Madras High Court
The Manager vs Nallaiyan on 8 February, 2021
C.M.A.Nos.1737 and 1809 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.Nos.1737 and 1809 of 2020
and C.M.P.No.12808 of 2020
C.M.A.No.1737 of 2020
The Manager
Cholamandalam MS General
Insurance Company Ltd.
14, Theradi street
Old bus stand
Opp.to M.R.Hospital
Rasipuram Taluk, Namakkal District. .. Appellant
Vs.
1.Nallaiyan
2.Rani
3.D.Raja .. Respondents
C.M.A.No.1809 of 2020
1.Nallaiyan
2.Rani .. Appellant
Vs.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1737 and 1809 of 2020
1.D.Raja
2.The Manager
Cholamandalam MS General
Insurance Company Ltd.
14, Theradi street
Old bus stand
Opp.to M.R.Hospital
Rasipuram Taluk, Namakkal District. .. Respondents
Prayer: These Civil Miscellaneous Appeals are filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated 27.07.2020
made in M.C.O.P.No.1 of 2019 on the file of the Motor Accidents Claims
Tribunal, Sub Court, Rasipuram.
In C.M.A.No.1737 of 2020
For Appellant : Mrs.R.Sreevidhya
For R1 and R2 : Mr.R.Nalliyappan
For R3 : No appearance
In C.M.A.No.1809 of 2020
For Appellants : Mr.R.Nalliyappan
For R2 : Mrs.R.Sreevidhya
COMMON JUDGMENT
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1737 and 1809 of 2020
C.M.A.No.1737 of 2020 is filed by the Insurance Company to set aside
the award dated 27.07.2020 made in M.C.O.P.No.1 of 2019 on the file of the
Motor Accidents Claims Tribunal, Sub Court, Rasipuram.
C.M.A.No.1809 of 2020 is filed by the claimants for enhancement of
compensation granted by the Tribunal in the award dated 27.07.2020 made in
M.C.O.P.No.1 of 2019 on the file of the Motor Accidents Claims Tribunal,
Sub Court, Rasipuram.
2.Both the appeals arise out of the same accident and same award and
hence, they are disposed of by this common judgment. Parties in these
appeals are referred to by their respective ranks in the claim petition for the
sake of convenience.
3.The claimants filed M.C.O.P.No.1 of 2019 on the file of the Motor
Accidents Claims Tribunal, Sub Court, Rasipuram, claiming a sum of
Rs.35,00,000/- as compensation for the death of their son viz., N.Eswaran,
who died in the accident that took place on 09.11.2018.
4.According to the claimants, on the date of accident i.e., on
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1737 and 1809 of 2020
09.11.2018 at about 12.30 p.m., while their son Eswaran was riding in his
new unregistered Hero Mastro motorcycle between Rasipuram to Attur
Rasipuram Main Road in front of Government Boys Higher Secondary
School, Namagiripet, the driver of the Omni car belonging to the 1 st
respondent drove the same in a rash and negligent manner, hit against the said
Eswaran and caused the accident. In the accident, the said Eswaran sustained
fatal injuries and inspite of treatment given, died in the hospital on
29.11.2018. Therefore, the claimants have filed the above claim petition
claiming compensation as against the respondents 1 and 2, who are owner
and insurer of the omni car respectively.
5.The 1st respondent, owner of the omni car filed counter statement
denying the averments made in the claim petition and stated that while the
driver of the omni car was proceeding from Rasipuram to Attur Road, near
Boys school, there was a speed break, the driver of the lorry, which was
proceeding in front of the car, slowed down the lorry to cross the speed
breaks, crossed the speed breaker and after that, the driver of the omni car
slowly released Omni car in the speed breaker in the opposite direction. The
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1737 and 1809 of 2020
deceased Eswaran who was driving his motorcycle in a rash and negligent
manner, without noticing the speed breaker, lost his control and he himself
dashed against the omni car and invited the accident. At the time of accident,
the deceased did not wear helmet and therefore, he has also contributed to the
accident. Therefore, the 1st respondent is not liable to pay any compensation to
the claimants. The 1st respondent has also denied the age, avocation and
income of the deceased. In any event, the compensation claimed by the
claimants is excessive and prayed for dismissal of the claim petition.
6.The 2nd respondent/Insurance Company insurer of the omni car filed
counter statement denying the averments made by the claimants and stated
that the deceased was riding in his motorcycle on Rasipuram to Attur Main
Road, in front of Government Boys Higher Secondary School, Namagiripet,
while the driver of the omni car belonging to the 1 st respondent was coming in
the opposite direction. The deceased suddenly tried to cross the road from his
left side to right side without noticing the nearby vehicles, fell on the car and
invited the accident. The deceased Eswaran alone was the tort-feasor. The
motorcycle of the deceased was not registered and he did not possess driving
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C.M.A.Nos.1737 and 1809 of 2020
license at the time of the accident. Therefore, the 2 nd respondent/Insurance
Company is not liable to pay any compensation to the claimants. The 2 nd
respondent/Insurance Company has also denied the age, avocation and
income of the deceased. In any event, the compensation claimed by the
claimants is excessive and prayed for dismissal of the claim petition.
7.Before the Tribunal, the 1st claimant, father of the deceased examined
himself as P.W.1, Govindarajan and Balachandran, eye-witness to the
accident, were examined as P.W.2 and P.W.3 respectively and 13 documents
were marked as Exs.P1 to P13. The 2 nd respondent/Insurance Company did
not let in any oral and documentary evidence.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred due to rash and negligent driving
by the driver of the omni car belonging to the 1st respondent and directed the
2nd respondent/Insurance Company being insurer of the said car to pay a sum
of Rs.17,64,955/- as compensation to the claimants.
9.Challenging the quantum of compensation awarded by the Tribunal in
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C.M.A.Nos.1737 and 1809 of 2020
the award dated 27.07.2020 made in M.C.O.P.No.1 of 2019, the 2 nd
respondent/Insurance Company has come out with C.M.A.No.1737 of 2020.
Not being satisfied with the amounts awarded by the Tribunal, the claimants
have come out with C.M.A.No.1809 of 2020 seeking enhancement of
compensation.
10.The learned counsel appearing for the claimants contended that the
deceased was aged 22 years at the time of accident. He was working as a
Salesman in ESSAR petrol bunk, Rasipuram and was earning a sum of
Rs.20,000/- per month. The Tribunal without considering the same, fixed a
meagre sum of Rs.7,500/- per month as notional income of the deceased. The
Tribunal granted only 40% enhancement towards future prospects instead of
50%. The Tribunal has not awarded any compensation towards loss of love
and affection to the claimants. The amounts awarded by the Tribunal under
different heads are meagre and prayed for enhancement of compensation and
for dismissal of the appeal filed by the Insurance Company
11.The learned counsel appearing for the 2nd respondent/Insurance
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C.M.A.Nos.1737 and 1809 of 2020
Company contended that the deceased was a bachelor at the time of accident.
The Tribunal erred in deducting 1/3rd instead of 50% towards personal
expenses. The amounts awarded by the Tribunal under different heads are
excessive and prayed for setting aside the award of the Tribunal and for
allowing the appeal filed by the 2nd respondent/Insurance Company.
12.Though notice has been served on the 1st respondent and his name
is printed in the cause list, there is no representation for the 1st respondent
either in person or through counsel.
13.Heard through “Video-conferencing” the learned counsel appearing
for the claimants as well as the learned counsel appearing for the 2 nd
respondent/Insurance Company and perused the entire materials on record.
14.It is the case of the claimants that at the time of accident, the
deceased was working as a Salesman in ESSAR petrol bunk, Rasipuram and
was earning a sum of Rs.20,000/- per month. The claimants failed to
substantiate the same. In the absence of any material evidence with regard to
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C.M.A.Nos.1737 and 1809 of 2020
avocation and income of the deceased, the Tribunal fixed a sum of Rs.7,500/-
per month as notional income of the deceased, which is meagre. The accident
is of the year 2018 and hence, a sum of Rs.14,000/- per month is fixed as
notional income of the deceased. The deceased was bachelor at the time of
accident. The Tribunal erroneously deducted 1/3rd instead of 1/2 towards
personal expenses of the deceased. The Tribunal granted 40% enhancement
towards future prospects and applied multiplier '18', which are proper. Thus,
the compensation awarded by the Tribunal towards pecuniary loss is modified
to Rs.21,16,800/- (Rs.14,000/- + 5600 [Rs.14,000/- X 40%] X 12 X 18 X
1/2). The Tribunal has not awarded any compensation towards loss of love
and affection to the claimants, who are parents of the deceased. Hence, a sum
of Rs.40,000/- each is awarded towards loss of love and affection to the
claimants. In view of the same, a sum of Rs.40,000/- awarded by the Tribunal
towards loss of consortium is liable to be set aside and is hereby set aside. The
Tribunal has not awarded any compensation towards transportation. The
claimants would have spent some amount towards transportation during the
treatment period of the deceased. Hence, a sum of Rs.10,000/- is awarded
towards transportation. The amounts awarded by the Tribunal under all other
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C.M.A.Nos.1737 and 1809 of 2020
heads are just and reasonable and hence, the same are hereby confirmed.
15.It is well settled that the Tribunal and the Courts have to award just
compensation. Though the claimants have claimed lesser compensation, the
Courts have power to grant just compensation more than the amount claimed
by the claimants. Thus, the compensation awarded by the Tribunal is modified
as follows:
S.No Description Amount Amount awarded Award
awarded by by this Court confirmed or
Tribunal (Rs) enhanced or
(Rs) granted or
reduced
1. Pecuniary loss 15,12,000 21,16,800 Enhanced
2. Funeral 15,000 15,000 Confirmed
expenses
3. Loss of 40,000 - Set aside
consortium
4. Loss of estate 15,000 15,000 Confirmed
5. Medical 1,82,955 1,82,955 Confirmed
expenses
6. Loss of love - 80,000 Granted
and affection
7. Transportation - 10,000 Granted
Total 17,64,955 24,19,755 Enhanced by
Rs.6,54,800/-
16.In the result, C.M.A.No.1737 of 2020 filed by the Insurance
Company is partly allowed and C.M.A.No.1809 of 2020 filed by the
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C.M.A.Nos.1737 and 1809 of 2020
claimants is allowed and the compensation awarded by the Tribunal at
Rs.17,64,955/- is hereby enhanced to Rs.24,19,755/- together with interest at
the rate of 7.5% per annum from the date of petition till the date of deposit.
The claimants are directed to pay necessary Court fee, if any, on the enhanced
compensation. The 2nd respondent/Insurance Company is directed to deposit
the award amount now determined by this Court along with interest and costs,
less the amount already deposited, if any, within a period of six weeks from
the date of receipt of a copy of this judgment. On such deposit, the claimants
are permitted to withdraw their respective share of the award amount now
determined by this Court as per the apportionment fixed by the Tribunal along
with proportionate interest and costs, less the amount if any, already
withdrawn. Consequently, connected Miscellaneous Petition is closed. No
costs.
08.02.2021
Index : Yes / No
Internet : Yes/ No
kj
V.M.VELUMANI, J.,
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1737 and 1809 of 2020
kj
To
1.The Subordinate Judge
The Motor Accident Claims Tribunal
Rasipuram.
2.The Section Officer
V.R.Section
High Court, Chennai.
C.M.A.Nos.1737 and 1809 of 2020
and C.M.P.No.12808 of 2020
08.02.2021
https://www.mhc.tn.gov.in/judis/
