Madras High Court
M/S.Oriental Insurance Company ... vs K.Ponnammal on 4 January, 2021
C.M.A.No.1903 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1903 of 2019
and
C.M.P.Nos.6584, 14830 of 2019 & 1019 of 2020
M/s.Oriental Insurance Company Limited,
No.707, Avinashi Road,
Coimbatore – 641 018. .. Appellant
Vs.
1.K.Ponnammal
2.A.Thangaraj
3.A.Ganesan
4.B.Manju .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
06.10.2016 made in M.C.O.P.No.177 of 2012 on the file of the Motor
Accidents Claims Tribunal, IV Additional District Court, Coimbatore.
For Appellant : Mrs.C.Harini
for Mr.N.Vijayaraghavan
For R1 : Mr.A.S.Vijayaragavan
JUDGMENT
The matter is heard through "Video Conferencing".
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C.M.A.No.1903 of 2019
2.This Civil Miscellaneous Appeal has been filed against the award
dated 06.10.2016 made in M.C.O.P.No.177 of 2012 on the file of the Motor
Accidents Claims Tribunal, IV Additional District Court, Coimbatore.
3.The appellant is the 3rd respondent in M.C.O.P.No.177 of 2012 on the
file of the Motor Accidents Claims Tribunal, IV Additional District Court,
Coimbatore. The 1st respondent filed the said claim petition claiming a sum of
Rs.25,00,000/- as compensation for the death of her son viz., Thamburaj, who
died in the accident that took place on 17.06.2002.
4.According to 1st respondent, on 17.06.2002 at about 06.30 P.M.,
while the deceased Thamburaj was riding his Maruthi Car bearing
Registration No.TN 37 K 9600 from West to East on Coimbatore – Trichy
Main Road near Irugur Pirivu, Chinthamanipudur, the driver of the lorry
bearing Registration No.TAG 7416 belonging to 3rd respondent who was
driving the lorry from the opposite direction in a rash and negligent manner
without making any signal or sound, hit against the car driven by the
deceased and caused the accident. In the accident, the said Thamburaj
sustained fatal injuries and immediately he was taken to Coimbatore Medical
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C.M.A.No.1903 of 2019
College Hospital and was admitted in ICU for treatment. Inspite of treatment,
the said Thamburaj succumbed to injuries. Therefore, the 1st respondent being
the mother of the deceased Thamburaj filed the said claim petition claiming a
sum of Rs.25,00,000/- as compensation against the respondents 2, 3 and
appellant-Insurance Company, being the driver, owner and insurer of the
lorry respectively. The 4th respondent is the wife of the deceased Thamburaj.
5.The respondents 2 and 3, being the driver and owner of the lorry
remained exparte before the Tribunal.
6.The appellant-Insurance Company, being the insurer of the lorry
belonging to 3rd respondent filed counter statement and denied all the
averments made by the 1st respondent. According to the appellant, the
accident has not occurred as alleged by the 1st respondent, whereas, the
deceased only drove his car in a rash and negligent manner without seeing the
traffic of the road, unable to control his car and dashed against the lorry and
caused the accident. Hence, the accident has occurred only due to the
negligence on the part of the deceased and therefore, the appellant is not
liable to pay any compensation. The 1st respondent has to prove that the 3rd
respondent's lorry was insured with the appellant at the time of accident. The
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C.M.A.No.1903 of 2019
3rd respondent has not intimated the appellant about the accident. The 3rd
respondent has not furnished the R.C., Permit, Insurance Policy details and
driving license particulars of the 2nd respondent as per the terms and
conditions of the policy. The 3rd respondent has to prove that the 2nd
respondent was possessing valid driving license at the time of accident. The
1st respondent has to prove that she is the only legal heir of the deceased by
producing valid documents. The appellant denied the age, avocation and
income of the deceased. In any event, the quantum of compensation claimed
by the 1st respondent is highly excessive and prayed for dismissal of the claim
petition.
7.Before the Tribunal, the 1st respondent examined herself as P.W.1
and one Ramasamy, eyewitness to the accident was examined as P.W.2 and
15 documents were marked as Exs.P1 to P15. The appellant-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 occurred only due to rash and negligent
driving by the driver of the lorry belonging to 3rd respondent and directed the
3rd respondent and appellant to jointly and severally pay a sum of
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C.M.A.No.1903 of 2019
Rs.13,50,000/- as compensation to the respondents 1 and 4.
9.Against the said award dated 06.10.2016 made in M.C.O.P.No.177 of
2012, the appellant has come out with the present appeal.
10.The learned counsel appearing for the appellant contended that the
Tribunal failed to see that at the time of passing of the award, the 4th
respondent, wife of the deceased died and compensation awarded in favour of
dead person is not valid. The Tribunal erred in returning the review petition
filed by the appellant enclosing copy of the death certificate as not
maintainable. The 4th respondent died on 08.03.2016 and the date of award
passed in the present M.C.O.P.No.177 of 2012 is 06.10.2016. The appellant
produced death certificate dated 14.03.2016 of the 4th respondent. There can
be no award against a dead person or in favour of the deceased and hence, a
sum of Rs.3,50,000/- awarded by the Tribunal in favour of the 4th respondent
is unsustainable and the same is liable to be set aside and prayed for allowing
the appeal.
11.Per contra, the learned counsel appearing for the 1st respondent
contended that 1st respondent-mother of the deceased informed the death of
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C.M.A.No.1903 of 2019
the 4th respondent to the notice of the Tribunal during trial, but could not file
death certificate before the Tribunal. The learned counsel appearing for the 1st
respondent before the Tribunal contended that 4th respondent has remarried
and she is not entitled to any compensation for the death of 1st respondent's
son. Now the appellant themselves have contended that 4th respondent died
during the trial and hence, prayed for a direction to the appellant to pay the
sum of Rs.3,50,000/- also to the 1st respondent, which was granted to the 4th
respondent.
12.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 1st respondent and perused the entire
materials on record.
13.From the materials available on record, it is seen that the 1st
respondent has filed claim petition in M.C.O.P.No.177 of 2012 on the file of
the Motor Accidents Claims Tribunal, IV Additional District Court,
Coimbatore, claiming compensation for the death of her son viz., Thamburaj.
The 1st respondent arrayed the wife of her son as 4th respondent in the claim
petition filed by her. In the claim petition, the 1st respondent contended that
4th respondent earlier filed M.C.O.P.No.911 of 2005 before the EC Court,
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C.M.A.No.1903 of 2019
Coimbatore and the same was dismissed for default. The 4th respondent
remarried and living separately and hence, 4th respondent is not entitled to
compensation. During trial, the 1st respondent contended that 4th respondent
died. The 1st respondent has filed legal heirship certificate of the deceased
Thamburaj dated 16.08.2002 as Ex.P4. The respondents 1 and 4 were shown
as legal representatives of the deceased Thamburaj. The 1st respondent has
not filed any death certificate of the 4th respondent. Hence, the Tribunal did
not accept the contention of the 1st respondent that 4th respondent died. The
Tribunal considering the avocation and age of the deceased Thamburaj, fixed
monthly income and awarded compensation under loss of dependency and
other heads, totaling a sum of Rs.13,50,000/- as compensation directing the
appellant to pay a sum of Rs.10,00,000/- to the 1 st respondent and
Rs.3,50,000/- to the 4th respondent. Now according to the appellant, the 4th
respondent died and hence, no award can be passed against a dead person. In
view of the death of the 4th respondent, the 1st respondent is entitled to entire
compensation awarded by the Tribunal. From the award of the Tribunal, it is
seen that the Tribunal has granted a sum of Rs.50,000/- to the 4th respondent
towards loss of consortium. The 1st respondent-mother of the deceased is not
entitled to any amount towards loss of consortium and hence, the sum of
Rs.50,000/- awarded by the Tribunal towards loss of consortium is liable to
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C.M.A.No.1903 of 2019
be set aside and it is hereby set aside. The amounts awarded by the Tribunal
under other heads are just and reasonable and hence, the same are hereby
confirmed. Therefore, the 1st respondent is entitled to only Rs.13,00,000/- as
compensation. Thus, the compensation awarded by the Tribunal is modified
as follows:
S. Description Amount awarded Amount awarded Award
No by Tribunal by this Court confirmed or
enhanced or
(Rs) (Rs)
granted
1. Loss of dependency 12,35,200/- 12,35,200/- Confirmed
2. Loss of love and affection 20,000/- 20,000/- Confirmed
to 1st respondent
3. Loss of consortium to 4th 50,000/- - Set aside
respondent
4. Funeral expenses 20,000/- 20,000/- Confirmed
5. Mental agony 25,000/- 25,000/- Confirmed
Total Rs.13,50,200/- Rs.13,00,200/- Reduced by
rounded off to rounded off to Rs.50,000/-
Rs.13,50,000/- Rs.13,00,000/-
14.In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.13,50,000/- is
hereby reduced to Rs.13,00,000/- together with interest at the rate of
7.5% per annum from the date of petition till the date of
deposit, excluding interest for the periods from 16.11.2012 to 21.02.2013
and 11.12.2014 to 11.09.2015. The 3rd respondent and the appellant-
Insurance Company are jointly and severally directed to deposit the
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C.M.A.No.1903 of 2019
modified award amount now determined by this Court, along with interest
and costs, less the amount if any already deposited, 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.177 of 2012 on the file of the Motor Accidents Claims Tribunal,
IV Additional District Court, Coimbatore. On such deposit, the 1st respondent
is permitted to withdraw the award amount now determined by this Court,
along with interest and costs, after adjusting the amount, if any already
withdrawn, by filing necessary applications before the Tribunal.
Consequently, the connected Miscellaneous Petitions are closed. No costs.
04.01.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The IV Additional District Judge,
Motor Accidents Claims Tribunal,
Coimbatore.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.1903 of 2019
V.M.VELUMANI, J.
krk
C.M.A.No.1903 of 2019
04.01.2021
https://www.mhc.tn.gov.in/judis/
