Madras High Court
Nirmala vs Unknown on 28 July, 2021
CMA.Nos.338 & 989 of 2016
In the High Court of Judicature at Madras
Dated : 28.7.2021
Coram
The Honourable Mr.Justice ABDUL QUDDHOSE
Civil Miscellaneous Appeal Nos.338 & 989 of 2016
& CMP.Nos.7546 of 2016 & 11044 of 2018
1.
Nirmala
2.Subramani
3.Minor Priyanka
4.Minor Boobalan
minors are represented by their
next guardian/next friend mother
Nirmala ...Appellants
in
CMA.No.338/
2016 & R1 to
R4 in CMA.No.
989 of 2016
Vs
1.Manikandan ...R1 in CMA.
No.338 of
2016 & R5 in
CMA.No.989
of 2016
2.Reliance General Insurance Co.
Ltd., Erode-11. ...R2 in CMA.
No.338 of
2016 & applt.
In CMA.No.989
of 2016
http://www.judis.nic.in
CMA.Nos.338 & 989 of 2016
APPEALS under Section 173 of the Motor Vehicles Act, 1988
against the fair and decretal order dated 23.6.2015 in MCOP.No.881
of 2013 on the file of the Motor Accidents Claims Tribunal (Principal
District Court), Namakkal.
For Claimants : Mr.C.Paraneedharan
For Insurance Company : Mr.S.Arunkumar
owner of the vehicle : set ex parte
COMMON JUDGMENT
I have heard the learned counsel for the claimants and the
learned counsel appearing for the Insurance Company.
2. CMA.No.338 of 2016 has been filed by the claimants
challenging the award dated 23.6.2015 in MCOP.No.881 of 2013 on
the file of the Motor Accidents Claims Tribunal (Principal District
Court), Namakkal on the ground that the quantum of compensation
awarded by the Tribunal is inadequate and it has to be enhanced.
3. CMA.No.989 of 2016 has been filed by the Insurance
Company challenging the very same award primarily on the ground
that no pay and recovery rights were granted to them despite the fact
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CMA.Nos.338 & 989 of 2016
that rider of the two wheeler was not possessing a valid driving
licence at the time of accident. Hence, according to them, the insured
having committed a policy violation, pay and recovery rights ought to
have been granted to them by the Tribunal, which has been
erroneously omitted to be granted by the Tribunal.
4. The claimants, who are the appellants in CMA.No.338 of
2016, has filed the appeal unsatisfied with the quantum of
compensation awarded by the Tribunal and they sought for
enhancement.
5. The details of compensation awarded by the Tribunal to the
claimants under the impugned award are as follows :
S.No Head Amount awarded by
the Tribunal
1 Loss of Income Rs. 4,80,000/-
2 Funeral Expenses Rs. 5,000/-
3 Loss of love and affection Rs. 10,000/-
Total Rs. 4,95,000/-
6. Before the Tribunal, the Insurance Company filed three
documents, which were marked as Ex.R1 to Ex.R3. They filed their
insurance policy, the lawyer's notice sent by them to the insured
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CMA.Nos.338 & 989 of 2016
calling upon him to produce a copy of the driving licence as well as
the acknowledgment card, which proved that the lawyer's notice was
duly acknowledged. Despite the fact that the insured received notice
from the Insurance Company, admittedly, the insured has not
produced the driving licence of the rider of the two wheeler (insured
vehicle at the time of accident). The owner of the insured vehicle also
remained ex parte before the Tribunal.
7. Despite the Insurance Company having been able to prove
before the Tribunal that the rider of the motor vehicle (insured
vehicle) was not possessing a driving licence at the time of accident,
the Tribunal has erroneously failed to grant pay and recovery rights to
them. Since non possession of the driving licence at the time of
accident is a policy violation under the insurance policy, the Tribunal
ought to have granted pay and recovery rights to the Insurance
Company, but has erroneously failed to grant the said right to the
Insurance Company. Hence, this Court grants pay and recovery
rights to the Insurance Company, which is the appellant in
CMA.No.989 of 2016.
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CMA.Nos.338 & 989 of 2016
8. With regard to the quantum of compensation, this Court
deems it fit to enhance the compensation under the following heads :
(a) The Tribunal has awarded a total compensation of
Rs.4,95,000/- to the claimants and adopted the multiplier method for
the assessment of compensation towards the loss of income, which
has been assessed by the Tribunal at Rs.4,80,000/-. This Court is of
the considered view that the said assessment is a correct assessment
and does not call for any interference.
(b) However, with regard to the quantum of compensation
awarded by the Tribunal towards funeral expenses at Rs.5,000/- and
towards loss of love and affection at Rs.10,000/-, the same have to
be necessarily enhanced. In respect of the funeral expenses, as per
the decision of the Hon'ble Supreme Court in the case of National
Insurance Co. Ltd. Vs. Pranay Sethi [reported in 2017 (16) SCC
680], the compensation towards funeral expenses will have to be
assessed at Rs.15,000/- and not at Rs.5,000/- as fixed by the
Tribunal. Accordingly, the compensation towards funeral expenses is
enhanced by this Court to Rs.15,000/-.
(c) The claimants are parents and two brothers of the
deceased. Before the Tribunal, the claimants have not been able to
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CMA.Nos.338 & 989 of 2016
establish that the brothers of the deceased are also dependents. As
per the said decision of the Hon'ble Supreme Court in the case of
Pranay Sethi referred to supra, each of the dependents is entitled to
a compensation of Rs.40,000/- towards loss of love and affection.
However, the Tribunal fixed the compensation towards love and
affection at a meager amount of Rs.10,000/-, which has to be
necessarily enhanced. Since the parents of the deceased are the
dependents, both of them are entitled to a total sum of Rs.80,000/-
calculated at Rs.40,000/- each. However, as observed earlier, the
brothers of the deceased, who are the other claimants, are not
entitled to any compensation towards loss of love and affection.
Therefore, this Court enhances the compensation towards loss of love
and affection from Rs.10,000/- to Rs.80,000/-.
(d) The Tribunal has erroneously failed to award any
compensation amount towards loss of estate, which the claimants are
legally entitled to as per the said decision of the Hon'ble Supreme
Court in the case of Pranay Sethi referred to supra. This Court, in
accordance with the said judgment, awards a compensation of
Rs.15,000/- to the claimants towards loss of estate.
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CMA.Nos.338 & 989 of 2016
9. For the foregoing reasons, the total compensation awarded
by the Tribunal is enhanced from Rs.4,95,000/- to Rs.5,90,000/-
(Rupees five lakhs and ninety thousand only) to the following extent :
S.No Head Amount Amount
awarded by the awarded by
Tribunal this Court
1 Loss of Income Rs. 4,80,000/- Rs. 4,80,000/-
2 Funeral Rs. 5,000/- Rs. 15,000/-
Expenses
3 Loss of love and Rs. 10,000/- Rs. 80,000/-
affection
4 Loss of estate NIL Rs. 15,000/-
Total Rs. 4,95,000/- Rs. 5,90,000/-
10. In the result, the appeal in CMA.No.338 of 2016 filed by the
claimants seeking enhancement of compensation is partly allowed
and the appeal in CMA.No.989 of 2016 filed by the Insurance
Company is allowed by granting pay and recovery rights The
Insurance Company is directed to pay the determined
compensation amount to the claimants and recover the same
from the insured thereafter. No costs. Consequently, the connected
CMPs are closed.
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CMA.Nos.338 & 989 of 2016
11. The Insurance Company is directed to deposit the entire
award amount as determined by this Court in this appeal together
with interest and costs at the rate of 7.5% per annum from the date
of petition till date of realization less the amount already
deposited to the credit of the claim petition within two weeks from
the date of receipt of a copy of this judgment. The Tribunal itself, at
the time of passing the award, permitted claimants 1 and 2 to
withdraw 50% of the award amount after deposit of the award
amount by the Insurance Company. Now that the minors attained
majority, it is made clear that on deposit of the entire award amount
to the extent indicated in this judgment, the Tribunal is directed to
transfer the balance award amount together with interest lying to the
credit of the claim petition as apportioned by the Tribunal directly to
the bank accounts of the respective claimants through RTGS within
two weeks thereafter. Proportionate court fee has to be paid by the
appellants in CMA.No.338 of 2016/claimants before receiving the
copy of this judgment.
28.7.2021
RS
http://www.judis.nic.in
CMA.Nos.338 & 989 of 2016
ABDUL QUDDHOSE,J
RS
To
The Motor Accidents Claims Tribunal (Principal District Court),
Namakkal.
CMA.Nos.338 & 989 of 2016 &
CMP.Nos.7546 of 2016 & 11044
of 2018
28.7.2021
http://www.judis.nic.in
