Madras High Court
The Branch Manager vs Vijayarani on 2 September, 2021
C.M.A.(MD).No.728 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD).No.728 of 2019
and
C.M.P(MD)No.6012 of 2020
and
CROS. OBJ(MD)No.13 of 2021
C.M.A(MD)No.728 of 2019:
The Branch Manager,
M/s.Iffco-Tokio General Insurance Company Limited.,
5/132C, Sundaram Street, IndusInd Bank Upstairs,
Opposite to New Bus Stand, Avinasi,
Thirupur District. ... Appellant /Second respondent
-vs-
1.Vijayarani
2.Minor Jeevitha
3.Minor Vasanthakumar
(Minor 2 and 2 respondents represented
through their mother and guardian
the first respondent herein)
4.Periyasamy
5.Saraswathi .. Respondents 1 to 5/Petitioners
6.Chinnadurai ... Respondent No.6/Respondent No.1
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C.M.A.(MD).No.728 of 2019
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, against the award and decree dated 13.06.2019 passed in
M.C.O.P.No.201 of 2017 on the file of the Motor Accident Claims Tribunal
Judge(Additional District Judge), Palani.
For Appellant :Mr.V.Sakthivel
For R-1 to R-5 :Mr.D.Venkatesh
CROS. OBJ(MD)No.13 of 2021
1.Vijayarani
2.Minor Jeevitha
3.Minor Vasanthakumar
(Minor 2 and 2 cross objectors represented
through their mother and guardian
the first cross objectors herein)
4.Periyasamy
5.Saraswathi ..Cross Objectors/Respondents 1 to 5
vs.
1.The Branch Manager,
M/s.Iffco-Tokio General Insurance Company Limited.,
5/132C, Sundaram Street, IndusInd Bank Upstairs,
Opposite to New Bus Stand, Avinasi,
Thirupur District. .. 1st respondent/Appellant
2.Chinnadurai .. 2nd respondent/6th respondent
PRAYER: Cross Objection filed under Order 41 Rule 22(1) of the Civil
Procedure Code, against the award and decree dated 13.06.2019 passed in
M.C.O.P.No.201 of 2017 on the file of the Motor Accident Claims Tribunal
Judge(Additional District Judge), Palani.
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C.M.A.(MD).No.728 of 2019
For Cross Objectors :Mr.D.Venkatesh
For R-1 :Mr.V.Sakthivel
COMMON JUDGMENT
[Judgment of the Court was delivered by V.BHARATHIDASAN,J.]
The above Civil Miscellaneous Appeal and the Cross Objection are filed
against the award and decree dated 13.06.2019 passed in M.C.O.P.No.201 of
2017 on the file of the Motor Accident Claims Tribunal (Additional District
Judge), Palani, by the Insurance Company and the Claimants.
2. The case of the claimants before the Tribunal is that the deceased by
name Sivasamy was an Agriculturist. On 21.07.2016, while he was travelling
in a two-wheeler from Thoppampatti – Vaadhurai main road, the Toyota Qualis
Car bearing Registration No.TN-34-A-5566 owned by the first respondent
insured with the second respondent came in a rash and negligent manner and
dashed against the deceased and caused serious injuries to him. Immediately, he
was taken to the Government Hospital, Palani, where he succumbed to the
injuries on the very same day. Alleging that the accident had taken place due to
the rash and negligent driving of the driver of the first respondent vehicle, the
claim petition has been filed by the wife, minor children and parents of the
deceased claiming compensation of Rs.30,00,000/-.
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3. Before the Tribunal, the first respondent, who is the owner of the
offending vehicle remained ex-parte, the Insurance Company contested the
claim petition on the ground that the accident had occurred only due to the rash
and negligent driving of the deceased and no negligence could be fixed on the
part of the driver of the first respondent and they have also disputed the income
of the deceased.
4. To prove the case, on the side of the claimants, three witnesses were
examined and as many as nine documents were marked. On the side of the
respondents, two witnesses were examined and four documents were marked.
5. The Tribunal after considering the materials available on record held
that the accident had taken place due to the rash and negligent driving of the
driver of the first respondent and considering the fact that the driver of the first
respondent was not having valid driving licence at the time of accident, the
Insurance Company is not liable to pay compensation and fixed the liability on
the first respondent/owner of the vehicle, however, ordered pay and recovery.
6. So far as the quantum of compensation is concerned, considering the
fact that the deceased was having a Tractor and rented it out and doing dairy
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C.M.A.(MD).No.728 of 2019
business, the Tribunal has fixed the monthly income of the deceased at Rs.
15,000/-, considering the voluminous of the dependency deducted 1/4th amount
towards his personal expenses and by applying multiplier '16', awarded Rs.
21,60,000/- as loss of income. Apart from that, the Tribunal has awarded Rs.
40,000/- to the first claimant, towards loss of consortium; Rs.15,000/- towards
funeral expenses; Rs.15,000/- towards loss of estate and awarded total
compensation of Rs.22,30,000/- along with interest at the rate of 7.5% per
annum. Challenging the same, the Insurance Company has filed the present
C.M.A(MD)No.728 of 2019 before this Court.
7. Aggrieved by the quantum awarded by the Tribunal, the claimants also
filed Cross Objection(MD)No.13 of 2021, on the ground that the income of the
deceased fixed by the Tribunal is very low. That apart, the Tribunal awarded
consortium only in respect of the first claimant alone and no amount has been
awarded to the minor children and parents of the deceased.
8. Mr.V.Sakthivel, learned counsel appearing for the Insurance Company
would contend that, the available evidence clearly shows that the accident had
taken place only due to the rash and negligent driving of the deceased. So far
as the monthly income of the deceased is concerned, the learned counsel for the
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C.M.A.(MD).No.728 of 2019
would contend that there is no material available on record to show that the
deceased was doing agricultural operation, owned a Tractor and earning a sum
of Rs.15,000/- per month. Hence, the compensation awarded by the Tribunal is
highly excessive and liable to be set aside. Learned counsel further submitted
that admittedly the driver of the first respondent's vehicle had no driving
licence. It is a policy violation, hence, the Tribunal ought not to have ordered
pay and recovery.
9. Per contra, Mr.D.Venkatesh, learned counsel appearing for the claimants
would submit that the Tribunal considering the oral and documentary evidence,
has rightly come to the conclusion that the accident had taken place due to the
rash and negligent driving of the driver of the first respondent vehicle. He
would further submit that the Tribunal also considering the material available
on record rightly, fixed the income of the deceased as Rs.15,000/- per month
and following the judgments of the Hon'ble Apex Court in the case of National
Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and
Smt. Sarla Varma and other vs. Delhi Transport Corporation and another reported in 2009 (2)
TNMAC 1 (SC), deducted 1/4th towards his personal expenses and correctly
applying the multiplier '16', awarded the compensation of Rs.21,60,000/- as
loss of income and there is no reason to interfere with the same. He would also
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C.M.A.(MD).No.728 of 2019
submit that as per the judgment of the Hon'ble Apex Court, in the case of
Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and others
reported in (2018) 2 TN MAC 452, the minor children are entitled for parental
consortium and the fourth and fifth claimants/father and mother are entitled for
filial consortium. But, without considering the same, the Tribunal awarded a
sum of Rs.40,000/- only to the first claimant/wife. Hence, the compensation
awarded by the Tribunal is liable to be enhanced.
10. We have considered the submissions of the learned counsel for the
Insurance Company and the learned counsel for the claimants and perused the
materials available on record.
11. Insofar as the negligent aspect is concerned, before the Tribunal, the
first claimant was examined as P.W.1 and the eyewitness to the occurrence was
examined as P.W.2 and in his evidence, P.W.2 has clearly stated that only due to
the rash and negligent driving of the driver of the first respondent/owner of the
vehicle, the accident had taken place. The driver of the first respondent was not
having valid driving licence at the time of accident. That apart, a criminal case
was registered against the driver of the offending vehicle and the final report
also filed before the Criminal Court. The driver of the offending vehicle was
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C.M.A.(MD).No.728 of 2019
not examined by the Insurance Company, to prove the negligence on the part of
the deceased and no other material available on record to show that the accident
took place due to the negligent driving of the deceased. Considering the above
circumstances, the Tribunal has rightly held that the accident had taken place
only due to the rash and negligent driving of the driver of the first
respondent/sixth respondent in the appeal and there is no error in it.
12. So far as the quantum of compensation is concerned, from the
materials available on record, it could be seen that the deceased was an
Agriculturist, owned a Tractor and rented it to third party and was also running
dairy farm and earning a sum of Rs.25,000/- per month. Hence, the Tribunal
has rightly fixed the monthly income of the deceased at Rs.15,000/- per month.
That apart, the Tribunal has also rightly deducted ¼th amount towards his
personal expenses as there are five dependants in the family and considering
the age of the deceased, rightly applied multiplier '16' and arrived at a loss of
income at Rs.21,60,000/- and there is no reason to find fault with the finding of
the Tribunal.
13. So far as the contention of the learned counsel appearing for the
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C.M.A.(MD).No.728 of 2019
claimants that, the Tribunal awarded only a sum of Rs.40,000/- towards
consortium to the first claimant/widow and no amount was awarded to the
minor children and the parents towards consortium, the Hon'ble Apex Court, in
the case of Magma General Insurance Company Limited vs. Nanu Ram alias
Chuhru Ram and others reported in (2018) 2 TN MAC 452, held that the
minor children are entitled for parental consortium of Rs.40,000/- each and the
parents also entitled for filial consortium of Rs.40,000/- each. The relevant
portion of the judgment is extracted hereunder:-
“8.7. A Constitution Bench of this Court in Pranay
Sethi dealt with the various heads under which
compensation is to be awarded in a death case. One of
these heads is Loss of Consortium.
In legal parlance, “consortium” is a compendious term
which encompasses 'spousal consortium', parental
consortium', and 'filial consortium'.
The right to consortium would include the company,
care, help, comfort, guidance, solace and affection of the
deceased, which is a loss to his family.
With respect to a spouse, it would include sexual
relations with the deceased spouse, (Rajesh and Ors. vs.
Rajbir Singh and Ors, (2013)9 SCC 54) Spousal
consortium is generally defined as rights pertaining to
the relationship of a husband wife which allows
compensation to the surviving spouse for loss of
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C.M.A.(MD).No.728 of 2019
“company, society, cooperation, affection, and aid of the
other in every conjugal relation. “ (BLACK'S LAW
DICTIONARY (5TH ED 1979))
Parental consortium is granted to the child upon the
premature death of a parent, for loss of “parental aid,
protection, affection, society, discipline, guidance and
training.”
Filial consortium is the right of the parents to
compensation in the case of an accidental death of a
child. An accident leading to the death of a child causes
great shock and agony to the parents and family of the
deceased. The greatest agony for a parent is to lose
their child during their lifetime. Children are valued for
their love, affection, compensationship and their role in
the family unit.
Consortium is a special prism reflecting changing norms
about the status and worth of actual relationships.
Modern jurisdictions worldover have recognized that the
value of a child's consortium for exceeds the economic
value of the compensation awarded in the case of the
death of a child. Most jurisdictions therefore permit
parents to be awarded compensation under loss of
consortium on the death of a child. The amount
awarded to the parents is a compensation for loss of the
love, affection, care and companianship of the deceased
child.
The Motor Vehicles Act is a beneficial legislation aimed
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C.M.A.(MD).No.728 of 2019
at providing relief to the victims or their families, in
cases of genuine claims. In case where a parent has lost
their minor child, or unmarried son or daughter, the
parents are entitled to be awarded loss of consortium
under the head of Filial Consortium. Parental
Consortium is awarded to children who lose their
parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this
count (Rajasthan High Court in Jagmala Ram @
Jagmal Singh & Ors. V. Sohi Ram & Ors (2017)4
RajLW 3368 (Raj); Uttarakhand High Court in Smt. Rita
Rana & Anr. v. Pradeep Kumar & Ors, (2014)3 UC
1687; Karnataka High Court in Lakshman and Ors. v.
Susheela Chand Choudhary & Ors. (1996)3 KarlJ 570
(DB). However, there was no clarity with respect to the
principles on which compensation could be awarded on
loss of Filial Consortium.
The amount of compensation to be awarded as
consortium will be governed by the principles of
awarding compensation under 'Loss of Consortium' as
laid down Pranay Sethi.
In the present case, we deem it appropriate to award the
father and the sister of the deceased, an amount of Rs.
40,000/- each for loss of Filial Consortium.”
14. Considering the above judgment, the second and third
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claimants/minor children are entitled to get Rs.40,000/- each towards parental
consortium and the fourth and fifth claimants/parents of the deceased are
entitled to get Rs.40,000/- each towards filial consortium, totally Rs.1,60,000/-.
15. Considering the above facts, this Court modifies the award of the
Tribunal by enhancing the compensation, as under:-
S.No Description Amount Amount Award confirmed or
awarded by awarded by enhanced or granted
Tribunal this Court
(Rs) (Rs)
1. For loss of 21,60,000 21,60,0000 confirmed
income
2. For Consortium 40,000 40,000 confirmed
to first claimant
3. For Consortium Nil 1,60,000 awarded
to Claimants 2 to (Rs.40,000/-
5 each)
4. For Funeral 15,000 15,000 confirmed
expenses
5. For loss of estate 15,000 15,000 confirmed
Total Rs.22,30,000 Rs.23,90,000 By enhancing a sum of
Rs.1,60,000/-
16. Insofar as the contention of the learned counsel for the Insurance
Company regarding 'pay and recovery' ordered by the Tribunal is concerned,
the Honourable Supreme Court in National Insurance Co. Ltd., vs. Swaran
Singh reported in (2004) 3 SCC 297, has held that where the driver did not
have the valid driving licence and there are breach of policy conditions, 'pay
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and recover', can be ordered in case of third-party risks. That judgment has
been followed in Shamanna and another vs. Divisional Manager, Oriental
Insurance Company Limited and Others reported in (2018) 9 SCC 650,
wherein the Honourable Supreme Court has held as follows:
“13. Since the reference to the larger Bench in
Parvathneni case has been disposed of by keeping the
questions of law open to be decided in an appropriate
case, presently the decision in Swaran Singh case
followed in Laxmi Narain Dhut and other cases hold the
field. The award passed by the Tribunal directing the
insurance company to pay the compensation amount
awarded to the claimants and thereafter, recover the same
from the owner of the vehicle in question, is in accordance
with the judgment passed by this Court in Swaran Singh
and Laxmi Narain Dhut cases. While so, in our view, the
High Court ought not to have interfered with the award
passed by the Tribunal directing the first respondent to
pay and recover from the owner of the vehicle. The
impugned judgment of the High Court exonerating the
insurance company from its liability and directing the
claimants to recover the compensation from the owner of
the vehicle is set aside and the award passed by the
Tribunal is restored.
14. So far as the recovery of the amount from the
owner of the vehicle, the insurance company shall recover
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as held in the decision in Oriental Insurance Co. Ltd. v.
Nanjappan wherein this Court held that:
“8. ….For the purpose of recovering
the same from the insured, the insurer shall
not be required to file a suit. It may initiate a
proceeding before the executing court
concerned as if the dispute between the
insurer and the owner was the subject-matter
of determination before the Tribunal and the
issue is decided against the owner and in
favour of the insurer.”
17. The judgment in Shamanna's case has been followed by the
Honourable Supreme Court in Parminder Singh vs. New India Assurance
Company Limited and Others reported in (2019) 7 SCC 217, wherein the
Honourable Supreme Court has held as follows:
“7.1.This Court in Shamanna v. Oriental Insurance
Co. Ltd., held that if the driver of the offending vehicle
does not possess a valid driving licence, the principle of
“pay and recover” can be ordered to direct the insurance
company to pay the victim, and then recover the amount
from the owner of the offending vehicle.”
In such circumstances, we find no error in the order passed by the Tribunal directing “pay and
recover”.
18. In fine, the Civil Miscellaneous Appeal is dismissed and the Cross
Objection is partly allowed and the claimants are entitled for Rs.23,90,000/-
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C.M.A.(MD).No.728 of 2019
(Rupees Twenty Three Lakhs and Ninety Thousand Only) as compensation
along with interest at the rate of 7.5% per annum from the date of claim petition
till the date of realization. The compensation amount is apportioned to the
claimants as per the ratio fixed by the Tribunal. The Insurance Company is
directed to deposit the award amount at the first instance with accrued interest
and costs, less the amount already deposited, if any, within a period of eight
weeks from the date of receipt of a copy of this order and thereafter, recover the
same from the owner of the vehicle by filing Execution Petition. On such
deposit being made, the major claimants are permitted to withdraw their
respective shares as apportioned by the Tribunal, with proportionate interests
and costs. The Tribunal is directed to deposit the share of the minor claimants
in any one of the Nationalised Banks, in a Fixed Deposit scheme, till they attain
majority. The guardian of the minor claimants, is permitted to withdraw the
accrued interest once in three months directly from the bank, only for the
welfare of minors. No costs. Consequently, connected Miscellaneous Petition
is closed.
[V.B.D.J.,] [S.A.I.J.,]
02.09.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
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C.M.A.(MD).No.728 of 2019
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To:
1.TheMotor Accident Claims Tribunal Judge
(Additional District Judge), Palani.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
V.BHARATHIDASAN,J.
and
S.ANANTHI,J.
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C.M.A.(MD).No.728 of 2019
PM
C.M.A.(MD).No.728 of 2019
and
Cros. Obj.(MD)No.13 of 2021
02.09.2021
https://www.mhc.tn.gov.in/judis/
