Madras High Court
Rajendran vs K.Kumaresan on 27 April, 2021
C.M.A.Nos.160 & 161 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 27.04.2021
Coram:
THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MRS. JUSTICE S. KANNAMMAL
C.M.A.Nos.160 & 161 of 2021
1.Rajendran
2.Kala
..Appellants in C.M.A.No.160 of 2021
3.P.Kannan
...Appellant in C.M.A.No.161 of 2021
Versus
1.K.Kumaresan
2.The New India Assurance Company Limited,
No.45, Moore Street,
Chennai - 600 001.
...Respondents in both C.M.As
These Civil Miscellaneous Appeals are filed under Section 173 of
Motor Vehicle Act, 1988 against the judgment and decree in
M.C.O.P.Nos.3500 & 3501 of 2013 dated 03.06.2019 respectively on the file
of the Motor Accidents Claims Tribunal, II Court of Small Causes, Chennai.
For Appellants : Ms. A. Subadra
in both the appeals
For Respondent - 1 : Ex-parte
Respondent - 2 : Mr.R.Sivakumar
in both the appeals
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C.M.A.Nos.160 & 161 of 2021
COMMON JUDGMENT
(Judgment of the Court was delivered by R.Subbiah, J)
These Civil Miscellaneous Appeals have been filed by the claimants in
MCOP Nos. 3501 of 2013 and 3500 of 2013 respectively. They are aggrieved
by the quantum of compensation awarded by the Tribunal in and by the
Judgment dated 03.06.2019 and seeks for enhancement of the amount.
2. Before the Tribunal, two claim petitions were filed. The Claim
Petition in MCOP No. 3500 of 2013 was filed by the claimant for the injuries
sustained by him in the accident that had taken place on 31.03.2013. The
other claim petition in MCOP No. 3501 of 2013 was filed by the parents of
Selvakumar, who died in the very same accident.
3. As per the averments in the claim petitions, on 31.03.2013, at
about 21.15 hours, the claimant in MCOP No. 3500 of 2013 and the son of the
claimant in MCOP No. 3501 of 2013 were travelling in a Hyundai Santro Car
in Kovalam to Chennai road. It is stated that the driver of the Car had driven it
in a rash and negligent manner and when the car was proceeding near Jem
Company, Kannathur, it dashed against a Tata Sumo Car bearing Registration
No. TN 19 C 6264 which was coming from the opposite direction. In the
impact, the son of the claimants in MCOP No. 3501 of 2013 sustained fatal
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C.M.A.Nos.160 & 161 of 2021
injuries and died on the spot, while the claimant in MCOP No. 3500 of 2013
sustained fracture of shaft in right femur, segmental comminuted fracture in
left humerus and bilateral occipital bleed. Immediately, the claimant in MCOP
No. 3500 of 2013 was admitted in Global Health City Hospital, Medavakkam
where he had taken treatment from 31.03.2013 to 20.04.2013. Therefore, for
the injuries sustained in the accident, the claimant in MCOP No. 3500 of 2013
has sought compensation of Rs.18 lakhs, while the claimants in MCOP No.
3501 of 2013 sought compensation of Rs.83,50,000/- for the death of their
son. The claim petitions were filed against the owner of the Santro Car and it's
insurer.
4. The Insurance Company resisted the claim petitions by filing
separate counter statement contending inter alia that the driver of the Santro
Car was in an inebriated condition at the time of accident thereby, the
conditions of the Insurance Policy were violated. Further, the owner of the
Tata Sumo Car and it's insurer were not impleaded in the claim petition, hence,
the Claim Petitions are liable to be dismissed on the ground of non-joinder of
necessary party. Above all, the Insurance Policy will not cover the passengers
travelling in the car and therefore also, the Insurance Company cannot be
mulcted with any liability to pay compensation to the claimants.
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C.M.A.Nos.160 & 161 of 2021
5. Before the Tribunal, common evidence was recorded in both the
Claim Petitions. On the side of the claimants, 4 witnesses were examined as
P.W.1 to P.W.4 and Exhibits P1 to P34 were marked. On the side of the
second respondent/Insurance Company, one witness was examined as R.W.1
and Ex.R1 was marked.
6. On appreciation of the oral and documentary evidence, the
Tribunal concluded that the accident occurred only due to the rash and
negligent driving of the driver of Santro Car. Therefore, it was held that the
respondents viz., owner and insurer of the Car are jointly and severally liable
to pay the compensation amount to the claimants. The Tribunal awarded a
sum of Rs.6,40,000/- as compensation to the claimant in MCOP No. 3500 of
2013 (appellant in C.M.A.No.161 of 2021) and Rs.21,80,000/- as
compensation to the claimants in MCOP No. 3501 of 2013 (appellants in
C.M.A. No. 160 of 2021). The break-up details of the compensation awarded
by the Tribunal in M.C.O.P.Nos.3500 & 3501 of 2013 respectively are as
follows:
M.C.O.P.No.3500 of 2013:
(i) For Disability - Rs. 50,000/-
(ii) Transportation Charges - Rs. 10,000/-
(iii) Attender Charges - Rs. 10,000/-
(iv) Pain & Sufferings
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- Rs. 50,000/-
C.M.A.Nos.160 & 161 of 2021
(v) Extra Nourishment - Rs. 20,000/-
(vi) Medical Expenses - Rs.5,00,000/-
__________________
Total - Rs.6,40,000
__________________
M.C.O.P.No.3501 of 2013:
(i) Loss of Income - Rs.21,50,400/-
(ii) Loss of Estate - Rs. 15,000/-
(iii) Funeral Expenses - Rs. 15,000/-
__________________
Total - Rs.21,80,400/-
__________________
The total compensation was rounded off to Rs.21,80,000/-
C.M.A.No.160 of 2021 (MCOP No. 3501 of 2013):
7. The learned counsel for the appellants would submit that the
deceased Selvakumar was working as Assistant Manager in Finance
Department at V.S.T. Motors Ltd., No.199, Anna Road, Chennai - 600 002.
At the time of accident, the deceased was 33 years old and he was earning a
sum of Rs.16,800/- as monthly income. To substantiate the earnings of the
deceased, the claimants/appellants produced the Pay Slip of the deceased
under Ex.P29 wherein, the salary of the deceased for the month January 2013
was shown as Rs.16,800/-. Moreover, they had also produced Ex.P30 (Form
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C.M.A.Nos.160 & 161 of 2021
16 submitted to the Income Tax Department) before the Tribunal. As per the
IT returns, the annual income of the deceased exceeds Rs.3.60 Lakhs,
however, the Tribunal fixed only a sum of Rs.16,000/- as monthly income of
the deceased. It is also contended that the Tribunal ought not to have deducted
50% towards Personal Expenses of the deceased especially when the
claimants/appellants totally depended on his earnings. She would also contend
that the Tribunal awarded only a very meager sum of Rs.15,000/- towards Loss
of Estate and Rs.15,000/- towards Funeral Expenses and the amount awarded
thereof has to be enhanced. She further prays this Court to award some
amount as compensation towards the heads loss of expectation of life,
Transport Expenses, Love & Affection, and Mental Agony since the Tribunal
did not award any under those heads.
CMA No. 161 of 2021 (MCOP No.3500 of 2013):
8. The learned counsel for the appellant would only contend that the
amount awarded by the Tribunal under the head Pain and Suffering, Disability
are very low. For Disability, the Tribunal has fixed only a meager sum of
Rs.50,000/- which is not in consonance with the nature of injuries suffered by
the claimant. It is also contended that before the Tribunal, Ex.P24 was marked
by the claimant to show that he requires future medical expenses. However,
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C.M.A.Nos.160 & 161 of 2021
the Tribunal has not awarded any amount towards future Medical expenses.
The Tribunal also did not consider the evidence of PW2, Doctor who had
specifically deposed the nature of injuries suffered by the claimant and it
warrants future medical expenses. The learned counsel therefore prayed for
enhancing the compensation amount.
9. The learned counsel appearing for the second respondent/
Insurance Company would submit that the Tribunal awarded a huge sum of
Rs.21,80,400/- as compensation to the claimants/appellants for the death of
their son Selvakumar and Rs.6,40,000/- to the injured claimant.
Notwithstanding the same, the present appeals have been filed seeking
enhancement of the compensation amount. He would submit that the
compensation awarded by the Tribunal is absolutely just and fair and
therefore, the same needs not to be enhanced.
C.M.A.No.160 of 2021 (MCOP No. 3501 of 2013):
10. The claimants/appellants had produced the Pay Slip of the
deceased as Ex.P29 before the Tribunal in which the monthly income of the
deceased was mentioned as Rs.16,800/-, however, the Tribunal fixed the
monthly income of the deceased as Rs.16,000/-. There is no reason assigned
by the Tribunal to restrict the income of the deceased to Rs.16,000/- when the
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C.M.A.Nos.160 & 161 of 2021
pay slip was produced to substantiate his income at Rs.16,800/-. Therefore,
we are of the view that the income of the deceased has to be taken at
Rs.16,800/- per month. Considering the age of the deceased, who was 33
years old at the time of accident, we apply multiplier 16 and calculate the Loss
of Income as Rs.32,25,600/- i.e., (Rs.16,800/- x 12 x 16 = Rs.32,25,600/-).
Following the principles laid down by the Hon'ble Supreme Court in the case
of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in
2017 (2) TNMAC 609 (SC), we add 50% of the amount i.e., Rs.16,12,800/-
towards Future Prospectus of the deceased. Hence, the total compensation
comes around Rs.48,38,400/-. By deducting 50% of the amount i.e.,
Rs.24,19,200/- towards Personal Expenses of the deceased, we award a sum of
Rs.24,19,200/- towards Loss of Income or Dependency. The argument of the
learned counsel for the appellant that the Tribunal is not justified in deducting
50% towards personal expenses cannot be countenanced. Admittedly, the
deceased died as a bachelor and therefore, deducting 50% towards personal
expenses is proper and therefore, we reject this argument of the counsel for the
appellant.
11. On perusal of the award of the Tribunal, we find that the Tribunal
did not award any amount towards filial compensation to the claimants. The
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C.M.A.Nos.160 & 161 of 2021
claimants, who are the parents, have lost their son at the prime age of 33 years
and therefore, it is just and proper to award a sum of Rs.80,000/- (Rs.40,000/-
each) towards Filial Compensation. Similarly, the Tribunal has not awarded
any amount towards transportation expenses, which we award at Rs.15,000/-.
The amount awarded by the Tribunal towards Loss of Estate and Funeral
Expenses are just and fair and therefore, we do not enhance or reduce the
same. In effect, the claimants in CMA No. 160 of 2021 (MCOP No. 3501 of
2021) are entitled to enhanced compensation as follows:
(i) Loss of Income - Rs.24,19,200/-
(ii) Loss of Love & Affection - Rs. 80,000/-
(iii) Transportation Expenses - Rs. 15,000/-
(iv) Loss of Estate - Rs. 15,000/-
(v) Funeral Expenses - Rs. 15,000/-
___________________
Total - Rs.25,44,200/-
____________________
C.M.A.No.161 of 2021 (MCOP No. 3500 of 2013):
12. The appellant sustained Fracture of shaft of right femur,
segmental comminuted fracture left humerus and bilateral occipital bleed
injuries. He was 26 years old at the time of accident and working as a
Territory Manager at Netambit Insurance Broking India Ltd., No.141, Ground
Floor, Prakesh Towers OMR Road, Thiruvanmiyur, Chennai - 600 041. Due
to the injuries, it is claimed that he could not attend to his employment for a
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C.M.A.Nos.160 & 161 of 2021
brief period. Further, the appellant had produced Hospital Bills under Ex.P19
and Disability Certificate - Ex.P34 in which the the disability was indicated as
40%. However, the Tribunal fixed the disability of the appellant at 15% and
awarded only a sum of Rs.50,000/- towards Disability. Such an amount of
Rs.50,000/- awarded by the Tribunal, towards disability is not in consonance
with the nature of injuries sustained by the appellant. It is seen that the
appellant was admitted as an in-patient from 31.03.2013 to 20.04.2013 for a
period of about 90 days. During the course of such hospitalisation, he had
underwent a surgery on 09.04.2013. Having regard to the above, we are of the
view that the amount awarded towards disability reuquire enhancement.
Likewise, the amount of compensation awarded by the Tribunal towards
Transportation Expenses, Attender Charges, Pain & Sufferings, Extra
Nourishment and Medical Expenses also needs to be enhanced.
13. Accordingly, we fix the disability of the appellant at 40% and award
a sum of Rs.80,000/- towards Disability at the rate of Rs.2,000/- per
percentage of disability. Also, taking note of the fact that the appellant is
required to take medical expenses in future, we are inclined to enhance the
amount awarded towards Medical Expenses. Accordingly, a sum of
Rs.5,00,000/- awarded towards Medical Expenses is enhanced to Rs.5,50,000/-
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C.M.A.Nos.160 & 161 of 2021
14. Considering the submissions made by the counsel for the appellant,
we are inclined to enhance the amount of compensation awarded by the
Tribunal only under the heads viz., Transportation Expenses, Attender Charges
and Extra Nourishment. Accordingly, a sum of Rs.10,000/- awarded towards
Transportation Expenses is enhanced to Rs.20,000/-; a sum of Rs.10,000/-
awarded towards Attender Charges is enhanced to Rs.20,000/- and a sum of
Rs.20,000 awarded towards Extra Nourishment is enhanced to Rs.30,000/-.
However, we feel that the sum of Rs.50,000/- awarded towards Pain &
Sufferings is reasonable and it does not warrant enhancement. The break-up
details of the enhanced compensation are as follows:
(i) For Disability - Rs. 80,000/-
(ii) Transportation Expenses - Rs. 20,000/-
(iii) Attender Charges - Rs. 20,000/-
(iv) Pain & Sufferings - Rs. 50,000/-
(v) Extra Nourishment - Rs. 30,000/-
(vi) Medical Expenses - Rs.5,50,000/-
__________________
Total - Rs.7,50,000/-
__________________
15. In the result, these Civil Miscellaneous Appeals are partly allowed
to the extent indicated below.
(i) In C.M.A.No.160 of 2021, a sum of Rs.21,80,000/- (Rupees Twenty
One Lakhs Eighty Thousand) awarded by the Tribunal in M.C.O.P.No.3501 of
2013 is hereby enhanced to Rs.25,44,200/- (Rupees Twenty Five Lakhs Forty
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C.M.A.Nos.160 & 161 of 2021
Four Thousand and Two Hundred). The second respondent/Insurance
Company is directed to deposit the said award amount of Rs.25,44,200/-, after
deducting the amount(s), if any, already deposited, along with interest at 7.5%
per annum from the date of claim petition till the date of deposit, to the credit
of M.C.O.P.No.3501 of 2013, within a period of four weeks from the date of
receipt of a copy of this judgment. On such deposit being made, the
claimants/appellants are permitted to withdraw the said amount.
(ii) In C.M.A.No.161 of 2021, the sum of Rs.6,40,000/- (Rupees Six
Lakhs Forty Thousand) awarded by the Tribunal in M.C.O.P.No.3500 of 2013
is hereby enhanced to Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand) by
this Court. The second respondent/Insurance Company is directed to deposit
the said award amount of Rs.7,50,000/-, after deducting the amount(s), if any,
already deposited, along with interest at 7.5% per annum from the date of
claim petition till the date of deposit, to the credit of M.C.O.P.No.3500 of
2013, within a period of four weeks from the date of receipt of a copy of this
judgment. On such deposit being made, the claimant/appellant is permitted to
withdraw the said amount. No costs.
(R.P.S.J.,) (S.K.J.,)
27.04.2021
mrr
Index : Yes / No
Speaking Judgement (or) Non-Speaking Judgement
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C.M.A.Nos.160 & 161 of 2021
To
1.The Motor Accidents Claims Tribunal,
II Court of Small Causes,
Chennai.
2.The Section Officer,
VR Section,
High Court of Madras,
Chennai - 600 104.
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C.M.A.Nos.160 & 161 of 2021
R.SUBBIAH, J
and
S.KANNAMMAL, J
mrr/rsh
C.M.A.Nos.160 & 161 of 2021
27.04.2021
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