himself	11
	Kumbakonam			and no vehicle
	Vs. G.Santhi			involved –
	& Others			Whether the
				Claimant is
				entitled to
				Compensation
				under Section
				163-A?
				Motor Vehicles
	M/s Reliance			Act, 1988, Section
	General			173. Driver
	Insurance			doesn’t hold valid
10	Company Ltd., Salem	2021 (1) TLNJ 41	03.03.2020	driving license at the time of	12
	District Vs.			accident. Whether
	Devi &			the Insurance
	Others			company liable to
				pay compensation
				to the claimant?
				Tamil Nadu Motor
				Vehicles Rules,
				1989, Rule 236:-
11	Branch Manager, Reliance General Insurance Co. Ltd., Pondicherry Vs Elumalai and others	2021 (1) TN MAC 492	08.02.2021	As per Rule 236 of Tamil Nadu Motor Vehicles Rules, 6 persons are permitted to travel in the back side of the goods vehicle along with goods. Deceased and injured	12
				travelled in the
				back side of the
				goods vehicle as
				coolies along with

				bricks to unload the same. Hence, Insurance Company is liable to pay compensation to the injured and the Legal Heirs of the deceased.
				Motor Vehicles
				Act, 1988, Section
				166 – Practice and
				Procedure:- If two
	T.Maheswari			claims arise out of
	and others Vs	2021 (1) TN MAC		the same accident,
12	C.Venkatesan	535 (DB)	16.10.2020	both the claim	13
	and another			petitions ought to
				have been taken
				up together and
				decided by the
				same Presiding
				Officer.
				Motor Vehicles
				Act, 1988, Section
				166 - Permanent
				Disability:- In the
				absence of loss of
	New India			earning power,
	Assurance			claimant is not
	Co. Ltd., and	2021 (1) TN MAC		entitled to claim
13	another Vs. R.	481	01.02.2021	compensation by	13
	Ramesh and			adopting
	others			multiplier method.
				In such cases,
				compensation is to
				be awarded by
				adopting
				percentage
				method.
				Motor Vehicles
14	New India Assurance Co. Ltd., rep by its Manager Vs. Rafi and another	2021 (1) TNMAC 706	01.04.2021	Act, 1988, Section 163-A:- Claim petition under section 163-A is not maintainable, if annual income is more than Rs.40,000/- per	14
				annum -
				Structured

				formula under second schedule to be complied with.
				Motor Vehicles
				Act, 1988,
				Sections 166, 147
				& 140 :- Hit and
				run case-
				Maintainability of
				claim in respect of
				Owner.
				Claimant/Owner
				riding motorcycle,
				which was hit by
15	National Insurance Co. Ltd. Vs. Munusamy	2021 (1) TNMAC 644	22.10.2020	unknown car. No additional premium paid for Personal Accident coverage.	14
				Premium collected
				for own damages
				does not cover
				cases of hit and
				run.
				Compensation
				under section 140
				can be claimed
				only by filing
				Application before
				District Collector.
				Motor Vehicles
				Act, 1988,
				Sections 147 &
				145:- Act only
				Policy. Liability
	Branch			of Insurer in
	Manager,			respect of
16	New India Assurance Co. Ltd. Vs.	2021 (1) TNMAC 620 (DB)	16.10.2020	occupant of car. Whether occupant can be treated as	15
	G.Sumathi			third party
	and others			Accident due to
				negligence of car
				Driver, when car
				hits centre median
				and is capsized.
				No other vehicle
				involved.

				Occupant cannot be termed as third party as defined in Policy of Insurance. Therefore, when deceased is not a third party, Insurance Policy cannot get extended to cover risk of Occupant.
17	IFFCO Tokio General Insurance Company Ltd. Vs. Pearl Beverages Ltd.	[2021 SCC Online SC 309]	12-04-2021	Section 185, Motor Vehicles Act, 1988 Section 17, Consumer Protection Act, 1986 The requirement under Section 185 of the Motor Vehicles Act, 1988 is not to be conflated to what constitutes driving under the influence of alcohol under the policy of insurance in an Own Damage Claim. Such a claim must be considered on the basis of the nature of the accident, evidence as to drinking before or during the travel, the impact on the driver and the very case set up by the parties.	15
18	Manidurai Vs. Vijaya Rengan & Anr.	CDJ 2021 MHC 2789	24-06-2021	Fixing of Monthly Income in absence of proof The Claimant was a mason. In the absence of proof of income, the	16

				monthly income as fixed by the Tribunal at Rs.4500/- per month, was held to be reasonable.
19	Saroja & Anr. Vs. Parvathy & Ors.	2021 (4) MLJ 597	01-06-2021	Section 175, The Motor Vehicles Act, 1988 Rule 2(c), Tamil Nadu Motor Vehicles Accident Claims Tribunal Rules, 1989 Jurisdiction of Civil Court is barred under Section 175 of Motor Vehicles Act, to entertain any question relating to claim for compensation. Dependency and not Legal Heirship Certificate is the basis for entitlement to compensation.	16
20	The Branch Manager, M/s. Iffco- Tokio General Insurance Company Ltd., Vs. Vijayarani & Ors.	C.M.A.(MD).No.728 of 2019	02-09-2021	Where the driver did not have the valid driving license and there are breach of policy conditions, 'pay and recover', can be ordered in case of third-party risks	17

(1)

2020 (4) TLNJ 581 (Civil)

Anita Sharma & Others Vs. The New India Assurance Company Limited & Another Date of Judgment : 08.12.2020

Evidence Act – Standard of Proof in Motor Accident Claim cases:- Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.

 

 

(2)

CDJ 2021 SC 008

Kirti & Others Vs. Oriental Insurance Company Limited Date of Judgment: 05.01.2021

Motor Accident Compensation:- It cannot be disputed that at the time of death, there in fact were four dependents of the deceased and not three. The subsequent death of the deceased's dependent mother ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at the time of the accident itself, and changes post thereto ought not to ordinarily affect pending proceedings. Just like how appellant-claimants cannot rely upon subsequent increases in minimum wages, the respondent-insurer too cannot seek benefit of the subsequent death of a dependent during the pendency of legal proceedings.

 

 

(3)

(2021) 1 MLJ 254 (SC)

Kirti and Another Vs. Oriental Insurance Company Ltd Date of Judgment: 05.01.2021

Motor Vehicle Compensation – Notional income – Housewife – Therefore, on the basis of the above, certain general observations can be made regarding the issue of calculation of notional income for homemakers and the grant of future prospects with respect to them, for the purposes of grant of compensation which can be summarized as follows.

a)  Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of law.

b)  Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation’s international law obligations and our constitutional vision of social equality and ensuring dignity to all.

c)  Various methods can be employed by the Court to fix the notional income of a homemakers, depending on the facts and circumstances of the case.

d)  The Court should ensure while choosing the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally.

e)  The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation.

 

 

(4)

2021 (1) TN MAC 73

New India Assurance Co. Ltd. Vs. Srinivasan and Others Date of Judgment : 18.11.2020

MOTOR VEHICLES ACT, 1988 (59 of 1988), Section 2(34) – “Public place”, meaning of

–  Agricultural land, whether a Public place or Private place – Public place defined as a place to which Public have an access whether free or controlled – Case-law discussed – Accident occurred while deceased was working in Agricultural land – Deceased had access to work in land – Agricultural land, therefore, a Public place and not Private place.

 

 

(5)

2021 (1) TN MAC 32 (DB)

Managing Director, Tamil Nadu State Transport Corporation Vs. Ponnusami Date of Judgment: 13.01.2020

Motor Vehicles Act, 1988, Sections 168 and 173:- The Tribunal by adopting Multiplier, fixed 80% Functional Disability. Even before the Tribunal, the Appellant has stated that the Respondent continues to work. The fact that the Respondent got the benefit of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is not in dispute. Even in the grounds of Appeal, such a plea has been taken. It appears that the Respondent/Claimant has attained the age of superannuation and got all the benefits apart from the Salary during the period of employment. There is no discontinuity of service also. Therefore, looking from any perspective, the Award of the Tribunal insofar as the payment of Rs.45,57,972 towards Loss of Income can never be sustained.

(6)

2020(2) TN MAC 597

G. Prakasam (Died) & Others Vs. G. Ramesh & Others Date of Judgment: 10.09.2020

Motor Accident Claims - Non-possession of valid Driving License – Whether the Tribunal can exonerate Insurer from its liability completely?

The Tribunal has exonerated the liability of the Third Respondent only on the ground that the Driver of the insured vehicle was not possessing a valid Driving License at the time of the accident. Admittedly, in the case on hand, the Driver of the insured vehicle was possessing a LMV Driving License but the insured vehicle is a Heavy Vehicle for which a separate HMV license is required. It is now settled law that if a Driver of the insured vehicle was not possessing a valid Driving License, the Insurer will have to compensate the Claimant and recover the same from the Owner of the vehicle (insured). Therefore, the Tribunal under the impugned Award has not followed the settled position of law by granting Pay and Recovery rights to the Third Respondent but instead has erroneously exonerated the liability on the Third Respondent Insurance Company absolutely. Therefore, this Court in accordance with the settled position of law, directs the Third Respondent Insurance Company to pay the assessed Compensation to the Appellants/Claimants and recover the same from the Second Respondent by filing an Execution Application before the same Tribunal.

 

 

(7)

2020(2) TN MAC 572(DB)

S. Santhiya Vs. T. Shanmugam & Others Date of Judgment: 25.09.2020

MOTOR ACCIDENT CLAIMS - Assessment of loss of income of the deceased who is aged 27 years and running a Construction Company.

So far as the quantum of Compensation is concerned, it is the case of the Claimant that the deceased completed Civil Engineering and started his own Construction Company. He engaged in the business of designing and constructing buildings either by himself or under joint venture or by doing a Contract Work and earned a monthly income of Rs.2,00,000/-. In the recent Judgments of the Supreme Court in the cases of Sangita Aria and others vs. Oriental Insurance Co. Ltd. and others, 2020 SCC Online SC 513 and Malarvizhi and others vs. United India Insurance Co. Ltd. and another, 2020(1) TN MAC 216 (SC) : 2020 (4) SCC 228, has taken only the average of three years of Income Tax Returns. Hence, the Hon‟ble High Court of the opinion that based on the average income of the three years, the amount under the head "Loss of Income" has to be re-calculated.

(8)

2020(2) TN MAC 578(DB)

Pradeepkumar @ SaravananVs. P.Subbu& Others Date of Judgment: 25.09.2020

MOTOR ACCIDENT CLAIMS - The Appellant suffered erectile dysfunction which resulted in loss of marital bliss. Whether the claimant is entitled for award towards loss of amenities and loss of marital life?

The urinal tract or bladder of the Claimant had been damaged, due to which, he was dribbing urine or he could not naturally pass out urine. For the purpose of arresting the dribbing of urine, a clip was artificially clamped to his penis, which has resulted in erectile dysfunction. The Tribunal did not award any amount towards Loss of Amenities and Loss of Marital Life. The Appellant suffered erectile dysfunction which resulted in loss of marital bliss. Therefore, we award a sum of Rs.1,00,000/- towards Loss of Amenities and Rs.2,00,000/- towards Loss of Marital Life, which would meet the ends of justice.

 

 

(9)

2020(2) TN MAC 637

The Branch Manager, The Oriental Insurance Company Ltd., Kumbakonam Vs.

G.Santhi & Others

Date of Judgment: 12.10.2020

MOTOR VECHICLES ACT, 1988, (59 of 1988) Section 163A –Deceased driving Motorcycle owned by his wife – Accident due to negligence of deceased himself and no vehicle involved – Whether the Claimant is entitled to Compensation under Section 163-A?

The undisputed facts in this case are that the accident occurred, when the rider of the Two wheeler hit a pig which suddenly crossed the road. The Vehicle stands in the name of the deceased wife, who is the 1st Claimant. The Claim Petition is filed under section 163-A of Motor Vehicle Act. In the instant case, the deceased is the husband of the Vehicle Owner. In the Claim Petition, the Owner of the Vehicle is the 1st Claimant and her children are 2nd and 3rd Claimant, the mother of the deceased is the 4th Claimant. So, there can be no doubt that the deceased, who is the borrower of the vehicle, has entered into the shoes of the Vehicle Owner. If the principle laid in Sadan and Mukhi case is applied, Section 163-A of the Motor Vehicles Act, 1988, which provides for special provision as to payment of Compensation on Structured Formula basis, in respect of Third parties insured or deceased is not applicable to the Claimants. Therefore, the Hon‟ble High Court holds that the Tribunal has erred in awarding Compensation for the Claimants under Section 163-A of Motor Vehicle Act, when the deceased who borrowed the Vehicle, has entered into the shoes of the Vehicle Owner and no other Vehicle involved in the accident.

(10)

2021 (1) TLNJ 41

M/s Reliance General Insurance Company Ltd., Salem District Vs. Devi & Others Date of Judgment: 03.03.2020

Motor Vehicle Act, 1988, Section 173. When the rider of the motor vehicle who had caused the accident, did not possess a valid driving license at the time of accident and not appeared even after notice. Hence, the present case, the award of the Tribunal in fixing the liability on the appellant/Insurance company and directing the insurance company to pay the award amount, is liable to be set aside. Accordingly, the same is set aside. Therefore, the Insurance company is directed to pay the award amount to the respondents 1 to 4 /claimants at the first instance and then recover the same from the owner of the motor cycle bearing Registration No.TN 24 R 3577.

 

 

(11)

2021 (1) TN MAC 492

Branch Manager, Reliance General Insurance Co. Ltd., Pondicherry Vs Elumalai and others

Date of Judgment: 08.02.2021

MOTOR VEHICLES ACT, 1988 (59 of 1988), Section 147 – TAMIL NADU MOTOR

VEHILCES RULES, 1989, Rule 236 – Goods Vehicle – Package Policy – Liability of Insurer in respect of Coolies travelling in Goods Vehicle to unload goods – Accident due to rash and negligent driving of Driver of Goods Vehicle – Vehicle loaded with hollow bricks and deceased persons and injured Claimant travelled as Coolies to unload same as per evidence of Driver/RW1 – No contra evidence adduced by Insurer to show that Goods Vehicle was empty at time of accident or that deceased and Claimant not travelled sitting on hollow bricks – As per Rule 236, six persons permitted to travel in backside of Goods Vehicle alongwith goods – As per Section 147, liability of Insurer under Statutory Policy restricted to claim of Third party, Owner of Goods or Authorized Representative of Owner of goods travelling in vehicle – However, Policy in instant case, being a Package Policy i.e. Contractual Policy, Insurer bound by terms of Contract – Deceased and injured Claimant not travelled as unauthorized passengers but travelled as Coolies along with bricks to unload same – Tribunal considering nature of Policy rightly held Insurer liable to pay Compensation – No error in Award passed by Tribunal warranting interference.

(12)

2021 (1) TN MAC 535 (DB)

T.Maheswari and others Vs C.Venkatesan and another Date of Judgment: 16.10.2020

MOTOR VEHICLES ACT, 1988 (59 of 1988), Section 166 – PRACTICE AND

PROCEDURE – Two claim arising out of same accident – Course to be resorted to – In one claim, „T‟ said to be driving vehicle and in other claim, „B‟ said to be driving vehicle – Claim Petitions filed by LRs. of „T‟ and „B‟ decided by different Presiding Officer of Tribunal – Claim Petition filed by LRs. of „B‟ decided earlier – Not proper – Both Claim Petitions ought to have been taken up together and decided by same Presiding Officer, when both arise out of same accident – No explanation as why one Claim Petition decided earlier, when Respondents are common in both cases – If both cases taken up together, Tribunal would have viewed matter differently and come to a different conclusion.

 

 

(13)

2021 (1) TN MAC 481

New India Assurance Co. Ltd., and another Vs. R. Ramesh and others Date of Judgment: 01.02.2021

PERMANENT DISABILITY – LOSS OF EARNING CAPACITY – Compensation –

Determination – Adopting Percentage method, if, proper – Whether Tribunal erred in not applying Multiplier method – 60% disability due to fracture of Right Knee and Ankle – Injured, a Medical Representative, earning ₹ 42,000 p.m., admittedly continuing his work without any Loss of Income or Loss of Earning Capacity – In absence of loss of earning power, Claimant not entitled to claim Compensation by adopting Multiplier method – Tribunal rightly adopted Percentage method to award Disability Compensation. Determination – Percentage method – 60% disability – Tribunal, taking ₹ 3,000 per percentage of disability, awarded ₹ 1,80,000 – If, proper – High Court in M. Chinnathambi, fixed ₹4,000 per percentage of disability for accidents occurring in the year 2014/2015 and ₹5,000 per percentage of disability for accidents occurring from year 2016 onwards due to rise in cost of living – In instant case, accident occurred in year 2018 – Therefore, taking ₹ 5,000 per percentage of disability, High Court awarded ₹ 3,00,000 [₹ 5,000 x 60(%)] as against ₹ 1,80,000 [₹ 3,000 x 60(%)] awarded by Tribunal.

(14)

2021 (1) TNMAC 706

 

New India Assurance Co. Ltd., rep by its Manager Vs. Rafi and another Date of Judgment:- 01.04.2021

Motor Vehicles Act, 1988, Section 163-A :- The petition under section 163-A of the Motor Vehicles Act is maintainable, only if the claimant's income is less than Rs. 40,000/- per annum as per the dictum laid by the Hon'ble Supreme Court in the Deepak Girishbhai Soni and others Vs. United India Insurance Company Limited, 2004 (1) TNMAC 193 (SC). Further, claim by tortfeasor against its own Insurer is not maintainable under section 163-A of the Motor Vehicles Act. The law on this point is no more res integra after the Judgment of the Hon'ble Supreme Court in Ningamma and others v. United India Insurance Co. Ltd., 2009 (2) TNMAC 169 (SC). Further, when Compensation sought under section 163-A of the Act, it shall be only in tune with the structured formula given under Schedule II of the MV Act and Compensation shall be only in accordance with the Schedule.

 

 

(15)

2021 (1) TNMAC 644

 

National Insurance Co. Ltd. Vs. Munusamy Date of Judgment:- 22.10.2020

Motor Vehicles Act, 1988, Sections 166, 147 & 140 :- It has been held that, "Under the Motor Vehicles Act, the Motor Vehicles are mandatorily insured for the third party liability coverage, which is called as Act Only Policy. For Own Damages and Personal Accident Cover for the Owner-cum-Driver, and passengers, if any, additional premium has to be paid and the liability of the Insurer, whose indemnity depends on the limit mentioned in the Policy. The Statutory coverage to compensate in terms of section 147 of the Motor Vehicles Act will arise whenever the vehicle is insured under any of the above three categories. As far as the Third-party liability cover, it is now a mandatory requirement. Own Damage Cover and Personal Accident Cover is optional. If the Owner of the vehicle has paid additional premium, then alone, the insured will be entitled to get indemnity claim. The Insurance Company will have legal duty to indemnify the insured under the contract. If the vehicle owner had not paid any additional premium for Personal Accident cover, the Owner/Driver have no contractual right to claim compensation from the Insurer. In a case of hit and run, section 140 of the Motor Vehicles Act provides remedy for the victims. In alternate, under section 163-A of the Motor Vehicles Act, the insured without proving negligence of the third party vehicle can lay claim on the Principles of no fault. In such cases, the compensation is payable when death or total permanent disability occurs to the Claimant. In case of hit and run the statutory liability to compensate is upon the Government/District Collector under section 140 of the Motor Vehicles Act.

(16)

2021 (1) TNMAC 620 (DB)

 

Branch Manager, New India Assurance Co. Ltd. Vs. G.Sumathi and others Date of Judgment:- 16.10.2020

Motor Vehicles Act, 1988, Sections 147 & 145:- The deceased and others travelled in a car and the same was capsized after hitting the centre median divider on the road. No other motor vehicle was involved in the accident. Due to capsizing of the car and its impact, the deceased sustained grievous bleeding injuries and he died as a result of such injuries. It has been held that, it is an undisputed fact that the deceased was one of the occupants of the car and he is not a third party as defined in the terms and conditions of the Insurance policy. When the deceased is not a third party, the Insurance Policy cannot get extended to cover the risk of such Occupants of the car. Furthermore, the Policy is only an “Act Policy” which will cover only the risk that may be confronted by a third party to the vehicle and not to the occupant of the vehicle. The coverage for an Occupant of the vehicle can be extended upon payment of Additional Premium by the Owner of the car. The claimants, in this case, is not entitled for compensation against the insurance company.

 

 

(17)

IFFCO Tokio General Insurance Company Ltd. Vs. Pearl Beverages Ltd. [2021 SCC Online SC 309]

 

Date of Judgment: 12-04-2021

 

Section 185, Motor Vehicles Act, 1988 — Section 17, Consumer Protection Act, 1986 — Insurance Claim — Exclusion Clause

 

The insurance claim for a car, completely damaged in an accident, was repudiated by the insurance company based on the Exclusion Clause in the Contract of Insurance, under which the insurer was not liable if the person driving the vehicle was under the influence of intoxicating liquor or drugs. The National Consumer Dispute Redressal Commission (NCDRC) held that the insurer is not entitled to invoke the Exclusion Clause, as there was no material to establish that the driver of the vehicle was under the influence of intoxicating liquor within the meaning of the Exclusion Clause.

 

In deciding the Appeal against the Order of the NCDRC, the Supreme Court delved into whether the driver was indeed intoxicated by consuming alcohol. The Supreme Court observed that, “where there is no scientific material, in the form of test results available, as in the case before us, it may not disable the insurer from establishing a case for exclusion… A consumer, under the [Consumer Protection] Act, can succeed, only on the basis of proved deficiency of service. … If the deficiency is not established, having regard to the explicit terms of the contract, the consumer must fail.” The Supreme Court held that the NCDRC had erred in conflating the requirement under Section 185 of the Motor Vehicles Act, with that under the Exclusion Clause in the contract of insurance, and thus set aside the impugned Order.

(18)

Manidurai Vs. Vijaya Rengan & Anr. [CDJ 2021 MHC 2789] Date of Judgment: 24-06-2021

Motor Accident Claims Tribunal — Determination of Disability — Calculation of Compensation — Proof of Income of Claimant The Hon’ble High Court partly allowed the appeal seeking enhancement of the compensation fixed by the Motor Accidents Claims Tribunal, and found that, as there was no proof of income of the Appellant/Claimant, the monthly income as fixed by the Tribunal was reasonable. The Court observed that, “the disability as fixed by the doctor is permanent partial disability.” Based on the Hon’ble Supreme Court’s decision in Rajkumar v. Ajaykumar, 2011 ACJ 1, the disability was determined as 56% and the compensation at Rs.3,000/- for each percentage of disability. The compensation fixed by the Tribunal under all other heads was held as reasonable.

 

 

(19)

Saroja & Anr. Vs. Parvathy & Ors. [2021 (4) MLJ 597]

 

Date of Judgment: 01-06-2021

Motor Accident Claims Tribunal — Bar of Jurisdiction — Section 175, The Motor Vehicles Act, 1988 — Legal Representative — Rule 2(c), Tamil Nadu Motor Vehicles Accident Claims Tribunal Rules, 1989 — Dependency of legal representatives

 

The Hon’ble High Court cited the decisions in Kiran Singh & Ors. v. Chaman Paswan & Ors., AIR 1954 SC 340 and Balvant N. Viswamitra & Ors. v. Yadav Sadhashiv Mule, 2004 (8) SCC 706, and held that, “in the light of the bar contained under Section 175 of The Motor Vehicles Act, the finding rendered by the Tribunal with regard to the entitlement of compensation to the Respondents 1 and 2, has no significance. The learned District Munsiff had travelled beyond jurisdiction and rendered such finding”.

 

The Court further, relying on the decision in Gujarat State Transport Corporation vs. Raman Bhat, AIR 1987 SC 1690, found that “according to Rule 2(c) of the Tamil Nadu Motor Vehicles Accident Claims Tribunal Rules, 1989, which has been framed by virtue of the powers conferred under Section 176 of The Motor Vehicles Act, ‘Legal Representatives’ shall have the meaning assigned to it under clause (11) of Section 2 of the Code of Civil Procedure, 1908 (Central Act V of 1908)”.

 

The Court further, relying on a plethora of decisions* reaffirmed the position of law that “mere status of legal representative alone is not sufficient to make a claim. Thus, the basis for entitlement for compensation is dependency. … Therefore, considering the evidence, prima- facie, the TAMIL NADU STATE JUDICIAL ACADEMY COMPENDIUM OF CASE LAWS

21 respondents 1 and 2 proved their dependency. Therefore, we do not find any infirmity in awarding compensation to the claimants/respondents 1 and 2.” Thus, the Court sustained the award of compensation passed by the Tribunal and dismissed the appeal.

 

*See Also

•  Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [2009 ACJ 1298]

•  Manjuri Bera v. Oriental Insurance Company Limited [2007 (1) TN MAC 385]

•  Gujarat State Road Transport Corporation v. Ramanbhai [AIR 1987 SC 1690]

•  National Insurance Company Limited v. Birender & Ors. [2020 (1) TN MAC 182]

 

(20)

The Branch Manager, M/s. Iffco-Tokio General Insurance Company Ltd., Vs.

Vijayarani & Ors. [C.M.A.(MD).No.728 of 2019] Date of Judgment: 02-09-2021

Section 173 ⎯ Motor Vehicles Act 1988 ⎯ Order XLI Rule 22(1) ⎯ Civil Procedure Code

The Hon’ble High Court dealt with a Civil Miscellaneous Appeal and Cross Objection against the award and decree passed by the Motor Accident Claims Tribunal. The Court upheld the order of the Tribunal which held that the accident had taken place due to the rash and negligent driving of the driver of the First Respondent, who did not have a valid driving license at the time of the accident. The Court referred to the decision in Magma General Insurance Company Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors., (2018) 2 TN MAC 452, and held that the 2nd and 3rd Claimants/minor children are entitled to parental consortium and that the 4th and 5th Claimants/parents of the deceased are entitled to filial compensation. The Court further modified the award of the Tribunal and enhanced the compensation.

 

Relying on the decisions of the Supreme Court which affirmed that “where the driver did not have the valid driving license and there are breach of policy conditions, 'pay and recover', can be ordered in case of third-party risks”, the Court directed the Insurance Company to deposit the award amount and thereafter recover the same from the owner of the vehicle by filing an Executive Petition. Thus, the Court dismissed the Civil Miscellaneous Appeal and partly allowed the Cross Objection.

 

See Also

•  National Insurance Co. Ltd. Vs. Swaran Singh [(2004) 3 SCC 297]

•  Parminder Singh Vs. New India Assurance Company Ltd. & Ors. [(2019) 7 SCC 217]

•  Shamanna & Anr. Vs. Divisional Manager, Oriental Insurance Company Ltd. & Ors. [(2018) 9 SCC 650]