Madras High Court
M/S.Hdfc Ergo General Insurance vs Geetha on 22 April, 2021
C.M.A.No.4443 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.04.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.M.A.No.4443 of 2019
and
CMP.Nos.25183 of 2019 and 6522 of 2020
(Through Video Conferencing)
M/s.HDFC ERGO General Insurance
Company Limited,
New No.528, Old No.559, 2nd Street,
Anna Salai, Teynampet,
Chennai 600 018. ... Appellant
Vs.
1. Geetha
2. Govindammal
3. Govindasamy (minor)
4. Silambarasan (minor)
5. Anandan (minor)
(minor petitioners represented by
their Next friend/step mother and
mother/1st petitioner Geetha)
6. Perumal
7. Kamalanathan ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the decree and Judgment dated 19.03.2019
made in MCOP.No.639 of 2015, on the file of the Motor Accidents
Claims Tribunal, (Special District Judge) Dharmapuri.
1/10
C.M.A.No.4443 of 2019
For Appellant : Mr.K.Vinod
For Respondents :
For R1 & R2 : C.E.Pratap
For R6 : Died
For R7 : No Appearance
JUDGMENT
The Insurance Company is the appellant in this appeal. It is
aggrieved by the impugned judgement and decree dated 19.03.2019
passed by the Motor Accidents Claims Tribunal (Special District Judge)
Dharmapuri in MCOP.No.639 of 2015.
2. By the impugned order, the Tribunal has awarded a sum of
Rs.15,22,000/- as compensation payable by the appellant Insurance
Company to the respondents/claimants on the following heads:
Compensation for Pecuniary Loss Rs.14,17,500/-
Loss of Consortium Rs. 40,000/-
Loss of Estate Rs. 15,000/-
Funeral Expenses Rs. 15,000/-
Medical Bills Rs. 34,500/-
Total Rs.15,22,000/-
C.M.A.No.4443 of 2019
3. The appellant/insurance company has challenged the impugned
judgment and decree passed by the Tribunal on three grounds namely
liability, negligence and quantum of compensation.
4. Heard learned counsel for the appellant and the learned counsel
for the respondent.
5. The learned counsel for the appellant/insurance company has
submitted that the liability cannot be fastened on the appellant/insurance
company. He further submitted that there is no insurance policy for
tanker. It is submitted that as per Ex.R.2 Copy of Insurance Policy, the
policy has been given only for the tractor alone and the unregistered
tanker was not insured with this appellant/insurance company.
6. However, this Court in Branch Manager, United India
Insurance Company Limited Vs. Tamilarasi and another
(CMA.No.898/2017, dated 14.09.2018) has held as under.
“ In the case referred above, a tractor attached with a trailer
was parked in the middle of the road without switching on the
C.M.A.No.4443 of 2019
parking light and the deceased who was riding TVS 50 Moped
dashed behind the tractor and met with an accident. The insurance
company took a defence that the trailer was not insured and the
trailer should be used only for agriculture or forestry purpose and
not for commercial purpose. They further contended that as the
trailer was not insured with them at the relevant time, insurance
company is not liable to pay compensation. The Honourable
Madras High Court has ruled that the trailer cannot independently
move and it has to pulled by a tractor. Further it was observed that
for putting the tractor to effective use, the trailer is required and
that tractor and trailer being interconnected to each other,
insurance company cannot avoid their liability on the ground that
the trailer was not insured, more particularly when the tractor was
insured effectively with the insurance company. Therefore, the
observation in the above judgment is squarely applicable to the case
on hand.
Thus the liability can be fastened on the appellant/insurance company.
7. That apart, the appellant/ insurance company cannot disown the
liability as it had insured the tractor. The definition of tractor under
Section 2(44) it is a motor vehicle which is not itself constructed to carry
any load (other than equipment used for the purpose of propulsion), but,
excludes a road roller.. Thus, it is only designed to mechanically propel
C.M.A.No.4443 of 2019
engines and is intended to be attached with trailers/tankers. Therefore,
the contention of the appellant/insurance company that no liability can be
fastened is to be rejected.
8. As far as negligence is concerned, there is no eyewitness for the
accident. A complaint was lodged by the deceased father, based on
which, FIR was registered. The deposition of RW4 who is the driver of
the insured tractor reveals that one of the tyre of the tractor was
punctured and therefore, he left the tractor with the tanker on the road
and had placed a stone on its side for identification and left his father in
the spot. No statement has been recorded from the owner of the vehicle/
the father of the driver Mani (RW4). Therefore, since no eye witness has
been examined by the appellant to prove that the accident occurred only
due to the rash and negligent act of the deceased, defence of the appellant
alleged has to fail. That apart, the accident occurred at 7.30 p.m. The
tanker lorry was attached to the tractor. It did not have any danger signal
available to caution the vehicle coming from behind. Therefore, it can be
assumed that the rider of the motorcycle/deceased sustained injuries and
died due to the negligence of the driver of the tractor. The deposition of
RW4 that he had put stones to warn the vehicles from behind would have
C.M.A.No.4443 of 2019
hardly warned a driver/rider of vehicle coming from behind during dusk
hours when there is poor visibility. Hence, the liability can be fastened
on the appellant/insurance company.
9. Though the appellant insurance company has made out a case
for interference as far as the computation of compensation is concerned,
it is to be noted that the accident is of the year 2015. The monthly income
of the deceased has been taken as to be Rs.7500/- . This according to me
is very low. Perhaps the Tribunal would have determined the above
compensation based on a slightly higher notional income. There is an
error, as far as additional 40% were future prospect and the adoption of
15 multiplier, the age of the deceased is considered as 40 years based on
the post-mortem report in Ex.P2. However, if a slightly higher notional
income was considered, the compensation to be awarded to the claimants
would have been much higher than the amount that has been awarded to
the claimants would have been much higher than the amount that has
been awarded by the Tribunal, even if it is considered that the Tribunal
had wrongly adopted 15 multiplier and added 40% towards future
prospect of the income of the deceased.
C.M.A.No.4443 of 2019
10. This court is ultimately concerned with awarding of just
compensation as has been held by the Hon'ble Supreme Court. Even
otherwise, the age of the deceased in Exhibit P2 Post mortem report
cannot be taken to be the conclusive age of the deceased in the absence
of report of the radiologist. Therefore, even though there are few
apparent mistakes in the computation of compensation. They are to be
ignored as the tribunal has considered a very low notional income of
Rs.7500/- for an accident which took place in the year 2015.
11. Therefore, I am of the view, the compensation awarded by the
tribunal is to be confirmed notwithstanding few minor mistakes in the
computation of compensation as higher notional income would have
resulted in payment of higher compensation to the respondent/claimants.
Since there is no appeal from the claimants for enhancement of
compensation, I therefore confirm the compensation awarded by the
Tribunal in the impugned judgment and decree. Hence, the appeal filed
by the appellant insurance company is liable to be dismissed.
12. The appellant/Insurance Company is therefore directed to
deposit the amount of compensation awarded by the tribunal after
C.M.A.No.4443 of 2019
deducting amount already deposited by it together with interest at 7.5%
per annum from the date of numbering of the claim petition till the date
of such deposit, less any amount already deposited within a period of six
weeks from the date of receipt of a copy of this Judgment.
13. On such deposit being made by the appellant/Insurance
Company, the 1st & 2nd claimants/1st & 2nd appellants are permitted to
withdraw their respective shares in the same proportion as was ordered
by the Tribunal, together with interest accrued thereon, less the amount
already withdrawn if any, by filing suitable application before the
Tribunal.
14. Since the 3rd to 5th appellants/3rd to 5th claimants are stated to be
minors as they were aged only 17, 13 & 7 years at the time of filing of
the claim petition, their shares shall be deposited in an interest bearing
account and the interest shall be allowed to be withdrawn by the 1st
claimant/1st respondent for the benefit of the minors. On attaining the
age of majority, the 3rd to 5th appellants/3rd to 5th claimants may also file
appropriate application for withdrawing their shares of compensation.
C.M.A.No.4443 of 2019
15. There is an endorsement in the court file that the sixth
respondent who is the father of the deceased also died. So far, no steps
have been taken. It appears that the wife of the sixth respondent has also
pre-deceased. Both were class-I heir of the deceased Chinnasamy. Since
the compensation to be paid under the Motor Vehicles Act on the
dependents, the proportionate amount of the share of the sixth respondent
is directed to be paid to the other respondents 1 to 5 /claimants 1 to 5
being the wife and children of the deceased Chinnasamy equally. The
present Civil Miscellaneous Appeal is disposed of. No costs.
Consequently, connected miscellaneous petitions are closed.
22.04.2021
Vv
Index : Yes/No
Internet : Yes / No
To:
1. The Motor Accidents Claims Tribunal,
The Special District Judge,
Dharmapuri.
2. The Section Officer,
V.R.Section,
Madras High Court,
Chennai-104.
C.M.A.No.4443 of 2019
C.SARAVANAN, J.
Vv
C.M.A.No4443 of 2010
and
CMP.Nos.25183 of 2019
and 6522 of 2020
22.04.2021
