New India Insurance Co. Ltd vs Murugan
2021 Latest Caselaw 14510 Mad

                                                                                 C.M.A.No.2051 of 2016

                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 20.07.2021

                                                        CORAM

                             THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE

                                                C.M.A.No.2051 of 2015
                                                       and
                                                CMP No.15013 of 2016

                      New India Insurance Co. Ltd.,
                      No.45, Moore Street, 5th Floor,
                      Chennai – 600 001.                            ...               Appellant

                                                           ..Vs..

                      1.Murugan

                      2.Mallika

                      3.G.Ramasamy                                  ...             Respondents


                      Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor

                      Vehicles Act, 1988, against the Judgment and Decree dated 15.04.2016

                      made in MCOP.No.2746 of 2012 on the file of the Motor Accident

                      Claims Tribunal, (II Judge) Small Causes Court, Chennai.




                      1/10


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                                                                                 C.M.A.No.2051 of 2016




                                    For Appellant     : Mr.G.Anandan

                                    For R-1 & R-2     : Mr.F.Terry Chella Raja

                                    For R-3           : No appearance


                                                    JUDGMENT

(This Appeal has been taken up for hearing through Video Conferencing)

This appeal has been filed by the appellant/Insurance company

challenging the award dated 15.04.2016 passed by the Motor Accident

Claims Tribunal, II Court of Small Causes, Chennai.

2. Heard Mr.G.Anandan, learned counsel for the appellant –

Insurance Company and Mr.F.Terry Chella Raja, learned counsel for

respondents 1 & 2 / claimants. The third respondent has remained exparte

both before the Tribunal as well as this Court.

3. The appellant / Insurance company has challenged the impugned

award on the following grounds -

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(a) The Tribunal has erroneously failed to grant Pay and Recovery rights and

(b) The quantum of compensation awarded by the Tribunal is excessive.

The details of the compensation awarded by the Tribunal to the respondents

/ claimants are as follows -

                                           Heads            Award Amount
                                                                (Rs.)
                                 Compensation for loss of           7,20,000/-
                                 dependency
                                 Compensation for loss of           2,00,000/-
                                 love and affection
                                 Loss of estate                         50,000/-
                                 Funeral expenses                       25,000/-
                                 Total                              9,95,000/-

4. The accident happened on 0902.2011 which resulted in the death

of Umadevi who was 13 years old, 7th standard student studying at

Government High School, Mohalalar, Thirukovilur Taluk, Villupuram

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District. The Tribunal has fixed the notional monthly income of the

deceased at Rs.5,000/- which in the considered view of this Court cannot be

treated to be excessive, as alleged by the Appellant/Insurance Company.

Infact, in several cases, for the accident of the year 2011, this Court has

fixed the notional monthly income at higher sum. The learned counsel for

the appellant has relied upon a decision of the Hon'ble Supreme Court in the

case of Kishan Gopal and another Vs. Lala and others reported in 2013

(5) CTC 212 (SC) and contended that the notional monthly income fixed by

the Tribunal at Rs.5,000/- is not in accordance with the aforesaid judgment

of the Hon'ble Supreme Court. The said contention is rejected by this Court

in view of the fact that in Kishan Gopal's case referred to supra, the

accident happened in the year 1992 whereas in the case in hand, the

accident happened in the year 2011. Therefore, the said judgment referred

to by the learned counsel for the appellant is not applicable to the facs of the

instant case.

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5. With regard to the quantum of compensation awarded by the

Tribunal under various other heads namely -

(a) Compensation towards loss of love & Affection ... Rs.2,00,000/-

                                   (b) Loss of Estate               ...   Rs. 50,000/-
                                   (c) Funeral expenses             ...   Rs. 25,000/-

are concerned, though the same are excessive and not in accordance with the

decision of the Hon'ble Supreme Court in the case of National Insurance

Company Limited vs. Pranay Shethi and Others reported in 2017 (16)

SCC 680, this Court is of the considered view that the total compensation of

Rs.9,95,000/- awarded by the Tribunal under the impugned award cannot be

considered to be excessive for the following reasons -

(a) The notional monthly income of the deceased for an

accident of the year 2011 has been fixed by the Tribunal

only at Rs.5,000/- which is low ;

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(b) The Tribunal has not awarded any compensation

towards loss of future prospects which the

respondents/claimants are legally entitled to, as per settled

law.

6. With regard to the second contention raised by the

appellant/Insurance company that Pay and Recovery rights were not granted

by the Tribunal despite the appellant having proved before the Tribunal that

the insured had committed policy violation is concerned, there is force in the

contention of the appellant/Insurance Company.

7. Before the Tribunal, the appellant/Insurance company has filed

five documents which were marked as Exs.R1 to R5 and one witness was

examined on their side namely Mr.P.Mariappan as RW1, Head constable.

Before the Tribunal, the insured remained exparte and even before this

Court, he has remained exparte. The police official, RW1, Mr.P.Mariappan

has deposed before the Tribunal that at the time of accident, the insured

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vehicle was not possessing a valid permit. However, it is seen from the

impugned award that there is no discussion with regard to the said

contention raised by the appellant/Insurance company that the insured

vehicle was not possessing a valid permit at the time of accident. When

there is clinching evidence produced by the appellant/Insurance company to

prove that the insured vehicle was not possessing a valid permit at the time

of accident which has been corroborated by the police official (RW1) and

that too, when the insured has remained exparte, the Tribunal ought to have

granted Pay and Recovery rights to the appellant/Insurance company.

However, the Tribunal has erroneously failed to grant the same to the

appellant/Insurance company. Therefore, this Court is granting the Pay and

Recovery rights to the appellant/Insurance company and they are entitled to

recover the compensation amount from the insured, namely the third

respondent herein who was the first respondent in the claim petition before

the Tribunal in MCOP No.2746 of 2012, once they pay the same to the

respondents / claimants

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8. For the foregoing reasons, the compensation awarded by the

Tribunal at Rs.9,95,000/- alongwith interest @ 7.5% per annum is

confirmed directing the appellant/Insurance company to pay the

compensation amount to the respondents/claimants at the first instance and

recover the same from the third respondent herein.

Conclusion :

9. Accordingly, this Civil Miscellaneous Appeal is partly allowed

directing the Appellant - Insurance Company to deposit the compensation

amount together with interest from the date of claim till the date of deposit

and costs, as assessed by the Tribunal under the impugned award dated

15.04.2016 in MCOP.No.2746 of 2012, after deducting the amount

already deposited, within a period of four weeks from the date of receipt of

a copy of this Judgment. On deposit of the compensation amount before the

Tribunal, the appellant/Insurance Company is permitted to recover the same

from the third respondent herein who was the first respondent before the

Claims Tribunal. On deposit of award amount being made by the Appellant

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/ Insurance Company, the Tribunal is directed to transfer the award amount

to the bank account of the respondents/claimants through RTGS within a

period of one week thereafter. Consequently, connected miscellaneous

petition is closed. No costs.

30.06.2021 rgr Index:Yes/No Internet:Yes/No

To

1. The II Judge, Court of Small Causes, Motor Accident Claims Tribunal, Chennai.

2.The Section Officer V.R.Section, High Court, Madras.

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ABDUL QUDDHOSE, J.

rgr

C.M.A.No.2051 of

20.07.2021

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