Madras High Court

B.Malliga vs M.Shanmugam on 2 March, 2023

                                                                    C.M.A.Nos.2353 and 2609 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 02.03.2023

                                                     CORAM:

                                   THE HONOURABLE MR.JUSTICE P.B.BALAJI

                                          C.M.A.Nos.2353 and 2609 of 2018
                                                       and
                                              C.M.P.No.19704 of 2018

                   C.M.A.No.2353 of 2018

                   1.B.Malliga,
                     W/o.Late Boopathy
                   2.Minor B.Logeswari,
                     D/o.Late Boopathy
                   3.Minor B.Thrisha,
                     D/o.Late Boopathy
                   4.Minor B.Dharanesh,
                     S/o.Late Boopathy
                   5.R.Valliyammal                                   ...Petitioners/Appellants
                                                       -Vs-

                   1.M.Shanmugam
                   2.M/s.United India Insurance Company Limited,
                     Represented by its Divisional Officer I,
                     No.104-A, Peramanoor Main Road,
                     Salem – 7.
                   3.N.Dhandapani
                   4.M/s.ICICI Lombard General Insurance Company Limited,
                     Having office at,
                     Swarnambika Plaza, Omalur Main Road,
                     Salem.                                   ...Respondents/Respondents

[Amended as per order in I.A.No.2064 of 2015 dated 15.12.2015]

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

C.M.A.Nos.2353 and 2609 of 2018

C.M.A.No.2609 of 2018

M/s.United India Insurance Company Ltd., represented by its Divisional Office -1, 104-A, Peramanur Road, Salem-7. ...2nd respondent/Appellant

-Vs-

1.B.Malliga, W/o.Late Boopathy

2.Minor B.Logeswari, D/o.Late Boopathy

3.Minor B.Thrisha, D/o.Late Boopathy

4.Minor B.Dharanesh, S/o.Late Boopathy

5.R.Valliyammal ...Petitioners

6.M.Shanmugam ...1st respondent

7.N.Dhandapani ...3rd respondent

8.M/s.ICICI Lombard General Insurance Company Limited, Having office at Swarnambika Plaza, Omalur Main Road, Salem-9. ...4th respondent/Respondents

[Amended as per order in I.A.No.2064 of 2015 dated 15.12.2015] Common Prayer:- Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act, 1988, against the common judgment and decree, dated 11.12.2017, in M.C.O.P.No.99 of 2013 on the file of the Motor Vehicle Accident Claims Tribunal (Special District Judge), Salem.

                   C.M.A.No.2353 of 2018
                                  For Appellants             : Mr.K.Varatha Kamaraj
                                  For R2                     : Mr.D.Bhaskaran
                                  For R1 & R3                : Notice Served No appearance
                                  For R4                     : Mrs.Sree Vidhya

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

                                                                        C.M.A.Nos.2353 and 2609 of 2018

                   C.M.A.No.2609 of 2018

                                   For Appellants                : Mr.D.Bhaskaran
                                   For R1 to R5                  : Mr.K.Varatha Kamaraj
                                   For R6 & R7                   : Not ready
                                   For R8                        : Mrs.Sree Vidhya


                                            COMMON JUDGMENT

These two Civil Miscellaneous Appeals arise out of the award of the

Motor Accident Claims Tribunal, Special District Judge, Salem (“the

Tribunal” for brevity), dated 11.12.2017, in M.C.O.P.No.99 of 2013.

C.M.A.No.2609 of 2018 is filed by the Insurance Company, namely,

M/s.United India Insurance Company Ltd., and C.M.A.No.2353/2018 is

filed by the claimants, seeking further compensation, both against the same

award in the above M.C.O.P. proceedings.

2.The claimants in C.M.A.No.2353 of 2018 are the wife, three minor

children, and mother of the deceased, Boopathy, who died in a road

accident on 04.08.2012.

3.The case of the claimants/appellants in C.M.A.No.2353 of 2018 is

that the deceased was travelling in a car bearing Reg.No.TN 49 J 1555, https://www.mhc.tn.gov.in/judis

C.M.A.Nos.2353 and 2609 of 2018

where the driver dozed off and as a result, the car collided with the lorry

bearing Reg.No.TN 19 Y 0979. It is the further case of claimants that the

deceased was aged about 45 years and employed as a Foreman and an

Accountant in Power Loom Factory, earning Rs.12,000/- per month.

Therefore, the claimants filed the claim petition in M.C.O.P.No.99 of 2013

before the Tribunal, claiming a total compensation of Rs.20,00,000/-.

4.A counter was filed by the 2nd respondent/United India Insurance

Company Ltd., before the Tribunal. It is the case of the 2nd respondent that

the accident took place due to the rash and negligent driving of the car in

which the deceased was travelling. It is admitted that at the time of the

accident, 8 people were in the car, including a driver, exceeding the

permitted limit of 5 people, which is a clear violation of policy and permit

conditions. It is further stated that the driver of the car did not possess a

valid and effective driving licence. In short, the insurer/2nd respondent in

the claim petition disputed their liability to compensate the claimants.

5.Before the Tribunal, 1st claimant/wife of the deceased was

examined as P.W.1 and Mr.Ganesh Babu and Mr.Anandavel were

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

C.M.A.Nos.2353 and 2609 of 2018

examined as P.W.2 and P.W.3 respectively. On the side of the respondents,

three witnesses namely Sujatha, Ramalingam and Dhinakarunakaran were

examined as R.W.1, R.W.2 and R.W.3. On the side of claimants, Exs.P1 to

P20 were marked and on the side of respondents, Exs.R1 to R5 were

marked.

6.It is to be noted that the insurer of the lorry, namely M/s.ICICI

Lombard General Insurance Company Ltd., was impleaded as the 4th

respondent before the Tribunal in pursuance of order passed in

I.A.No.2064 of 2015 dated 15.12.2015.

7.The Tribunal, considering the oral and documentary evidence

available on record, awarded a sum of Rs.13,30,000/- together with 7.5%

interest; the claim against M/s.ICICI Lombard General Insurance Company

Ltd., namely, the 4th respondent, was dismissed; ultimately, the liability

was fixed on the 2nd respondent, namely, M/s.United India Insurance

Company Ltd.

8.As against the total compensation of Rs.13,30,000/-, the above

appeals have been preferred, both by the 2nd respondent/Insurance https://www.mhc.tn.gov.in/judis

C.M.A.Nos.2353 and 2609 of 2018

Company (M/s.United India Insurance Company Ltd.) as well as by the

claimants. This Court has heard the respective counsel for the contesting

parties in both the appeals.

9.The claimants have filed C.M.A.No.2353 of 2018 seeking

enhancement of the award amount, and learned counsel for the appellants

argued that the Tribunal has fixed the income of the deceased as Rs.8,000/-

instead of Rs.12,000/- erroneously. The learned counsel also contended

that compensation under the heads of Love and Affection and Pecuniary

Loss were also either disallowed or erroneously awarded at a much lesser

amount.

10.Per contra, the learned counsel for the appellant/Insurance

Company in C.M.A.No.2609 of 2018, argued that in so far as the award

passed by the Tribunal being already on the higher side, and findings with

regard to liability also being erroneous, prayed that C.M.A.No.2609 of

2018 has to be allowed and C.M.A.No.2353 of 2018 deserves to be

dismissed.

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

C.M.A.Nos.2353 and 2609 of 2018

11.The main crux of the argument of the learned counsel for the

appellant/Insurance Company is that the insurer, namely M/s.ICICI

Lombard General Insurance Company Ltd., was also liable to compensate

the claimants and that the entire fault was on the part of the lorry, which

was insured with the 8th respondent i.e., M/s.ICICI Lombard General

Insurance Company Ltd. Further contending that the Tribunal has drawn

an adverse inference as against the insurer of the lorry for not having

appeared and contesting the claim, the Tribunal ought to have presumed

rash and negligent driving on the part of the driver of the lorry.

12.Firstly, dealing with the liability of the two insurance companies,

this Court, having heard the submissions of the respective counsel and

perusing the oral and documentary evidence on record, finds force in the

submission of the learned counsel for the appellant in C.M.A.No.2609 of

2018 with regard to the fixing of liability on the insurer of the lorry which

was also involved in the accident. Admittedly, there was no evidence to

suggest that the driver of the lorry was at fault. On the contrary, the insurer

of the lorry also chose to remain ex-parte before the Tribunal and the

owner/driver of the vehicle, namely the 6th respondent in C.M.A.No.2609

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

C.M.A.Nos.2353 and 2609 of 2018

of 2018 also did not appear and contest the proceedings. Further, it is also

brought to the notice of this Court, that in respect of the same accident,

other civil miscellaneous appeals came to be filed, challenging the awards

passed in other M.C.O.P. cases, and this Court, in C.M.A.No.3162 of 2019

held that the compensation awarded to the claimants should be paid by

both the insurers, namely the M/s.United India Insurance Company Ltd.,

and M/s.ICICI Lombard General Insurance Company Ltd., and the ratio of

80:20 was also fixed. It is fairly brought to the notice of this Court that,

apart from C.M.A.No.3162 of 2019, in C.M.A.Nos.3243, 3147 and 3224 of

2019, this Court also found that both the insurers were liable and fixed the

same ratio of 80:20 (80% – M/s.United India Insurance Company Ltd. and

20% – M/s.ICICI Lombard General Insurance Company Ltd.). It is also

informed that the said judgments have become final. Therefore, this Court

has no hesitation in applying the same ratio in so far as the payment of

compensation to the claimants are concerned.

13.In fine, the appellant in C.M.A.No.2609 of 2018 namely

M/s.United India Insurance Company Ltd., is liable to pay 80% of the

award amount together with accrued interest, and the remaining 20%

together with accrued interest shall be paid by the 8th respondent namely https://www.mhc.tn.gov.in/judis

C.M.A.Nos.2353 and 2609 of 2018

M/s.ICICI Lombard General Insurance Company Ltd.

14.Now coming to the appeal C.M.A.No.2353 of 2018 filed by the

claimants seeking enhancement, it is seen that the salary of the deceased

was fixed at Rs.8,000/-. Considering the fact that the deceased was

employed as a Foreman and an Accountant in a Power Loom Factory and

also factoring the evidence of P.W.3, this Court feels that the salary ought

to have been fixed at Rs.10,000/- per month. In so far as the Loss of Estate

only a sum of Rs.15,000/- has been awarded and for Loss of Consortium,

Rs.40,000/- has been awarded only to the 1st appellant/wife of the

deceased.

15.Following the ratio laid down by the Constitution Bench of the

Hon'ble Supreme Court in the case of National Insurance Company

Limited Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, this

Court holds that all the claimants are entitled to a sum of Rs.40,000/- and

not just the wife of the deceased. In so far as future prospects is concerned,

considering the age of the deceased and his employment at the time of his

demise i.e. date of accident, 25% would be just and fair. 1/4 th deduction

made towards personal expenses/contribution of the deceased does not https://www.mhc.tn.gov.in/judis

C.M.A.Nos.2353 and 2609 of 2018

warrant any interference.

16.Applying the above modifications in line with the ratio laid down

by the Constitution Bench of the Apex Court, the revised award amount is

as follows:

Heads Amount awarded Amount awarded Amount by the Tribunal by this Court confirmed or enhanced Future Rs.12,60,000/- Rs.15,75,000/- enhanced Prospects Funeral Rs.15,000/- Rs.15,000/- confirmed Expenses Loss of Estate Rs.15,000/- Rs.15,000/- confirmed Loss of Rs.40,000/- Rs.2,00,000/- enhanced consortium Total Rs.13,30,000/- Rs.18,05,000/- Enhanced by Rs.4,75,000/-

17.The amounts to be deposited, after adjusting any amount paid

pending the proceedings shall be deposited by the said Insurance

Company, within a period of four weeks from the date of receipt of a copy

of this judgment, and the claimants shall be at liberty to take appropriate

steps, in a manner known to law and seek payment out.

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

C.M.A.Nos.2353 and 2609 of 2018

18.As a result, both the Civil Miscellaneous Appeals are partly

allowed, enhancing the award amount in C.M.A.No.2353 of 2018 to

Rs.18,05,000/-(Rupees Eighteen Lakhs and Five Thousand only)

payable together with interest at 7.5% per annum from the date of claim

petition till the respective dates of deposit being made by the two