Madras High Court
Sulochana @ Sulosana vs Mohankumar on 14 July, 2023
C.M.A.Nos.948 and 1337 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 14.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.Nos.948 and 1337 of 2023
and C.M.P.No.2698 of 2023
C.M.A.Nos.948 of 2023
1. Sulochana @ Sulosana
2. Nagaraj ...Appellant
Vs.
1. Mohankumar
2. The Manager,
Reliance General Insurance Company Limited,
Sakthi Super Market, 3rd Floor,
No.408, Perundurai Road,
Erode – 638 011. ...Respondents
PRAYER : The Civil Miscellaneous Appeal is filed under Section 173
of Motor Vehicles Act, 1988, to allow the present appeal and award
enhanced compensation in judgment and decree dated 30.01.2023 in
M.C.O.P.No.27 of 2019 on the file of the Sub Judge, Motor Accidents
Claims Tribunal, Rasipuram.
C.M.A.No.1337 of 2023
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.948 and 1337 of 2023
Manager,
Reliance General Ins.Co.Ltd.,
Sakthi Super Market, 3rd Floor,
408, Perundurai Road,
Erode – 638 011. ...Appellant
Vs.
1.Sulochana @ Sulosana
2. Nagaraj
3. Mohankumar ... Respondents
PRAYER : The Civil Miscellaneous Appeal is filed under Section 173
of Motor Vehicles Act, 1988, to set aside the Decree and Judgment dated
30.01.2023 passed in M.C.O.P.No.27 of 2019 on the file of the Sub
Judge, Motor Accidents Claims Tribunal, Rasipuram.
For Appellant : Mr.R.Nalliyappan
[appellant and R1 in C.M.A.No.948 of
and respondents in C.M.A.No.1337 of
2023]
For Respondents : Ms.C.Bhuvanasundari
[R2 in C.M.A.No.948 of 2023
and appellant in C.M.A.No.1337 of
2023]
COMMON JUDGMENT
These Civil Miscellaneous Appeals have been filed by the claimant
as well as the Insurance Company challenging the award dated
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C.M.A.Nos.948 and 1337 of 2023
30.01.2023 in M.C.O.P.No.27 of 2019 on the file of the Sub Judge,
Motor Accident Claims Tribunal, Rasipuram.
2. For the sake of convenience, the parties are referred to the rank
mentioned in the first appeal (C.M.A.No.948 of 2023)
3. The claimants/appellants had filed a claim petition stating that
the deceased one Arulmani was traveling as a pillion rider on 21.12.2018
at 07.00 p.m in Yamaha Facino bearing Registration No.TN-28-BX-8147
and the rider of the two wheeler was one Soundararajan; that while they
were nearing a petti shop at East Valasu, Salem to Namakkal NH44 main
road, the rider of the vehicle in a rash and negligent manner dashed
against the bridge and caused the accident; as a result of which, the
deceased, who was 18 years old and was working as a Mason died.
4. The first respondent/rider of the vehicle, brother of the deceased,
who was the owner of the vehicle remained ex-parte before the Tribunal.
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C.M.A.Nos.948 and 1337 of 2023
5. The second respondent/Insurance company submitted that the
rider of the two wheeler was under the influence of the alcohol and
hence, the insurance company was not liable to compensate the legal
heirs of the deceased. Further, the first respondent/rider of the vehicle
had also committed breach of policy condition by allowing a person
without license to ride the vehicle.
6. The claimants examined two witnesses on their side and marked
Ex.P1 to Ex.P10. The second respondent/insurance company examined
two witnesses on their side Exs.R1 and R2. On the side of the witnesses,
Ex.X1 to Ex.X8 were marked.
7. The Tribunal after considering the oral and the documentary
evidence found that the second respondent/insurance company was liable
to pay compensation to the claimants and awarded a sum of
Rs.21,37,000/- as compensation. Aggrieved by the quantum of
compensation awarded by the Tribunal, the claimants have filed
C.M.A.No.948 of 2023. Aggrieved by the finding of the Tribunal on the
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C.M.A.Nos.948 and 1337 of 2023
negligence as well as the quantum of compensation, the second
respondent/insurance company has filed C.M.A.No.1337 of 2023.
8(a). Ms.C.Bhuvanasundari, learned counsel for the second
respondent/insurance company submitted that the rider of the two
wheeler was under the influence of alcohol and further, he had no valid
license. That apart, the deceased was not wearing helmet at the time of
the accident. In such circumstances, the finding of the Tribunal that the
insurance company was liable to compensate the claimants is erroneous
and is liable to be set aside.
8(b). The learned counsel further submitted that the deceased was a
bachelor and the Tribunal had erroneously deducted 1/3rd of the income
towards personal expenses instead of half. In any case, she submitted that
the compensation awarded was excessive and was not justified.
9(a). Per contra, learned counsel for the claimants/appellants in
C.M.A.No.948 of 2023 submitted that there is no evidence to show that
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C.M.A.Nos.948 and 1337 of 2023
the rider of the two wheeler had consumed alcohol. The evidence
adduced on the side of the insurance company did not conclusively
establish the fact that the rider was under the influence of the alcohol.
Hence, the finding of the Tribunal that the insurance company was liable
to pay compensation need not be interfered with.
9(b). As regards compensation, the learned counsel submitted that
the accident was in the year 2018. At the time of accident, the deceased
was 18 years old and was working as a Mason, even taking a
conservative view, the notional income fixed at Rs.10,000/- is meagre
and hence, prayed for enhancement.
10. This Court on perusal of the pleadings and the evidence of
records filed by the claimants/appellants in C.M.A.No.948 of 2023, finds
that the second respondent/Insurance company had not established that
the rider of the two wheeler was under the influence of alcohol. In the
absence of evidence to establish that the rider was under the influence of
alcohol, it cannot be stated that the insurance company is not liable to
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C.M.A.Nos.948 and 1337 of 2023
pay compensation. The only evidence is the noting in the accident
register that the rider smelt of alcohol. That is hardly difficult to establish
that he was under the influence of alcohol.
11. This Court, in the case of Muniyasamy and Anr.Vs.
Managing Director reported in [2013 (1) T.N.M.A.C. 854] had held as
follows:
“14. Alcohol/arrack will emit smell. A drunkard loosing
control of his mind and body, depends on various factors.
By mere taking of alcohol and smell of alcohol, we cannot
come to a conclusion that the person had lost control of his
mind and body and he would have dashed against the
moving bus.”
12. Similarly, in the case of The Reliance General Insurance
Company Limited Vs. Muniammal and Ors. reported in [2022 (1)
T.N.M.A.C. 177] following the judgment in Muniyasamy's case (cited
supra), this Court held as follows:
“8......Eventhough, alcohol found in the body of the
deceased no adverse inference taken as per Judgment
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C.M.A.Nos.948 and 1337 of 2023
reported in 2013 (1) TNMAC 854, in the case of
Muniyasamy and another V. Managing Director, Tamil
Nadu State Transport Corporation Ltd; Madura. Mere
presence of alcohol in the body of the two wheeler rider
cannot prove the negligence of the driver.”
13. Further, in a recent judgment in the case of Managing
Director, Tamil Nadu, State Transport Corporation Vs. S.Sangilikalai
reported in [2023 (1) TNMAC 397], this Court had held that the breath of
smell of alcohol is different from being under the influence of alcohol.
The relevant portion is extracted hereunder:
“10..........Though the Medical Officer, who examined
the injured Chandrasekar at Watrap Government Hospital
has noted that there was a breath of smell of alcohol, he
has not recorded that the injured was under the influence of
alcohol. There is also no evidence to show that the Blood
samples were taken from the injured so as to ascertain
whether the injured Chandrasekar consumed alcohol and
the percentage of alcohol in his blood.”
14. Therefore, in the instant case, this Court finds that the second
respondent/insurance company had failed to establish that the rider of the
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C.M.A.Nos.948 and 1337 of 2023
two wheeler was under the influence of alcohol and hence, the insurance
company is liable to pay compensation.
15. As regards quantum, as rightly contended by the learned
counsel for second respondent/insurance company that the Tribunal had
erroneously deducted 1/3rd of the income towards personal expenses. As
per the judgment of the Hon'ble Supreme Court in the case of Sarala
Verma and Or. Vs. Delhi Transport Corporation & Anr. Reported in
[2009 (2) TN MAC 1 (SC)] and in the case of National Insurance
company limited Vs. Pranay Sethi and Ors. reported in [(2017) 16 SCC
680], since the deceased was a bachelor, the Tribunal ought to have
deducted 50% towards personal expenses.
16. Further, it is seen that the accident took place in the year 2018
and the deceased was 18 years old. In such circumstances, this Court is
of the view that the notional income taken at Rs.10,000/- is meagre.
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C.M.A.Nos.948 and 1337 of 2023
17. Considering the facts and circumstances of the case, the age of
the deceased, his avocation prior to the accident and the year of accident,
this Court is of the view that, the notional income can be fixed at
Rs.12,000/-. Hence, the claimants are entitled to the compensation under
the head of loss of dependency in the following manner:
12,000/2 +40%*12*18 = 18,14,400/-.
18. The compensation under the other heads are justified and no
reasons for interference from this Court and the award amount of the
Tribunal is modified as follows:
S.No. Particulars Award of Modified
Tribunal amount
1. Loss of Dependency Rs. 20,16,000/- Rs. 18,14,400/- Reduced
2. Loss of Estate Rs. 16,500/- Rs. 16,500/- Confirmed
3. Funeral Expenses Rs. 16,500/- Rs. 16,500/- Confirmed
4. Loss of Filial Rs. 88,000- Rs. 88,000/- Confirmed
consortium
Rs. 21,37,000/- Rs. 19,35,400/-
19. In the result, both the Civil Miscellaneous Appeals are partly
allowed and the compensation awarded by the Tribunal at Rs.21,37,000/-
is hereby reduced to Rs.19,35,400/- together with interest at the rate of
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C.M.A.Nos.948 and 1337 of 2023
7.5% per annum from the date of petition till the date of deposit. The 1st
appellant being the mother of the deceased is entitled to a sum of
Rs.10,00,000/-, the 2nd appellant being the father of the deceased is
entitled to a sum of Rs.9,35,400/- as compensation. The 2nd
respondent/Insurance Company is directed to deposit the modified award
amount 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. On such deposit, the appellants are permitted to withdraw
their respective shares of the award amount along with proportionate
interest and costs, after adjusting the amount if any, already withdrawn.
No costs. Connected miscellaneous petition is closed.
14.07.2023
Index: Yes/No
Internet: Yes/No
mp
To
1.The Motor Accident Claims Tribunal,
Sub Judge, Rasipuram.
2.The Section Officer
VR Section, High Court of Madras.
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C.M.A.Nos.948 and 1337 of 2023
SUNDER MOHAN,J.
mp
C.M.A.Nos.948 and 1337 of 2023
14.07.2023
https://www.mhc.tn.gov.in/judis
