Madras High Court
Reliance General Insurance ... vs Karpagam on 9 August, 2021
C.M.A.(MD).No.657 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.A.(MD).No.657 of 2021
and
C.M.P.(MD).No.6247 of 2021
Reliance General Insurance Company Limited,
represented by its Manager,
PLA Kanagu Towers,
2nd Floor, XI Cross,
15 A Thillai Nagar, Trichy Town,
Trichy District. ... Appellant /Second respondent
-vs-
1.Karpagam
2.Minor Swathi
3.Minor Nithya
4.Kamatchi
(Minor respondents 2 and 3 are represented by their
guardian and mother first respondent)
5.Thirunavukarasu
... Respondents
1/14
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C.M.A.(MD).No.657 of 2021
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, against the fair and decreetal order dated 10.08.2018 made in
M.C.O.P.No.48 of 2014, on the file of the Motor Accident Claims Tribunal (Sub
Court), Devakottai.
For Appellant : Mr.S.Srinivasa Raghavan
For Respondents : Mr.D.Venkatesh
JUDGMENT
[Judgment of the Court was delivered by V.BHARATHIDASAN,J.]
In this appeal, the appellant/Insurance Company challenges the award of
the Motor Accident Claims Tribunal, Sub Court, Devakottai passed in M.C.O.P.
No.48 of 2014.
2. The brief facts of the case are that, the deceased one Balamurugan was
the husband of the first respondent, the father of the respondents 2 and 3 and the
son of the fourth respondent. On 05.11.2013, at 8.00 p.m., while the deceased was
riding a motorcycle, Hero Honda Pro, bearing Registration No.TN-65-Q-8761, on
ECR Road, a Tempo Traveler vehicle bearing Registration No.TN-72-AB-4852
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C.M.A.(MD).No.657 of 2021
owned by the 5th respondent, duly registered with the appellant/Insurance
Company, driven by its driver, came in a rash and negligent manner in the
opposite direction and dashed against the two wheeler. In the impact, the
deceased Balamurugan sustained injuries, later succumbed to the injuries, and the
accident took place due to the rash and negligent driving of 5th respondent driver.
Stating that the deceased was 32 years old at the time of accident, and he was
engaged in construction work and doing centring work, earning Rs.12,000/- per
month, his wife, children and mother filed the original petition claiming
compensation of Rs.20,00,000/-.
3. Before the Tribunal, the fifth respondent, who is the owner of the
offending vehicle remained ex-parte, the appellant / Insurance Company has filed
a counter affidavit contending that, the accident had occurred only due to the
negligent driving of the deceased and no negligence could be fixed on the part of
the driver of the fifth respondent vehicle. That apart, the alleged income of the
deceased highly and excessive and there is no evidence available on record to
show that the deceased was earning a sum of Rs.12,000/- per month.
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C.M.A.(MD).No.657 of 2021
4. During trial, before the Tribunal, on behalf of the claimants, two
witnesses were examined and 5 documents were marked. No oral and
documentary evidence was adduced on behalf of the respondents in the claim
petition. After analysing the evidence, the Tribunal held that the driver of the
fifth respondent was responsible for the accident.
5. So far as the quantum of compensation is concerned, the Tribunal has
fixed the monthly income of the deceased at Rs.12,000/- per month and after
deducting 1/4th towards his personal expenses, calculated annual income of the
deceased at Rs.1,65,600/- and by applying multiplier '16', awarded Rs.26,49,600/-
as loss of income. In addition, the Tribunal has awarded Rs.40,000/- to the first
claimant, towards loss of consortium, Rs.15,000/- towards funeral expenses and
Rs.15,000/- towards ambulance charges and awarded total compensation of Rs.
27,19,600/- along with interest at the rate of 7.5% per annum. Questioning the
same, the present appeal has been filed by the Insurance Company.
6. Mr.S.Srinivasa Raghavan, learned counsel appearing for the appellant /
Insurance Company would contend that, the accident had happened only due to
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C.M.A.(MD).No.657 of 2021
the negligent driving of the deceased, the available evidence clearly shows that
the accident has taken place only due to the negligent driving of the deceased. So
far as the monthly income of the deceased is concerned, the learned counsel for
the appellant would contend that even though the deceased was working as a
mason, except the oral evidence of P.W.1, there is no other material available on
record to show that the deceased was earning a sum of Rs.12,000/- per month.
The Tribunal has fixed the monthly income of the deceased at Rs.12,000/-, only
on presumption, without any evidence. Hence, the compensation awarded by the
Tribunal is highly excessive and liable to be set aside.
7. Per contra, Mr.D.Venkatesh, learned counsel appearing for the
respondents/caveators would submit that the Tribunal considering the oral and
documentary evidence rightly come to the conclusion that the accident has taken
place due to the rash and negligent driving of the driver of the fifth respondent
vehicle. He would further submit that the Tribunal also considering the oral and
documentary evidence, fixed the income of the as Rs.12,000/- per month and
following the judgments of the Hon'ble Apex Court in the case of National
Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16
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C.M.A.(MD).No.657 of 2021
SCC 680 and Smt. Sarla Varma and other vs. Delhi Transport Corporation and
another reported in 2009 (2) TNMAC 1 (SC), deducted 1/4th towards his
personal expenses and correctly applying the multiplier '16', awarding the
compensation of Rs.26,49,600/- as loss of estate and there is no reason to
interfere with the same. He would also submit that as per the judgment of the
Hon'ble Apex Court, in the case of Magma General Insurance Company
Limited vs. Nanu Ram alias Chuhru Ram and others reported in (2018) 2 TN
MAC 452, the minor children entitled for parental consortium and the fourth
respondent/mother is entitled for filial consortium. But, without considering the
same, the Tribunal awarded a sum of Rs.40,000/- only to the first claimant/wife.
Hence, the compensation awarded by the Tribunal is liable to be enhanced.
8. We have considered the submissions of the learned counsel for the
appellant and the learned counsel for the respondents and perused the materials
available on record.
9. The claimants are wife, minor children and mother of the deceased.
Before the Tribunal, the first claimant was examined as P.W.1 and the eyewitness
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C.M.A.(MD).No.657 of 2021
to the occurrence was examined as P.W.2 and in his evidence, P.W.2 has clearly
stated that only due to the negligent driving of the offending vehicle, the accident
had taken place. That apart, a criminal case was registered against the driver of
the offending vehicle and the final report also filed by the Criminal Court. The
driver of the offending vehicle was not examined by the respondents to prove the
negligence and no other material available on record to show that the accident
took place due to the negligent driving of the deceased. In the above
circumstances, the Tribunal has rightly held that the accident has taken place only
due to the negligent driving of the offending vehicle.
10. So far as the quantum of compensation is concerned, the deceased was
engaged in construction work. Normally, a mason or any other construction
worker easily get Rs.600/- per day, and even if he had worked for 20 days, he will
get a sum of Rs.12,000/- per month. Hence, the Tribunal has rightly fixed the
monthly income of the deceased at Rs.12,000/- per month and there is no error.
That apart, the Tribunal has also rightly deducted ¼th towards his personal
expenses and considering the age of the deceased, rightly fixed multiplier '16' and
arrived at a loss of estate of the deceased at Rs.26,49,600/- and there is no error in
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C.M.A.(MD).No.657 of 2021
it.
11. So far as the contention of the learned counsel appearing for the
Caveators, the Tribunal only awarded a sum of Rs.40,000/- towards consortium to
the first claimant/widow and no amount was awarded towards consortium to the
minor children and the mother. Recently, the Hon'ble Apex Court, in the case of
Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru
Ram and others reported in (2018) 2 TN MAC 452, held that the minor children
entitled for parental consortium of Rs.40,000/- and the parents also entitled for
filial consortium of Rs.40,000/-. The relevant portion of the judgment is extracted
hereunder:-
“8.7. A Constitution Bench of this Court in Pranay Sethi
dealt with the various heads under which compensation is to be
awarded in a death case. One of these heads is Loss of
Consortium.
In legal parlance, “consortium” is a compendious term which
encompasses 'spousal consortium', parental consortium', and
'filial consortium'.
The right to consortium would include the company, care, help,
comfort, guidance, solace and affection of the deceased, which is
a loss to his family.
With respect to a spouse, it would include sexual relations with
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C.M.A.(MD).No.657 of 2021
the deceased spouse, (Rajesh and Ors. vs. Rajbir Singh and
Ors, (2013)9 SCC 54) Spousal consortium is generally defined as
rights pertaining to the relationship of a husband wife which
allows compensation to the surviving spouse for loss of
“company, society, cooperation, affection, and aid of the other in
every conjugal relation. “ (BLACK'S LAW DICTIONARY (5TH
ED 1979))
Parental consortium is granted to the child upon the premature
death of a parent, for loss of “parental aid, protection, affection,
society, discipline, guidance and training.”
Filial consortium is the right of the parents to compensation in
the case of an accidental death of a child. An accident leading to
the death of a child causes great shock and agony to the parents
and family of the deceased. The greatest agony for a parent is to
lose their child during their lifetime. Children are valued for
their love, affection, compensationship and their role in the
family unit.
Consortium is a special prism reflecting changing norms about
the status and worth of actual relationships. Modern
jurisdictions worldover have recognized that the value of a
child's consortium for exceeds the economic value of the
compensation awarded in the case of the death of a child. Most
jurisdictions therefore permit parents to be awarded
compensation under loss of consortium on the death of a child.
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C.M.A.(MD).No.657 of 2021
The amount awarded to the parents is a compensation for loss of
the love, affection, care and companianship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at
providing relief to the victims or their families, in cases of
genuine claims. In case where a parent has lost their minor
child, or unmarried son or daughter, the parents are entitled to be
awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their
parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count
(Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors.
V. Sohi Ram & Ors (2017)4 RajLW 3368 (Raj); Uttarakhand
High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & Ors,
(2014)3 UC 1687; Karnataka High Court in Lakshman and Ors.
v. Susheela Chand Choudhary & Ors. (1996)3 KarlJ 570 (DB).
However, there was no clarity with respect to the principles on
which compensation could be awarded on loss of Filial
Consortium.
The amount of compensation to be awarded as consortium will be
governed by the principles of awarding compensation under 'Loss
of Consortium' as laid down Pranay Sethi.
In the present case, we deem it appropriate to award the father and
the sister of the deceased, an amount of Rs.40,000/- each for loss
of Filial Consortium.”
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C.M.A.(MD).No.657 of 2021
12. Considering the above judgment, the second and third
respondents/minor daughters are entitled to get Rs.40,000/- each towards parental
consortium and the fourth respondent/mother of the deceased is entitled to get
Rs.40,000/- towards filial consortium, totally Rs.1,20,000/-.
13. Now, the question arises for consideration in this appeal is as to
whether in the absence of any Cross Appeal, in the appeal filed by the Insurance
Company, the compensation can be enhanced. This issue is no more res integra.
In number of judgments, this Court has consistently held that under Order 41
Rule 33 of C.P.C., this Court has the power to enhance the compensation. This
Court, in the case of National Insurance Company Limited vs. M.Jayagandhi
reported in 2008 (1) TNMAC 177, after considering the number of judgments of
the Hon'ble Apex Court, has held that the compensation can be enhanced by
exercising the power under Order 41 Rule 33 of C.P.C. r/w. Section 151 of C.P.C.
The above decision has been followed by another Division Bench of this Court in
the case of Tamil Nadu State Transport Corporation vs. Karupathal in C.M.A.
(MD).No.1845 of 2017. Considering the above facts, the compensation awarded
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C.M.A.(MD).No.657 of 2021
by the Tribunal is enhanced from Rs.27,19,600/- to Rs.28,39,600/-.
14. In the result, the Civil Miscellaneous Appeal is dismissed and the
claimants are entitled for Rs.28,39,600/- as compensation along with interest at
the rate of 7.5% per annum from the date of claim petition till the date of
realization. The appellant/Insurance Company is directed to deposit the award
amount with accrued interest and costs, less the amount already deposited, if any,
within a period of eight weeks from the date of receipt of a copy of this order. On
such deposit, the claimants are permitted to withdraw the award amount with
proportionate interest and costs. The respondents/claimants are directed to pay
the Court fee for the enhanced amount. No costs. Consequently, connected
Miscellaneous Petition is closed.
[V.B.D.J.,] [J.N.B.J.,]
09.08.2021
Index : Yes / No
Internet : Yes / No
akv
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C.M.A.(MD).No.657 of 2021
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
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C.M.A.(MD).No.657 of 2021
V.BHARATHIDASAN,J.
and
J.NISHA BANU,J.
akv
C.M.A.(MD).No.657 of 2021
09.08.2021
https://www.mhc.tn.gov.in/judis/
