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Traffic collision

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Sec.163 – A , sec. 140 of M.V. Act – due to conflicte judgment over scope of sec. 163 -A in United India Insurance Company Ltd. v. Shila Datta and others [(2011) 10 SCC 509], and National Insurance Co. Ltd. v. Nicolletta Rohtagi [(2002) 7 SCC 456]. , it was referred to larger bench = United India Insurance Company Ltd. … Appellant Versus Sunil Kumar & Anr. … Respondents – Reported in http://judis.nic.in/supremecourt/filename=40914

Sec.163 – A , sec. 140 of M.V. Act – due to conflicte judgment over scope of sec. 163 -A in United India Insurance Company Ltd. v. Shila Datta  and  others  [(2011)  10 SCC 509],  and National Insurance Co. Ltd. v. Nicolletta Rohtagi  [(2002)  7  SCC  456]. , it was referred to larger bench   =    We are, therefore, of the … Continue reading

M.V. ACT – ACCIDENT CLAIM – NON- EXAMINATION OF PILLION RIDER NOT FATAL WHEN SUPPORTED BY I.O. EVIDENCE- F.I.R. – CHARGE SHEET ENOUGH TO PROVE NEGLIGENCE – DULCINA FERNANDES & ORS. Vs. JOAQUIM XAVIER CRUZ & ANR. judis.nic.in/supremecourt/filename=40875

Accident claim – Registration of FIR and filing of charge sheet is enough to prove the negligence     of  opposite party who caused an accident – acquittal of criminal case can not be considered – Non- examination of pillion rider is also not fatal – when investigation officer supported the case – Apex court set aside … Continue reading

M.V. Act – COMPENSATION TO A CHILD = What is the just and fair compensation to be awarded to a child, who suffered disability in a motor accident, is the main point arising for consideration in this case.= In Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another[4], this Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts. 12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: – | HEAD |COMPENSATION AMOUNT | |Pain and suffering already |Rs.3,00,000/- | |undergone and to be suffered in | | |future, mental and physical shock, | | |hardship, inconvenience, and | | |discomforts, etc., and loss of | | |amenities in life on account of | | |permanent disability. | | |Discomfort, inconvenience and loss |Rs.25,000/- | |of earnings to the parents during | | |the period of hospitalization. | | |Medical and incidental expenses |Rs.25,000/- | |during the period of | | |hospitalization for 58 days. | | |Future medical expenses for |Rs.25,000/- | |correction of the mal union of | | |fracture and incidental expenses | | |for such treatment. | | |TOTAL:- |Rs.3,75,000/- | 13. The impugned judgment of the High Court in M.F.A. No. 1146 of 2008 is accordingly modified. The claimant will be entitled to a total compensation of Rs.3,75,000/- along with interest @ 6% per annum from the date of the petition. First respondent – Insurance Company is directed to deposit the enhanced compensation with interest as above within two months from today. On such deposit, it will be open to the appellant to approach the Tribunal for appropriate orders on withdrawal. The appeal is allowed as above.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40696 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7139 OF 2013 [Arising out of S.L.P.(Civil) No. 1676 of 2012] Master Mallikarjun … Appellant (s) Versus Divisional Manager, the National Insurance Company Limited & Anr. … Respondent (s) J U D G M E N T KURIAN, J.: Leave granted. 2. … Continue reading

M.V. Act -accident claim = Whether the High Court is justified in reducing the compensation from Rs.10,62,000/- to Rs.8,00,000/- with 6% interest per annum?= The same has been interfered with by the High Court in the Appeal filed by the Insurance Company though it has no right to challenge the quantum of compensation as it has got limited defence as provided under Section 149(2) of the Motor Vehicles Act in the absence of permission from the Tribunal to avail the defence on behalf of the insurer as required under Section 170(b) of the Act. It is relevant to note that Parliament, while enacting sub-section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not find place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If we permit the insurer to take any other defence other than those specified in sub- section (2) of Section 149, it would mean we are adding more defences to the insurer in the statute which is neither found in the Act nor was intended to be included.= In our considered view the Tribunal and the High Court have erred in not following the principles laid down in Sarla Verma’ case (supra) in fixing the monthly income at Rs.12,000/- in the absence of documentary evidence having regard to the fact that the deceased was employed as Lecturer in Odisha College of Homeopathy and Research, Sambalpur and she also had private practice. The Tribunal in exercise of its original jurisdiction has taken Rs.12,000/- as her monthly income and has deducted 1/3rd out of the monthly salary towards her personal expenses and computed the compensation both on the loss of dependency as well as the conventional heads and has awarded Rs.10,62,000/-. The same should not have been interfered with by the High Court in exercise of its appellate jurisdiction. Hence, the impugned judgment, award and order passed in the Misc. Case no. 385/2011 in M.A.C.A No. 579/2007 is required to be interfered with. So also the order dated 10.3.2011 in Misc. Case No.385 of 2011 modifying the earlier direction issued by the High Court to deposit 60% of the awarded amount in any of the Nationalized Bank, is required to be interfered with. Accordingly, both the impugned judgment, award and orders dated 24.2.2011 and 10.03.2011 are hereby set aside by allowing the civil appeals. Having regard to the facts, circumstances and the finding recorded by the Tribunal in its judgment, we restore the same in awarding compensation in favour of the appellants at Rs.10,62,000/- with interest at the rate of 6% per annum.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40622 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.5373-5375 OF 2013 (Arising out of SLP (C) Nos. 7407-7409 of 2012) REKHA JAIN & ANR. … APPELLANTS VS. NATIONAL INSURANCE CO.LTD. … RESPONDENT         J U D G M E N T   V. Gopala Gowda, J. … Continue reading

M.V. ACT = whether compensation in a motor vehicle accident case is payable to a claimant for both heads, viz., loss of earning/earning capacity as well as permanent disability. = The Tribunal, after holding that the accident was caused due to the negligence of the driver of the bus belonging to the Transport Corporation, by order dated 30.11.2000, awarded a sum of Rs. 9,42,822/- as total compensation by adopting the multiplier of 13 in terms of the second schedule to the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”). (c) Dis-satisfied with the award of the Tribunal, the appellant preferred an appeal being CMA No. 150 of 2001 before the High Court praying for higher compensation, on the other hand, the Transport Corporation also preferred an appeal being CMA No. 82 of 2001 for reduction of the compensation. (d) The High Court, by impugned common judgment dated 29.01.2007, reduced the compensation from Rs. 9,42,822/- to Rs. 6,72,822/-. Aggrieved by the reduction in the compensation amount, the appellant has preferred the present appeals by way of special leave for enhancement of the compensation. = In the light of the above discussion, the appellant is entitled to the following additional amount: a) Towards 85% permanent disability … Rs. 1,00,000/- b) Towards loss of earning/earning capacity by applying the multiplier 13 … Rs. 80,000/- (in addition to the amount of Rs. 3,20,000/- fixed by the High Court) Accordingly, in addition to the amount awarded by the High Court, the claimant/the appellant herein is entitled to an additional amount of Rs. 1,80,000/-. Further, we make it clear that altogether the appellant is entitled to a total compensation of Rs. 8,52,822/- with interest at the rate of 9% from the date of claim petition till the date of deposit. 19) The appeals filed by the claimant/appellant are allowed in part to the extent mentioned above with no order as to costs.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40482 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4816-4817 OF 2013 (Arising out of SLP (C) Nos. 15531-15532 of 2007) S. Manickam …. Appellant (s) Versus Metropolitan Transport Corp. Ltd. …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. 2) … Continue reading

can an Insurance Company disown its liability on the ground that the driver of the vehicle although duly licensed to drive light motor vehicle but there was no endorsement in the licence to drive light motor vehicle used as commercial vehicle.= The heading “Insurance of Motor Vehicles against Third Party Risks” given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. 18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer’s right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside. 20. We, therefore, allow this appeal, set aside the impugned judgment of the High Court and hold that the insurer is liable to pay the compensation so awarded to the dependants of the victim of the fatal accident. However, there shall be no order as to costs.

published in http://judis.nic.in/supremecourt/filename=40464   Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO… 4834 OF 2013 (Arising out of Special Leave Petition (Civil) No.5091 of 2009) S. IYYAPAN Appellant (s) VERSUS M/S UNITED INDIA INSURANCE COMPANY LTD. AND ANOTHER Respondent(s) JUDGMENT M.Y. Eqbal, J.: Leave granted. 2. The right of the … Continue reading

(1) If an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle. (2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit the Court to create a liability where there is none?” = The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur5 and Challa Bharathamma6 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years’ old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along-with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma6 . 26. Appeal is allowed and disposed of as above with no order as to costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5 OF 2013 (Arising out of SLP(C) No. 20127 of 2011) Manager, National Insurance Co. Ltd. …… Appellant Vs. Saju P. Paul and Another ……Respondents JUDGMENT R.M. LODHA, J. Leave granted. 2. The appellant, insurance company, is in appeal by special leave … Continue reading

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