Madras High Court
M/S.Reliance General Insurance ... vs Tmt.R.Sasikala Devi on 28 April, 2021
C.M.A.No.25 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28.04.2021
Coram:
The Honourable Mr. Justice R. SUBBIAH
and
The Honourable Mrs. Justice S. KANNAMMAL
C.M.A. No. 25 of 2021
and
C.M.P.No.226 of 2021
M/s.Reliance General Insurance Company Limited
6th Floor, Reliance House
No.6, Haddows Road
Nungambakkam
Chennai - 600 006 .. Appellant
Versus
1.Tmt.R.Sasikala Devi
2.J.Kanchana
3.Saran Raj
4.Monisha
5.B.Gandhi ...Respondents
Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle
Act, 1988 against the judgment and decree in M.C.O.P.No.4378 of 2016 dated
27.07.2020 on the file of the Motor Accidents Claims Tribunal, II Court of
Small Causes, Chennai.
For Appellant : Mr. M.B. Raghavan
For Respondents - 1 to 4 : Mr. C. Richard Suresh Kumar
Respondent - 5 : No Appearance
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C.M.A.No.25 of 2021
JUDGMENT
(Judgment of the Court was delivered by R.Subbiah, J.,)
This Civil Miscellaneous Appeal has been filed by the appellant/
Insurance Company questioning the validity and/or correctness of the award
passed by the Motor Accidents Claims Tribunal, II Court of Small Causes,
Chennai in M.C.O.P. No. 4378 of 2016 dated 27.07.2020.
2. It is stated in the claim petition filed by the respondents 1 to 4
herein that on 16.04.2016, at about 9.00 a.m, while the first respondent's
husband was riding his Scooty Pep bearing Registration No. TN 20 AD 5611
from Gummidipoondi to Elavur at Petthikuppam bridge, a Motorcycle bearing
Registration No. TN 18 AZ 6584 owned by the fifth respondent and insured
with the appellant/Insurance Company came from the opposite direction being
driven by its rider in a very rash and negligent manner and hit against the
scooty pep vehicle, which the husband of the first respondent was riding. As a
result of which, the first respondent's husband sustained multiple injuries.
Immediately he was taken to Government Hospital at Kottaikarai, from where
he was referred to Rajiv Gandhi Government General Hospital, Chennai for
further treatment. Due to the multiple injuries sustained by the first
respondent's husband, he died on 25.04.2016, at Rajiv Gandhi Government
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C.M.A.No.25 of 2021
General Hospital, Chennai. Hence, the respondents 1 to 4, who are the legal
heirs of the deceased, had filed a Claim Petition in M.C.O.P.No.4378 of 2016
against the fifth respondent and the appellant/Insurance Company, claiming a
sum of Rs.75,00,000/- as compensation for the death of first respondent's
husband.
3. The fifth respondent and appellant Insurance Company have filed
their respective counter statements before the Tribunal, wherein, they denied
the averments made by the claimants/respondents 1 to 4 in the Claim Petition.
4. Before the Tribunal, in order to prove the averments made in the
claim petition, 2 witnesses were examined viz., P.W.1 & P.W.2 and 7
documents were marked as exhibits viz., Ex.P1 to Ex.P7. On the side of the
fifth respondent and appellant/Insurance Company, one witness was examined
as R.W.1 and 4 documents were marked as exhibits viz., Ex.R1 to Ex.R4.
5. Based on the oral and documentary evidence produced, the Tribunal
arrived at the finding that the accident had occurred due to the rash and
negligent riding of the vehicle owned by the fifth respondent. Accordingly,
the appellant/Insurance Company was held liable to indemnify the fifth
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C.M.A.No.25 of 2021
respondent and to pay a sum of Rs.24,98,000/- (Rupees Twenty Four Ninety
Eight Thousand) to the claimants/respondents 1 to 4. The break-up details of
the compensation awarded by the Tribunal are as follows:
(i) Loss of Dependency - Rs.21,78,000/-
(ii) Loss of Consortium - Rs. 40,000/-
(iii) Parental Consortium - Rs. 2,00,000/-
(iv) Medical Expenses - Rs. 50,000/-
(v) Loss of Estate - Rs. 15,000/-
(vi) Funeral Expenses - Rs. 15,000/-
___________________
Total - Rs.24,98,000/-
___________________
6. Aggrieved by the quantum of compensation awarded by the
Tribunal, the appellant/Insurance Company has filed the present Appeal before
this Court.
7. Mr. M.B. Raghavan, learned counsel for the appellant/Insurance
Company would submit that as per the conditions of the Insurance Policy, the
insured vehicle must be driven by a person with a valid driving license. In the
present case, one A.Babu, who drove the fifth respondent's motorcycle did not
possess a valid driving license at the time of accident. He would further
submit that the accident had occurred only due to the negligence of the
deceased first respondent's husband who failed to observe the on-coming
vehicle. It is also to be noted that the deceased first respondent's husband was
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C.M.A.No.25 of 2021
not wearing the helmet at the time of accident. Had he worn the helmet, he
could have averted the accident and survived. In such circumstance, the
Tribunal ought to have fixed contributory negligence on the part of the
deceased as well.
8. The learned counsel would further contend that the claimants/
respondents 1 to 4 have not produced any documentary proof to substantiate
the monthly income of the deceased. However, the Tribunal, by relying on the
oral evidence of P.W.1 (wife of the deceased) to the effect that her husband
was working as a Painting Contractor, fixed the monthly income of the
deceased as Rs.20,000/-. Further, the Tribunal added 10% i.e., Rs.2,000/- to
his monthly income towards future prospectus and thus arrived at a sum of
Rs.22,000/- as the actual monthly loss of income and Rs.2,64,000/- (Rs.22,000
X 12) as annual loss of income. Thereafter, the Tribunal deducted 1/4th i.e.,
Rs.66,000/- from his Annual Income of Rs.2,64,000/-. Finally, it fixed the
annual contribution of the deceased as Rs.1,98,000/-. Taking note of the age
of the deceased, who was 52 years old at the time of accident, the Tribunal
applied Multiplier 11 and awarded a sum of Rs.21,78,000/- towards Loss of
Income. In the absence of any proof to show the income of the deceased, the
Tribunal ought not to have awarded such a huge amount towards Loss of
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C.M.A.No.25 of 2021
Income. Therefore, the amount awarded by the Tribunal towards Loss of
Income has to be reduced by fixing the monthly income of the deceased as
Rs.16,000/-. He would further contend that a sum of Rs.2,00,000/- awarded
by the Tribunal towards Parental Consortium is on the higher side and the
same also needs to be reduced. It is his contention that in a case of this nature
where the deceased was admittedly taking treatment in a Government
Hospital, there is absolutely no need to award any amount towards medical
expenses. Even otherwise, the respondents 1 to 4/ claimants have not filed any
documentary proof to show the extent of expenses incurred towards
hospitalisation or purchase of medicine. In the absence of the above, the
Tribunal is not justified in awarding Rs.50,000/- towards medical expenses.
The learned counsel for the appellant also filed a Calculation Memo before
this Court and the same reads as follows:
Heads Award of Tribunal Suggested amount
Income Fixed Rs.20,000/- Rs.16,000/-
Future Prospects Rs. 2,000/- (10%) Rs. 1,600/- (10%)
Annum Income Rs.20,000/- + Rs.2,000/- Rs.16,000/- + Rs.1,600/- x
x 12 = Rs.2,64,000/- 12 = Rs.2,11,200/-
Personal Deduction Rs.66,000/- = Rs.52,800/- =
(1/4) Rs.1,98,000/- Rs.1,58,400/-
Loss of Dependency Rs.1,98,000/- x 11 = Rs.1,58,400/- x 11 =
Rs.21,78,000/- Rs.17,42,400/-
Loss of Consortium Rs.40,000/- Rs.40,000/-
Love and Affection Rs.2,00,000/- Rs.1,20,000/-
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C.M.A.No.25 of 2021
Heads Award of Tribunal Suggested amount
Medical Expenses Rs.50,000/- Nil
Funeral & Transport Rs.15,000/- Rs.15,000/-
Loss of Estate Rs.15,000/- Rs.15,000/-
Total Rs.24,98,000/- Rs.19,32,400/-
9. Per contra, Mr. C. Richard Suresh Kumar, learned counsel appearing
for the respondents 1 to 4 would submit that the accident occurred only due to
the rash and negligent driving of the rider of motorcycle owned by the fifth
respondent and therefore, the Tribunal is right in fixing the entire negligence
on the respondents in the claim petition. He would also submit that the
compensation awarded by the Tribunal for the death of the deceased is just and
fair and the same needs no modification by this Court.
10. Heard the learned counsel on both sides and perused the materials
available on record.
11. On a careful perusal of records, it is seen that the Tribunal is wholly
justified in coming to the conclusion that the accident occurred only due to the
rash and negligent driving of the two wheeler owned by the fifth respondent.
We find no infirmity in such finding of the Tribunal and therefore, we concur
with the same.
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C.M.A.No.25 of 2021
12. Considering the submissions made by the appellant's counsel, this
Court is inclined to modify the quantum of compensation awarded by the
Tribunal for the reasons given below.
(i) Loss of Income:
Though no income proof was produced by the claimants, considering
the cost of living prevailed at the time of accident, the Tribunal fixed the
monthly income of the deceased as Rs.20,000/-. At the same time, fixation of
Rs.20,000/- in our opinion is on the higher side especially when there is no
documentary proof filed by the claimants. Furthermore, the deceased was 46
years at the time of accident and therefore also, we fix the monthly income of
the deceased as Rs.16,000/-. If 10% of the amount of Rs.16,000/- is added
towards future prospects, the monthly income of the deceased could be
Rs.17,600/- per month (Rs.16000 + Rs.1600). Thus, the annual income of the
deceased could be (Rs.17600 X 12) Rs.2,11,200/-. The Tribunal has rightly
given 1/4th deduction considering the number of dependents of the deceased.
If such deduction is given, the yearly income of the deceased will be
(Rs.2,11,200 - Rs.52,800) Rs.1,58,400/-. Since the deceased was 52 years at
the time of accident, we apply Multiplier 11 and award a sum of
Rs.17,42,400/- towards Loss of Income.
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C.M.A.No.25 of 2021
(ii) Loss of Consortium and Loss of Estate:
The Tribunal has rightly awarded a sum of Rs.40,000/- towards Loss of
Consortium to the first claimant and a sum of Rs.15,000/- towards Loss of
Estate. We find no reason to interfere with the award of the amount under
these heads
(iii) Parental Consortium:
As rightly pointed out by the learned counsel for the appellant, a sum
of Rs.2,00,000/- awarded by the Tribunal towards Parental Consortium is on
the higher side and the said amount has to be re-determined. 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), this Court awards a sum of Rs.1,20,000/- towards Parental
Consortium i.e., Rs.40,000/- each to the respondents 2 to 4.
(iv) Medical Expenses:
Though no documentary proof was produced by the claimants for
having incurred medical expenses for the treatment of the deceased from the
date of accident till his death, the Tribunal awarded a sum of Rs.50,000/-
towards Medical Expenses. In our considered opinion, the amount awarded by
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C.M.A.No.25 of 2021
the Tribunal towards Medical Expenses is fallible. Hence, the sum of
Rs.50,000/- awarded by the Tribunal under the head Medical expenses is
hereby set aside.
(v) Funeral Expenses:
The Tribunal awarded a sum of Rs.15,000/- towards Funeral Expenses
which is inadequate and insufficient. Hence, we enhance the Funeral
Expenses from Rs.15,000/- to Rs.40,000/-.
13. Accordingly, a sum of Rs.24,98,000/- awarded by the Tribunal is
re-determined as Rs.19,57,400/-. The break-up details of the re-determined
amount of compensation awarded by this Court are as follows:
(i) Loss of Dependency
(Rs.16,000/- + Rs.1,600/- x 12 = Rs.2,11,200/-)
(Rs.2,11,200 - Rs.52,800/- = Rs.1,58,400/-)
(Rs.1,58,400/- x 11) - Rs.17,42,400/-
(ii) Loss of Consortium - Rs. 40,000/-
(iii) Parental Consortium - Rs. 1,20,000/-
(iv) Loss of Estate - Rs. 15,000/-
(vi) Funeral Expenses - Rs. 40,000/-
___________________
Total - Rs.19,57,400/-
___________________
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C.M.A.No.25 of 2021
14. In the result, this Civil Miscellaneous Appeal is partly allowed and
a sum of Rs.24,98,000/- (Rupees Twenty Four Lakhs Ninety Eight Thousand)
awarded by the Tribunal in M.C.O.P.No.4378 of 2016 is re-determined as
Rs.19,57,400/- (Rupees Nineteen Lakhs Fifty Seven Thousand and Four
Hundred) by this Court. The appellant/Insurance Company is directed to
deposit the award amount re-determined by this Court, deduct the amount, if
any, already deposited, along with interest at 7.5% per annum from the date of
petition till the date of deposit to the credit of M.C.O.P.No.4378 of 2016
within a period of six weeks from the date of receipt of a copy of this
judgment. On such deposit being made, the claimants/respondents are
permitted to withdraw the compensation amount re-determined by us in equal
proportion. No costs. Consequently, connected Miscellaneous Petition is
closed.
(R.P.S.J.,) (S.K.J.,)
28.04.2021
mrr/rsh
Index : Yes / No
Speaking Order (or) Non-Speaking Order
To
1.The Motor Accidents Claims Tribunal,
II Court of Small Causes,
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C.M.A.No.25 of 2021
Chennai.
2. The Section Officer,
Vernacular Records Section
High Court, Madras
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C.M.A.No.25 of 2021
R.SUBBIAH, J
and
S.KANNAMMAL, J
mrr/rsh
CMA No. 25 of 2021
28.04.2021
https://www.mhc.tn.gov.in/judis/
