C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.2036 of 2018
and C.M.P.No.15845 of 2018
and Cross Objection No.61 of 2022
C.M.A.No.2036 of 2018
The Divisional Manager
The Oriental Insurance Company Ltd.
Vijayalakshmi Complex
No.32/13, Phase - 2
Sathuvachari, Vellore. ... Appellant
Vs.
1.Devagi
2.Minor.Ranjith
3.Minor.Chitra
4.Minor.Ranjitha
(Minor respondents 2 to 4 represented by
their Guardian/mother, the 1st respondent Devagi)
5.Rajasundaram, Owner of the Trailer 1/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022
6.Muthaiya Konar Muthammal (died)
7.Sivakumar, Tractor Owner (7th respondent impleaded as party as per order in I.A.No.733/2014) [R6 and the respondents 1 to 4 are the legal heirs of the deceased Muthammal as per order in I.A.No.475/17, dated 20.03.2017) ... Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 03.01.2018 made in M.C.O.P.No.840 of 2013 on the file of Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai.
For Appellant : Mr.D.Bhaskaran
For R1 to R4 : Mrs.A.Subadra
For R5 : Mr.H.Manojin for
Mr.K.C.Vinodh
For R7 : Mr.T.K.Saravanan
Cros.Obj.No.61 of 2022
1.Devagi
2/18
https://www.mhc.tn.gov.in/judis
C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022
2.Minor.Ranjith
3.Minor.Chitra
4.Minor.Ranjitha (Minor appellants 2 to 4 represented by their Guardian/mother, the 1st appellant Devagi) ... Appellants Vs.
1.The Divisional Manager The Oriental Insurance Company Ltd.
Vijayalakshmi Complex No.32/13, Phase - 2 Sathuvachari, Vellore.
2.Rajasundaram, Owner of the Trailer
3.Muthaiya Konar
4.Sivakumar, Tractor Owner ... Respondents Prayer: This Cross Objection is filed under Order XLI Rule 22 of C.P.C., against the judgment and decree dated 03.01.2018 made in M.C.O.P.No.840 of 2013 on the file of Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai.
For Cross-objectors : Mrs.A.Subadra
For R1 : Mr.D.Bhaskaran
For R2 : Mr.H.Manojin for
Mr.K.C.Vinodh
3/18
https://www.mhc.tn.gov.in/judis
C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 For R4 : Mr.T.K.Saravanan COMMON JUDGMENT (Judgment of the Court was delivered by V.M.VELUMANI,J.) C.M.A.No.2036 of 2018 has been filed by the appellant/Insurance Company against the judgment and decree dated 03.01.2018 made in M.C.O.P.No.840 of 2013 on the file of Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai. Cross Objection No.61 of 2022 has been filed by the claimants/respondents 1 to 4 herein seeking enhancement of the compensation granted by the Tribunal in the said award.
2.The appellant/Insurance Company is the 2nd respondent in M.C.O.P.No.840 of 2013 on the file of Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai. The respondents 1 to 4 filed the said claim petition claiming a sum of Rs.15,00,000/- as compensation for the death of one Arumugam, who died in the accident that took place on 24.08.2011. The respondents 1 to 4 are wife, sons and daughter of the 4/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 deceased Arumugam. The 6th respondent Muthaiyakonar is the father and one Muthammal is the mother of the deceased Arumugam. Pending claim petition, Muthammal, mother of the deceased Arumugam, died.
3.According to the respondents 1 to 4, on the date of accident i.e., on 24.08.2011 at about 8.30 P.M., while the deceased Arumugam was riding his Bajaj Platina motorcycle bearing Registration No.TN-250-2848 from Tirukoilur towards Nariyandhal Village on the extreme left side of Tirukoilur to Sankarapuram Road near Thotti Village, the driver of the Tractor bearing Registration No.TN-32-C-2669 belonging to the 7th respondent, attached with Trailer bearing Registration No.TN-32-C-3793 belonging to the 5th respondent, drove the same in a rash and negligent manner, dashed against the motorcycle driven by the said Arumugam and caused the accident. In the accident, the deceased Arumugam sustained injuries and died on the way to hospital. Therefore, the respondents 1 to 4, filed the above claim petition claiming compensation for his death against the respondents 5 and 7, who are owners of trailer and tractor and appellant/Insurance Company, insurer of the said trailer and tractor.
5/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022
4.The 5th respondent, owner of the trailer remained exparte before the Tribunal.
5.The appellant/Insurance Company filed counter statement denying the averments made in the claim petition and stated that there was no such accident occurred as alleged by the respondents 1 to 4. In the Motor Vehicle Inspector's report, the Registration number of the vehicle involved in the accident was mentioned as TN-32-C-2669. F.I.R. has been registered against the driver of the tractor bearing Registration No.TN-32-A-4717. The respondents 1 to 4 and owner of the tractor bearing Registration No.TN-32- C-2669 colluded with the Police authorities, produced the tractor before the RTO Office. The accident has occurred on 24.08.2011. The vehicles were sent to RTO Office on 19.12.2011. There is a delay of 87 days for sending the vehicles for inspection. Therefore, the accident is doubtful. At the time of accident, the deceased Arumugam did not possess valid driving license to ride the motorcycle. The deceased alone hit the tractor and invited the accident. The driver of the tractor did not possess valid driving license at the time of accident and the owner has violated the policy condition. The owner and 6/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 insurer of the motorcycle were not made as parties and hence, the claim petition is bad for non-joinder of necessary parties. Therefore, the appellant is not liable to pay any compensation to the respondents 1 to 4. The appellant/Insurance Company has also denied the age, avocation and income of the deceased. In any event, the compensation claimed by the respondents 1 to 4 is excessive and prayed for dismissal of the claim petition.
6.The 6th respondent, father of the deceased Arumugam filed counter statement, which was adopted by the 4th respondent in the claim petition viz., Muthammal (died), mother of the deceased and denied the averments made in the claim petition and stated that he lost his son and suffered loss of income, love and affection and became helpless. The respondents 1 to 4 along with 6th respondent filed claim petition in M.C.O.P.No.294 of 2011 before the Sub Court, Kallakurichi and the same is pending. Now the respondents 1 to 4 have separately filed the present claim petition claiming compensation. He has spent more amounts for the ritual ceremonies of his deceased son Arumugam and prayed for dismissal of the claim petition. 7/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022
7.Before the Tribunal, the 1st respondent, wife of the deceased, examined herself as P.W.1, one Seetharaman, eye-witness to the accident was examined as P.W.2 and 8 documents were marked as Exs.P1 to P8. The appellant/Insurance Company examined one Ezhilan, Assistant working in the Regional Transport Office as R.W.1, Balaji, Assistant working in appellant/Insurance Company, was examined as R.W.2 and Govindhasamy, Investigator appointed by the Insurance Company, was examined as R.W.3 and marked 7 documents as Exs.R1 to R7.
8.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the trailer bearing Registration No.TN-32-C-3793 belonging to the 5th respondent, attached with the tractor bearing Registration No.TN- 32-C-2669 belonging to the 7th respondent and directed the appellant/Insurance Company being insurer of the said vehicles to pay a sum of Rs.16,56,200/- as compensation to the respondents 1 to 4 & 6 th respondent, at the first instance and recover the same from the respondents 5 and 7, owner of the trailer and tractor, as the driver of the tractor and trailer did not possess driving license at the time of accident.
8/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022
9.Against the said award dated 03.01.2018 made in M.C.O.P.No.840 of 2013, the appellant/Insurance Company has come out with C.M.A.No.2036 of 2018.
10.Not being satisfied with the amounts awarded by the Tribunal, the respondents 1 to 4 have filed Cross Objection No.61 of 2022, seeking enhancement of compensation.
11.The learned counsel appearing for the appellant/Insurance Company contended that the vehicle involved in the accident is tractor bearing Registration No.TN-32-A-4717. The accident has occurred on 24.08.2011. But the vehicle bearing Registration No.TN-32-C-2669 was sent for inspection only on 19.12.2011 after delay of three months. The appellant has proved that tractor bearing Registration No.TN-32-C-2669 and trailer bearing Registration No.TN-32-C-3793 were not involved in the accident by examining R.W.2 and R.W.3 and marking 7 documents as Exs.R1 to R7. The Tribunal failed to consider the oral and documentary evidence let in by the appellant and erroneously held that tractor bearing Registration No.TN-32-C- 9/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 2669 was involved in the accident and fastened the liability on the appellant. There are five dependants of the deceased and the Tribunal erred in deducting 1/5th towards personal expenses and prayed for setting aside the award of the Tribunal and dismissing Cross Objection No.61 of 2022, filed by the respondents 1 to 4.
12.The learned counsel appearing for the respondents 1 to 4/cross- objectors made the submissions in support of the award passed by the Tribunal with regard to fixing negligence on the driver of the tractor and trailer and submitted that the respondents 1 to 4 have filed Cross Objection No.61 of 2022 for enhancement of compensation. He further submitted that deceased was working as a heavy vehicle driver at the time of accident and was earning a sum of Rs.12,000/- per month. The Tribunal erroneously fixed meagre amount of Rs.7,000/- per month as notional income of the deceased and prayed for dismissal of the appeal filed by the Insurance Company and enhancement of compensation by fixing Rs.12,000/- as monthly income of the deceased.
10/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022
13.The learned counsel appearing for the respondents 5 and 7/owners of trailer and tractor separately contended that both the vehicles are insured with the appellant/Insurance Company at the time of accident, the Tribunal without taking into consideration that the policy was in force, erroneously ordered pay and recovery. In the present appeal, no relief is sought against the respondents 5 and 7 and prayed for dismissal of both the appeal and cross objection against the respondents 5 and 7.
14.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents 1 to 4, 5 & 7 and perused the entire materials on record.
15.From the materials on record, it is seen that it is the case of the respondents 1 to 4 that the driver of the Tractor bearing Registration No.TN- 32-C-2669 belonging to the 7th respondent, attached with Trailer bearing Registration No.TN-32-C-3793 belonging to the 5th respondent, drove the same in a rash and negligent manner, dashed against the motorcycle driven by 11/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 the deceased Arumugam and thus the accident has occurred. Due to the injuries sustained in the accident, the said Arumugam died. To substantiate their claim, the respondents 1 to 4 examined one Seetharaman, eye-witness to the accident as P.W.2. P.W.2 categorically deposed that the accident has occurred only due to rash and negligent driving by the driver of the tractor bearing Registration No.TN-32-C-2669, while the deceased Arumugam, was riding his motorcycle on the left hand side of the road carefully and cautiously. Nothing favour was elicited by the counsel appearing for the appellant in the cross-examination. According to the appellant, tractor bearing Registration No.TN-32-C-2669 was not involved, but the tractor bearing Registration No.TN-32-A-4717 was involved in the accident. The appellant has stated that owner of the tractor bearing Registration No.TN-32-A-4717 filed claim petition and marked the statement as Ex.R6. The appellant/Insurance Company did not examine any eye-witness or owner of the tractor bearing Registration No.TN-32-A-4717 to prove their case. R.W.2 and R.W.3 examined by the appellant are not eye-witnesses to the accident. The Police after investigation seized the tractor bearing Registration No.TN- 32-C-2669 and filed final report. In view of the above facts, tractor bearing 12/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 Registration No.TN-32-C-2669 was sent for inspection by the Motor Vehicle Inspector after 117 days, when the vehicle was seized by the Police. The delay in sending the vehicle for inspection is not fatal to the claim of the respondent 1 to 4. The Tribunal considering the evidence of P.W.2, R.W.2 and R.W.3 and the documents filed by the respondents 1 to 4, held that accident has occurred only due to rash and negligent driving by the driver of the tractor bearing Registration No.TN-32-C-2669 and trailer bearing Registration No.TN-32-C-3793, directed the appellant/Insurance Company to pay the compensation to the respondents 1 to 4 at the first instance and recover the same from the respondents 5 and 7, owners of trailer and tractor. There is no error in the said finding of the Tribunal warranting interference by this Court.
16.As far as quantum of compensation is concerned, it is the case of the respondents 1 to 4 that the deceased Arumugam was working as lorry driver at the time of accident and was earning a sum of Rs.12,000/- per month. To prove the same, the driving license of the deceased was marked as Ex.P5. They have not filed any document to prove the income of the deceased. In 13/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 the absence of any material with regard to income, the Tribunal fixed a sum of Rs.7,000/- per month as notional income of the deceased. The accident is of the year 2011. The notional income fixed by the Tribunal is meagre. Considering the date of accident and the fact that deceased was possessing heavy vehicle driving license, it would be just and proper to fix a sum of Rs.10,000/- per month as notional income of the deceased. The deceased was aged 38 years at the time of accident as per the date of birth mentioned in his driving license Ex.P5. The Tribunal, following the judgments of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others] and 2009 (2) TNMAC 1 SC (Sarla Verma and others vs. Delhi Transport Corporation and another), has rightly granted 40% enhancement towards future prospects and applied multiplier '15'. There were six dependants of the deceased. The respondents 1 to 4 filed claim petition claiming compensation for respondents 1 to 4 and parents of the deceased, who were shown as respondents 3 and 4 in the claim petition. Pending claim petition, Muthammal, mother of the deceased, 4th respondent in the claim petition died. In view of the same, there are five dependants and deduction of 1/5th by the Tribunal towards personal expenses 14/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 is not correct and only 1/4th has to be deducted towards personal expenses. After deducting 1/4th towards personal expenses, the amount granted by the Tribunal towards loss of dependency is modified to Rs.18,90,000/- (Rs.10,000/- + 4000 [Rs.10,000/- X 40%] X 12 X 15 X 3/4). A sum of Rs.1,50,000/- awarded by the Tribunal towards loss of love and affection to the respondents 2 to 4 at the rate of Rs.50,000/- each is excessive. Hence, the amount granted for loss of love and affection to the respondents 2 to 4 is modified and granted towards loss of parental consortium by reducing from Rs.1,50,000/- to Rs.1,20,000/- at the rate of Rs.40,000/- each. The 6th respondent is the father of the deceased, who lost his son at the young age. The 6th respondent is entitled to Rs.40,000/- towards loss of filial consortium. The amount granted for loss of love and affection to the 6 th respondent is modified and granted towards loss of filial consortium by enhancing from Rs.25,000/- to Rs.40,000/-. The amounts awarded by the Tribunal under all other heads are just and reasonable and hence, the same are hereby confirmed. Thus the compensation awarded by the Tribunal is modified as follows:
15/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 S.No. Description Amount Amount Award awarded by awarded by this confirmed or Tribunal Court enhanced or (Rs) (Rs) granted or reduced
1. Loss of 14,11,200 18,90,000 Enhanced dependency
2. Loss of 40,000 40,000 Confirmed consortium to the 1st respondent
3. Loss of estate 15,000 15,000 Confirmed
4. Funeral 15,000 15,000 Confirmed expenses
5. Loss of parental 1,50,000/- 1,20,000/- Reduced consortium to (Rs.50,000/- (Rs.40,000/-
the respondents each) each)
2 to 4
6. Loss of filial 25,000 40,000 Enhanced
consortium to
the 6th
respondent
Total 16,56,200 21,20,000 Enhanced by
Rs.4,63,800/-
17.With the above modification, the Civil Miscellaneous Appeal is partly allowed in respect of the head 'loss of parental consortium' and Cross- Objection is partly allowed in respect of the heads 'loss of dependency and loss of filial consortium'. The compensation of Rs.16,56,200/- granted by the 16/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 Tribunal is hereby enhanced to Rs.21,20,000/- together with interest at the rate of 7.5% per annum (excluding the default period, if any) from the date of petition till the date of deposit. The appellant/Insurance Company is directed to deposit the award amount now determined by this Court along with interest and costs, less the amount already deposited if any, within a period of six weeks from the date of receipt of a copy of this judgment, at the first instance and recover the same from the respondents 5 and 7. On such deposit, the 1st respondent and 6th respondent are permitted to withdraw their respective share of the award amount, as per the apportionment fixed by the Tribunal, along with proportionate interest and costs, after adjusting the amount if any, already withdrawn. The share of the minors/respondents 2 to 4 are directed to be deposited in any one of the Nationalised Banks till the minors attain majority. The 1st respondent being the mother of the minor respondents 2 to 4 is permitted to withdraw the accrued interest once in three months for the welfare of the minors. Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (V.S.G., J) 05.09.2022 Index : Yes / No kj 17/18 https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022 V.M.VELUMANI,J.
and V.SIVAGNANAM,J.
kj To
1.The Special Subordinate Judge Motor Accident Claims Tribunal Tiruvannamalai.
2.The Section Officer VR Section High Court Madras.
C.M.A.No.2036 of 2018 and C.M.P.No.15845 of 2018 and Cross Objection No.61 of 2022 05.09.2022 18/18 https://www.mhc.tn.gov.in/judis