Madras High Court
The Divisional Manager vs Valli on 19 February, 2021
C.M.A. No.1065 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 19.02.2021
CORAM
THE HONOURABLE Mr. JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A. No.1065 of 2018
and CMP.No.8745 of 2018
The Divisional Manager,
M/s. Reliance General Insurance Co. Ltd.,
Chennai .. Appellant
Versus
1. Valli
2. Minor Monika
3. Minor Keerthika
[Minors rep. by their guardian & next friend Valli]
4. Kuppu
5. Kumar .. Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the judgment and decree dated 27.04.2017 made in
MCOP. No.188 of 2010 on the file of the Motor Accident Claims Tribunal /
Subordinate Court, Cheyyar.
For appellant : Mr.S.Arun Kumar
For respondents
for RR1 to 4 : Mr.K.G.Senthil Kumar
for R5 : Set ex-parte before the Tribunal
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C.M.A. No.1065 of 2018
JUDGMENT
(The Judgment of the Court was delivered by R.Subbiah, J)
The appeal is heard through video conferencing.
2. This appeal has been filed by the Insurance Company challenging the
award dated 27.04.2017 made in MCOP.No.188 of 2010 on the file of the
Motor Accident Claims Tribunal / Subordinate Court, Cheyyar.
3. The respondents 1 to 4 herein are the claimants before the Tribunal
and they are the wife, 2 minor daughters and father of the deceased Velu, who
died on the road accident that had occurred on 02.05.2010 involving a Lorry
bearing Registration No.TN 28 F 1099, owned by the fifth respondent and
insured with the appellant/ Insurance Company.
4. It is the case of the claimants before the Tribunal that on 02.05.2010,
the first respondent, along with others, travelled in a Lorry bearing
Registration TN 28 F 1099 to Melmalayanur to visit a Temple. The first
respondent's husband one Velu along with one Sekar were also proceeding to
Melmalayanur in a two wheeler bearing Registration No.TN 25 T 7367. While
returning from Melmalayanur, the two wheeler in which Velu and Sekar were
proceeding, made an attempt to overtake the Lorry bearing Registration No.
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C.M.A. No.1065 of 2018
TN 28 F 1099, which was proceeding in front of them. While doing so, the
driver of the Lorry drove the vehicle in a rash and negligent manner and hit the
2 wheeler. In that process, the rider of the 2 wheeler lost balance and both
Velu and Sekar fell down and sustained grievous injures. The said Velu,
husband of the first respondent, died on the spot. According to the claimants,
the deceased was the only bread winner in their family. He was doing
agricultural work and earning a sum of Rs.20,000/- per month. Due to the
death of the deceased the claimant were deprived of the contribution made by
the deceaed. Hence, the claimants made a claim for a sum of Rs.9,00,000/- as
compensation.
5. The said claim was resisted by the appellant / Insurance Company by
filing a Counter statement. It is the specific defence of the Insurance Company
that the rider of the 2 wheeler as well as the driver of the Lorry did not have
valid driving licence at the time of the accident, which is a violation of the
Insurance Policy. Therefore, the Insurance Company is not liable to pay
compensation to the claimants indemnifying the owner of the vehicle.
6. In order to prove the claim on the side of the claimants, the first
respondent / wife of the deceased examined herself as PW1 and one Sekar was
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C.M.A. No.1065 of 2018
examined as PW2 and 6 documents were marked as Exs.P1 to P6. In order to
prove the defence on the side of the Insurance Company, RW1, Sub-Inspector
of Police and RW2, an official from the Insurance Company were examined
and 2 documents were marked, viz., Ex.R1, Insurance Policy and Ex.R2, Final
Report.
7. The Tribunal, after analysing the entire evidence, came to the
conclusion that the accident was the result of rash and negligent driving of the
Lorry bearing Registration TN 28 F 1099 and passed an award for a sum of
Rs.17,37,000/-. The break-up details of the amounts awarded by the Tribunal
under various heads are as follows:
S.No. Heads under which the amount Amount in Rs.
is awarded by the Tribunal
1. Loss of Income 15,30,000
2. Consortium to 1st respondent 50,000
3. Loss of Love and Affection in respect of 1,00,000
respondents 2 and 3
4. Filial Consortium 4th respondent 25,000
5. Funeral Expenses 25,000
6. Transportation 5,000
7. Damages to clothing 2,000
Total 17,37,000
8. Now, it is the submission of the learned counsel for the appellant /
Insurance Company that the Tribunal fixed an exorbitant sum of Rs.7,500/- as
monthly income without any valid proof and also awarded excessive amounts
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C.M.A. No.1065 of 2018
under different heads. Consequently, the sum of Rs.17,37,000/- awarded as
compensation to the claimants, is on the higher side and the same needs proper
reduction.
9. It is the further contention of the learned counsel for the appellant /
Insurance Company that the Insurance Company examined two witnesses, viz.,
RW1, Sub-Inspector of Police and RW2, an official from Insurance Company,
and proved that the driver of the Lorry has no valid licence. In spite of that, the
Tribunal directed the Insurance Company to pay the compensation amount
without giving liberty to recover the same from the owner of the Lorry
bearing Registration TN 28 F 1099. Thus, he prays to grant "pay and recovery"
right.
10. Per contra, the learned counsel for the respondents 1 to 4 / claimants
made his submissions supporting the award passed by the Tribunal and prayed
to dismiss the appeal.
11. The 5th respondent / owner of the Lorry bearing Registration TN 28
F 1099 did not even appear before the Tribunal and hence, he was set ex-parte.
12. Keeping in mind the above submissions made on either side, we
have carefully perused the materials available on record.
13. It is the submission of the learned counsel for the Insurance
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C.M.A. No.1065 of 2018
Company that the Tribunal has fixed an exorbitant sum of Rs.7,500/- as
monthly income of the deceased without any valid proof and awarded higher
compensation. However, we are of the view that considering the avocation of
the deceased and also taking into account the cost of living prevalent at the
time of the accident, the sum of Rs.7,500/- taken as monthly income of the
deceased, is reasonable. The Tribunal by taking a sum of Rs.7,500/- as
monthly income of the deceased and by deducting 1/3 towards personal
expenses, arrived a sum of Rs.5,000/-. Then, by adding 50% towards future
prospects, arrived the loss of dependency at Rs.7,500/-. Resultantly, the annual
income was arrived at Rs.90,000/- [7,500 x 12]. Further, by applying
multiplier “17”, the "Loss of Income" was arrived at Rs.15,30,000/-.
Thereafter, the Tribunal by awarding amounts under various heads granted a
total compensation of Rs.17,37,000/-. Such compensation awarded by the
Tribunal is fair and reasonable and we are not inclined to reduce the same and
hence, they are confirmed.
14. So far as the right of pay and recovery is concerned, we find that the
driver of the Lorry did not possess valid driving licence at the time of the
accident, which amounts to violation of policy conditions. The said aspect was
proved by the Insurance Company. In such circumstances, the Tribunal ought
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C.M.A. No.1065 of 2018
to have directed the Insurance Company to pay the compensation at first
instance and thereafter, permitted them to recover the same from the owner of
the Lorry.
15 (i) In the result, the appeal is dismissed. The total sum of
Rs.17,37,000/- awarded by the Tribunal towards compensation is hereby
confirmed, which shall carry interest at 7.5% from the date of claim petition
till the date of payment. The Insurance Company is directed to deposit the total
compensation before the Tribunal, after adjusting the amount if any, already
deposited, within a period of four weeks from the date of receipt of a copy of
this judgment. On such deposit, the claimants 1 and 4 are permitted to
withdraw their respective shares. Insofar as the minor claimants 2 & 3 are
concerned, their shares shall be deposited by the Tribunal in any Fixed Deposit
Scheme in any one of the Nationalised Banks and it shall be renewed
periodically till they attain majority and the interest accrued thereon shall be
withdrawn by the first claimant/mother, once in three months. The
apportionment of shares fixed by the Tribunal to the claimants is hereby
confirmed.
(ii) Thereafter, the Insurance Company is permitted to recover the above
compensation amount from the 5th respondent / owner of the Lorry bearing
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C.M.A. No.1065 of 2018
Registration TN 28 F 1099. No costs.
[R.P.S., J] [S.S.K., J]
19.02.2021
Speaking Order : Yes / No
Index : Yes / No
pvs
To
1. The Motor Accident Claims Tribunal /
Subordinate Court, Cheyyar
2. The Section Officer,
V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A. No.1065 of 2018
R.SUBBIAH, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
pvs
C.M.A. No.1065 of 2018
and CMP.No.8745 of 2018
19.02.2021
https://www.mhc.tn.gov.in/judis/
