Madras High Court

Selvi vs Rajabathar on 29 August, 2023

                                                                          C.M.A.No.1650 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 29.08.2023

                                                         CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                              C.M.A.No.1650 of 2023

                  1.Selvi
                  2.Buvaneswari
                  3.Arulmurugan
                                                                        ....Appellants/Petitioners

                                                           Vs.

                  1.Rajabathar

                  2.The United India Insurance Company Ltd.,
                    Regional Office, Third Party Hub, 35,36 & 37 AR Plaza,
                    45, feet road, Balaji nagar, Puducherry.
                                                                ...Respondents/Respondents


                  Prayer: This Civil Miscellaneous Appeal has been filed under Section 173 of
                  Motor Vehicles Act, 1988, against the fair and decretal award passed by the
                  learned I Additional District Judge, Tindivanam (Motor Accident Claims
                  Tribunal) dated 29.03.2022 in M.C.O.P.No.274 of 2016.


                                        For Appellants     : Mr.S.Udhayakumar

                  _____
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https://www.mhc.tn.gov.in/judis
                                                                              C.M.A.No.1650 of 2023

                                         For Respondents : R1-Exparte
                                                           R2 - Mrs.I.Malar


                                                      JUDGMENT

The claimants have preferred the above appeal seeking enhancement of

compensation awarded by the Tribunal.

2. The appellants/claimants had filed the claim petition stating that on

02.04.2016 at about 9:00 A.M, while the deceased Mr.Shanmugavelu was

riding his motor cycle bearing Reg.No.TN-32-Q 6105 from Puducherry Road

to Tindivanam bazar, a bus bearing Reg.No.TN 16 B 6777, belonging to the

first respondent and insured with the second respondent herein, came in the

same direction and hit the vehicle of the deceased from behind, as a result of

which, the deceased sustained fatal injuries.

3. The first respondent remained ex-parte before the Tribunal.

4. The second respondent/Insurance company, filed a counter stating

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that the accident did not take place due to the negligence of the driver of the

bus; that the first respondent vehicle was not insured with them; and that in

any case, the claim made by the appellants was excessive and prayed for

dismissal of the claim petition.

5. Before the Tribunal, the appellants examined P.W.1 to P.W.3 and

marked fourteen documents as Exs.P1 to P14. The second respondent neither

examined any witness nor marked any document.

6. The Tribunal after considering the oral and documentary evidence

held that the accident occurred due to the negligence of the driver of the

first respondent's vehicle and directed the second respondent being the insurer

of the offending vehicle, to pay a sum of Rs. 1,13,752/- as

compensation to the appellants.

7. The learned counsel for the appellants submitted that though there

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was nexus between the accident and death, the Tribunal had erroneously held

that there was no nexus and had awarded meagre compensation of

Rs.1,13,752/-, which included the Medical Expenses for Rs.1,08,752/-, and

Rs.5000/- towards Transportation Charges. The learned counsel further

submitted that even assuming that there is no nexus between the accident and

the death, the Tribunal ought to have granted compensation under the other

conventional heads, as per the Judgement of the Hon’ble Apex Court in

Oriental Insurance Co. Ltd Vs. Kahlon @ Jasmail Singh Kahlon

(deceased) reported in 2021 (2) TN MAC 305 (SC ) which has followed by

the Division Bench of this Court in HDFC ERGO General Insurance Co.

Ltd., Vs. Sugasini and others reported in 2023 (1) TN MAC 375 (DB).

8. Since the first respondent remained ex-parte before the Tribunal,

the learned counsel for the appellants made an endorsement to dispense with

notice to the first respondent. Hence, notice to the first respondent is

dispensed with.

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9. The learned counsel for the second respondent, per contra,

submitted that in the absence of any evidence to show that there was nexus

between the accident and the death, the Tribunal was right in holding that the

appellants are not entitled for compensation for the death of the deceased; that

the Tribunal had accepted the Medical Bills submitted by the appellants and

had awarded just and reasonable compensation and hence,

no interference is called for and prayed for dismissal of the appeal.

10. Heard the learned counsel for the appellants as well as the second

respondent and perused the materials available on record.

11. On perusal of the records, this Court finds that the Tribunal after

considering the evidence on record held that the appellants had not

established the nexus between the accident and the death. The nature of

injuries and the period of treatment were considered by the Tribunal to hold

that there was no nexus. It is seen from the finding that as per Ex.P6/the

Discharge Summary issued on 17.04.2016, it was stated that the term

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“Wound Healthy”. The Discharge Summary/Ex.P.6 shows that the deceased

had suffered DM/Grade 2 Compound Fracture both bone (rt) leg. No other

injury or ailment was referred to in the Discharge Summary. In the light of the

above facts and the evidence on record, this Court is of the view that the

Tribunal was right in holding that there was no nexus between the accident

and the death and no interference is called for in the said finding.

12. However, the question is whether the appellants are entitled to

compensation under the other conventional heads even if the nexus is not

established. The Division Bench of this Court in HDFC ERGO General

Insurance Co. Ltd Vs. Sugasini and others (cited supra) by following the

Judgment of the Honourable Apex Court in Oriental Insurance Co. Ltd Vs.

Kahlon @ Jasmail Singh Kahlon (deceased) (cited supra) held that even if

death is unrelated to the accident, the claim under the other conventional

heads cannot be denied.

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13. In view of the above legal position, this Court is of the view that the

appellants would be entitled to compensation under the heads:- (a)

Loss of Income, (b) Attender Charges, (c) Extra Nourishment, (d)

Damages to Clothes and Articles, and (e) Doctors Fee. Admittedly, the

deceased was working as a driver in Tindivanam Municipality and was

earning a salary of Rs.28,000/-, per month and the pay slip was marked as

Ex.P13. Therefore, one month salary i.e.28,000/- is awarded under the head

Loss of Income. Further, the deceased was in the Hospital for twelve days and

hence, it would be just and reasonable to award Rs.20,000/- towards

Attender Charges. Considering the age of the deceased, the period of

treatment and nature of injuries, it would be just and reasonable to award

Rs.30,000/- towards Extra Nourishment, Rs.5,000/- towards Damages to

Clothes and Articles and Rs.30,000/- towards Doctors Fee. Further the sum

of Rs.5,000/- awarded by the Tribunal towards Transportation charges is

meagre and the same is enhanced to Rs.15,000/-. The award under the head

Medical Expenses is reasonable and hence, the same is confirmed. Thus, the

compensation awarded by the Tribunal is modified and enhanced from

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Rs.1,13,752/- to Rs.2,36,752/-, the break-up details are as follows:-

                         Sl. Description               Amount       Amount       Award
                         No                           awarded by    awarded confirmed or
                                                       Tribunal      by this  enhanced or
                                                         (Rs)      Court (Rs)   granted
                         1.       Medical Expenses    1,08,752/-   1,08,752/-       Confirmed
                         2.       Transportation         5,000/-    15,000/-        Enhanced
                                  Charges
                         3.       Loss of Income          ---        28,000/-        Granted
                         4.       Attender Charges        ---        20,000/-        Granted
                         5.       Extra Nourishment       ---       30,000/-         Granted
                         6.       Damages to              ---        5,000/-         Granted
                                  Clothes and
                                  Articles
                         7.       Doctor's Fee            ---       30,000/-         Granted
                                        Total         1,13,752/-   2,36,752/-       Enhanced
                                                                                       by
                                                                                  Rs.1,23,000/-

14. With the above modification, this Civil Miscellaneous Appeal is

partly allowed and the compensation awarded by the Tribunal at

Rs.1,13,752/- is hereby enhanced to Rs.2,36,752/-. The second respondent

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/Insurance Company is directed to deposit the enhanced award amount, along

with interest and costs (excluding the default period if any) less the amount

already deposited, if any, within a period of four (4) weeks from the date of a

receipt of a copy of this Judgment. On such deposit, the appellants are

permitted to withdraw their share of the award amount along with

proportionate interest and costs, less the amount if any, already withdrawn, on

the basis of apportionment fixed by the Tribunal. The appellants are directed