Madras High Court
S.Devaraj @ Devendra vs A.Saravanan on 16 December, 2021
C.M.A.Nos.2519, 3399 and 3400 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.Nos.2519, 3399 and 3400 of 2021
and
C.M.P.Nos.19608 and 19618 of 2021
C.M.A.No.2519 of 2021
S.Devaraj @ Devendra
(Minor Declared as Major as per order
in M.P.No.822/2018 dated 06.03.2018) ... Appellant
Vs.
1.A.Saravanan
2.D.Chengazhani
3.Reliance General Insurance Company Limited,
Rai Towers, 2nd Floor, Plot No.2054,
II Avenue, Anna Nagar,
Chennai – 600 040.
... Respondents
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to enhance the compensation awarded in the Judgment and
decree dated 29.10.2020 passed in MCOP No.1119 of 2014 on the file of the
Motor Accident Claims Tribunal (Special Sub-Court No.1, Motor Accidents Claims
Petitions), Small Causes Court, at Chennai.
For Appellant : Mr.Amar D Pandiya
For Respondents : Ms.Harini for
M/s M.B.Gopalan Associates (for R3)
R1-Notice not ready
No appearance for R2
C.M.A.No.3399 of 2021
M/s Reliance General Insurance Company Limited,
Rai Towers, II Floor, Plot No.2054,
II Avenue, Anna Nagar,
Chennai – 600 040. ... Appellant
Vs.
1.S.Devaraj Devendra
2.A.Saravanan
3.D.chengazhani
... Respondents
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 against the Judgment and Decree made in MCOP No.1119 of
2014 dated 29.10.2020 on the file of the Motor Accident Claims Tribunal, Special
Subordinate Court No.1, Motor Accidents Claims Petitions, Small Causes Court,
Chennai.
For Appellant : Ms.Harini for
M/s M.B.Gopalan Associates
For Respondents : Mr.Amar D Pandiya (for R1)
C.M.A.No.3400 of 2021
M/s Reliance General Insurance Company Limited,
Rai Towers, II Floor, Plot No.2054,
II Avenue, Anna Nagar,
Chennai – 600 040. ... Appellant
Vs.
1.P.Vedavalli
2.R.Parthasarathy
3.Minor P.Ragothaman
(Minor/3rd respondent rep. by his Father &
Natural Guardian Mr.R.Parthasarathy)
4.A.Saravanan
5.D.chengazhani
... Respondents
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 against the Judgment and Decree made in MCOP No.2229 of
2014 dated 29.10.2020 on the file of the Motor Accident Claims Tribunal, Special
Subordinate Court No.1, Motor Accidents Claims Petitions, Small Causes Court,
Chennai.
For Appellant : Ms.Harini for
M/s M.B.Gopalan Associates
For Respondents : Mr.R.Thirugnanam (for R1)
COMMON JUDGMENT
[Judgment of the Court was delivered by V.SIVAGNANAM, J.]
Challenge in C.M.A.Nos.3399 and 3400 of 2021 filed by the Insurance
Company is to the common award passed by the Motor Accident Claims Tribunal,
Special Subordinate Court No.1, Motor Accidents Claims Petitions, Small Causes
Court, Chennai. in MCOP Nos.1119 and 2229 of 2014. Dissatisfied with the
quantum, the claimant in MCOP No.1119 of 2014 alone has come up with another
appeal CMA No.2519 of 2021 for enhancement of compensation.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
2.This is the case of the fatal accident and injury. The case of the claimants
is that on 29.12.2013 at 15.30 hours, the deceased in MCOP No.2229 of 2014,
namely, Harshavardhanan was riding a motorcycle bearing Reg.No.TN-09-BT-
4839 along with the minor claimant in MCOP No.1119 of 2014 as pillion rider.
When they were proceeding on the Kancheepuram to Chennai road at
Devariyambakkam near Chandiran House, a Tractor bearing Reg.No.TN-19-F-
2335, which came from the opposite direction driven by its driver with a terrific
speed in a rash and negligent manner endangering the public safety, hit against the
said motorcycle. In the impact, the deceased in MCOP No.2229 of 2014 sustained
fatal injuries resulting to his death and the claimant in MCOP No.1119 of 2014
sustained grievous injuries. Alleging that the accident had taken place due to the
rash and negligent driving of the driver of the Tractor, the parents and brother of the
deceased filed the claim petition in MCOP No.2229 of 2014 and the injured
claimant filed the claim petition in MCOP No.1119 of 2014. Though they claimed
Rs.1,00,00,000/- and Rs.17,00,000/- respectively, the Tribunal has awarded as
follows:-
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
In MCOP No.1119 of 2014:-
Heads Rs.
Disability 90,000/-
Pain and Suffering 25,000/-
Transportation 5,000/-
Extra Nourishment 15,000/-
Attender Charges 7,000/-
Loss of Studies 20,000/-
Loss of future prospectus 30,000/
Total 1 ,92,000/-
In MCOP No.2229 of 2014:-
Heads Rs.
Total Loss of dependency 24,57,000/-
Loss of Love and Affection 1,00,000/-
Loss of Estate 15,000/-
Transport Charges 5,000/-
Funeral Expenses 15,000/-
Total 25,92,000/-
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
CMA Nos.2519 and 3399 of 2021
3.The learned counsel appearing for the appellant/claimant would submit that
the Tribunal erred in awarding compensation on the basis of the Rs.3000/- per
percentage and the same is wrong as the medical board assessed the disability of
30% in permanent in nature as the appellant sustained head injury and because of
the same, he was hospitalized for more than 30 days and till date, he is getting fits
in regular intervals. He would further submit that the Tribunal has not considered
the evidence of the injured/P.W.2, who deposed that he is not able to do his work
because of the injuries sustained in the accident and the same was corroborated
with Disability Certificate (Ex.C1). He would further submit that the Tribunal
erred in awarding meager amount on all other heads i.e., pain and suffering, extra
nourishment, transportation, attender charges etc., which are also not sustainable
and has to be enhanced.
4.Per contra, the learned counsel appearing for the Insurance Company
submitted that the Tribunal erred in fastening liability on the insurer when the
insured Tractor was used in violation of policy terms for commercial purpose was
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
connected to uninsured trailor. He would further submit that the Tribunal ought to
have exonerated the insurer for violation of policy terms, but erred in awarding pay
and recovery as against the insurance company and therefore, this Civil
Miscellaneous Appeal filed by the claimant is liable to be dismissed and the Civil
Miscellaneous Appeal filed by the Insurance Company is liable to be allowed.
5.This Court carefully considered the submissions of the learned counsel for
the claimant and the learned counsel appearing for the Insurance Company and
perused the materials available on record.
6.A perusal of the Policy Copy (Ex.R.12) would indicate that the Tractor is
insured, but, it was used with unregistered Trailer for commercial purpose. The
accident had happened due to the negligent driving of the driver of the Tractor,
which was proved by the oral evidence of P.W.1, P.W.2 and the documents, viz.,
First Information Report (Ex.P.1) and Charge Sheet (Ex.P.2). Therefore, we are of
the considered view that the Tribunal rightly fixed the liability and ordered pay and
recovery. Hence, no interference is required in this regard.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
7.With regard to the quantum, according to the counsel for the claimant, the
claimant is a student and suffered fracture, brain and facial injuries, but Tribunal
without considering the same, awarded only Rs.1,92,000/- as compensation.
8.A perusal of the records would show that the claimant suffered fracture in
frontal bone, brain injury and other injuries in head, facial injuries. Further, the
claimant is taking continuous treatment till date. It is seen from the evidence of the
claimant/P.W.2, he is not able to do his work because of the injuries sustained in
accident, which was corroborated with Disability Certificate (Ex.C1). Further, a
perusal of the records would show that the Tribunal, considering the evidence of
Ex.R3-Investigation Report and Ex.P12-Insurance Policy, found that the offending
tractor violated the police condition and hence, ordered pay and recovery.
Therefore, this Court, while confirms the order of pay and recovery, considering the
nature of injuries sustained by the claimant and period of treatment, enhances the
award amount as follows:-
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
Heads Rs.
Disability Rs.4000 x 30% 1,20,000/-
Pain and Suffering 50,000/-
Transportation 35,000/-
Extra Nourishment 35,000/-
Attender Charges 35,000/-
Loss of Studies 20,000/-
Loss of future prospectus 2,00,000/
Loss of Amenities 50,000/-
Future Medical Expenses 50,000/-
Total 5,95,000/-
CMA No.3400 of 2021
9.Though the learned counsel appearing for the appellant/Insurance
Company has contended that the award is on the higher side and it requires
reduction, on perusal of the records, we find that the Tribunal, on proper
appreciation of evidence Income Tax Return Verification Form ITR-V (Ex.P.10)
has fixed the monthly income and adopting correct multiplier awarded a just and
reasonable compensation. The rate of interest fixed by the Tribunal as 7.5% per
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C.M.A.Nos.2519, 3399 and 3400 of 2021
annum is confirmed. We find no reason to interfere with the conclusion reached by
the Tribunal. This appeal has no merit. Hence, this appeal is liable to be dismissed.
10.In the result, this CMA No.3400 of 2021 is dismissed. 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 and thereafter, recover the
same from the owner of the Tractor. On such deposit, the major claimants are
permitted to withdraw the award amount as apportioned by the Tribunal, less the
amount already withdrawn, if any, together with proportionate interest and costs.
Further, the Tribunal is directed to deposit the share of the minor claimant in any
one of the nationalised banks, as fixed deposit under the Cumulative Deposit
Scheme, till the minor attains the age of major and the second claimant, who is the
father and the guardian of the minor claimant, is permitted to withdraw interest
once in six months directly from the bank. No costs. Consequently, connected
miscellaneous petition is closed.
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C.M.A.Nos.2519, 3399 and 3400 of 2021
CMA Nos.2519 and 3399 of 2021
11.In the result, CMA No.2519 of 2021 is partly allowed and CMA No.3399
of 2021 is dismissed. The Insurance Company is directed to deposit the modified
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
and thereafter, recover the same from the owner of the Tractor. On such deposit,
the claimant is permitted to withdraw the award amount less the amount already
withdrawn, if any, together with proportionate interest and costs. No costs.
Consequently, connected miscellaneous petition is closed.
[M.K.K.S.,J.] [V.S.G.,J.]
16.12.2021
Intex : Yes/No
Internet : Yes/No
skn
To
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
1.The Motor Accidents Claims Tribunal,
Special Sub-Court No.1,
Motor Accidents Claims Petitions,
Small Causes Court, Chennai.
2.V.R.Section,
Madras High Court,
Chennai.
K.KALYANASUNDARAM, J.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2519, 3399 and 3400 of 2021
and
V.SIVAGNANAM, J.
skn
COMMON JUDGMENT MADE IN
C.M.A.Nos.2519, 3399 and 3400 of 2021
and
C.M.P.Nos.19608 and 19618 of 2021
16.12.2021
https://www.mhc.tn.gov.in/judis
