Madras High Court
Royal Sundaram General Insurance ... vs Minor. D.Kaviya Dharshini on 17 October, 2022
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.10.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.1317 of 2022
and
C.M.P.No.9017 of 2022
and
Cross Objection No.88 of 2022
C.M.A.No.1317 of 2022:
Royal Sundaram General Insurance Company Limited,
No.186/5, Royal Towers, Meyyanur Main Road,
Meyyanur, Salem – 4,
Salem District. .. Appellant
Vs.
1.Minor. D.Kaviya Dharshini
(Minor 1st respondent represented
by her Next Friend and Guardian,
her Father Dhanabal)
2.S.Vinod .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
22.01.2022, made in M.C.O.P.No.999 of 2017, on the file of the Motor
Accident Claims Tribunal, Special Sub Court No.I, Salem.
For Appellant : Ms.C.Harini
For R1 : Mr.S.P.Yuaraj
Cross Objection No.88 of 2022:
Minor. D.Kaviya Dharshini .. Cross Objector
(Minor represented by her next friend
and guardian, her father Dhanabal)
Vs.
1.Royal Sundaram General
Insurance Company Limited,
No.186/5, Royal Towers,
Meyyanur Main Road,
Meyyanur, Salem – 4.
2.S.Vinod .. Respondents
Prayer: This Cross Objection is filed under Order XLI Rule 22 of C.P.C.,
to enhance the award amount in the judgment and decree dated
22.01.2022, made in M.C.O.P.No.999 of 2017, on the file of the Motor
Accident Claims Tribunal, Special Sub Court No.I, Salem.
For Cross Objector : Mr.S.P.Yuaraj
For R1 : Ms.C.Harini
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
COMMON JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.)
C.M.A.No.1317 of 2022 has been filed by the Insurance Company
against the award dated 22.01.2022, made in M.C.O.P.No.999 of 2017,
on the file of the Motor Accident Claims Tribunal, Special Sub Court
No.I, Salem.
2.Cross Objection No.88 of 2022 has been filed by the claimant
seeking enhancement of compensation granted by the Tribunal in the
award dated 22.01.2022, made in M.C.O.P.No.999 of 2017, on the file of
the Motor Accident Claims Tribunal, Special Sub Court No.I, Salem.
3.The 1st respondent / claimant filed M.C.O.P.No.999 of 2017,
claiming a sum of Rs.50,00,000/- as compensation for the injuries
sustained by her in the accident that took place on 10.10.2016.
4.According to 1st respondent, on 10.10.2016 she was returning
home from Pannapatty in the motorcycle bearing Registration No.TN 30
AV 0082 driven by her father on the Dharmapuri to Salem NH Road. At
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
about 17.00 hours near Santhai Thadam bus stop, the father of the 1st
respondent stopped the motorcycle on the left side of the mud road and
tried to talk with his brother-in-law viz., Mani and one Periyasamy who
were standing on the Santhai Thadam Bus Stop. At that time, the driver
of the Maruthi Suzuki Ritz car bearing Registration No.KA 41 B 6488
belonging to 2nd respondent, drove the same in a rash and negligent
manner and dashed against the motorcycle in which the 1st respondent
was travelling and caused the accident. In the accident, the 1st respondent,
her father and one Prabhu were thrown out and the 1st respondent
sustained injuries all over the body. Immediately after the accident, the 1st
respondent was taken to Manipal Hospital and then referred to SIMS
Chellum Hospital, Salem, where she has taken treatment as inpatient.
Hence, the 1st respondent filed the said claim petition claiming
compensation against the 2nd respondent and appellant, who are the
owner and insurer of the Maruti Car respectively.
5.The 2nd respondent – driver-cum-owner of the Maruti Car
remained exparte before the Tribunal.
6.The appellant – Insurance Company filed counter statement and
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
denied all the averments made by the 1st respondent. According to the
appellant, at the time of accident, three persons travelled in the
motorcycle in violation of provisions of Motor Vehicles Act and the rider
of the motorcycle was not possessing valid driving license to drive the
motorcycle. Due to overloading in the motorcycle, the rider of the
motorcycle without paying any attention to the approaching car, crossed
the National Highway by entering from the other lane, lost his balance
and control over the motorcycle and dashed on the car which was driven
by the 2nd respondent. Further, the 1st respondent was not wearing helmet
at the time of accident. There was no fault on the part of the 2 nd
respondent / driver-cum-owner of the Maruti Car and only the rider of the
motorcycle was responsible for the accident. Hence, the appellant is not
liable to pay any compensation to the 1 st respondent. The owner and
insurer of the motorcycle bearing Registration No.TN 30 AV 0082 are
also necessary parties to this petition and the claim petition has to be
dismissed for non-joinder of necessary parties. The appellant denied the
age, avocation, income, nature of injuries and disability suffered by the 1st
respondent. In any event, the quantum of compensation claimed by the 1st
respondent is highly excessive and prayed for dismissal of the claim
petition.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
7.Before the Tribunal, the father and mother of the 1 st respondent
were examined as P.W.1 & P.W.2 respectively and 19 documents were
marked as Exs.P1 to P19. The appellant did not let in any oral and
documentary evidence. The disability certificate issued by the Medical
Board, Salem was marked as Ex.C1.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent
driving by the driver of the Maruti Car belonging to 2 nd respondent and
directed the appellant-Insurance Company, being the insurer of the
Maruti Car to pay a sum of Rs.46,83,164/- as compensation to the 1st
respondent.
9.Questioning the quantum of compensation granted by the
Tribunal in the award dated 22.01.2022, made in M.C.O.P.No.999 of
2017, the appellant-Insurance Company has come out with present
appeal in C.M.A.No.1317 of 2022.
10.Not being satisfied with the amounts awarded by the Tribunal,
the 1st respondent / claimant has filed Cross Objection No.88 of 2022,
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
seeking enhancement of compensation.
11.The learned counsel appearing for the appellant-Insurance
Company contended that the Tribunal erred in fixing the monthly income
of the 1st respondent at Rs.4,846/-, when the minor 1 st respondent was a
student aged 9 years non earning member at the time of accident. The
Tribunal ought to have fixed the notional income of the 1 st respondent at
Rs.15,000/- per annum as per II Schedule. The Tribunal erred in applying
multiplier '18' for the minor claimant for awarding compensation towards
loss of earning capacity and also applied multiplier '18' for awarding
compensation towards attendant charges. The facts of the case in the
judgment of the Hon'ble Apex Court reported in 2020 (4) SCC 413,
[Kajal Vs. Jagdish Chand and others] relied on by the Tribunal is not
applicable to the facts of the present case. The total compensation
awarded by the Tribunal is highly excessive and prayed for setting aside
the award of the Tribunal and for dismissal of Cross Objection No.88 of
2022, filed by the 1st respondent / claimant for enhancement of
compensation.
12.The learned counsel appearing for the 1st respondent / claimant
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
contended that at the time of accident, the 1st respondent was a 8 year old
minor girl studying 3rd standard and due to the injuries and disability
suffered by her in the accident, she was bedridden and cannot move
without any help. The accident occurred in the year 2016 and the
monthly income of the 1st respondent fixed by the Tribunal at Rs.4,846/-is
meagre. The Tribunal failed to consider the judgment of the Hon'ble Apex
Court reported in 2022 (2) TNMAC 192, [Abhimanyu Partap Singh Vs.
Namita Sekhon and others], wherein the Hon'ble Apex Court has fixed
the notional income of a 3 ½ year old child at Rs.5,000/- per month for
the accident occurred in the year 1996. The Tribunal ought to have fixed
more amount as monthly income of the 1st respondent based on the
judgment of the Hon'ble Apex Court reported in 2022 (2) TNMAC 192,
cited supra. The amounts awarded by the Tribunal towards attendant
charges, future medical expenses, transportation, loss of amenities, loss of
marital life and extra nourishment are meagre and prayed for
enhancement of compensation and for dismissal of C.M.A.No.1317 of
2022 filed by the appellant – Insurance Company.
13.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the learned counsel appearing for the 1 st respondent
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
and perused the entire materials on record.
14.From the materials on record, it is seen that it is the case of the
1st respondent that on 10.10.2016, while she was travelling in the
motorcycle bearing Registration No.TN 30 AV 0082 driven by her father
on the Dharmapuri to Salem NH Road, her father stopped the motorcycle
on the left side of the mud road near Santhai Thadam to meet his
relatives. At that time, the Maruti Car driven by the 2 nd respondent dashed
on the motorcycle and due to the same, the 1 st respondent and pillion
rider of the motorcycle were thrown out from the motorcycle. Due to the
said impact, the 1st respondent, who was minor at the time of accident
suffered head injury, fracture in the leg and severe injuries all over the
body. After the accident, she was admitted in SIMS Chellum Hospital,
Salem as inpatient from 10.10.2016 to 24.11.2016; from 28.07.2017 to
31.07.2017 and from 16.03.2020 to 19.03.2020, totally for a period of
54 days and underwent three surgeries in the brain and suffered fracture
in the leg. Due to the injuries sustained by the 1 st respondent in her head
and operation in the brain, the 1st respondent is in vegetative condition.
For all her day-to-day activities and basic amenities, the 1st respondent is
depending on an attendant. The parents of the 1 st respondent is only
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
looking after her. The 1st respondent attained puberty. The parents of the
1st respondent examined themselves as P.W.1 & P.W.2 and deposed about
the injuries sustained by the 1st respondent and treatment underwent by
her and produced Exs.P2 to P4 / discharge summaries and marked Ex.C1
/ disability certificate issued by the Medical Board, Salem Government
Hospital. From Ex.C1, it is seen that the Medical Board examined the 1st
respondent, enumerated the injuries sustained by her and treatment given
to her. The Medical Board certified that the 1st respondent suffered 88%
disability. The appellant-Insurance Company has not let in any contra
evidence to disprove the evidence of P.W.1 and P.W.2, parents of the
minor 1st respondent. The 1st respondent was aged 9 years and was a
student studying III standard at the time of accident.
14(i).The Tribunal considering the materials placed before it, fixed
the notional income of the 1st respondent at Rs.4,846/- per month, granted
40% enhancement towards future prospects and adopted multiplier
method for awarding compensation for 88% disability. As per II Schedule
of Motor Vehicles Act, the annual income of a non earning member is
Rs.15,000/- and the multiplier applicable is '15'. The Hon'ble Apex Court
considering the rise in cost of living, fixed a sum of Rs.30,000/- as annual
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
income of a non earning member. In some of the cases, the Division
Bench of this Court fixed the annual income of a non earning member at
Rs.30,000/- to Rs.45,000/-. Considering the entire materials on record,
this Court is of the view that it would be just and proper to fix the annual
income of the 1st respondent at Rs.60,000/- per annum taking into
consideration the young age of the 1st respondent at the time of accident.
As per II Schedule, the correct multiplier applicable is '15'. Thus, by
fixing a sum of Rs.60,000/- as annual income and applying multiplier
'15', the compensation awarded by the Tribunal towards loss of earning
capacity is modified to Rs.9,00,000/- (Rs.60,000/- X 15).
14(ii). As far as the contention of the learned counsel appearing for
the appellant that attendant charges granted by the Tribunal is excessive
and the judgment of the Hon'ble Apex Court reported in 2020 (4) SCC
413, [Kajal Vs. Jagdish Chand and others] is not applicable to the facts
and circumstances of the case. The contention of the learned counsel
appearing for the appellant that the facts in the judgment of the Hon'ble
Apex Court reported in 2020 (4) SCC 413 is that, the minor girl suffered
100% disability and considering the status of the minor girl, the Hon'ble
Apex Court granted attendant charges and the said Judgment of the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
Hon'ble Apex Court is not applicable to the facts of the present case is not
acceptable. In the present case, the 1st respondent was a minor girl aged 9
years at the time of accident and she attained puberty after the accident.
Due to head injuries, she underwent surgery in the Brain and her mental
condition has been affected and she is not aware of what is happening on
her. The appellant has not let in any contra evidence to disprove the
evidence of P.W.1 & P.W.2 with regard to status of the 1st respondent.
14(iii). Considering the above materials, this Court is of the
considered view that judgment of the Hon'ble Apex Court reported in
2020 (4) SCC 413, cited supra, is squarely applicable to the facts of the
present case and the compensation awarded by the Tribunal for attendant
charges and other heads are not excessive warranting interference by this
Court.
15.Thus, the compensation awarded by the Tribunal is modified as
follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
1. Loss of earning 12,89,579/- 9,00,000/- Reduced
capacity
2. Pain and sufferings 5,00,000/- 5,00,000/- Confirmed
3. Loss of amenities 50,000/- 50,000/- Confirmed
4. Medical expenses 11,33,585/- 11,33,585/- Confirmed
5. Future medical 3,00,000/- 3,00,000/- Confirmed
expenses
6. Transportation 30,000/- 30,000/- Confirmed
7. Attendant charges 10,80,000/- 10,80,000/- Confirmed
8. Loss of marriage 3,00,000/- 3,00,000/- Confirmed
prospects
Total Rs.46,83,164/- Rs.42,93,585/- Reduced by
Rs.3,89,579/-
16.In the result, C.M.A.No.1317 of 2022 is partly allowed and
Cross Objection No.88 of 2022 is dismissed. The compensation awarded
by the Tribunal at Rs.46,83,164/- is hereby reduced to Rs.42,93,585/-
together with interest at the rate of 7.5% per annum from the date of
petition till the date of deposit. The appellant-Insurance Company is
directed to deposit the award amount, now determined by this Court
along with interest and costs, less the amount already deposited, if any,
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.999 of 2017, on the file of the
Motor Accident Claims Tribunal, Special Sub Court No.I, Salem. On such
deposit, considering the status of the 1 st respondent, the Father of the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
minor 1st respondent viz., Dhanabal is permitted to withdraw 25% of the
award amount now determined by this Court, together with interest and
costs, by filing necessary applications before the Tribunal. As far as
remaining 75% of the award amount is concerned, the Tribunal is
directed to deposit the same in any one of the Nationalized Banks, till the
minor 1st respondent attains majority. On such deposit, the Father of the
minor 1st respondent viz., Dhanabal is permitted to withdraw the accrued
interest, once in three months for the welfare of the minor 1 st respondent,
by filing necessary applications before the Tribunal. The appellant is
permitted to withdraw the excess amount lying in the credit of
M.C.O.P.No.999 of 2017, if the entire award amount has been already
deposited by them. Consequently, the connected Miscellaneous Petition is
closed. No costs.
(V.M.V., J) (S.M., J)
17.10.2022
krk
Index : Yes / No
Internet : Yes / No
To
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
1.The Special Subordinate Judge No.I,
Motor Accidents Claims Tribunal,
Salem.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
and
https://www.mhc.tn.gov.in/judis
C.M.A.No.1317 of 2022 and
Cross Obj.No.88 of 2022
SUNDER MOHAN, J.
krk
C.M.A.No.1317 of 2022 and
Cross Objection No.88 of 2022
17.10.2022
https://www.mhc.tn.gov.in/judis
