Madras High Court
Hdfc Ergo General Insurance Co. ... vs C.Viswanathan on 23 April, 2021
C.M.A. No.1859 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 23.04.2021
CORAM
THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MRS. JUSTICE S. KANNAMMAL
C.M.A. No.1859 of 2020
and
CMP. No. 13759 of 2020
---
HDFC ERGO General Insurance Co. Ltd.,
No.528/559, 2nd Floor, Anna Salai,
Teynampet, Chenai 600 018. .. Appellant
Versus
1. C.Viswanathan
2. V.Lakshmi
3. L.Priya .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
Act, 1988 against the judgment and decree dated 16.09.2019 made in
MCOP.No.2355 of 2017 on the file of the Motor Accident Claims Tribunal /
II Court of Small Causes, Chennai.
For appellant : Mr. S. Arunkumar
For respondents
for RR1 & 2 : Mr. S.R. Suga
for R3 : No Appearance
JUDGMENT
(The Judgment of the Court was delivered by R.Subbiah, J)
The appeal is heard through video conferencing.
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C.M.A. No.1859 of 2020
2. Challenging the quantum of compensation awarded by the Motor
Accident Claims Tribunal/II Court of Small Causes, Chennai in MCOP
No.2355 of 2017, dated 16.09.2019, the present appeal has been filed by the
Insurance Company.
3. The respondents 1 and 2 are the parents of the deceased Baskar. It is
the case of the respondents 1 and 2/claimants before the Tribunal that on
08.01.2017 at about 19.30 hours, while the deceased was riding a CBZ Honda
Motorcycle bearing Registration No.TN 19 F 0628 on Mambakkam-
Medavakkam Road, near Ponmar Bus stop, a Toyota Corolla Altis Car bearing
Registration No.TN 14 D 7979, belonging to the third respondent and insured
with the appellant Insurance Company came in a rash and negligent manner
being driven by its driver from the opposite direction and dashed against the
vehicle driven by the deceased. Due to the impact, the deceased sustained fatal
injuries and died on the spot.
4. It is the further case of the claimants/respondents 1 and 2 that at the
time of accident, the deceased was employed as a Machine Technician and
earning a sum of Rs.16,000/- per month. Due to the sudden demise of the
deceased, the claimants are suffering for their livelihood. Hence, they made a
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C.M.A. No.1859 of 2020
claim for a sum of Rs.75,00,000/- as compensation for the death of the
deceased.
5. The claim petition was resisted by the appellant/Insurance Company
as well as the third respondent/owner of the vehicle by filing separate counter
statements denying the manner of the accident as projected by the claimants in
the claim petition. They also denied the avocation and income mentioned in the
claim petition. Thus, they sought for dismissal of the claim petition.
6. In order to prove the averments in the claim petition, on the side of the
claimants, the second claimant/mother of the deceased examined herself as
PW1, besides examining PW2, the eyewitness to the accident and marked
Exs.P1 to P15. On the side of the third respondent/Owner of the Car, the
driver, who is the husband of the third respondent, examined himself as RW1
and Exs.R1 to R4 were marked through him.
7. The Tribunal, after analysing the entire evidence, came to the
conclusion that the accident had occurred due to the rash and negligent driving
of the driver of the Car bearing Registration No.TN 14 D 7979. By coming to
such conclusion, the Tribunal passed an award for a sum of Rs.27,85,500/-
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C.M.A. No.1859 of 2020
and directed the appellant/Insurance Company to pay the above amount. The
break-up details of the amount awarded by the Tribunal under various heads
are as follows:
S. No. Heads under which amounts are awarded Amounts in Rs.
1. Loss of Dependency 24,70,500
2. Loss of Love and Affection 1,00,000
3. Filial Consortium 2,00,000
4. Funeral Expenses 15,000
Total 27,85,500
8. Now, it is the submission of the learned counsel for the appellant/
Insurance Company that the Tribunal while awarding the compensation had
taken a sum of Rs.15,250/- as monthly income of the deceased and added 50%
of the same towards future prospects, which resulted in awarding an exorbitant
sum of Rs.24,70,500/- under the head “Loss of Dependency”. Hence, instead
of adding 50% of the monthly income towards future prospects, 40% has to be
added and the amount awarded under the head “Loss of Dependency” has to
be reduced.
9. The learned counsel for the appellant/Insurance Company further
submitted that, as per the recent judgment of the Supreme Court in National
Insurance Company Limited vs. Pranay Sethi and others [(2017) 16 SCC
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C.M.A. No.1859 of 2020
680], a sum of Rs.40,000/- has to be awarded to each of the legal heirs of the
deceased towards "Filial Consortium", whereas the Tribunal awarded a sum of
Rs.1,00,000/- to each of the claimants. Therefore, the amount awarded under
the head "Filial Consortium" has to be reduced by awarding a sum of
Rs.40,000/- to each of the claimants.
10. The learned counsel for the appellant/Insurance Company also relied
on the judgment of the Supreme Court in United India Insurance Company
Ltd., vs. Satinder Kaur reported in 2020 ACJ 2131 and submitted that the
Tribunal after awarding amount under the head “Filial Consortium”, cannot
separately award another sum of Rs.1,00,000/- towards “Loss of Love and
Affection”. Hence, the amount awarded under the head “Loss of Love and
Affection” has to be set aside.
11. The learned counsel appearing for the respondents 1 and 2/claimants
made his submissions supporting the award passed by the Tribunal and prayed
for dismissal of the appeal.
12. This Court heard the submissions made on either side and perused
the materials available on record.
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C.M.A. No.1859 of 2020
13. As rightly contended by the learned counsel for the
appellant/Insurance Company, since the deceased was working in a Private
Company, 50% of the monthly income cannot be added towards future
prospects. Hence, by adding 40% of the monthly income towards future
prospects, the amount under the head "Loss of Dependency" is re-calculated as
follows:
Monthly income : Rs. 15,250/-
Add: Future prospects
40% of Rs.15,250/- : Rs. 6,100/-
-----------------
Rs. 21,350/-
Less: Personal expenses
50% of Rs.21,350/- : Rs. 10,675/-
-----------------
Rs. 10,675/-
Annual income (10,675*12) : Rs.1,28,100/-
Multiplier : 18
Loss of dependency : Rs.23,05,800/-
( 1,28,100 * 18)
14. Thus, the sum of Rs.24,70,500/- awarded by the Tribunal under
the head “Loss of Dependency” is hereby reduced to Rs.23,05,800/-
15. As per the oft-quoted decision of the Honourable Supreme Court in
Pranay Sethi Case (referred supra), the sum of Rs.2,00,000/- awarded by the
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C.M.A. No.1859 of 2020
Tribunal under the head “Filial Consortium” cannot be sustained. The parents
of the claimants are only entitled for a sum of Rs.40,000/- each under this
head. Therefore, the amount of Rs.2,00,000/- awarded by the Tribunal
towards Filial consortium is set aside, instead a sum of Rs.80,000/- is awarded
to the claimants by awarding each of the claimant a sum of Rs.40,000/-
16. As rightly pointed out by the learned counsel for the appellant-
Insurance Company, when Rs.80,000/- is awarded to the claimants towards
“Filial Consortium” the compensation awarded by the Tribunal towards loss of
love and affection cannot be sustained. Therefore, the sum of Rs.1,00,000/-
awarded by the Tribunal cannot be sustained and it is liable to be set aside.
17. At the same time, we find that the Tribunal has not awarded any
amount under the head “Transportation Expenses”, therefore, a sum of
Rs.15,000/- is hereby awarded towards transportation expenses. Similarly,
another sum of Rs.15,000/- is awarded under the head “Loss of Estate”, which
the Tribunal failed to award.
18. The sum of Rs.15,000/- awarded by the Tribunal towards
“Funeral Expenses” is just and fair and hence, the same is hereby confirmed.
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C.M.A. No.1859 of 2020
19. Accordingly, the modified compensation payable is as follows:
Sl. Compensation Amount awarded Amount awarded
No. awarded under the by Tribunal by this Court
head (in Rs.) (in Rs.)
1. Loss of Dependency 24,70,500 23,05,800
2. Loss of Love and Affection 1,00,000 -
3. Filial Consortium 2,00,000 80,000
4. Funeral Expenses 15,000 15,000
5. Transportation Expenses - 15,000
6. Loss of Estate - 15,000
7. Total 27,85,500 24,30,800
20. Accordingly, the sum of Rs.27,85,500/- awarded by the Tribunal
towards compensation is hereby reduced to Rs.24,30,800/-, which shall carry
interest at 7.5% from the date of claim petition till the date of payment. The
appellant/Insurance Company is directed to deposit the total compensation
awarded by this Court before the Tribunal, after adjusting the amount if any
already deposited, within a period of six weeks from the date of receipt of a
copy of this judgment. In case, the Appellant-Insurance Company had
deposited excess amount than the amount determined in this appeal, they are at
liberty to withdraw the same. On such deposit, the claimants are permitted to
withdraw the entire amount as has been apportioned by the Tribunal in equal
proportion.
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C.M.A. No.1859 of 2020
21. With the above observations and directions, the Civil Miscellaneous
Appeal is partly allowed. No costs. Consequently, connected miscellaneous
petition is closed.
[R.P.S., J] [S.K., J]
23.04.2021
Speaking Order : Yes / No
Index : Yes / No
pvs/rsh
To
1. Motor Accident Claims Tribunal,
II Court of Small Causes, Chennai
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. No.1859 of 2020
R. SUBBIAH, J
and
S. KANNAMMAL, J
pvs/rsh
CMA No.1859 of 2020
and
CMP. No. 13759 of 2020
23.04.2021
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