Madras High Court
B.Indira vs B.Babu on 31 March, 2022
C.M.A.No.234 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.03.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.M.A.No.234 of 2022
1.B.Indira
2.S.Kannan ...Petitioners
Vs.
1.B.Babu
2.The New India Assurance Company Limited,
No.223, N.S.C.Bose Road,
Chennai - 600 001.
3.S.Kumar ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicle Act, 1988 praying to allow the Civil Miscellaneous Appeal by
enhancing the compensation awarded in the judgement and decree dated
28.04.2021 passed in M.C.O.P.No.3169 of 2018 on the file of the Motor
Accident Claims Tribunal, Chief Judge, Court of Small Causes, at Chennai.
For Petitioner : Mr.Amar Dineshbhai Pandiya
For Respondents : R.1 - Not ready in notice
Mr.J.Chandran (for R.2)
R.3 - served
JUDGMENT
The claimants have moved this Court seeking an enhancement of the
compensation granted by the Motor Accident Claims Tribunal, Chief Judge,
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C.M.A.No.234 of 2022
Small causes Court, Chennai in M.C.O.P.No.3169 of 2018. The appeal has
been filed under the following circumstances;
2. The mother of the appellants' herein who claims herself to be a
proprietor of the grocery shop in the name and style of 'Sakunthala
Provision Stores' had sustained fatal injuries in the road accident on
08.02.2018. It is the case of the appellants that on the said date at around
07.30 hours, the deceased Sakunthala was riding pillion along with her
grand daughter on the motor cycle of her grand daughter bearing
Registration No.TN 22 CM 1496 and they were proceeding towards
Strahans Road, Pulianthope from West to East direction. While they were
so proceeding, the rider of the motor cycle in which the deceased was
travelling had to suddenly apply the brake in order to avoid hitting an Auto
Rickshaw that came in the opposite direction. By reason of the sudden
application of the brakes, the motor cycle had skid and the deceased and
her grand daughter were thrown out of motor cycle and sustained grievous
injuries. Sakunthala was admitted as impatient in Sundaram Medical
Foundation Hospital and despite treatment had succumbed to her injuries
on 19.02.2018.
3. The first respondent / the owner of the motor cycle chose to
remain exparte. The driver of the bike was impleaded as third respondent.
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C.M.A.No.234 of 2022
The Insurance Company invoking the Rule under Section 170(b) of the
Motor Vehicles Act, had filed their counter contending that the application
filed under Section 166 of the Motor Vehicle Act, was not maintainable,
since the driver of the motor cycle in which the deceased was travelling
was responsible for the accident. They would submit that they are not
entitled to compensate the claims since at the time of the accident, the
motor cycle was carrying three persons, which was contrary to the terms
and conditions of the policy and a clear violation of the rules framed
therein. Therefore, they had contended that they are not liable to
compensate the death of the said Sakunthala.
4. The learned Chief Judge, Small Causes Court, Chennai by her
order dated 28.04.2021 held that the respondent had not been able to
prove that the accident had occurred on account of the rash and negligent
driving of the driver since the rider of the motor cycle had applied brakes
only for the purpose of avoiding collision with the Auto Rickshaw which is
coming in the opposite direction.
5. Therefore, the learned Judge had observed that respondents 1 and
2 were liable to pay compensation. However, the learned Judge further
observed that the policy covers one pillion rider and the other pillion rider
who had filed M.C.O.P.No.3248 of 2018 was yet to get an Award in her
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C.M.A.No.234 of 2022
petition. Therefore, since one rider was eligible and the case on hand being
a fatal one, the second respondent / Insurance Company was bound to
compensate the claimants.
6. Considering the age of the deceased i.e., 68 years, and the fact
that the petitioner and the third respondent were adults who are living
separately, the Tribunal had not awarded any amount under the loss of
dependency but granted amounts under the heads of Funeral Expenses a
sum of Rs.15,000/-, loss of love and affection a sum of Rs.60,000/- and a
sum of Rs.2,60,000/- towards medical expenses. Challenging the award
insofar as no amounts has been granted under the loss of dependency, the
claimants have moved before this Court.
7. As it is a fatal accident, the claimants are entitled to some
compensation under the head of loss of dependency. As no proof of income
has been produced the notional income can be taken as a sum of
Rs.8,000/- and after deducting 1/3rd towards the deceased's personal
expenses, the income available to the family would be a sum of Rs.5,334/-.
Accordingly, loss of dependency would be as follows :
Rs.5,334x12x5=Rs.3,20,040/-. The Tribunal has only awarded a sum of
Rs.60,000/- as loss of love and affection (filial consortium), as per the case
of National Insurance Company Limited Vs. Pranay Sethi & others
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C.M.A.No.234 of 2022
reported in (2017) 16 SCC 680 a sum of Rs.40,000/- each has to be
awarded to the petitioners. Further no amounts have been granted under
the head of loss of estate. Therefore, a sum of Rs.15,000/- should be
granted under this head.
8. Consequently, the earlier award and the modified award is
tabulated herein below;
S.No Head Amount awarded by Award modified
the Tribunal by this Court
1. Loss of Dependency - Rs.8,000 - 2,666 =
Rs.5,334 x 12 x 5 =
Rs.3,20,040/-
2. Loss of Love and Affection Rs.60,000/- Rs.80,000/-
to 1st and 2nd appellants
3. Funeral Expenses Rs.15,000/- Rs.15,000/-
4. Loss of Estate Nil Rs.15,000/-
5. Medical Expenses Rs.2,60,000/- Rs.2,60,000/-
Total: Rs.3,35,000/- Rs.6,90,040/-
9. The appeal is therefore allowed and the compensation is enhanced
from Rs.3,35,000/- to Rs.6,90,040/-.
10. The second respondent / insurance company is directed to
deposit the award amount to the credit of M.C.O.P.No.3169 of 2018 on the
file of Motor Accidents Claim Tribunal, Chief Judge, Small Causes Court,
Chennai along with interest at the rate of 7.5% per annum, from the date
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C.M.A.No.234 of 2022
of claim petition till the date of deposit, within a period of four weeks from
the date of receipt of copy of this order.
11. The claimants are permitted to withdraw the amount as and
when it is deposited, subject to the condition that the appellants pay Court
fee for the enhanced amount, if required. It is made clear that the learned
Chief Judge, Small Causes Court, Chennai, shall not disburse the amount
till such time, as proof of payment of Court fee is provided by the claimants
herein.
12. With the above observations, this Civil Miscellaneous Appeal
stands allowed. No costs.
31.03.2022
Index: Yes/No
Internet: Yes/No
mrm
To
1. Motor Accident Claims Tribunal,
Chief Judge, Court of Small Causes, Chennai.
2. The Section Officer,
VR Section,
High Court, Madras.
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C.M.A.No.234 of 2022
P.T.ASHA,J.,
mrm
C.M.A.No. 234 of 2022
31.03.2022
https://www.mhc.tn.gov.in/judis
