Madras High Court

The Divisional Manager vs Devagi on 5 September, 2022

                                                  C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 05.09.2022

                                                     CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI
                                                   and
                                  THE HONOURABLE MR.JUSTICE V.SIVAGNANAM


                                              C.M.A.No.2036 of 2018
                                            and C.M.P.No.15845 of 2018
                                         and Cross Objection No.61 of 2022

                  C.M.A.No.2036 of 2018

                  The Divisional Manager
                  The Oriental Insurance Company Ltd.
                  Vijayalakshmi Complex
                  No.32/13, Phase - 2
                  Sathuvachari, Vellore.                                       ... Appellant

                                                      Vs.
                  1.Devagi
                  2.Minor.Ranjith
                  3.Minor.Chitra
                  4.Minor.Ranjitha
                  (Minor respondents 2 to 4 represented by

their Guardian/mother, the 1st respondent Devagi)

5.Rajasundaram, Owner of the Trailer

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

6.Muthaiya Konar Muthammal (died)

7.Sivakumar, Tractor Owner (7th respondent impleaded as party as per order in I.A.No.733/2014)

[R6 and the respondents 1 to 4 are the legal heirs of the deceased Muthammal as per order in I.A.No.475/17, dated 20.03.2017) ... Respondents

Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

Vehicles Act, 1988, against the judgment and decree dated 03.01.2018 made

in M.C.O.P.No.840 of 2013 on the file of Motor Accident Claims Tribunal,

Special Sub Court, Tiruvannamalai.

                                     For Appellant      : Mr.D.Bhaskaran
                                     For R1 to R4        : Mrs.A.Subadra
                                     For R5              : Mr.H.Manojin for
                                                                 Mr.K.C.Vinodh
                                     For R7              : Mr.T.K.Saravanan


                  Cros.Obj.No.61 of 2022

                  1.Devagi





https://www.mhc.tn.gov.in/judis

C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

2.Minor.Ranjith

3.Minor.Chitra

4.Minor.Ranjitha (Minor appellants 2 to 4 represented by their Guardian/mother, the 1st appellant Devagi) ... Appellants

Vs.

1.The Divisional Manager The Oriental Insurance Company Ltd.

Vijayalakshmi Complex

Sathuvachari, Vellore.

2.Rajasundaram, Owner of the Trailer

3.Muthaiya Konar

4.Sivakumar, Tractor Owner ... Respondents

Prayer: This Cross Objection is filed under Order XLI Rule 22 of C.P.C., against the judgment and decree dated 03.01.2018 made in M.C.O.P.No.840 of 2013 on the file of Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai.

                                     For Cross-objectors : Mrs.A.Subadra
                                     For R1                  : Mr.D.Bhaskaran
                                     For R2              : Mr.H.Manojin for
                                                                 Mr.K.C.Vinodh



https://www.mhc.tn.gov.in/judis

C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

For R4 : Mr.T.K.Saravanan

COMMON JUDGMENT

(Judgment of the Court was delivered by V.M.VELUMANI,J.)

C.M.A.No.2036 of 2018 has been filed by the appellant/Insurance

Company against the judgment and decree dated 03.01.2018 made in

M.C.O.P.No.840 of 2013 on the file of Motor Accident Claims Tribunal,

Special Sub Court, Tiruvannamalai. Cross Objection No.61 of 2022 has been

filed by the claimants/respondents 1 to 4 herein seeking enhancement of the

compensation granted by the Tribunal in the said award.

2.The appellant/Insurance Company is the 2nd respondent in

M.C.O.P.No.840 of 2013 on the file of Motor Accident Claims Tribunal,

Special Sub Court, Tiruvannamalai. The respondents 1 to 4 filed the said

claim petition claiming a sum of Rs.15,00,000/- as compensation for the

death of one Arumugam, who died in the accident that took place on

24.08.2011. The respondents 1 to 4 are wife, sons and daughter of the

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

deceased Arumugam. The 6th respondent Muthaiyakonar is the father and one

Muthammal is the mother of the deceased Arumugam. Pending claim petition,

Muthammal, mother of the deceased Arumugam, died.

3.According to the respondents 1 to 4, on the date of accident i.e., on

24.08.2011 at about 8.30 P.M., while the deceased Arumugam was riding his

Bajaj Platina motorcycle bearing Registration No.TN-250-2848 from

Tirukoilur towards Nariyandhal Village on the extreme left side of Tirukoilur

to Sankarapuram Road near Thotti Village, the driver of the Tractor bearing

Registration No.TN-32-C-2669 belonging to the 7th respondent, attached with

Trailer bearing Registration No.TN-32-C-3793 belonging to the 5th

respondent, drove the same in a rash and negligent manner, dashed against

the motorcycle driven by the said Arumugam and caused the accident. In the

accident, the deceased Arumugam sustained injuries and died on the way to

hospital. Therefore, the respondents 1 to 4, filed the above claim petition

claiming compensation for his death against the respondents 5 and 7, who are

owners of trailer and tractor and appellant/Insurance Company, insurer of the

said trailer and tractor.

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4.The 5th respondent, owner of the trailer remained exparte before the

Tribunal.

5.The appellant/Insurance Company filed counter statement denying

the averments made in the claim petition and stated that there was no such

accident occurred as alleged by the respondents 1 to 4. In the Motor Vehicle

Inspector's report, the Registration number of the vehicle involved in the

accident was mentioned as TN-32-C-2669. F.I.R. has been registered against

the driver of the tractor bearing Registration No.TN-32-A-4717. The

respondents 1 to 4 and owner of the tractor bearing Registration No.TN-32-

C-2669 colluded with the Police authorities, produced the tractor before the

RTO Office. The accident has occurred on 24.08.2011. The vehicles were sent

to RTO Office on 19.12.2011. There is a delay of 87 days for sending the

vehicles for inspection. Therefore, the accident is doubtful. At the time of

accident, the deceased Arumugam did not possess valid driving license to ride

the motorcycle. The deceased alone hit the tractor and invited the accident.

The driver of the tractor did not possess valid driving license at the time of

accident and the owner has violated the policy condition. The owner and

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

insurer of the motorcycle were not made as parties and hence, the claim

petition is bad for non-joinder of necessary parties. Therefore, the appellant is

not liable to pay any compensation to the respondents 1 to 4. The

appellant/Insurance Company has also denied the age, avocation and income

of the deceased. In any event, the compensation claimed by the respondents 1

to 4 is excessive and prayed for dismissal of the claim petition.

6.The 6th respondent, father of the deceased Arumugam filed counter

statement, which was adopted by the 4th respondent in the claim petition viz.,

Muthammal (died), mother of the deceased and denied the averments made in

the claim petition and stated that he lost his son and suffered loss of income,

love and affection and became helpless. The respondents 1 to 4 along with

6th respondent filed claim petition in M.C.O.P.No.294 of 2011 before the Sub

Court, Kallakurichi and the same is pending. Now the respondents 1 to 4

have separately filed the present claim petition claiming compensation. He

has spent more amounts for the ritual ceremonies of his deceased son

Arumugam and prayed for dismissal of the claim petition.

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

7.Before the Tribunal, the 1st respondent, wife of the deceased,

examined herself as P.W.1, one Seetharaman, eye-witness to the accident was

examined as P.W.2 and 8 documents were marked as Exs.P1 to P8. The

appellant/Insurance Company examined one Ezhilan, Assistant working in

the Regional Transport Office as R.W.1, Balaji, Assistant working in

appellant/Insurance Company, was examined as R.W.2 and Govindhasamy,

Investigator appointed by the Insurance Company, was examined as R.W.3

and marked 7 documents as Exs.R1 to R7.

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 trailer bearing Registration No.TN-32-C-3793 belonging

to the 5th respondent, attached with the tractor bearing Registration No.TN-

32-C-2669 belonging to the 7th respondent and directed the

appellant/Insurance Company being insurer of the said vehicles to pay a sum

of Rs.16,56,200/- as compensation to the respondents 1 to 4 & 6 th respondent,

at the first instance and recover the same from the respondents 5 and 7, owner

of the trailer and tractor, as the driver of the tractor and trailer did not possess

driving license at the time of accident.

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

9.Against the said award dated 03.01.2018 made in M.C.O.P.No.840 of

2013, the appellant/Insurance Company has come out with C.M.A.No.2036

of 2018.

10.Not being satisfied with the amounts awarded by the Tribunal, the

respondents 1 to 4 have filed Cross Objection No.61 of 2022, seeking

enhancement of compensation.

11.The learned counsel appearing for the appellant/Insurance Company

contended that the vehicle involved in the accident is tractor bearing

Registration No.TN-32-A-4717. The accident has occurred on 24.08.2011.

But the vehicle bearing Registration No.TN-32-C-2669 was sent for

inspection only on 19.12.2011 after delay of three months. The appellant has

proved that tractor bearing Registration No.TN-32-C-2669 and trailer bearing

Registration No.TN-32-C-3793 were not involved in the accident by

examining R.W.2 and R.W.3 and marking 7 documents as Exs.R1 to R7. The

Tribunal failed to consider the oral and documentary evidence let in by the

appellant and erroneously held that tractor bearing Registration No.TN-32-C-

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

2669 was involved in the accident and fastened the liability on the appellant.

There are five dependants of the deceased and the Tribunal erred in deducting

1/5th towards personal expenses and prayed for setting aside the award of the

Tribunal and dismissing Cross Objection No.61 of 2022, filed by the

respondents 1 to 4.

12.The learned counsel appearing for the respondents 1 to 4/cross-

objectors made the submissions in support of the award passed by the

Tribunal with regard to fixing negligence on the driver of the tractor and

trailer and submitted that the respondents 1 to 4 have filed Cross Objection

No.61 of 2022 for enhancement of compensation. He further submitted that

deceased was working as a heavy vehicle driver at the time of accident and

was earning a sum of Rs.12,000/- per month. The Tribunal erroneously fixed

meagre amount of Rs.7,000/- per month as notional income of the deceased

and prayed for dismissal of the appeal filed by the Insurance Company and

enhancement of compensation by fixing Rs.12,000/- as monthly income of

the deceased.

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

13.The learned counsel appearing for the respondents 5 and 7/owners

of trailer and tractor separately contended that both the vehicles are insured

with the appellant/Insurance Company at the time of accident, the Tribunal

without taking into consideration that the policy was in force, erroneously

ordered pay and recovery. In the present appeal, no relief is sought against

the respondents 5 and 7 and prayed for dismissal of both the appeal and cross

objection against the respondents 5 and 7.

14.Heard the learned counsel appearing for the appellant as well as the

learned counsel appearing for the respondents 1 to 4, 5 & 7 and perused the

entire materials on record.

15.From the materials on record, it is seen that it is the case of the

respondents 1 to 4 that the driver of the Tractor bearing Registration No.TN-

32-C-2669 belonging to the 7th respondent, attached with Trailer bearing

Registration No.TN-32-C-3793 belonging to the 5th respondent, drove the

same in a rash and negligent manner, dashed against the motorcycle driven by

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

the deceased Arumugam and thus the accident has occurred. Due to the

injuries sustained in the accident, the said Arumugam died. To substantiate

their claim, the respondents 1 to 4 examined one Seetharaman, eye-witness to

the accident as P.W.2. P.W.2 categorically deposed that the accident has

occurred only due to rash and negligent driving by the driver of the tractor

bearing Registration No.TN-32-C-2669, while the deceased Arumugam, was

riding his motorcycle on the left hand side of the road carefully and

cautiously. Nothing favour was elicited by the counsel appearing for the

appellant in the cross-examination. According to the appellant, tractor bearing

Registration No.TN-32-C-2669 was not involved, but the tractor bearing

Registration No.TN-32-A-4717 was involved in the accident. The appellant

has stated that owner of the tractor bearing Registration No.TN-32-A-4717

filed claim petition and marked the statement as Ex.R6. The

appellant/Insurance Company did not examine any eye-witness or owner of

the tractor bearing Registration No.TN-32-A-4717 to prove their case. R.W.2

and R.W.3 examined by the appellant are not eye-witnesses to the accident.

The Police after investigation seized the tractor bearing Registration No.TN-

32-C-2669 and filed final report. In view of the above facts, tractor bearing

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

Registration No.TN-32-C-2669 was sent for inspection by the Motor Vehicle

Inspector after 117 days, when the vehicle was seized by the Police. The

delay in sending the vehicle for inspection is not fatal to the claim of the

respondent 1 to 4. The Tribunal considering the evidence of P.W.2, R.W.2

and R.W.3 and the documents filed by the respondents 1 to 4, held that

accident has occurred only due to rash and negligent driving by the driver of

the tractor bearing Registration No.TN-32-C-2669 and trailer bearing

Registration No.TN-32-C-3793, directed the appellant/Insurance Company to

pay the compensation to the respondents 1 to 4 at the first instance and

recover the same from the respondents 5 and 7, owners of trailer and tractor.

There is no error in the said finding of the Tribunal warranting interference

by this Court.

16.As far as quantum of compensation is concerned, it is the case of the

respondents 1 to 4 that the deceased Arumugam was working as lorry driver

at the time of accident and was earning a sum of Rs.12,000/- per month. To

prove the same, the driving license of the deceased was marked as Ex.P5.

They have not filed any document to prove the income of the deceased. In

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the absence of any material with regard to income, the Tribunal fixed a sum

of Rs.7,000/- per month as notional income of the deceased. The accident is

of the year 2011. The notional income fixed by the Tribunal is meagre.

Considering the date of accident and the fact that deceased was possessing

heavy vehicle driving license, it would be just and proper to fix a sum of

Rs.10,000/- per month as notional income of the deceased. The deceased was

aged 38 years at the time of accident as per the date of birth mentioned in his

driving license Ex.P5. The Tribunal, following the judgments of the Hon'ble

Apex Court reported in 2017 (2) TN MAC 609 (SC) [National Insurance

Co. Ltd., Vs. Pranay Sethi and others] and 2009 (2) TNMAC 1 SC (Sarla

Verma and others vs. Delhi Transport Corporation and another), has

rightly granted 40% enhancement towards future prospects and applied

multiplier '15'. There were six dependants of the deceased. The respondents 1

to 4 filed claim petition claiming compensation for respondents 1 to 4 and

parents of the deceased, who were shown as respondents 3 and 4 in the claim

petition. Pending claim petition, Muthammal, mother of the deceased, 4th

respondent in the claim petition died. In view of the same, there are five

dependants and deduction of 1/5th by the Tribunal towards personal expenses

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

is not correct and only 1/4th has to be deducted towards personal expenses.

After deducting 1/4th towards personal expenses, the amount granted by the

Tribunal towards loss of dependency is modified to Rs.18,90,000/-

(Rs.10,000/- + 4000 [Rs.10,000/- X 40%] X 12 X 15 X 3/4). A sum of

Rs.1,50,000/- awarded by the Tribunal towards loss of love and affection to

the respondents 2 to 4 at the rate of Rs.50,000/- each is excessive. Hence, the

amount granted for loss of love and affection to the respondents 2 to 4 is

modified and granted towards loss of parental consortium by reducing from

Rs.1,50,000/- to Rs.1,20,000/- at the rate of Rs.40,000/- each. The 6th

respondent is the father of the deceased, who lost his son at the young age.

The 6th respondent is entitled to Rs.40,000/- towards loss of filial consortium.

The amount granted for loss of love and affection to the 6 th respondent is

modified and granted towards loss of filial consortium by enhancing from

Rs.25,000/- to Rs.40,000/-. The amounts awarded by the Tribunal under all

other heads are just and reasonable and hence, the same are hereby

confirmed. Thus the compensation awarded by the Tribunal is modified as

follows:

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

S.No. Description Amount Amount Award awarded by awarded by this confirmed or Tribunal Court enhanced or (Rs) (Rs) granted or reduced

1. Loss of 14,11,200 18,90,000 Enhanced dependency

2. Loss of 40,000 40,000 Confirmed consortium to the 1st respondent

3. Loss of estate 15,000 15,000 Confirmed

4. Funeral 15,000 15,000 Confirmed expenses

5. Loss of parental 1,50,000/- 1,20,000/- Reduced consortium to (Rs.50,000/- (Rs.40,000/-

                              the respondents           each)             each)
                              2 to 4
                   6.         Loss of filial          25,000            40,000 Enhanced
                              consortium to
                              the 6th
                              respondent
                              Total                16,56,200         21,20,000 Enhanced by
                                                                               Rs.4,63,800/-

17.With the above modification, the Civil Miscellaneous Appeal is

partly allowed in respect of the head 'loss of parental consortium' and Cross-

Objection is partly allowed in respect of the heads 'loss of dependency and

loss of filial consortium'. The compensation of Rs.16,56,200/- granted by the

https://www.mhc.tn.gov.in/judis C.M.A.No.2036 of 2018 and Cross Obj.No.61 of 2022

Tribunal is hereby enhanced to Rs.21,20,000/- together with interest at the

rate of 7.5% per annum (excluding the default period, if any) 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, at the first instance

and recover the same from the respondents 5 and 7. On such deposit, the 1st