Madras High Court
Pushpalatha vs M.Kannan on 3 September, 2021
C.M.A. No.2017 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.09.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. No.2017 of 2021
1. Pushpalatha
2. Divya
3. Dinesh ...appellants
Vs.
1. M.Kannan
[Since R1 remained exparte before the Tribunal,
his presence is dispensed with]
2. ICICI Lombard General Insurance Co. Ltd.,
Arihant Plaza No.84 & 85,
I Floor, Wall Tax Road, Parrys Corner,
Chennai 600 003. ...respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicle Act, 1988 against the judgment and decree dated 20.02.2020
made in MACTOP.No.6006/2018 on the file of the Motor Accident Claims
Tribunal, Chief Judge, Court of Small Causes, Chennai.
For Appellants : M/s.A.Subadra
For Respondents
for R1 : Notice dispensed with
for R2 : Mr.B.Siva Kollappan
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C.M.A. No.2017 of 2021
JUDGMENT
[Judgment of the Court was delivered V.SIVAGNANAM, J]
The appeal is heard through video conferencing.
2. Being dissatisfied with the award passed by the Motor Accident
Claims Tribunal/Chief Judge, Court of Small Causes, Chennai, in
MOCP.No.6006 of 2018, the claimants have come forward with this appeal
for enhancement of the award amount.
3. It is the case of the appellants/claimants that on 27.05.2018 at
about 10.30 p.m., the deceased Gajendran was riding the motorcycle
bearing Registration No.TN-22-BS-8191 on Kundrathur-Sriperumbudur
Road. When he was nearing Kundrathur Police Station, another motorcycle
bearing Registration No.TN-85-F-8328 belonging to the first respondent
and insured with the second respondent, came from the opposite direction in
a rash and negligent manner and dashed against the motorcycle. Due to the
impact, the deceased Gajendran was thrown out of his motorcycle and
sustained multiple grievous injuries all over the body and died on the way
to Hospital. The legal heirs of the deceased/appellants herein have laid a
claim petition for a sum of Rs.75,00,000/-.
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C.M.A. No.2017 of 2021
4. The claim petition was resisted by the Insurance Company by filing
a counter statement denying the manner of the accident, age, avocation and
income of the deceased. It is the specific contention of the Insurance
Company that the deceased drove the motorcycle with two other persons
and that too, without wearing helmet, which are violations of the provisions
of the Motor Vehicles Act. Hence, the claim petition may be dismissed.
5. In order to prove the case of the claimants, the first claimant/wife
of the deceased examined herself as PW1, besides examining one Ramesh,
who is an eye witness to the accident as PW2, and Exs.P1 to P8 were
marked. On the side of the Insurance Company, one R.G.Abijith, Legal
Manager of the Insurance Company was examined as RW1 and Exs.R1 and
R2 were marked.
6. The Tribunal, after analysing the entire evidence, came to the
conclusion that the accident had occurred due to the negligent driving of the
first respondent's vehicle. By coming to such conclusion, the Tribunal
passed an award for a sum of Rs.15,05,000/- to the claimants and directed
the Insurance Company to pay the above compensation amount at the first
instance, with liberty to recover the same from the first respondent herein.
Assailing the award, the claimants have filed the present appeal.
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C.M.A. No.2017 of 2021
7. It is the submission of the learned counsel for the
appellants/claimants that at the time of the accident, the deceased was aged
about 41 years and working as a cylinder delivery boy and earning
Rs.30,000/- per month, but the Tribunal fixed the notional monthly income
of the deceased only at Rs.10,000/-, which resulted in awarding a meagre
amount under the head "Loss of Future Dependency". He further submitted
that the amounts awarded by the Tribunal under all the other conventional
heads are also on the very lower side, hence, the same needs appropriate
enhancement.
8. Per contra, the learned counsel for the Insurance Company made
his submissions supporting the award passed by the Tribunal.
9. Considering the cost of living prevalent at the time of the accident
and the avocation of the deceased, this Court is of the view that the sum of
Rs.10,000/- fixed as monthly income of the deceased is just and fair. Since
the deceased falls under the age group of 40-50 years, 25% of the same is
added as future prospects. Consequently, the Loss of Dependency arrived at
Rs.14,00,000/- [(10,000 + 2,500) x 12 x 14 x 2/3] by the Tribunal, is just
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C.M.A. No.2017 of 2021
and proper and the same is confirmed. Further, the sum of Rs.15,000/-
towards Funeral Expenses is also confirmed.
10. In addition to that, this Court is inclined to modify the award
passed by the Tribunal under the conventional heads, viz., Rs.15,000/-
towards Loss of Estate; Rs.80,000/- towards Filial Consortium by awarding
Rs.40,000/- to each of the claimants 2 and 3; Rs.40,000/- towards
consortium in favour of the first claimant; In total, the claimants are entitled
to Rs.15,50,000/- along with interest at the rate of 7.5% per annum from the
date of claim petition till the date of realization.
11. Thus, the total compensation payable to the claimants is
re-calculated and tabulated below:
S. Heads under which amounts are Amount awarded by Amount awarded by
No. awarded by the Tribunal the Tribunal in Rs. this Court in Rs.
1. Loss of Future Dependency 14,00,000 14,00,000
2. Funeral Expenses 15,000 15,000
3. Loss of Consortium for 1st 30,000 40,000
claimant
4. Loss of Estate - 15,000
5. Loss of Love and Affection 60,000 -
6. Loss of Filial Consortium to - 80,000
claimants 2 & 3
Total 15,05,000 15,50,000
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C.M.A. No.2017 of 2021
12. It is represented by the learned counsel for the
appellants/claimants that pending the appeal, the second appellant/ second
claimant passed away and her legal heir, viz., the first claimant is already on
record. Hence, out of the modified award amount, third claimant is entitled
for Rs.5,00,000/- and the first claimant is entitled for the balance amount
ie., Rs.10,50,000/-.
13. With regard to liability, the Tribunal found that there are three
persons travelled in the offending motorcycle bearing Registration No.
TN-85-F-8328, which is against the rules framed under the Motor Vehicles
Act and thereby violated the terms and conditions of the Insurance Policy.
Hence, the Tribunal directed the second respondent/Insurance Company to
pay the award amount at the first instance and thereafter, recover the same
from the first respondent/owner of the motorcycle bearing Registration
No.TN-85-F-8328. The said finding is hereby confirmed.
14. i) In view of the above modifications, the Civil Miscellaneous
Appeal is partly allowed. The second respondent/Insurance Company is
directed to deposit the above modified award amount with accrued interest
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C.M.A. No.2017 of 2021
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. On such deposit, the
appellants/claimants are permitted to withdraw the modified award amount
as apportioned above, less the amount already withdrawn, if any, together
with proportionate interest and costs. No costs. Consequently, connected
Miscellaneous Petition is closed.
ii) The second respondent/Insurance Company is permitted to recover
the above compensation amount in accordance with law from the first
respondent/owner of the two wheeler Vehicle bearing Registration
No. TN-85-F-8328 after making payment to the claimants.
[M.K.K.S, J] [V.S.G., J]
03.09.2021
Index : Yes / No
Speaking order: Yes/No
pvs
To
1. The Chief Judge, Court of Small Causes, Chennai,
The Motor Accidents Claims Tribunal, Chennai
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. No.2017 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
pvs
C.M.A. No.2017 of 2021
03.09.2021
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