Madras High Court
Bajaj Allianz Insurance Co. Ltd vs Vimalarani on 22 February, 2021
C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.4754 of 2019 & C.M.P.No.27241 of 2019
and Cross Objection No.3 of 2021
C.M.A.No.4754 of 2019
Bajaj Allianz Insurance Co. Ltd.,
No.11, 3rd Floor,
People's Park Road,
Government Arts College Road,
Coimbatore. ... Appellant
vs
1.Vimalarani
W/o.Xavier Amulraj
2.Minor Jeni
D/o.Xavier Amulraj
3.Minor Jerina
D/o.Xavier Amulraj
(minors represented by their
guardian Vimalarani)
4.Alphonse
S/o.Vedhanayagam
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
5.Thangammal
W/o.Alphonse
6.Madanambekai ... Respondents
Prayer: Civil Miscellaneous Appeal filed u/s.173 of the Motor Vehicles Act,
1988, against the judgment and decree dated 27.02.2019 passed in
M.C.O.P.No.1993 of 2014 on the file of the Motor Accident Claims Tribunal,
II Additional District Judge, Tiruppur.
For Appellant : Mr.S.Arunkumar
For Respondents : Mr.Ma.P.Thangavel [R1 to R5]
Ex parte [R6]
Cross Objection No.3 of 2021:
1.Vimalarani
W/o.Xavier Amulraj
2.Minor Jeni
D/o.Xavier Amulraj
3.Minor Jerina
D/o.Xavier Amulraj
(minors represented by their guardian Vimalarani)
4.Alphonse
S/o.Vedhanayagam
5.Thangammal
W/o.Alphonse ... Cross Objectors
vs
1.Bajaj Alliance Insurance Co. Ltd.,
No.11, 3rd Floor, Peoples Park Road,
Government Arts College Road,
Coimbatore.
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
2.B.Madanambekai ... Respondents
(R2 remained ex parte before the Tribunal.
Hence, notice may be dispensed with)
Prayer: Cross Objection filed under Order 41 Rule 22 of Civil Procedure Code
praying to enhance the award amount in the judgment and decree dated
27.02.2019 passed in M.C.O.P.No.1993 of 2014 on the file of the Motor
Accident Claims Tribunal, II Additional District Judge, Tiruppur.
For Cross-Objectors : Mr.Ma.P.Thangavel
For Respondents : Mr.S.Arunkumar [R1]
Ex parte [R2]
*****
COMMON JUDGMENT
[Judgment of the Court was delivered by R.SUBBIAH, J]
This matter is heard through Video-Conferencing.
2. For the sake of convenience, appellant, in the appeal, is referred to as
'Insurance Company' and respondents 1 to 5, in the appeal, are referred to as
'Claimants'.
3. Questioning the finding rendered by the Tribunal in fixing the
negligence on the part of the vehicle insured with the Insurance Company as
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
well as the quantum of compensation awarded by the Tribunal in and by its
judgment and decree dated 27.02.2019 passed in M.C.O.P.No.1993 of 2014
on the file of the Motor Accident Claims Tribunal, II Additional District Judge,
Tiruppur, the Insurance Company has filed the present appeal.
4. Seeking enhancement of compensation awarded in the aforesaid
judgment, claimants have filed the Cross Objection.
5. The brief facts of the case are as follows:
Claimants are wife, minor children and parents of the deceased Xavier
Amulraj. On 06.12.2014 at about 1.40 p.m., while the deceased was riding a
two-wheeler bearing Registration No.TN-39-BX-1630 on the Avinashi to Covai
Main Road towards west, a Nisson Suuny Car bearing Registration No.TN-38-
BQ-3515, which was proceeding from east to west, came in a rash and
negligent manner and dashed against the two-wheeler of the deceased. In the
impact, the deceased sustained grievous injuries. Immediately, the deceased
was taken to Government Hospital, Avinashi, KMCH, Coimbatore and
thereafter to CMCH, Coimbatore. Despite treatment, the deceased succumbed
to the injuries. It is the case of claimants that the deceased was running a Mess
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
viz., Kalamani Mess at Thekkalur and was earning a sum of Rs.15,000/- p.m.
Hence, they filed a petition seeking compensation in a sum of Rs.25,00,000/-
for the death of the deceased.
6. Resisting the claim made by claimants, Insurance Company has filed
a detailed counter statement inter alia contending that the accident had not
occurred in the manner as projected by claimants. They have also denied the
age, occupation and income of the deceased. It was further stated that the
though a case was registered against the driver of the Car, the same was closed
as 'mistake of fact'. It was the deceased, who rode the two-wheeler in a rash
and negligent manner in a drunken state and dashed against the Car. Hence,
the deceased, being the tort-feasor, was solely responsible for the accident.
Thus, they prayed for dismissal of the claim petition.
7. To prove their claim, on the side of claimants, 3 witnesses were
examined as PWs.1 to 3 and 6 documents were marked as Exs.P1 to P6. On
the side of Insurance Company, 3 witnesses were examined and 2 exhibits
were marked.
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
8. On appreciation of materials and the evidence on record, the Tribunal
arrived at a finding that the accident had occurred due to the rash and negligent
driving of the Nisson Suuny Car bearing Registration No.TN-38-BQ-3515.
Consequently, the Tribunal directed the Insurance Company, as insurer of the
offending vehicle, to pay compensation. The Tribunal awarded a sum of
Rs.24,78,000/- as compensation. The break-up details are as follows:
Sl. Compensation awarded under Amount
No. the head (in Rs.)
1. Loss of dependency 20,16,000/-
2. Loss of love and affection 2,00,000/-
(40000 * 5)
3. Loss of love and affection 1,25,000/-
(25000 * 5)
4. Medical Bills 1,12,000/-
5. Funeral expenses 15,000/-
6. Transport expenses 10,000/-
Total 24,78,000/-
Though the Tribunal had arrived at compensation in a sum of Rs.24,78,000/-,
it had restricted the compensation payable only to Rs.23,00,000/- without
assigning any reason. The said sum of Rs.23,00,000/- was directed to be paid
together with interest at 7.5% p.a. from the date of claim petition till the date of
realisation.
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
9. Learned counsel for Insurance Company submits that the accident
had occurred due to the rash and negligent driving of the deceased. In the claim
petition, claimants have stated that while the deceased was riding the two-
wheeler towards west, the Nisson Suuny Car bearing Registration No.TN-38-
BQ-3515, which was coming from east to west, in a rash and negligent manner
dashed against the two-wheeler. A perusal of Ex.R1 – Rough Sketch and
Ex.R2 - final report would show that the Car was proceeding from east to west
and the deceased, who was proceeding from north to south, dashed on the rear
side of the Car and thus, caused the accident. But, the Tribunal, without taking
into consideration the rough sketch and the final report, by merely placing
reliance on the First Information Report, arrived at a finding that the accident
had occurred due to the rash and negligent driving of the Nisson Suuny Car
bearing Registration No.TN-38-BQ-3515. Hence, learned counsel prays this
Court to set aside the award passed by the Tribunal.
10. The alternate submission of learned counsel is that in the event of
this Court coming to the conclusion that there is negligence on the part of both
the drivers of the vehicles, 50% contributory negligence may be fixed on the
part of the deceased as well as the driver of the Car.
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
11. Per contra, learned counsel for claimants submits that though it is
the claim of Insurance Company that the Car was proceeding from east to west
on the Avinashi to Covai Main Road and the two-wheeler was proceeding from
north to south and it was the two-wheeler that hit the rear side of the Car, there
was no pleading in the counter to that effect. In the absence of any pleading,
the submission made by Insurance Company, in this regard, cannot be
accepted. Thus, learned counsel submits that absolutely there is no error in the
finding rendered by the Tribunal in fixing the entire liability on the part of the
driver of the Car. Hence, learned counsel prays for dismissal of the appeal.
12. Insofar as the quantum of compensation is concerned, learned
counsel for claimants submits that the Tribunal had fixed the monthly income
of the deceased at Rs.10,000/-, which is very much on the lower side. Hence,
learned counsel prays this Court to fix at least a sum of 15,000/- as the
monthly income of the deceased and accordingly, enhance the compensation
payable by Insurance Company.
13. This Court has considered the rival submissions. Perused the
materials on record.
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
14. On a perusal of Ex.R2 - final report, this Court finds that though
initially the case was registered against the driver of the Car, later, it was found
that the accident had occurred due to the rash and negligent driving of the two-
wheeler driven by the deceased and hence, the case was closed as 'mistake of
fact'. However, the Tribunal, without considering the same, by merely placing
reliance on the FIR, arrived at a finding that the accident was the result of rash
and negligent driving of the Car. At the same time, it is also to be noted that the
Insurance Company had not taken a specific defence that the Car was
proceeding from east to west on the Avinashi to Covai Main Road and the two-
wheeler was proceeding from north to south and it was the two-wheeler that hit
the rear side of the Car. Under such circumstance, this Court is not inclined to
exonerate the Insurance Company from liability. Considering the factual
aspects of the case, this Court fixes 70% negligence on the part of the driver of
the Car and 30% on the part of the deceased.
15. Insofar as the quantum of compensation is concerned, this Court,
considering the fact that the accident took place in the year 2014 and the cost
of living prevailed at that point of time, is of the view that it would be
appropriate to fix a sum of Rs.14,000/- as the monthly income of the deceased.
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
Accordingly, the monthly income of the deceased is fixed at Rs.14,000/- and
the compensation payable under the head 'loss of dependency' is re-calculated
as follows:
Monthly Income : Rs. 14,000/-
Add : Future Prospects
40% of Rs.14,000/- : Rs. 5,600/-
-----------------
Rs. 19,600/-
Less : Personal expenses
1/4 of Rs.19,600/- : Rs. 4,900/-
------------------
Rs. 14,700/-
Annual income
(Rs.14,700 *12) : Rs. 1,76,400/-
Multiplier : x 16
------------------
Loss of dependency : Rs.28,22,400/-
------------------
16. Further, this Court finds that the Tribunal twice awarded
compensation under the head 'loss of love and affection' in sums of
Rs.1,25,000/- and Rs.2,00,000/-, which is unwarranted. Hence, the sum of
Rs.1,25,000/- awarded towards loss of love and affection is set aside. Though
the Tribunal awarded a sum of Rs.2,00,000/- (40000 * 5) towards loss of love
and affection, this Court is of the view that the first respondent/wife of the
deceased is entitled to loss of consortium and respondents 2 to 5/children and
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
parents of the deceased are entitled to loss of love and affection. Accordingly, a
sum of Rs.40,000/- is awarded under the head of loss of consortium and
consequently, the sum of Rs.2,00,000/- awarded towards loss of love and
affection is reduced to Rs.1,60,000/- (40000 * 4). The amount awarded under
the other heads is hereby confirmed.
17. Accordingly, the modified compensation payable would be:
Sl. Compensation awarded under Award of the Award of this
No. the head Tribunal (in Rs.) Court (in Rs.)
1. Loss of dependency 20,16,000/- 28,22,400/-
2. Loss of love and affection 2,00,000/- 1,60,000/-
3. Loss of love and affection 1,25,000/- -
4. Medical Bills 1,12,000/- 1,12,000/-
5. Loss of consortium - 40,000/-
6. Funeral expenses 15,000/- 15,000/-
7. Transport expenses 10,000/- 10,000/-
Total 24,78,000/- 31,59,400/-
Contributory negligence (30%) - 9,47,820/-
Compensation payable 22,11,580/-
Rounded off to 22,00,000/-
In the result,
(i) the Civil Miscellaneous Appeal is partly allowed. The compensation of
Rs.23,00,000/- awarded by the Tribunal is reduced to Rs.22,00,000/-
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
[Rupees Twenty Two Lakhs only]. The Insurance Company is directed to
deposit the modified compensation, less the amount already deposited,
together with interest at 7.5% p.a. from the date of claim petition till the
date of deposit within a period of four weeks from the date of receipt of this
judgment. On such deposit being made by Insurance Company, respondents
1, 4 and 5/wife and parents of the deceased are permitted to withdraw their
respective shares, as apportioned by Tribunal, along with
accrued/proportionate interest and costs, less the amount, if any already
withdrawn by them, by filing necessary application before the Tribunal.
The share of respondents 2 and 3/minors shall be deposited in any
nationalized bank in fixed deposit till they attain majority. First
respondent/mother of minor is entitled to receive accrued interest once in
three months towards taking care of the minors.
(ii)Cross Objection is disposed of.
No costs. Connected miscellaneous petition is closed.
[R.P.S., J] [S.S.K., J]
22.02.2021
Speaking/Non-speaking order
Index: yes/no
Internet:yes/no
gm
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
To
1.The Motor Accident Claims Tribunal,
II Additional District Judge,
Tiruppur.
2.The Section Officer,
VR Section,
High Court, Madras.
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C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
R.SUBBIAH, J
and
SATHI KUMAR SUKUMARA KURUP, J
gm
C.M.A.No.4754 of 2019 and
Cross Objection No.3 of 2021
22.02.2021
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