Madras High Court
Eswari vs Thangapandian on 27 July, 2021
C.M.A.No.2448 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.2448 of 2015
1.Eswari
2.B.S.Gopalakrishnan
3.B.S.Girijadevi ...Appellants
Vs
1.Thangapandian
2.J.Jayaprabha
3.HDFC General Insurance Co. Ltd.,
Coimbatore ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the fair order and decree passed in
MCOP.No.70/2010 on the file of the Motor Accidents Claims Tribunal,
Gobichettipalayam; III Additional District and Sessions Court, Erode at
Gobichettipalayam, dated 21.06.2012 for enhancement of compensation
awarded to the appellants to an extent of Rs.4,75,000/- (Rupees Four Lakhs
seventy five thousand only).
For Appellant : Mr.M.Nandha Kumar
for Mr.S.Ramesh Kumar
For Respondents : R1 & R2– Exparte
Mr.J.Michel Visuvasam for R3
1/10
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C.M.A.No.2448 of 2015
JUDGMENT
(This case was heard through Video Conferencing)
This appeal has been filed by the claimants challenging the impugned
Award dated 21.06.2012 passed by the Motor Accidents Claims Tribunal,
III Additional District and Sessions Court, Erode at Gobichettipalayam in
MCOP.No.70 of 2010.
2.The Appellants/claimants have challenged the impugned Award on
the following grounds:
(a) The Tribunal has erroneously exonerated the liability of the third
respondent Insurance Company.
(b) The quantum of compensation awarded by the Tribunal is not a
just compensation and therefore it has to be enhanced.
3.The Tribunal under the impugned award exonerated the liability of
the third respondent Insurance Company and has directed the respondents 1
and 2 to pay a compensation of Rs.4,75,000/- to the Appellants/claimants as
detailed hereunder:
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C.M.A.No.2448 of 2015
Head Amount awarded by
the Tribunal
Loss of Income Rs.4,40,000
(Rs.40,000 x 11)
Loss of Love and Affection Rs.30,000
(Rs.10,000/- x 3 )
Funeral expenses Rs.5,000
Total Rs.4,75,000/-
4.The Tribunal has exonerated the liability of the third respondent
Insurance Company on the ground that on the date of the accident i.e. on
22.08.2008, there was no valid Insurance Policy. Since the third respondent
Insurance Company had already cancelled the Insurance Policy issued in
favour of the respondents 1 and 2 on the ground that the cheque towards
insurance premium got dishonored for insufficiency of funds, the Insurance
Company was exonerated from liability.
5.Heard Mr.M.Nandha Kumar, learned counsel for the Appellants and
Mr.J.Michel Visuvasam, learned counsel for the third respondent. The
respondents 1 and 2 have remained exparte both before the Tribunal as well
as this Court.
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C.M.A.No.2448 of 2015
6.This Court has perused and examined the materials and evidence
available on record before the Tribunal.
7.Ex.R8 is the communication sent by the third respondent Insurance
Company to Mr.V.Anantha Kumar, the insured who was the previous owner
of the vehicle intimating him about the cancellation of the Insurance Policy
issued in his favour due to non realization of premium cheque issued by
him. Ex.R9 is the extract from the dispatch register maintained by the third
respondent Insurance Company which reveals that Ex.R8 was sent to
Mr.V.Anantha Kumar on 27.05.2008.
8.As seen from the aforementioned documents, it is clear that on the
date of the accident i.e. on 22.08.2008, there was no valid Insurance Policy.
9.Ex.R2 is a notice sent by the third respondent counsel to the present
owner of the vehicle viz., the first and second respondents herein intimating
them that the Insurance Policy issued in favour of the previous owner
Mr.V.Anantha Kumar was cancelled even before the date of the accident
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C.M.A.No.2448 of 2015
and therefore there is no effective valid Insurance Policy standing in the
name of the insured on the date of the accident. Ex.R6 is the returned cover
to prove that the notice sent to the present owner of the vehicle viz., the
second respondent herein has been returned unserved.
10.The Tribunal has taken into consideration all the aforementioned
documents and only thereafter has exonerated the liability of the third
respondent on the ground that on the date of the accident i.e. on 22.08.2008,
there was no valid Insurance Policy standing in the name of the respondents
1 and 2 or in the name of the previous owner viz., V.Anantha Kumar.
11.The judgment relied upon by the learned counsel for the Appellant
in the case of United India Insurance Company Limited vs. Laxmamma
and Others reported in (2012) 5 SCC 234 in fact supports the case of the
third respondent Insurance Company more than the Appellant. In the
decision referred to supra, the Hon'ble Supreme Court held that intimation
of the cancellation of the Insurance Policy has to be sent to the insured in
order to enable the Insurance Company to get themselves exonerated from
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C.M.A.No.2448 of 2015
any liability. In the case on hand, the Insurance Company has complied
with all the requirements by intimating the insured about the cancellation of
the Policy due to non payment of the insurance premium and the accident
has happened only after the said intimation. Therefore, the first contention
of the Appellants that the Tribunal has erroneously exonerated the liability
of the third respondent Insurance Company has to be rejected by this Court.
12.With regard to the quantum of compensation awarded by the
Tribunal to the Appellant against the owner of the vehicle is concerned, the
same will have to be enhanced for the following reasons:
(a) The accident happened in the year 2008. The deceased was an
agriculturist and the Appellants/claimants are his dependants. The Tribunal
has fixed the notional monthly income of the deceased at Rs.5,000/-. If the
Tribunal had taken into consideration the year of the accident it ought to
have fixed the notional monthly income of the deceased at a higher sum.
(b)After giving due consideration to the year of the accident which
happened in the year 2008, this Court fixes the notional monthly income of
the deceased at Rs.6,500/- following the decision of the Hon'ble Supreme
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C.M.A.No.2448 of 2015
Court in the case of Syed Sadiq and Others vs. Divisional Manager, United
India Insurance Company Limited reported in (2014) 2 SCC 735.
(c)The Tribunal has also failed to award any compensation towards
loss of future prospects which the Appellants/claimants are legally entitled
to as per the decision of the Hon'ble Supreme Court in the case of National
Insurance Company Limited vs. Pranay Sethi and others reported in
(2017) 16 SCC 680.
13.The deceased was aged 52 years at the time of the accident. As per
Pranay Sethi judgment referred to supra, this Court awards 10% towards
loss of future prospects to the Appellants/claimants.
14.With regard to quantum of compensation awarded under various
other heads, this Court is not interfering with the same, as the overall
compensation awarded to the Appellants/claimants cannot be considered to
be inadequate as alleged by the Appellants.
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C.M.A.No.2448 of 2015
15.For the foregoing reasons, the compensation awarded by the
Tribunal is enhanced from Rs.4,75,000/- to Rs.6,64,200/- as detailed
hereunder:
Head Amount Enhanced/modified by
awarded by the this Court
Tribunal
Loss of Income Rs.4,40,000 Rs.6,29,200
(Rs.40,000 x 11) (Rs.6,500 + 10% =
Rs.7150*12=85,800-1/3
deducted Rs.28,600 =
Rs.57,200 x11)
Loss of Love and Affection Rs.30,000 Rs.30,000
(Rs.10,000/- x 3 )
Funeral expenses Rs.5,000 Rs.5,000
Total Rs.4,75,000/- Rs.6,64,200/-
16.In the result, the appeal is partly allowed. The respondents 1 and 2
are directed to deposit the modified award amount of Rs.6,64,200/- as
assessed by this Court together with interest at the rate fixed by the Tribunal
under the impugned award from the date of claim petition till the date of
realization excluding the period between 02.11.2011 and 22.11.2011, less
the amount, if any, already deposited to the credit of M.C.O.P.No.70 of
2010 on the file of the Motor Accident Claims Tribunal, III Additional
District and Sessions Court, Erode at Gobichettipalayam within a period of
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C.M.A.No.2448 of 2015
eight weeks from the date of receipt of a copy of this Judgment. On such
deposit being made, the Tribunal is directed to transfer the award amount
directly to the bank account of the appellants/claimants through RTGS,
within a period of two weeks thereafter. The requisite Court fee, if any has
to be paid by the appellants/claimants before receiving the copy of this
Judgment. No costs.
The findings of the Trial Court exonerating the liability of the third
respondent Insurance Company is confirmed by this Court.
27.07.2021
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
pam
To
1.The Motor Accident Claims Tribunal,
III Additional District and Sessions Court,
Erode at Gobichettipalayam.
2.The Section Officer,
V.R.Section, High Court of Madras.
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C.M.A.No.2448 of 2015
ABDUL QUDDHOSE, J.
pam
C.M.A.No.2448 of 2015
27.07.2021
https://www.mhc.tn.gov.in/judis/
