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Judgment
R. Mahadevan, J.—Appeal is preferred by the Insurance Company against the quantum as well as fixing of the liability upon them despite their proving breach of Policy condition viz., the Sixth Respondent herein, the Driver of the Lorry was not a valid licence-holder.
Wife and two sons of the deceased Dakshinamoorthy, who succumbed to the injuries he sustained in an accident that took place on 31.3.1998, when the Bus belonging to the Transport Corporation was dashed by the Lorry belonging to the 7th Respondent herein and insured with the Appellant, filed the Claim Petition seeking a Compensation of Rs. 5,00,000/- contending that the accident was caused due to the negligence on the part of the Driver of the Lorry, the 6th Respondent herein as well as the Driver of the Transport Corporation viz., the Fourth Respondent herein.
The Transport Corporation contested the claim denying the negligence on the part of their Driver and contending that the Driver of the Lorry alone was rash and negligent and caused the accident. The claim is also an exaggerated one, they further contended.
Similarly, the Insurance Company also contested the claim by blaming the Driver of the Transport Corporation and also contended that the Driver of the Lorry was not a valid licence-holder at the time of the accident and the claim is also an exaggerated one.
Two witnesses each on the side of the Claimants and on the side of the Respondents were examined. Seven documents were marked on the side of the Claimants and two documents were marked on the side of the Respondents.
The Tribunal, on the basis of the oral and documentary evidence, fixed the liability upon the Insurance Company and awarded a sum of Rs. 2,46,000/- with interest at 7.5% per annum.
Learned Counsel for the Appellant-Insurance Company would submit that though the Insurance Company had proved that the Driver of the Lorry was not a valid licence-holder to drive the Lorry and he was holding a licence to drive only LMV, the Tribunal has erred in fixing the liability upon the Insurance Company and has also erred in fixing the monthly income of the deceased at Rs. 2,250/- without any basis or any evidence.
Learned Counsel appearing for the Claimants would submit that the Insurance Company cannot avoid its vicarious liability on mere technicalities such as breach of Policy conditions by the insured. He further submitted that the monthly income fixed by the Tribunal is very meager and hence, craved for indulgence of this Court by exercise of its power under Order 41, Rule 33 of the Code of Civil Procedure by relying the decisions reported in M.D., ASTC v. Rahamathunnisa, 2006 (2) TN MAC 386; The Managing Director, T.N. State Transport Corporation v. S. Gouselya, 2011 (4) CTC 68; TNSTC v. Saroja, 2008 (1) TN MAC 352; and National Insurance Co. Ltd. v. M. Jayagandhi, 2008 (1) TN MAC 177, and seeks for enhancement of the Compensation in the light of the decision reported in Rajesh v. Rajbir Singh, 2013 (2) TN MAC 55 (SC). This extract is taken from Oriental Insurance Co. Ltd. v. D. Varadhammal, (2014) 2 TN MAC 184, at page 186 :
On going through the materials available on record, of course, it is clear that though the Insurance Company has established that the Driver of the Lorry was not a valid licence-holder and he was holding licence only for driving LMV by producing Ex. B2 copy of the Licence Issue Register, the Tribunal has not properly analysed the same. But, even in respect of such cases, the law is settled in National Insurance Co. Ltd. v. Swaran Singh, 2004 (1) TN MAC (SC) 104 : 2004 (1) TAC 321 (SC); United India Insurance Co. Ltd. v. S. Saravanan, 2009 (2) TN MAC 103 (DB); Bajaj Allianz General Insurance Company Ltd. v. P. Manimozhi, 2010 (2) TN MAC 542; Branch Manager, United India Insurance Co. Ltd., Branch Office, Nethaji Bye Pass Road v. Nagammal, 2009 (1) TN MAC 1 (FB) : 2009 (1) CTC 1 (FB) : 2009 (1) LW 702; Jawhar Singh v. Bala Jain, 2011 (1) TN MAC 641 (SC); and Iffco Tokyo General Insurance Co. Ltd. v. A. Jafer Sadiq, 2012 (1) TN MAC 394 DB, that if the Insurer establishes that there is a breach of Policy condition under Section 149(2)(a)(ii), the Insurance Company, though not liable, as it has successfully established its defence, can be directed to pay and recover from the insured.
With regard to the enhancement of Compensation, it has been held in the decisions reported in M.D., ASTC v. Rahamathunnisa, 2006 (2) TN MAC 386; The Managing Director, T.N. State Transport Corporation v. S. Gouselya, 2011 (4) CTC 68; TNSTC v. Saroja, 2008 (1) TN MAC 352; National Insurance Co. Ltd. v. M. Jayagandhi, 2008 (1) TN MAC 177, that by exercise of power under Order 41, Rule 33 of the Code of Civil Procedure, the Appellate Court can enhance the Compensation even in the absence of a Cross-Appeal by the Claimant, when the Compensation awarded does not satisfy the Principles of ''just Compensation''.
Therefore, when the Appellate Court finds that the Compensation awarded is not an equitable, fair and reasonable Compensation, the above decisions would apply to such cases for giving enhancement. In the case on hand, it is evident that the Claim Petition was filed in July 1998 for the accident that took place on 31.3.1998 wherein it was disclosed by the Claimants that the deceased was a Lottery Agent and running a Tea Stall and earning not less than a sum of Rs. 3,000/-. The Claim Petition was numbered only in the year 2002. Considering the passage of time and the price index at the relevant time, it would be reasonable to consider that he would have earned a sum of Rs. 4,500/- per month but for the accident and after deducting ? towards Personal Expenses, a sum of Rs. 3,000/- can be arrived as monthly income. The Tribunal has arrived at the correct Multiplier of 13. Accordingly, the Loss of Income is arrived at Rs. 4,68,000/- giving enhancement of Rs. 2,34,000/-. It is needless to say that the above amount also carries interest at 7.5% per annum. This Court is of the view that the Award passed by the Tribunal on other heads does not warrant any modification and hence, the same is confirmed. Out of the difference amount awarded by this Court, the First Claimant is entitled to a sum of Rs. 1,34,000/- and Claimants 2 & 3 are entitled to a sum of Rs. 50,000/- each.
The Insurance Company, though exonerated, is directed to pay and recover the same from the owner of the vehicle as per the mode of recovery mentioned in Paragraph 7 of the Judgment in Oriental Insurance Co. Ltd. v. Nanjappan, 2004 (2) CTC 464 (SC) : 2004 (1) TN MAC 211 (SC) : 2004 ACC 524 (SC), which is extracted hereunder: This extract is taken from Oriental Insurance Co. Ltd. v. D. Varadhammal, (2014) 2 TN MAC 184, at page 186 :
"For the purpose of recovering the Compensation amount from the insured, the Insurer shall not be required to file a Suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the Insurer and the insured was the subject matter of determination before the Tribunal and as if the issue is decided against the owner and in favour of the Insurer. A Notice shall be issued to the insured to furnish security for the entire amount. The offending vehicle shall be attached as a part of the security. If necessity arises, the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured/owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property of the insured."
In the result, the Civil Miscellaneous Appeal is disposed of with the above modification. The Appellant-Insurance Company is directed to deposit the entire Award amount with interest and costs as awarded by the Tribunal deducting the amount already deposited by them within a period of six weeks from the date of receipt of copy of this Judgment and on such deposit, the Claimants are entitled to withdraw the same by filing appropriate Application. No costs. The connected Miscellaneous Petition is closed.