Madras High Court
Latha vs Saravanan on 22 February, 2021
C.M.A. No.2792 of 2019
and
Cross Objection No.14 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. No.2792 of 2019
and Cross Objection No.14 of 2021
C.M.A. No.2792 of 2019
1.Latha
2.Minor Jeeva
3.Minor Vishva
4.Minor Asha
(appellants 2 to 4 rep. By their
natural guardian/mother, 1st appellant) .. Appellants
Vs.
1.Saravanan
2.The Manager,
United India Insurance Co. Ltd.,
Kamalam Complex 1st Floor,
35 C1 Kumbakonam Road,
Jayankondam. .. Respondents
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C.M.A. No.2792 of 2019
and
Cross Objection No.14 of 2021
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
27.11.2018, made in M.C.O.P. No.33 of 2017, on the file of the
Additional District and Sessions Court, (Motor Accident Claims
Tribunal), Ariyalur.
For Appellants : Mr.P.Parthi Kannan
for M/s.S.Kaithamalai Kumaran
For Respondents : No appearance (For R1)
Mr.M.J.Vijayaraaghavan (For R2)
Cross Objection No.14 of 2021
The Manager,
United India Insurance Co. Ltd.,
Kamalam Complex 1st Floor,
35 C1 Kumbakonam Road,
Jayankondam. .. Cross Objector
Vs.
1.Latha
2.Minor Jeeva
3.Minor Vishva
4.Minor Asha
(appellants 2 to 4 rep. By their
natural guardian/mother, 1st appellant)
5.Saravanan .. Respondents
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C.M.A. No.2792 of 2019
and
Cross Objection No.14 of 2021
Prayer: This Cross Objection is filed under Order XLI Rule 22 of C.P.C
against the judgment and decree dated 27.11.2018, made in M.C.O.P.
No.33 of 2017, on the file of the Additional District and Sessions Court,
(Motor Accident Claims Tribunal), Ariyalur.
For Cross Objector : Mr.M.J.Vijayaraaghavan
For R1 to R4
: Mr.P.Parthi Kannan
for M/s.S.Kaithamalai Kumaran
COMMON JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellants/claimants challenging the 10% income tax deducted from the
compensation and for enhancement of the compensation granted by the
Tribunal in the award dated 27.11.2018, made in M.C.O.P. No.33 of
2017, on the file of the Additional District and Sessions Court, (Motor
Accident Claims Tribunal), Ariyalur.
Cross Objection No.14 of 2021 has been filed by the 2nd
respondent-Insurance Company to set aside the award dated 27.11.2018,
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C.M.A. No.2792 of 2019
and
Cross Objection No.14 of 2021
made in M.C.O.P. No.33 of 2017, on the file of the Additional District
and Sessions Court, (Motor Accident Claims Tribunal), Ariyalur.
2.The appellants/claimants filed M.C.O.P. No.33 of 2017, on the
file of the Additional District and Sessions Court, (Motor Accident
Claims Tribunal), Ariyalur, claiming a sum of Rs.30,00,000/- as
compensation for the death of one Arivazhagan who died in the accident
that took place on 03.09.2016.
3.According to the appellants, on the date of accident, when the
deceased Arivazhagan was traveling as a pillion rider in a Motorcycle
bearing Registration No.TN-61-7598 rode by one Balamurugan on
T.Palur to Jeyankondam main road, near Silal VSR Saw Mill, the driver
of a TATA Ace bearing Registration No.TN-61-C-1874 belonging to the
1st respondent drove the same in a rash and negligent manner, without
following the traffic rules and without honking, dashed against the
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C.M.A. No.2792 of 2019
and
Cross Objection No.14 of 2021
Motorcycle in which the deceased Arivazhagan traveled and caused the
accident. In the accident, the deceased succumbed to fatal injuries.
Hence, the appellants filed the said claim petition claiming compensation
against the respondents as owner and insurer of the offending vehicle
respectively.
4.The 1st respondent remained exparte before the Tribunal.
5.The 2nd respondent-Insurance Company filed counter statement
and denied all the averments made by the appellants in the claim petition.
According to the 2nd respondent, the accident occurred when one
Balamurugan, rider of the Motorcycle in which the deceased traveled as
pillion rider, rode the vehicle without possessing driving license and
insurance coverage to the vehicle and without obeying the traffic rules,
suddenly crossed on the Eastern side of the road, not noticing the TATA
Ace vehicle which was coming behind. On seeing the negligent act of the
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C.M.A. No.2792 of 2019
and
Cross Objection No.14 of 2021
rider of the Motorcycle, the driver of the TATA Ace honked, inspite of
which, the rider of the Motorcycle dashed on the TATA Ace vehicle
which was coming slowly and carefully, following the traffic rules and
regulations and caused the accident. The claim petition is bad for non-
joinder of owner and insurer of the Motorcycle. At the time of accident,
the driver of the TATA Ace vehicle did not possess valid driving license
and the vehicle did not have valid Fitness Certificate to ply on the road
Hence, for violation of policy conditions, the 2nd respondent-Insurance
Company is not liable to indemnify the 1st respondent/owner of the TATA
Ace. In any event, the total compensation claimed by the appellants is
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st appellant examined herself as P.W.1,
examined eyewitness as P.W.2 and marked 7 documents as Exs.P1 to P7.
The 2nd respondent examined two witnesses as R.W.1 and R.W.2 and
marked two documents as Exs.R1 and R2.
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7.The Tribunal considering the pleadings, oral and documentary
evidence, held that accident occurred only due to rash and negligent
driving by driver of the TATA Ace Vehicle belonging to the 1st respondent
and directed the 2nd respondent-Insurance Company to pay a sum of
Rs.9,97,200/- as compensation to the appellants.
8.Not being satisfied with the amounts awarded by the Tribunal in
the award dated 27.11.2018, made in M.C.O.P. No.33 of 2017, the
appellants have come out with the present appeal.
9.Challenging the liability fixed on them and questioning the
quantum of compensation granted to the appellants, the 2nd respondent-
Insurance Company has filed Cross-Objection No.14 of 2021.
10.The learned counsel appearing for the appellants contended that
at the time of accident, the deceased was working as a Server in Hotel
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Cross Objection No.14 of 2021
and also an Agriculturist and was earning a sum of Rs.30,000/- per
month. The Tribunal erroneously fixed only a meagre sum of Rs.6,000/-
per month as notional income of the deceased. Considering the number
of dependents, the Tribunal ought not to have deducted 1/3rd towards
personal expenses of the deceased and 10% towards income tax, without
considering the avocation of the deceased. The Tribunal failed to grant
any amount towards loss of love and affection to the appellants 2 to 4,
who lost their father. The amounts awarded by the Tribunal towards loss
of estate and funeral expenses are meagre and prayed for enhancement of
compensation.
11.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company/Cross Objector contended that at the time of accident,
the driver of the offending vehicle belonging to the 1 st respondent plied the
vehicle without valid Fitness Certificate and violated the terms and
conditions of the policy. The Tribunal having held in para 11 of the award
that the 1st respondent is at fault in plying the vehicle in the road without
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Fitness Certificate, erred in fastening the liability on the 2nd respondent-
Insurance Company/Cross objector. In any event, the Tribunal ought to have
ordered pay and recovery. The amounts awarded by the Tribunal is not
meagre. The appellants have not made out any case for enhancement of
compensation and prayed for dismissal of the appeal and setting aside the
award of the Tribunal. In support of his case, the learned counsel relied
on the judgment of this Court (delivered by me) reported in 2021 (1)
TNMAC 112 [New India Assurance Co. Ltd., Vs. P.Suresh and
another].
12.Heard the learned counsel appearing for the appellants as well as
the learned counsel for the 2nd respondent who appeared through video
conference and perused the materials available on record.
13.From the award of the Tribunal, it is seen that the Tribunal held
that at the time of accident, the offending vehicle did not have Fitness
Certificate. The Tribunal having held that the 1st respondent committed
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and
Cross Objection No.14 of 2021
fault, erroneously fastened the liability on the 2nd respondent-Insurance
Company on the ground that the driver of the offending vehicle possessed
driving license and vehicle was insured with the 2 nd respondent-Insurance
Company. As per the judgment of the Hon'ble Apex Court reported in 2013
(2) TN MAC 515 (DB) [The Manager, United India Insurance Co.
Ltd., Vs. Balakrishnan and others], if the owner of the vehicle violated
the policy conditions by not possessing Fitness Certificate for the vehicle,
the Insurance Company is not liable to pay compensation. At the same time,
the Insurance Company cannot be exonerated completely. The relevant
portions of the judgment referred to above reads as follows:
“8. We find that though there was no valid Fitness
Certificate for the Lorry on the date of accident, on a
perusal of the evidence available on record, it is clear that
the Inspector of the Insurance Company, who was examined
as RW2, has admitted in his cross-examination that the
Motor Vehicle Inspector has given a report stating that
absolutely there is no mechanical defect in the vehicle.
Thus, the evidence of RW2 would show that even on the
date of occurrence, the vehicle was found to be fit to run.
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Moreover, we are of the opinion that the evidence on record
would show that the Fitness Certificate had expired just one
month prior to the date of occurrence and the same could
be renewed at any time. In this situation, we are of the
opinion that since the vehicle was covered by insurance on
the date of accident, the Insurance Company cannot deny
the payment of Compensation in respect of the claim made
by the third parties. So far as the third party claims are
concerned, the Insurance Company can pay the
Compensation amount and recover the same from the owner
of the vehicle. In view of the above discussions, we are of
the view that since on the of accident there is no valid
Fitness Certificate, the Insurance Company can pay the
Compensation and recover the same from the owner of the
vehicle.
.........................
14.However, since there is no valid Fitness
Certificate for the Lorry, this Court directs the Insurance
Company to pay the compensation amount in both the cases
to the legal heirs of the deceased Praveen and the injured
Claimant Jaiganesh and recover the same from the owner of
the vehicle. The Insurance Company is also directed to
deposit the entire Compensation amount with accrued
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C.M.A. No.2792 of 2019
and
Cross Objection No.14 of 2021
interest, if not so far deposited, within a period of eight
weeks from the date of receipt of a copy of this Order. On
such deposit, the Claimants in both the Appeals are
permitted to withdraw their respective shares with
proportionate interest. Connected M.Ps. are closed”
The ratio of the judgment referred to above is squarely applicable to the
facts and circumstances of the present case. Hence, the 2nd respondent-
Insurance Company is directed to pay the compensation to the appellants at
the first instance and recover the same from the 1 st respondent, owner of the
vehicle. The judgment relied on by the learned counsel appearing for the 2 nd
respondent does not support their case.
14.It is the contention of the appellants that at the time of accident,
the deceased was aged 39 years, working as a Supplier in Hotel and was
earning a sum of Rs.30,000/- per month. They failed to file any documents
to prove the avocation and income. In the absence of any material evidence,
the Tribunal fixed the notional income of the deceased as Rs.6,000/- per
month. The accident is of the year 2016. The monthly income fixed by the
Tribunal is meagre. Considering the date of accident, age of the deceased
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and
Cross Objection No.14 of 2021
and nature of work done by him, a sum of Rs.12,000/- per month is fixed as
notional income of the deceased. Considering Ex.P5 – post mortem
certificate, the Tribunal rightly fixed the age of the deceased as 40 years, but
erroneously granted 40% enhancement towards future prospects, instead of
25%. The Tribunal also deducted 10% towards Income Tax. If income of the
deceased is fixed at Rs.12,000/- and 25% enhancement is granted towards
future prospects, the annual income of the deceased comes to Rs.1,80,000/-
{[Rs.12,000/- + Rs.3,000/-(25% of Rs.12,000/-)] x 12}. During the financial
year 2016-2017, upto Rs.2,50,000/- there is nil tax. In view of the same, the
10% deduction made by the Tribunal towards Income Tax is set aside. The
Tribunal rightly applied multiplier '15' and deducted 1/3rd towards personal
expenses of the deceased. Hence, the amounts granted by the Tribunal
towards loss of dependency is modified as Rs.18,00,000/- {[Rs.12,000/- +
Rs.3,000/-(25% of Rs.12,000/-)] x 12 x 15 x 2/3}. The Tribunal failed to
award any amount for loss of love and affection to the appellants 2 to 4 who
are the children of the deceased. Hence, a sum of Rs.40,000/- each is
awarded towards loss of love and affection to the appellants 2 to 4. The
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C.M.A. No.2792 of 2019
and
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amounts awarded by the Tribunal under other 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 Award
awarded by awarded by confirmed or
Tribunal this Court (Rs) enhanced or
(Rs) granted
1. Loss of dependency 9,07,200/- 18,00,000/- Enhanced
2. Funeral expenses 15,000/- 15,000/- Confirmed
3. Loss of estate 15,000/- 15,000/- Confirmed
4. Loss of consortium to 40,000/- 40,000/- Confirmed
1st appellant
5. Loss of love and - 1,20,000/- Granted
affection to appellants
2 to 4
Total 9,77,200/- 19,90,000/- Enhanced by
Rs.9,92,800/-
Amount awarded by 9,97,200/- -
(19,90,000-
the Tribunal
9,97,200)
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C.M.A. No.2792 of 2019
and
Cross Objection No.14 of 2021
Having arrived at a sum of Rs.9,77,200/- as compensation, the Tribunal
erroneously awarded a sum of Rs.9,97,200/- as compensation.
16.In the result, C.M.A.No.2792 of 2019 is allowed and Cross
Objection No.14 of 2021 is partly allowed. The amount awarded by the
Tribunal at Rs.9,97,200/- is enhanced to Rs.19,90,000/-, together with
interest at the rate of 7.5% per annum from the date of petition till the
date of deposit. The 2nd respondent-Insurance Company is directed to
deposit the award amount now determined by this Court, along with
interest and costs, within a period of six weeks from the date of receipt of
a copy of this judgment, to the credit of M.C.O.P. No.33 of 2017 at the
first instance and recover the same from the 1st respondent. On such
deposit, the 1st appellant is permitted to withdraw her share of the award
amount, now determined by this Court, along with proportionate interest
and costs, as per the ratio of apportionment fixed by the Tribunal, after
adjusting the amount, if any, already withdrawn, by filing necessary
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C.M.A. No.2792 of 2019
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applications before the Tribunal. The shares of the minor appellants 2 to
4 are directed to be deposited in any one of the Nationalized Bank, till
the minors attain majority. The 1st appellant, mother of the minor
appellants 2 to 4 is permitted to withdraw the accrued interest, once in
three months for the welfare of the minor appellants 2 to 4. The
appellants are directed to pay the necessary court fee on the enhanced
award amount. No costs.
22.02.2021
Index : Yes/No
gsa
To
1.The Additional District and Sessions Judge,
(Motor Accident Claims Tribunal),
Ariyalur.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.2792 of 2019
and
Cross Objection No.14 of 2021
V.M.VELUMANI, J.,
gsa
C.M.A. No.2792 of 2019
and Cross Objection No.14 of 2021
22.02.2021
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