Madras High Court
The Branch Manager vs Kannagi on 9 August, 2024
C.M.A.(MD) Nos.886 & 887 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.08.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) Nos.886 & 887 of 2013
and
M.P.(MD) Nos.1 & 1 of 2013
The Branch Manager,
The Oriental Insurance Co.Ltd.,
Madurai. ... Appellant in
both C.M.As.
Vs.
1.Kannagi
W/o.Late Balu
2.Minor Naveen
S/o.Late Balu
3.Minor Suria
S/o.Late Balu
4.Minor Manikandan
S/o.Late Balu
5.Kaliamoorthy (Died)
S/o.Chinnaiyan
6.Andal
W/o.Kaliamoorthy ... R1 to R6 in
C.M.A.(MD) No.886/13
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Page No. 1 of 13
C.M.A.(MD) Nos.886 & 887 of 2013
7.Soundarajan
S/o.Vaithilingam ... R1 in
C.M.A.(MD) No.887/13
8.Gopi
S/o.Rasu ... R7 in
C.M.A.(MD) No.886/13
& R2 in
C.M.A.(MD) No.887/13
[R5 in C.M.A(MD) No.886 of 2013 died.
R1 to R4 & R6 in C.M.A.(MD) No.886 of
2013, who are already on record, were
recorded as legal heirs of R5 vide order of
this dated 01.08.2024]
Common Prayer:- Civil Miscellaneous Appeals filed under Section 173 of
the Motor Vehicles Act, 1988 praying to set aside the Award of Rs.
4,23,000/- (Rupees Four Lakhs Twenty Three Thousand Only) in
M.C.O.P.NO.408 of 2004 dated 24.02.2006 and the Award of Rs.10,000/-
(Rupees Ten Thousand Only) in M.C.O.P.No.608 of 2024 dated
24.02.2006, on the files of the Motor Accident Claims Tribunal (Principal
Sub Court), Kumbakonam.
For Appellant
in both C.M.As. : Mr.Prabhakaran
Standing Counsel
For R1 to R6 in
C.M.A.(MD) No.886/13 : Mr.P.Prabhakaran
For R1 in
C.M.A.(MD) No.887/13 : No appearance
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Page No. 2 of 13
C.M.A.(MD) Nos.886 & 887 of 2013
For R7 in
C.M.A.(MD) No.886/13
& For R2 in
C.M.A.(MD) No.887/13 : No appearance
*****
COMMON JUDGMENT
These two appeals arose from claim petitions in M.C.O.P.Nos.408
& 608 of 2004 filed before the Motor Accident Claims Tribunal (Principal
Sub Court), Kumbakonam, due to the death and injury of two individuals.
2. M.C.O.P.No.408 of 2004 was filed by the legal heirs of the
deceased Balu who died in the accident. M.C.O.P.No.608 of 2004 was
filed by the injured claimant stating that he has sustained injuries in the
accident.
3. C.M.A.(MD) No.886 of 2013 has been filed challenging the
compensation awarded in M.C.O.P.No.408 of 2004. C.M.A.(MD) No.608
of 2013 has been filed challenging the compensation awarded in
M.C.O.P.Nos.608 of 2004.
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C.M.A.(MD) Nos.886 & 887 of 2013
4. In both cases, the claimants had stated that on 02.05.2004, while
the deceased Balu and the injured claimant were travelling along with
others in a tractor bearing Registration No.TN-31-T-7587 insured with the
appellant Insurance Company, the driver of the tractor had driven the
same in a rash and negligent manner, as result of which, the tractor
capsized; and that in the accident, the said Balu died on the spot and
others had sustained grievous injuries.
5. The owner of the tractor who was shown as the first respondent
in both claim petitions had filed counter denying the averments made in
the claim petitions and stating that he did not permit the deceased and
others to travel in the tractor.
6. The appellant Insurance Company had filed counter before the
Tribunal stating that the owner of the tractor had violated the policy
conditions by taking the passengers in the tractor and therefore, they are
not liable to pay compensation and in any case, the claimants have not
established that the accident took place due to the negligent driving of the
driver of the tractor.
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C.M.A.(MD) Nos.886 & 887 of 2013
7. Before the Tribunal, in all the claims petitions including
M.C.O.P.Nos.408 & 608 of 2004, five witnesses were examined. The
first claimant in M.C.O.P.No.408 of 2004 who is the wife of the deceased
Balu was examined as P.W.1. The insured claimant in M.C.O.P.No.608 of
2004 was examined as P.W.3. On the side of all the claimants, Exs.P1 to
P19 were marked. The appellant Insurance Company has examined one
witness as R.W.1 and marked Exs.R1 to R3 to show that the owner of the
tractor had violated the policy conditions.
8. The Tribunal after taking into consideration of oral and
documentary evidence, awarded a compensation of Rs.4,23,000/- in
M.C.O.P.No.408 of 2004 which is under challenge in C.M.A.(MD) No.
886 of 2013 and Rs.10,000/- in M.C.O.P.No.608 of 2004 which is under
challenge in C.M.A.(MD) No.887 of 2013.
9. The learned counsel for the appellant Insurance Company
submitted that the compensation awarded by the Tribunal is excessive and
in any case, the Tribunal ought not to have directed the appellant to pay
and recover the compensation and should have fully exonerated the
appellant Insurance Company.
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C.M.A.(MD) Nos.886 & 887 of 2013
10. The learned counsel for the first to sixth respondents in C.M.A.
(MD) No.886 of 2013 who are the claimants in M.C.O.P.No.408 of 2004,
per contra, submitted that even assuming that there is a violation of policy
condition, the direction to the appellant to make the payment and recover
the same from the owner of the vehicle is in accordance with law.
11.The learned counsel for the claimants/first to sixth respondents
also pointed out that the compensation awarded by the Tribunal was very
meagre and this Court while considering the award may enhance the
compensation as the method adopted by the Tribunal while calculating the
compensation is erroneous. He submitted that the future prospects and the
compensation under the head of loss of consortium were not awarded by
the Tribunal.
12. This Court has carefully considered the rival submissions.
13. The questions involved in the instant appeals are as follows:-
i. Whether the Tribunal was right in directing the
appellant Insurance Company to pay and recover the
compensation from the owner of the tractor?
ii. Whether the Tribunal has awarded a just and
reasonable compensation?
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C.M.A.(MD) Nos.886 & 887 of 2013
14. As regards the first question, it is seen that the owner of the
tractor had admittedly violated the policy conditions as could be seen
from the claim petitions and also the policy conditions which have been
incorporated in Ex.R1. Therefore, the finding of the Tribunal that the
owner of the tractor had violated the conditions is in accordance with law.
However, the question is whether the appellant Insurance Company
should be exonerated. It is well settled law that when there is violation of
policy conditions, the Insurance Company can be directed to pay and
recover the amount from the insured person/policy holder. Therefore, this
Court finds that the finding of the Tribunal in that regard does not call for
any interference.
15. As regards the compensation awarded in M.C.O.P.No.408 of
2004 which pertains to the death of Balu, it is seen that there were six
original claimants, of whom one is no more.
16. The Tribunal had fixed the notional income of the deceased at
Rs.3,000/- per month on the basis of statement made in the claim petition.
It is noticed that the deceased was only 35 years old. However, the
Tribunal has failed to consider the future prospects. The Tribunal has also
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C.M.A.(MD) Nos.886 & 887 of 2013
deducted 1/3rd towards personal expenses although there were more than 4
dependants. The Tribunal ought to have deducted 1/4th towards personal
expenses.
17. Since the one of the claimants died, this Court enhances the
compensation under the head of loss of love and affection to the
remaining 5 claimants at Rs.40,000/- each. The Tribunal has not awarded
any compensation towards loss of estate. This Courts awards a sum of Rs.
15,000/- towards loss of estate. The compensation awarded towards
funeral expenses is meagre which is enhanced to Rs.15,000/-.
18. Therefore, though the claimants have not challenged the award,
in order to award just and reasonable compensation, this Court is of the
view that the compensation can be enhanced in the following manner:-
Heads and Calculation Amount
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C.M.A.(MD) Nos.886 & 887 of 2013
Loss of Dependency:-
(Age of the deceased - 35)
Notional Monthly Income : Rs.3,000/-
Add: Future Prospects at 40%
[Rs.3,000/- x 40/100] : Rs.1,200/-
---------------
: Rs.4,200/-
Less : Personal Expenses at 1/4th
[4,200 x 1/4] : Rs.1,050/-
----------------
: Rs.3,150/-
Annual contribution to the family
[Rs.3,150/- x 12] - Rs.37,800/-
Multiplier - 17 [37,800 x 17] - Rs.6,42,600/- Rs.6,42,600/-
Loss of Consortium [Rs.40,000/- x 5] Rs.2,00,000/-
Loss of Estate Rs. 15,000/-
Funeral Expenses Rs. 15,000/-
Total Rs.8,72,600/-
Sl. Description Amount Amount Award
No awarded by awarded by confirmed,
the Tribunal this Court enhanced or
granted
1 Loss of Dependency Rs.4,08,000/- Rs.6,42,600/- Enhanced
2 Loss of Love and Affection Rs. 10,000/- Rs.2,00,000/- Enhanced
3 Loss of Estate - Rs. 15,000/- Granted
4 Funeral Expenses Rs. 5,000/- Rs. 15,000/- Enhanced
Total Rs.4,23,000/- Rs.8,72,600/- Enhanced by
Rs.4,49,600/-
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C.M.A.(MD) Nos.886 & 887 of 2013
19. As regards the compensation awarded to the claimant in
M.C.O.P.No.608 of 2004, this court finds that the Tribunal has awarded a
sum of Rs.10,000/- for the injuries suffered by him which is just and
reasonable and is therefore confirmed.
20. The appellant Insurance Company is directed to deposit the
compensation awarded by the Tribunal in M.C.O.P.No.608 of 2004
together with interest and proportionate costs, less the amount already
deposited, if any, within a period of 6 weeks from the date of receipt of a
copy of this order.
21. On such deposit, the first respondent in C.M.A.(MD) No.887 of
2013/claimant in M.C.O.P.No.608 of 2004 is permitted to withdraw the
same together with interest and costs, less the amount already withdrawn,
if any, by filing appropriate application before the Tribunal.
22. The appellant Insurance Company is directed to deposit the
enhanced compensation amount of Rs.8,72,600/- together with interest at
the rate of 7.5% per annum from the date of claim petition till the date of
realization and proportionate costs, after deducting the amount already
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C.M.A.(MD) Nos.886 & 887 of 2013
deposited if any, within a period of 6 weeks from the date of receipt of
copy of this order.
23. The claimants in M.C.O.P.No.408 of 2004 are entitled to
compensation, interest, and costs in the same proportion ordered by the
Tribunal. Since the fifth claimant in M.C.O.P.No.408 of 2004 has died,
the remaining claimants are entitled to receive his share equally.
24. The first and sixth claimants in M.C.O.P.No.408 of 2004/ first
and sixth respondents in C.M.A.(MD) No.886 of 2013 are permitted to
withdraw their shares, less the amount already withdrawn, if any, by filing
appropriate application before the Tribunal.
25. The second to fourth claimants in M.C.O.P.No.408 of 2004/
second to fourth respondents in C.M.A.(MD) No.886 of 2013 were minor
when the claim petition was filed in the year 2004. They would have
attained the age of majority now. Hence, they are directed to file
appropriate application for recording their majority and to withdraw their
shares.
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C.M.A.(MD) Nos.886 & 887 of 2013
26. The claimants in M.C.O.P.No.408 of 2004/the first to sixth
respondents in C.M.A.(MD) No.886 of 2013 are directed to pay the court
fee for the enhanced amount of compensation, within a period of four
weeks from the date of receipt of a copy of this order.
27. In the result, both these Civil Miscellaneous Appeals are
dismissed. No costs. Consequently, connected Miscellaneous Petitions
are closed.
09.08.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
The Principal Sub Judge,
Motor Accident Claims Tribunal,
Kumbakonam.
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C.M.A.(MD) Nos.886 & 887 of 2013
SUNDER MOHAN, J.
JEN
C.M.A.(MD) Nos.886 & 887 of 2013
and
M.P.(MD) Nos.1 & 1 of 2013
09.08.2024
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