Madras High Court

The Branch Manager vs Rabiyathul Basariya on 1 February, 2021

                                                                                  W.A(MD)No.568 of 2013


                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED : 01.02.2021

                                               CORAM:
                          THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
                                                 and
                               THE HONOURABLE MRS.JUSTICE S.KANNAMMAL

                                               C.M.A(MD)No.706 of 2020
                                                         and
                                               C.M.P(MD)No.7183 of 2020
                      The Branch Manager,
                      M/s. Iffco-Tokio General Insurance Company Limited,
                      19/1, Ramalinga Nagar,
                      Woraiyur,
                      Trichy – 620 017.                       : Appellant / 2nd Respondent

                                               Vs.

                      1.Rabiyathul Basariya
                      2.M.Mohammed Rafiyath
                      3.Minor Mohammed Jaffar
                      4.Minor Afiya

                      (Respondent Nos.3 & 4 were represented by
                      their guardian and mother, the 1st respondent
                      herein)
                                                    : Respondent Nos.1 to 4/Petitioners

                      5.K.Kumaravel
                                                       : 5th respondent / 1st respondent


                      Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
                      Motor Vehicles Act, 1988, against the fair and decreetal order dated
                      16.10.2019 made in M.C.O.P.No.1145 of 2016 on the file of the Motor
                      Vehicles Accident Claims Tribunal/Special District Judge, Tiruchirappalli.
                                    For Appellant          : Mr.V.Sakthivel

                                    For R-1 to R-4         : Mr.B.Saravanan



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                                                                               W.A(MD)No.568 of 2013


                                                     JUDGMENT

(Judgment of the Court was delivered by PUSHPA SATHYANARAYANA, J.)

Being aggrieved by the Award and Decree dated 16.10.2019

passed by the Motor Accidents Claims Tribunal/Special District Judge,

Tiruchirappalli in M.C.O.P.No.1145 of 2016 in respect of the quantum of

compensation awarded to the claimants for the injuries sustained by the

deceased in a road traffic accident occurred on 04.07.2016, Appellant -

Iffco-Tokio General Insurance Company Limited, has preferred this

appeal.

2. Brief facts are that on 04.07.2016 at about 3.15 p.m., when the

deceased Abdul Jabbar was riding his Motor Cycle bearing Registration

No.TN 55 AX 0091 in Trichy-Senthanneerpuram main road, a Bolero

Truck bearing Registration No.TN 48 U 7004 belonging to the fifth

respondent and insured with the appellant came from the opposite

direction in a rash and negligent manner and dashed against the

motorcycle and caused the accident. In the said accident, the deceased

sustained grievous injuries all over the body and he died on 09.07.2016

at Madurai Government Hospital. At the time of accident, the deceased

was aged 48 years and was a fish vendor of whole sale and retail and

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having a fish stall in Alwarthope Market at Tennur. Regarding the

accident, a Criminal Case was registered against the driver of the Bolero

Truck and subsequently, charge sheet was filed for the offences under

Sections 279, 337 and 304(A) of I.P.C. Alleging that the accident was

due to rash and negligent driving of the Bolero Truck, the Claimants, who

are wife, children of Abdul Jabbar, have filed the Claim Petition claiming

compensation of Rs.25,00,000/-.

3. Resisting the Claim Petition, Appellant - Insurance Company has

filed counter contending that the accident occurred only due to the

reckless act of the deceased and the quantum of compensation claimed

by Claimants is highly excessive and without any basis.

4. Before the Tribunal, Son of the deceased – Mohammed Rafiyath

was examined himself as P.W.1 besides examining Eye-witness

Mohammed Ali as P.W.2 and Exs. P.1 to P.14 were marked on the side of

Claimants. On the side of the Insurance Company, one K.Muthukrishnan

was examined as R.W.1 and no document was filed on their side. On the

side of witness, two third party documents were marked as Ex.X1 and

Ex.X2.

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5. Upon consideration of the evidence of P.W.2 eye-witness and

referring to Ex.P.1 - FIR registered against the driver of the Bolero Truck,

Tribunal held that the accident was due to rash and negligent driving of

the Bolero Truck and the deceased subsequently died of the injuries

sustained in the accident. The Tribunal further held that the Insurance

Company is liable to pay compensation to Claimants and recover the

same from the fifth respondent owner of the Bolero Truck. Accordingly,

the Tribunal had awarded a total compensation of Rs.20,46,800/- under

various heads.

6. Heard the learned counsels appearing on either side and perused

the materials available on record.

7. Though the learned counsel appearing for the

appellant/Insurance Company argued on the point of negligence, a

perusal of the award would show that after considering the evidence, the

Tribunal came to the conclusion that driver of the Bolero Truck was

responsible for the accident and directed the appellant/insurer to pay

compensation and recover the same from the owner of the offending

vehicle. Therefore, we find no reason to interfere with the findings on

the negligence aspect.

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8. With regard to quantum, the learned counsel appearing for the

Appellant/Insurance Company contended that the award passed by the

Tribunal is in disproportionate with the evidence adduced by the

Claimants and the quantum is huge as the same is not falling in lines

with the decisions of the Hon'ble Supreme Court. He further contended

that especially under the head of Consortium, the Tribunal awarded

excess amount and the same has to be reduced.

9. In support of his contention, the learned counsel placed reliance

on the decision of the Honourable Supreme Court in United India

Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur

& Ors. Reported in 2020 (2) TN MAC 1 (SC), wherein the decision in

National Insurance Company Limited v. Pranay Sethi and Others

reported in 2017(2) TN MAC 609(SC) and Magma General

Insurance Co. Ltd., v. Nanu Ram & Others., reported in 2018 (1)

TN MAC 452 (SC), were referred to and the relevant portion of the

above decision in Satinder Kaur's case(cited supra), is extracted

hereunder:

“8..... At this stage, we consider it necessary to provide uniformity with respect to the grant of Consortium, and Loss of Love and Affection. Several Tribunal and High Courts

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have been awarding Compensation for both Loss of Consortium and Loss of Love and Affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz., Loss of Estate, Loss of Consortium and Funeral Expenses.

In Magma General(supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of Love and Affection is comprehended in Loss of Consortium.

9.7. Insofar as the Conventional Heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the Conventional Heads:

(i) Loss of Estate :Rs.15,000

(ii) Loss of Consortium:

(a) Spousal Consortium: Rs.40,000

(b) Parental Consortium:Rs.40,000 X 3 = Rs.1,20,000

(iii) Funeral Expenses: Rs.15,000

10. In the instant case, under the head Consortium, The

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Tribunal awarded Rs.40,000/- to the wife and Rs.2,10,000/-

(70,000 X 3) to the children of the deceased. In the light of the decision

of the Honourable Supreme Court in Pranay Sethi(cited supra) and

Magma General (cited supra), this Court is of the view that the

consortium awarded to the children of the deceased are on higher side

and the has to be reduced to Rs.1,20,000/-(40,000 X 3). Under all other

heads, the Tribunal awarded a just and reasonable compensation and

there is no dispute with regard to the interest awarded by the Tribunal

and hence, the same need not be modified.

11. Accordingly, the Award of the Tribunal is modified as follows:-


                          S.No       Description        Amount awarded    Amount       Award confirmed or
                                                          by Tribunal  awarded by this    enhanced or
                                                              (Rs)         Court            granted
                                                                            (Rs)
                          1.      Loss of                    17,55,000          17,55,000 confirmed
                                  Dependency
                          2.      Consortium to                 40,000            40,000 confirmed
                                  the 1st petitioner,
                                  wife of the
                                  deceased
                          3.      Parental                     2,10,000          1,20,000 reduced
                                  Consortium to
                                  the 2nd 3rd and 4th      (70,000 X 3)    (40,000 X 3)
                                  petitioners of the
                                  deceased
                          4.      Medical Expenses                1,800             1,800 Confirmed

                          5.      Transporting                  10,000            10,000 confirmed
                                  Charges
                          6.      Loss of Estate                15,000            15,000 confirmed
                          7.      Funeral Expenses              15,000            15,000 Confirmed
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                                                                                 W.A(MD)No.568 of 2013


                              Total               Rs.20,46,800    Rs.19,56,800 Reduced a sum of
                                                                               Rs.90,000/-

12. In the result, the Civil Miscellaneous Appeal is allowed in part as follows:-

(i) The Award of the Tribunal is reduced to Rs.19,56,800/- from Rs.20,46,800/-.

(ii) The interest granted by the Tribunal at 7.5% per annum is confirmed.

(iii) The Award amount is apportioned as per the award of the Tribunal.

(iv) This Court vide order dated 04.01.2021 directed the appellant/Insurance Company to deposit the entire award amount on or before 01.02.2021. Hence, the Insurance Company is permitted to withdraw the excess amount deposited by them.

(v) The respondents 1 and 2/claimants 1 and 2 are permitted to withdraw their respective share with proportionate interest and cost. The share of the minor claimants/ Respondents 3 and 4 are permitted to be kept in any of the Nationalised Bank till they attain majority and the guardian / first respondent is permitted to withdraw the interest amount once in three months.