Madras High Court
Jayalakshmi vs M/S.Pennya Industrial Gases Pvt. ... on 3 August, 2023
C.M.A.No.1731 of 2023
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.08.2023
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS JUSTICE R.KALAIMATHI
C.M.A.No.1731 of 2023
1.Jayalakshmi
2.Minor Varshini
3.Minor Tharun
[The appellants 2 and 3 are represented
by next friend and mother 1st appellant]
4.Chinnaponnu
...Appellants
Vs.
1.M/s.Pennya Industrial Gases Pvt. Ltd.,
No.313, 4 Phase, 8th Cross, Peenya Industrial Area,
Bangalore – 560 058.
2.The New India Assurance Co. Ltd.,
No.202, Brigade Plaza, North Wing, 2nd Floor,
Subedar Chatram Road, Anadrao Circle,
Karnataka – 560 009.
3.R.Kuppusamy
1/10
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C.M.A.No.1731 of 2023
4.IFFO-TOKIO Genearl Insurance Co. Ltd.,
KSCMF Building, 3rd Floor, 3rd Block,
No.10, Cunningham Road,
Bangalore – 560 052
...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree in MCOP.No.1361 of
2018 dated 21.10.2021 on the file of the Motor Vehicle Accident Claims
Tribunal / Fast Track Mahila Court, Krishnagiri.
For Appellants : Mr.S.Viswanathan
for M/s.Dass and Viswa Associates
For Respondents : Mr.R.Neethi Perumal for R2
Mr.J.Michael Visuvasam for R4
********
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
1. Since the appeal lies in a very narrow campus and the learned
counsel are appearing for both the Insurance Companies, the appeal itself is
taken up for hearing at the admission stage.
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C.M.A.No.1731 of 2023
2. Before Tribunal both the private respondents viz., the 1st and 3rd
respondents remained ex parte. Hence, notice to them is dispensed with in
terms of Order 41 Rule 4(4) of the Code of Civil Procedure.
3. The claimants who are wife, children and mother of one
Gunasekaran who died in the road accident that occurred on 01.08.2017
filed MCOP.No.1361 of 2018 seeking a compensation of Rs.40,00,000/- for
the death of the said Gunasekaran. According to them, Gunasekaran was
proceeding from Bangalore to Sholagiri in Bangalore to Hosur National
Highways driving the tipper lorry bearing Registration No.KA-05-AF-7947
belonging to the 3rd respondent and insured with the 4th respondent. A
Taurus Eicher Lorry bearing Registration No.KA-04-AA-9939 belonging to
the 1st respondent and insured with the 2nd respondent, driven by its driver
in a rash and negligent manner, came from the north side suddenly tried to
cross the road and dashed on the front side of the Eicher van, bearing
Registration No.TN-70-R-0333, which was about to stop for signal. Due to
the said impact the Eicher van was pushed to some distance and turned
towards right side. The lorry driven by Gunasekaran which was coming
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C.M.A.No.1731 of 2023
behind the Eicher van dashed against the right side of the Eicher van. Due
to the impact Gunasekaran sustained serious injuries all over the body and
declared dead upon reaching the hospital.
4. Claiming that the accident had occurred due to the rash and
negligent driving of the Taurus Eicher lorry bearing Registration No.KA-04-
AA-9939 owned by the 1st respondent and insured with the 2nd respondent
the claimants sought for compensation as aforesaid. The case was registered
by Hosur Sipcot Police station in Crime No.398/2017 against the driver of
the 1st respondent. The deceased was aged about 26 years he was working
as lorry driver and getting a salary of Rs.50,000/-.
5. The claim was resisted by the 2nd respondent insurer of the lorry
bearing Registration No.KA-04-AA-9939 contending that the accident did
not occurred in the manner suggested by the claimants. It is also claimed
that the said Gunasekaran who was driving the lorry bearing Registration
No.KA-05-AF-7947 was also responsible for the accident and the
compensation claimed was termed as excessive.
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C.M.A.No.1731 of 2023
6. The Tribunal on an analysis of evidence that was placed before
it concluded that the accident occurred due to the rash and negligent driving
of the lorry owned by the 1st respondent and insured with the 2nd respondent.
7. On the quantum, the Tribunal concluded that the claimants
would be entitled to Rs.68,45,500/-. In arriving at the said amount the
Tribunal took the net pay at Rs.29,000/- per month, adding 50% towards
future prospects, applied the multiplier '17' after deducting 1/4th for his
personal and living expenses and arrived at the loss of dependency at
Rs.66,55,500/-. It also added the conventional damages viz., loss of
consortium at Rs.40,000/-, funeral expenses at Rs.15,000/- and loss of estate
at Rs.15,000/-. Thus, the Tribunal concluded that the claimants would be
entitled to a sum of Rs.68,45,500/- as total compensation. The Tribunal
however restricted it to Rs.40,00,000/- because the claimants have restricted
their claim to Rs.40,00,000/-. The claimants are on appeal aggrieved by
fixation of Rs.40,00,000/-.
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C.M.A.No.1731 of 2023
8. We have heard Mr.S.Viswanathan, for M/s.Dass and Viswa
Associates for the appellant, Mr.R.Neethi Perumal, learned counsel
appearing for the 2nd respondent Insurer of the offending lorry and
Mr.J.Michael Visuvasam, learned counsel appearing for the 4th respondent
Insurer of the lorry which was driven by the deceased.
9. The Tribunal had rightly placed the entire liability on the 2 nd
respondent which is the Insurer of the offending lorry.
10. Mr.S.Viswanathan, learned counsel appearing for the
appellants would vehemently contend that even if the claimants had
restricted their claim to a particular amount, if the Tribunal finds that they
are entitled to more, it has to award the amount that the claimants are found
entitled to, of course with a rider that they should pay the Court fee for the
excess compensation awarded and it cannot limit the compensation to the
amount claimed.
11. Mr.R.Neethi Perumal, learned counsel appearing for the 2nd
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C.M.A.No.1731 of 2023
respondent Insurance Company would submit that once the claimants
themselves have restricted their claim to Rs.40,00,000/- the Tribunal was
right in limiting the award to the sum claimed.
12. We are unable to agree with the contention of the learned
counsel for the 2nd respondent. The proceedings before the Tribunal are
proceedings for just compensation for the loss caused by unfortunate
accident. The Tribunal has to award just compensation and not the
compensation claimed. This Court and the Hon'ble Supreme Court have
repeatedly pointed out that the Tribunals are not powerless to award more
than what was claimed, if the claimants are found entitled to. Therefore, we
are unable to sustain the action of the Tribunal in restricting the
compensation to Rs.40,00,000/- only. We therefore, set aside that portion of
the award and the award will be modified granting Rs.68,45,500/- as
compensation. The compensation is apportioned as follows:
The 1st petitioner wife will take Rs.20,00,000/-, the minor children
will each take Rs.20,00,000/- and the mother will take a sum of
Rs.8,45,500/- with proportionate interest.
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C.M.A.No.1731 of 2023
13. The Insurance Company will have twelve (12) weeks time to
deposit the compensation. On such deposit the major claimants viz., the
wife and mother are entitled to withdraw their shares of compensation. The
share of the minors shall be deposited in an interest earning cumulative
deposit in a Nationalised Bank at Krishnagiri till the minors attain majority.
The other terms of the award are confirmed.
14. Accordingly, this Civil Miscellaneous Appeal is allowed. No
costs.
(R.S.M.,J.) (R.K.M.,J.)
dsa 03.08.2023
Index :No
Internet :Yes
Neutral Citation :No
Speaking order
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C.M.A.No.1731 of 2023
To
The Motor Vehicle Accident Claims Tribunal
/ Fast Track Mahila Court, Krishnagiri.
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C.M.A.No.1731 of 2023
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
dsa
C.M.A.No.1731 of 2023
03.08.2023
https://www.mhc.tn.gov.in/judis
