Madras High Court
M/S.Iffco Tokio General ... vs S.Devi on 10 June, 2022
C.M.A.No.575 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A. No.575 of 2020
and C.M.P.No.3475 of 2022
M/s.IFFCO TOKIO General Insurance Co. Ltd.,
O.K.S. Building, Near IT Office,
No.5, College Road, 2nd Cross,
Tiruppur 641 602. .. Appellant
Vs.
1.S.Devi
2.Minor S.Vijay Sai
3.Minor Dhibashish
(Minors rep. by their mother, S.Devi)
4.J.Kamala
5.J.Lalithamani .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 31.01.2019, made
in M.C.O.P. No.2068 of 2017, on the file of the II Additional District and
Sessions Court, (Motor Accident Claims Tribunal), Tiruppur.
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C.M.A.No.575 of 2020
For Appellant : Mr.S.Arunkumar
For RR1 to 4 : Mr.A.G.F.Terry Chella Raja
For R5 : No appearance
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
This Civil Miscellaneous Appeal has been filed by the appellant against
the judgment and decree dated 31.01.2019, made in M.C.O.P. No.2068 of
2017, on the file of the II Additional District and Sessions Court, (Motor
Accident Claims Tribunal), Tiruppur.
2.The appellant is the 2nd respondent in M.C.O.P. No.2068 of 2017, on
the file of the II Additional District and Sessions Court, (Motor Accident
Claims Tribunal), Tiruppur. The respondents 1 to 4/claimants filed the said
claim petition, claiming a sum of Rs.40,00,000/- as compensation for the
death of one Senthilkumar, who died in the accident that took place on
20.08.2017.
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C.M.A.No.575 of 2020
3.According to the respondents 1 to 4, on the date of accident, at about
14.15 hours, when the deceased Senthilkumar was travelling with the
respondents 1 to 3 in a TVS XL bearing Registration No.TN-36-H-4929,
along the left side of the ABT Road, four road opposite to Sona Bakery in
South to North direction, while turning the vehicle to right side to reach Old
Bus Stand after showing necessary hand signal and using indicator, the driver
of the Mini Bus Sabari bearing Registration No.TN 39 AF 6358, owned by
the 5th respondent, drove the same in a rash and negligent manner and dashed
on the TVS XL and caused the accident. In the accident, the respondents 1 to
3 along with the said Senthilkumar sustained severe injuries. Due to the head
injury and injuries all over the body, the said Senthilkumar died on
21.08.2017. The accident occurred only due to rash and negligent driving by
driver of the Mini Bus Sabari and hence, the respondents 1 to 4 filed claim
petition against the 5th respondent and appellant as owner and insurer of the
Mini Bus Sabari.
4.The 5th respondent, owner of the Mini Bus Sabari, remained exparte
before the Tribunal.
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C.M.A.No.575 of 2020
5.The appellant-Insurance Company filed counter statement and denied
all the averments made by the respondents 1 to 4 in the claim petition.
According to the appellant-Insurance Company, the respondents 1 to 4 have
to prove that the accident occurred only due to rash and negligent driving by
driver of the Mini Bus Sabari, owned by the 5th respondent. The respondents 1
to 4 have to prove that at the time of accident, the driver of the said Mini Bus
Sabari possessed valid driving license to ply the vehicle, failing which, the
appellant is not liable to pay compensation to the respondents 1 to 4. In any
event, the respondents 1 to 4 have to prove the age, avocation and income of
the deceased to claim compensation and prayed for dismissal of the claim
petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1, one
Paulraj was examined as P.W.2 and 24 documents were marked as Exs.P1 to
P24. The appellant did not let in any oral and documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
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C.M.A.No.575 of 2020
driving by driver of the Mini Bus Sabari, owned by the 5th respondent and
directed the appellant as insurer of the said vehicle to pay a sum of
Rs.23,00,000/- as compensation to the respondents 1 to 4.
8.Questioning the quantum of compensation granted by the Tribunal in
the award dated 31.01.2019, made in M.C.O.P.No.2068 of 2017, the
appellant - Insurance Company has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company
contended that the respondents 1 to 4 have not filed any document to prove
the avocation and income of the deceased. The Tribunal, erroneously relying
on the evidence of P.W.1, who is an interested witness, fixed the notional
income of the deceased as Rs.10,000/- per month. In the absence of any
material evidence to prove the avocation and income of the deceased, the
monthly income fixed by the Tribunal is excessive. The amount of
Rs.1,00,000/- and Rs.1,60,000/- awarded by the Tribunal towards loss of love
and affection and loss of consortium to the respondents 2 to 4 and 1 st
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C.M.A.No.575 of 2020
respondent respectively are excessive. The total compensation awarded by the
Tribunal is excessive and prayed for reducing the same and allowing the
appeal.
10.The learned counsel appearing for the respondents 1 to 4 made
submissions in support of the award passed by the Tribunal and submitted
that the total compensation awarded by the Tribunal is not excessive and
prayed for dismissal of the appeal.
11.Though notice has been served on the 5th respondent and her name is
printed in the cause list, there is no representation for her either in person or
through counsel.
12.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the respondents 1 to 4 and perused the entire materials
available on record.
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C.M.A.No.575 of 2020
13.From the materials on record, it is seen that the respondents 1 to 4
have claimed that the deceased Senthilkumar was aged 35 years, running a
Canteen in the name and style of Sathya Parcels and was earning a sum of
Rs.20,000/- per month. They did not file any documents to prove the
avocation and income of the deceased. In the absence of any documentary
evidence with regard to avocation and income of the deceased, the Tribunal
fixed meagre sum of Rs.10,000/- per month as notional income of the
deceased. The accident is of the year 2017. Considering the year of accident
and nature of work done by the deceased, the monthly income fixed by the
Tribunal is meagre and it requires no interference. In view of the same, the
sum of Rs.1,00,000/- granted by the Tribunal to the respondents 2 to 4,
towards loss of love and affection and Rs.1,60,000/- granted to the 1st
respondent towards loss of consortium are not interfered with.
14.In the result, this Civil Miscellaneous Appeal is dismissed and the
amount awarded by the Tribunal at Rs.23,00,000/- together with interest at
the rate of 7.5% per annum from the date of petition till the date of deposit is
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C.M.A.No.575 of 2020
confirmed. The appellant-Insurance Company is directed to deposit the award
amount along with interest and costs, less the amount already deposited,
within a period of six weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P. No.2068 of 2017. On such deposit, the
respondents 1 and 4 are permitted to withdraw their share of the award
amount, along with proportionate interest and costs, as per the ratio of
apportionment fixed by the Tribunal, after adjusting the amount, if any,
already withdrawn, by filing necessary applications before the Tribunal. The
share of the minor respondents 2 and 3 are directed to be deposited in any one
of the Nationalized Bank, till the minors attain majority. The 1st respondent,
mother of the minor respondents 2 and 3 is permitted to withdraw the accrued
interest, once in three months for the welfare of the minor respondents 2 and
3. Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (S.S., J)
10.06.2022
Index : Yes/No
Speaking Order : Yes/No
gsa
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C.M.A.No.575 of 2020
To
1.The II Additional District and Sessions Judge,
(Motor Accident Claims Tribunal),
Tiruppur.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.No.575 of 2020
V.M.VELUMANI, J.
and
S.SOUNTHAR,J.
(gsa)
C.M.A. No.575 of 2020
10.06.2022
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