Madras High Court
The Icici Lombard General vs Rukmani on 1 February, 2022
C.M.A.No.976 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.02.2022
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A. No. 976 of 2018
and
C.M.P. Nos. 7930 & 14718 of 2018
The ICICI Lombard General
Insurance Company Limited
Office situated at
Koramangala
Bangalore. .. Appellant
Versus
1.Rukmani
2.Rajappa
3.K.Jayaprakash .. Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decree dated 21.12.2016 made
in M.C.O.P.No.202 of 2014 on the file of the Motor Accident Claims
Tribunal, Additional District Court, Krishnagiri.
For Appellant : Mrs. R. Shri Vidhya
For R 1 & 2 : Mr. C. Prabakaran
1/10
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C.M.A.No.976 of 2018
JUDGMENT
Human life's are precious and there is no yardstick available to measure
the loss of one's life in terms of money. All those who have born, have to die
one day and it is a natural phenomenon. But, if the death is caused due to
negligence of the others, the tort-feasor is liable for payment of compensation
to off-set the loss of live. The money so ordered to be paid may not bring
back or restore the lost life, but it would add solace to the heirs of the
deceased to some extent. At the same time, for determining the compensation
payable to the legal heirs of the deceased in motor accident cases, the
Constitutional Courts have adopted various methodology and there are certain
restraints to be exercised in awarding compensation to the victims of motor
accidents. The compensation to be awarded must not be a 'windfall' or
'bounty' to the claimants, but it must be confined within the realm of 'just and
reasonable' theory. Applying this concept of law, this Court proceeds to
dispose of this appeal filed by the Insurance Company.
2. In the present case, the claimants have lost their four year old
male child. Undoubtedly, the loss, mental trauma and emotional hardship
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C.M.A.No.976 of 2018
faced by them cannot be just compensated in terms of money. However, for
the sake of disposal of this appeal, this Court is considering the background
facts and as to whether the compensation awarded by the Tribunal falls within
the realm of “just and reasonable theory”.
3. On the fateful day, the deceased Suresh, aged four years, was
taken by his uncle to see his relatives in his motor cycle. After visiting his
relatives the said Srinivasan stopped the vehicle in front of a Bakery
purportedly to buy some eatables, leaving the minor in the two-wheeler. The
deceased Suresh was seated in front of the two wheeler driven by his uncle
Srinivasan. At that time, the tempo traveller bearing Registration No.KA-01-
D-1655 belonged to the 1st respondent was driven by its driver in a rash and
negligent manner, while taking reverse, and hit the two wheeler. In the
impact, the four year old Suresh suffered grievous injuries in his ear and head.
He was immediately rushed to the nearby hospital, but unfortunately, he
succumbed to the injuries even before he reached the hospital. In connection
with this incident the case in Crime No.166 of 2014 was registered against the
driver of the tempo traveller on the file of the Thali Police Station.
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C.M.A.No.976 of 2018
4. It is stated that the deceased was studying in the 1st standard at
the time of his death. It is claimed by the claimants that the deceased is a
brilliant boy, fair looking and a very intelligent child. It is also stated that the
mother of the deceased, after his birth had underwent birth control surgery
and there is no scope for her to beget another child. It is with these
background facts, the claimants have filed the claim petition claiming a sum
of Rs.20,00,000/- as compensation for the death of the minor Suresh.
5. Before the Tribunal, the 1st respondent/owner of the tempo
traveller remained ex-parte. The claim petition was contested by the 2 nd
respondent/Insurance Company.
6. It is the defense of the 2nd respondent that the manner in which
the accident said to have taken place is incorrect. The fact remains that the
deceased minor boy got down from his uncle's motorcycle to buy cake, but,
suddenly he darted across the road, during which he was hit by the tempo
traveller. Therefore, it is pleaded that the deceased himself had contributed to
the accident and the driver of the 1st respondent / tempo traveller cannot be
found fault with. The Insurance Company also submitted that the claim of
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C.M.A.No.976 of 2018
Rs.20,00,000/- made by the claimants for the death of the deceased is
exorbitant, onerous and exaggerated. The Insurance Company therefore
prayed for dismissal of the claim petition.
7. Before the Tribunal, the mother of the deceased namely
Rukumani, who is the 1st claimant, examined herself as P.W.1 and the Uncle
of the deceased Srinivasan examined himself as P.W.2. Exs.P1 to P5 were
marked as documentary evidence. The Insurance Company has not examined
any witness or marked any document.
8. The Tribunal upon analysing the oral and documentary evidence
concluded that the death of the deceased was as a result of the negligent
driving of the tempo traveller.
9. With respect to quantum, the Tribunal awarded a lump-sum of
Rs.5,00,000/- towards pecuniary damage and future prospects. A further sum
of Rs.4,00,000/- was awarded towards loss of love and affection and for
funeral expenses a sum of Rs.25,000/- was awarded. In all, a total sum of
Rs.9,25,000/- was awarded by the Tribunal.
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C.M.A.No.976 of 2018
10. Assailing the award passed by the Tribunal, the present appeal is
filed by the Insurance Company. The Insurance Company did not question the
liability imposed on them, rather, the learned counsel for the appellant only
submitted that the Hon'ble Supreme Court has time and again held that for the
death of children aged below 12 years, only a sum of Rs.5,25,000/- has to be
awarded as a lump-sum compensation. It is also stated that the sum
Rs.4,00,000/- awarded by the Tribunal towards loss of love and affection for
the parents is liable to be set aside as being exorbitant. Therefore, the learned
counsel for the Insurance Company submitted that the amount of
Rs.9,25,000/- awarded by the Tribunal required to be scaled down.
11. On the above contention, this Court heard the learned counsel for
the claimants/respondents 1 and 2, who justified the award passed by the
Tribunal as reasonable taking note of the loss of the only child of the
claimants. The learned counsel for the respondents 1 and 2 therefore prayed
for dismissal of the appeal.
12. Heard the learned counsel for the appellant as well as the learned
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C.M.A.No.976 of 2018
counsel for the respondents 1 and 2 and perused the materials available on
record.
13. The Insurance Company is not questioning the liability fastened
on them by the Tribunal. What is questioned here is the quantum of
compensation awarded by the Tribunal. In fact, the appeal has been valued at
Rs.5,25,000/- by the appellant/Insurance Company.
14. As mentioned above, any amount of compensation, if paid to the
claimants for the death of their tender child, will not comprehend the loss
suffered by them. At the same time, as mentioned above, the amount to be
awarded by this Court should not be a bounty or rainfall to the claimants, at
the cost of the Insurance Company. Therefore, a balance has to be struck
down to award compensation which would be fair and reasonable befitting the
loss suffered by the claimants.
15. The deceased is a non-earning member, being four years old. He
was studying 1st standard at the time of his death. The Tribunal awarded a
lump-sum compensation of Rs.5,00,000/-. However, this Court is of the view
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C.M.A.No.976 of 2018
that awarding a sum of Rs.6,00,000/- as lump-sum compensation would meet
the ends of justice. At the same time, the award of Rs.4,00,000/- towards loss
of love and affection, instead of filial compensation, cannot be countenanced.
As per the oft quoted decision of the Hon'ble Supreme Court in Pranay Sethi's
case, only a sum of Rs.40,000/- is required to be awarded. Accordingly, a sum
of Rs.4,00,000/- awarded by the Tribunal is scaled down to Rs.80,000/- at the
rate of Rs.40,000/- to each of the claimants.
16. The Tribunal awarded a sum of Rs.25,000/- towards funeral
expenses which is on the higher side. Having regard to the totality of the facts
and circumstances of the case, a sum of Rs.15,000/- is hereby awarded.
17. The Tribunal, in a case of this nature, ought to have awarded
some amount towards loss of estate and transportation, which it failed to
award. Having regard to the same a sum of Rs.15,000/- each is awarded
towards loss of estate and transportation.
18. In the result, the award passed by the Tribunal stands modified
and a total sum of Rs.7,25,000/- is hereby awarded as mentioned below.
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C.M.A.No.976 of 2018
Pecuniary damage and
future prospectus Rs.6,00,000/-
Filial compensation Rs. 80,000/-
Funeral expenses Rs. 15,000/-
Loss of estate Rs. 15,000/-
Transportation Rs. 15,000/-
---------------
Total = Rs.7,25,000/-
---------------
19. The appellant / Insurance Company is directed to deposit the
compensation amount now determined by this Court in this appeal to the
credit of M.C.O.P.No.202 of 2014 on the file of the Motor Accident Claims
Tribunal, Additional District Court, Krishnagiri, within a period of eight
weeks from the date of copy of this judgment. The amount already deposited,
if any, shall be adjusted by the Insurance Company. On such deposit, the
claimants/respondents 1 and 2 are permitted to withdraw the entire
compensation amount in equal proportion with accrued interest and cost. No
costs. Consequently, connected Miscellaneous Petitions are closed.
gbi 01.02.2022
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis
C.M.A.No.976 of 2018
S.KANNAMMAL, J.
gbi
To
1.The Additional District Judge,
Motor Accident Claims Tribunal,
Krishnagiri.
2.The Section Officer,
VR Section,
High Court,
Madras.
C.M.A.No.976 of 2018
01.02.2022
https://www.mhc.tn.gov.in/judis
