Madras High Court
M/S.Reliance General Insurance ... vs Rathinam on 10 March, 2021
C.M.A.No.442 and 450 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.Nos.442 and 450 of 2019
C.M.A.No.442 of 2019
M/s.Reliance General Insurance Company
Limited,
Branch Office at No.408,
3rd Floor, Perundurai Road,
Erode - 638 011. ... Appellant
vs
1.Rathinam
W/o.Elangovan
2.Elangovan
S/o.Late Munusamy
3.Arun
S/o.Elangovan
4.P.Rajasekar
S/o.Periyasamy
https://www.mhc.tn.gov.in/judis/
1/14
C.M.A.No.442 and 450 of 2019
5.Mohana
W/o.Jagadish @ Jagadeesan
6.Akansha (minor)
D/o.Jagadish @ Jagadeesan
7.Kathirvel (minor)
S/o.Jagadish @ Jagadeesan
8.Palaniammal
W/o.Perumal
(Respondents 6 & 7 minors represented
by mother & next friend 5th respondent)
9.M/s.SBI General Insurance Company Limited,
Having Branch Office at
Greams Dugar Building,
Ground Floor,
No.64, Greams Road, Chennai. ... Respondents
Prayer: Civil Miscellaneous Appeal filed u/s.173 of the Motor Vehicles Act,
1988, against the judgment and decree dated 07.11.2017 passed in
M.C.O.P.No.1011 of 2013 on the file of Motor Accident Claims Tribunal,
Special District Court, Salem.
For Appellant : Mr.M.B.Raghavan
For Respondents : Mr.L.Narasimha Varman
for Mr.Nithyesh Nataraj [R1 to R3]
No appearance [R4 to R8]
Mr.J.Michael Visuvasam [R9]
https://www.mhc.tn.gov.in/judis/
2/14
C.M.A.No.442 and 450 of 2019
C.M.A.No.450 of 2019
M/s.Reliance General Insurance Company
Limited,
Branch Office at No.408,
3rd Floor, Perundurai Road,
Erode - 638 011. ... Appellant
vs
1.Mohana
W/o.Jagadish @ Jagadeesan
2.Akansha (minor)
D/o.Jagadish @ Jagadeesan
3.Kathirvel (minor)
S/o.Jagadish @ Jagadeesan
4.Palaniammal
W/o.Perumal
(Respondents 2 and 3 minors
represented by mother & next friend
first respondent)
5.P.Rajasekar
S/o.Periyasamy
6.M/s.SBI General Insurance Company Limited,
Having Branch Office at
Greams Dugar Building,
Ground Floor,
No.64, Greams Road, Chennai. ... Respondents
https://www.mhc.tn.gov.in/judis/
3/14
C.M.A.No.442 and 450 of 2019
Prayer: Civil Miscellaneous Appeal filed u/s.173 of the Motor Vehicles Act,
1988, against the judgment and decree dated 07.11.2017 passed in
M.C.O.P.No.1321 of 2013 on the file of Motor Accident Claims Tribunal,
Special District Court, Salem.
For Appellant : Mr.M.B.Raghavan
For Respondents : Mr.L.Narasimha Varman
for Mr.Nithyesh Nataraj [R1 to R4]
No appearance [R4 to R8]
Mr.J.Michael Visuvasam [R6]
*****
COMMON JUDGMENT
[Judgment of the Court was delivered by R.SUBBIAH, J]
These matters are heard through Video Conferencing.
2. Since both appeals arise out of a common award, they are disposed of
by this common judgment.
3. These appeals have been filed by appellant Insurance Company
challenging the award passed by the Tribunal in and by its judgment and decree
dated 07.11.2017 passed in M.C.O.P.Nos.1011 and 1321 of 2013 on the file of
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
Motor Accident Claims Tribunal, Special District Court, Salem.
4. The brief facts of the case are as follows:
(i) Respondents 1 to 3 in C.M.A.No.442 of 2019 are the parents and younger
brother of the deceased Elavarasan. Respondents 1 to 4 in C.M.A.No.450 of
2019 are the wife, minor children and mother of the deceased Jagadheesan.
(ii)On 16.06.2013 at about 09.30 p.m., while the deceased Elavarasan was
driving the Skoda Car bearing Registration No.KA-01-MK-0397, in which
the deceased Jegadeesan was travelling, on the Salem to Dharmapuri Main
Road, the driver of the Lorry bearing Registration No.TN-33-F-8199,
belonging to fourth respondent in C.M.A.No.442 of 2019 and insured with
the appellant Insurance Company, which was proceeding in front of the Car,
suddenly diverted to the service road without any signal and applied brake,
as a result of which the deceased Elavarasan hit the rear side of the Lorry
and the Car fell into a pit. In the impact, both deceased sustained grievous
injuries and died.
(iii)It is the case of respondents 1 to 3 in C.M.A.No.442 of 2019 that the
deceased Elavarasan was working as a mechanic and driver in TV Sundaram
Iyangar & Sons Ltd., Salem and was earning a sum of Rs.15,000/- p.m. and
hence, they filed a claim petition seeking compensation in a sum of
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
Rs.30,00,000/- for the death of deceased Elavarasan.
(iv)It is the case of respondents 1 to 4 in C.M.A.No.450 of 2019 that the
deceased Jagadheesan was working as a Director – Business Development
MEP (Service) – Consultant in Power Links, Electrical Class I Electrical
Contractors, Bangalore and was earning Rs.2,50,000/- p.m. and hence, they
filed a claim petition seeking compensation in a sum of Rupees Five Crores
for the death of deceased Jagadheesan.
5. The said claim was resisted by appellant Insurance Company by filing
a detailed counter statement interalia contending that the accident had not
occurred in the manner as projected by contesting respondents. They have also
denied the age, occupation and income of the deceased.
6. Joint trial was conducted in both cases. To prove their claim, on the
side of claimants, 4 witnesses were examined and 54 documents were marked
as Exs.P1 to P54. On the side of appellant Insurance Company, 2 witnesses
were examined and one document was marked.
7. On appreciation of materials and the entire evidence on record, the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
Tribunal arrived at a finding that the accident had occurred due to the rash and
negligent driving of both vehicles and fixed 75% negligence on the part of the
driver of the Lorry and 25% on the part of the driver of the Car. The Tribunal
had also held that the appellant Insurance Company, being the insurer of the
Lorry, is liable to pay compensation. The compensation awarded by the
Tribunal is as follows:
Amount (in Rs.)
Sl. Compensation awarded under
No. the head M.C.O.P.No. M.C.O.P.No.
1011/2013 1321/2013
1. Loss of dependency 8,03,250/- 72,65,888/-
2. Parental consortium [R2 & R3] - 80,000/-
3. Filial consortium 50,000/- 20,000/-
[R1 & R2] [R4]
4. Loss of consortium [R1] - 40,000/-
5. Loss of love and affection [R3] 25,000/- -
6. Loss of estate 15,000/- 15,000/-
7. Funeral expenses 15,000/- 15,000/-
Total 9,08,250/- 74,35,888/-
The said sums were directed to be paid together with interest at 7.5% p.a. from
the date of claim petition till the date of deposit.
8. Learned counsel for appellant Insurance Company submits that the
present appeals have been filed questioning the finding rendered by the
Tribunal with regard to negligence aspect as well as quantum of compensation.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
It is an admitted fact that at the time of accident, the Car was coming behind the
Lorry. Had the Car been driven observing the rules and regulations and keeping
sufficient distance, the accident would have been avoided. In such
circumstances, the Tribunal ought to have dismissed the claim petitions
otherwise ought to have fixed 50% contributory negligence on the part of the
driver of the Car. Further, the quantum of compensation awarded by the
Tribunal is also on the higher side. Thus, learned counsel prays this Court to set
aside the award of the Tribunal.
9. Countering the said submissions, learned counsel appearing for
contesting respondents submits that the accident had occurred since the driver
of the Lorry suddenly applied brake without giving signal to the vehicle coming
behind. In fact, on completion of investigation, charge sheet had been filed as
against the driver of the Lorry. Such being the fact, there is no need to set aside
the finding rendered by the Tribunal with regard to the negligence aspect.
Further, the quantum of compensation awarded by the Tribunal is just and
reasonable. Thus, learned counsel prays for dismissal of the appeals.
10. This Court has considered the rival submissions and perused the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
materials on record.
11. On perusal of records, this Court finds that PW-2, eye-witness to the
occurrence, deposed that it was the driver of the Lorry, who drove the same in a
rash and negligent manner, suddenly took diversion and applied brake without
giving any signal to the vehicle coming behind, which resulted in the deceased
Elavarsan hitting the rear side of the Lorry and got involved in the accident. In
the cross-examination of PW-2 also, no favourable reply was brought out in
favour of appellant Insurance Company. In such circumstance, this Court is of
the view that the Tribunal had rightly arrived at a finding that both the drivers
were responsible for the accident and fixed 75% negligence on the part of the
driver of the Lorry and 25% on the part of the driver of the Car. This Court
does not find any infirmity in the finding rendered by the Tribunal with regard
to negligence aspect.
12. Insofar as the quantum of compensation is concerned, this Court
considers that it would be appropriate to deal with each appeal separately.
Accordingly, the same has been dealt with as follows:
C.M.A.No.442 of 2019 [M.C.O.P.No.1011 of 2013]:
The Tribunal, on the basis of Ex.P7 – Appointment Order, had fixed the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
monthly income of the deceased at Rs.7,500/- and added 40% towards future
prospects, which works to Rs.10,500/- (7500 + 3000). Since the deceased was a
bachelor, deducted 1/2 towards personal expenses, which works out to
Rs.5,250/- and arrived at annual income at Rs.63,000/- (5250 * 12). As the
deceased was aged 30 at the time of accident, applied multiplier '17' and arrived
at compensation payable under the head at Rs.10,71,000/- (63000 * 17) and
deducted 25% towards contributory negligence and arrived at total
compensation payable under the aforesaid head at Rs.8,03,250/- (10,71,000 –
2,67,750). Further, the Tribunal had awarded a sum of Rs.50,000/- towards
filial consortium, Rs.25,000/- towards loss of love and affection, Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral expenses. This Court
finds that the Tribunal had awarded a just and reasonable compensation, which
does not require any interference by this Court.
C.M.A.No.450 of 2019 [M.C.O.P.No.1321 of 2013]:
The Tribunal, on the basis of Exs.P37 to P39 – Income Tax Returns of the
deceased Jegadheesan, fixed the average monthly income at Rs.71,703/-. As the
deceased was aged 44 at the time of accident, added 25% towards future
prospects, which works out to Rs.89,628/- (71,703 + 17,925), deducted 1/3
towards personal expenses, which works out to Rs.59,752/- (89,628 – 29,876)
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
and arrived at annual income at Rs.7,17,024/- (59,752 * 12). Since the deceased
Jegadheesan was the owner of the Car and its insurer had not been arrayed as
party respondent, the Tribunal deducted 25% towards contributory negligence
and arrived at total annual income at Rs.5,37,768/- (7,17,024 – 1,79,256),
deducted income-tax of Rs.18,776/-, applied multiplier '14' and arrived at a sum
of Rs.72,65,888/- [(5,37,768 – 18,776) * 14] as the compensation payable
under the 'loss of dependency'. Further, the Tribunal had awarded a sum of
Rs.80,000/- towards parental consortium, Rs.40,000/- towards loss of
consortium, Rs.20,000/- towards filial consortium, Rs.15,000/- towards loss of
estate and Rs.15,000/- towards funeral expenses. This Court finds that the
Tribunal had awarded a just and reasonable compensation, which does not
require any interference by this Court.
In the result,
(i) the Civil Miscellaneous Appeals are dismissed. The compensation of
Rs.9,08,250/- and Rs.74,35,888/- awarded by the Tribunal is hereby
confirmed. Appellant Insurance Company is directed to deposit the
compensation, less the amount already deposited, together with interest at
7.5% p.a. from the date of petition till the date of deposit within a period of
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
four weeks from the date of receipt of this judgment.
(ii)On such deposit being made by appellant Insurance Company, respondents
1 to 3 in C.M.A.No.442 of 2019/parents and brother of the deceased
Elavarasan 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.
(iii)Respondents 1 and 4 in C.M.A.No.450 of 2019/wife and mother of the
deceased Jegadheesan 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/minor
children of deceased shall be deposited in a fixed deposit in any nationalised
bank till they attain majority. First respondent/mother of the minor is
entitled to withdraw interest thereon once in three months towards taking
care of the minor.
No costs.
[R.P.S., J] [S.S.K., J]
10.03.2021
Speaking order
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
Index: yes, Internet:yes/no
gm
To
The Motor Accident Claims Tribunal,
Special District Court,
Salem.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.442 and 450 of 2019
R.SUBBIAH, J
and
SATHI KUMAR SUKUMARA KURUP, J
gm
C.M.A.No.442 and 450 of 2019
10.03.2021
https://www.mhc.tn.gov.in/judis/
