M/S.Future Generali India ... vs Tmt.Bhuvaneswari
2023 Latest Caselaw 7806 Mad

                                                        CMA No. 2177 / 2022 & Cross Obj. No.105 / 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 07.07.2023

                                                     CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                 Civil Miscellaneous Appeal No. 2177 of 2022
                                                     and
                                       Cross Objection No. 105 of 2022
                                                     and
                                          C.M.P. No. 16874 of 2022
                     C.M.A. No. 2177 of 2022:
                     M/s.Future Generali India Insurance Company Limited,
                     Plot No.53, Vijayaraghava Road,
                     T.Nagar, Chennai.                                ... Appellant

                                                      Versus

                     1.Tmt.Bhuvaneswari
                     2.Karthik (Minor)
                     3.Kishore Kumar (Minor)

                     (Respondents 2 and 3 Minors rep.

by mother & NF 1st respondent)

4.Chandrammal

5.M/s.G.K. Pro Logistics, Pappankuppam Village, S.R. Kandigai Post, Gummudipoondi Taluk. ... Respondents

PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the

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

CMA No. 2177 / 2022 & Cross Obj. No.105 / 2022

Motor Vehicles Act against the Judgment and Decree made in M.C.O.P.

No. 45 of 2019 dated 09.08.2019 on the file of the Motor Accidents

Claims Tribunal, Special District Court, Tiruvallur.

For Appellant : Ms. C. Harini for Mr. N. Vijayaraghavan

For Respondents : Mr. K.R. Ponnusamy for M/s. Anand & Suryan for R1 to R4.

No appearance for R5.

Cross Obj. No. 105 of 2022:

1.Tmt.Bhuvaneswari

2.Karthik (Minor)

3.Kishore Kumar (Minor) (cross appellants 2 and 3 Minors rep.

                     by mother & NF 1st cross appellant)

                     4.Chandrammal                                            ... Cross appellants
                                                             Versus

                     1.M/s.G.K. Pro Logistics,
                       Pappankuppam Village,
                       S.R. Kandigai Post,
                       Gummudipoondi Taluk.

2.M/s.Future Generali India Insurance Company Limited, Plot No.53, Vijayaraghava Road, T.Nagar, Chennai. ... Respondents

PRAYER : Cross Objection filed under Order 41, Rule 22 of the Civil

Procedure Code to set aside the award passed in M.C.O.P. No. 45 of

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

CMA No. 2177 / 2022 & Cross Obj. No.105 / 2022

2019 dated 09.083.2019 on the file of the Motor Accidents Claims

Tribunal / Special District Court, Thiruvallur and enhance the

compensation in so far as the same is against kthe claim of the cross

appellants and award full and just compensation.

For Cross Appellants : Mr. K.R. Ponnusamy for M/s. Anand & Suryan

For Respondents : Mr. N. Vijayaraghavan for R2.

No appearance for R1.

COMMON JUDGMENT

The Insurance company aggrieved by the finding that they are

liable to pay compensation for the negligent act of the driver of the

insured vehicle have preferred the instant appeal. The claimants

aggrieved by the quantum of compensation awarded by the tribunal have

preferred the cross objection.

2.The claimants had filed a petition stating that on 20.05.2015 at

about 03.30 p.m. at G.N.T.Road, Vijay Nallur, Near Pasi Hotel, when the

deceased was proceeding towards northern side in his two wheeler, the

first respondent's driver drove the lorry bearing Registration No. TN-20-

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

CMA No. 2177 / 2022 & Cross Obj. No.105 / 2022

AE-3385 in a rash and negligent manner and hit the deceased from

behind as a result of which the deceased died.

3.The second respondent resisted the claim petition denying all the

averments made in the claim petition and stated that in any case, the

claim was excessive.

4.The first respondent in the appeal remained exparte before the

tribunal.

5.The claimants examined two witnesses on their side and marked

Ex.P.1 to Ex.P.16. The respondents neither examined any witness nor

marked any documents on their side.

6.The Tribunal after considering the pleadings, materials and

documentary evidence found that the insurance company is liable to pay

the total compensation of Rs.17,39,020/-. Aggrieved by the said order,

the insurance company and the claimants have preferred this instant

appeal and cross objection.

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CMA No. 2177 / 2022 & Cross Obj. No.105 / 2022

7.The learned counsel for the insurance company submitted that

the driver of the insured vehicle did not have a valid driving license as

seen from Ex.P.7, Motor Vehicle Inspector's report and hence, the

Tribunal ought not to have fastened the liability on them. In any event,

the learned counsel submitted that Tribunal ought to have atleast granted

right of recovery from the insured. The learned counsel also submitted

that the compensation awarded under various heads was excessive.

8.The learned counsel for the cross objectors / claimants submitted

that the quantum of compensation awarded by the Tribunal is not just and

has to be enhanced. The learned counsel submitted that the deceased was

working as an agriculturist and paddy commission agent and was earning

nearly Rs.20,000/- per month. However, Tribunal has fixed the notional

income at Rs.9,000/- per month for the accident of the year 2015 which is

meagre.

9.This Court finds that the appellant / insurance company had not

adduced any evidence to show that the driver of the insured vehicle did

not have a valid license. In the absence of any positive evidence to show https://www.mhc.tn.gov.in/judis

CMA No. 2177 / 2022 & Cross Obj. No.105 / 2022

that the deceased did not have a valid license, this Court cannot hold that

the deceased was without any valid license merely based on the report of

the Motor Vehicle Inspector. Therefore, this Court is of the view that the

Tribunal rightly held that since the appellant did not establish the fact

that the driver did not have a valid license, they were liable to pay the

compensation. As regards the quantum, the appellant was unable to

point out any irregularities in the quantum of compensation awarded by

the Tribunal.

10. The learned counsel for the cross objectors / claimants per

contra submitted that monthly income taken at Rs.9,000/- for the

deceased is meagre. It is seen that it is the case of the claimants that the

deceased was working as an agriculturist and a paddy commission agent.

There is no contra evidence on the side of the respondent to disprove the

same. The accident had taken place in the year 2015. Even taking

conservative view of the matter, notional income fixed by the Tribunal at

Rs.9000/- is meagre. This Court is of the view that it would be

reasonable and just to fix the monthly income at Rs.12,000/- per month.

After adding 25% of future prospects, it would become Rs.15,000/-

(Rs.12,000 x25%). After deducting 1/4th towards personal expenses, his https://www.mhc.tn.gov.in/judis

CMA No. 2177 / 2022 & Cross Obj. No.105 / 2022

monthly income would be Rs.11,250/-. Thus, the pecuniary loss is

calculated as Rs.11,250/- X 12 X 15 = Rs.20,25,000/-. There is no

infirmity in the award passed under the other heads. Thus, the

compensation awarded by the Tribunal is modified as follows:

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

1. Pecuniary 15,19,020 20,25,000 Enhanced loss

2. Loss of 40,000 40,000 Confirmed consortium

3. Funeral 15,000 15,000 Confirmed Expenses

4. Loss of Estate 15,000 15,000 Confirmed

5. Love and 1,50,000 1,50,000 Confirmed Affection Total 17,39,020 22,45,000 Enhanced by Rs.5,05,980/-

11. With the above modification, the Civil Miscellaneous Appeal

in C.M.A. No. 2177 of 2022 is dismissed and the Cross Objection No.

105 of 2022 is partly allowed and the compensation awarded by the

Tribunal at Rs.17,39,000/- is hereby enhanced to Rs.22,45,000/- together

with interest at 7.5% per annum (excluding the default period, if any)

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

CMA No. 2177 / 2022 & Cross Obj. No.105 / 2022

from the date of petition till the date of deposit. The Insurance Company

is directed to deposit the enhanced award amount now determined by this

Court along with interest and costs, less the amount already deposited, if

any, within a period of six (6) weeks from the date of a receipt of copy of

this Judgment. On such deposit the claimants are permitted to withdraw

the award amount as per the apportionment fixed by the tribunal along

with proportionate interest and costs, less the amount if any, already

withdrawn. The claimants are directed to pay the necessary Court Fee if

any on the enhanced award amount. No costs. Consequently, the

connected Miscellaneous Petition is closed.

07.07.2023 ay Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No

To The Motor Accident Claims Tribunal 1, Special District Court, Tiruvallur.

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

CMA No. 2177 / 2022 & Cross Obj. No.105 / 2022

SUNDER MOHAN, J

ay

C.M.A. No. 2177 of 2022 and Cross Objection No. 105 of 2022 and C.M.P. No. 16874 of 2022

Dated: 07.07.2023

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