Madras High Court
The Reliance General Insurance Company ... vs John Rose (Died) on 5 January, 2024
C.M.A.(MD).No.1180 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 12.12.2023 : Pronounced on 05.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE P.B.BALAJI
CMA(MD) No.1180 of 2022
and
CMP(MD) Nos.11982 and 13653 of 2023
The Reliance General Insurance Company Limited,
Represented by its Branch Manager,
Trivandrum 3rd Floor (Level-5)
Trans Tower, Valuthacaud,
Trivandrum. ... Appellant/ 3rd Respondent
Vs.
John Rose (Died)
1.Loius Kala
2.J.L.Jaison Joe
3.JL.Jolin Sini ... Respondents 1 to 3/Petitioners
4.S.Shiji
5.Soudha Beevi
6.The United India Insurance Company Limited,
Represented by its Branch Manager,
Marthandam,
Vilavzncode Taluk,
Kanyakumari District.
... Respondents 4 to 6/Respondents 1, 2 & 4
1/10
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.1180 of 2022
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the award and decree dated 19.07.2022
passed in M.C.O.P.No.76 of 2009 on the file of the Tribunal Judge
[Subordinate Judge] of Kuzhithurai.
For Appellant : Mr.V.Sakthivel
For Respondents : Mr.S.C.Herold Singh for R1 to R3
Given up for R4 and R6
JUDGMENT
RMT.TEEKAA RAMAN, J.
The Insurance Company is the appellant herein. Challenging
the award passed in M.C.O.P.No.76 of 2009 dated 19.07.2022 by the
Motor Accident Claims Tribunal, Subordinate Judge, Kuzhithurai. The
Insurance Company has filed this appeal on the ground that in the claim
petition for the injuries, the learned Judge has granted compensation as if
it is a fatal case and the application itself is filed for damages for the
injury.
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2.For the sake of convenience, the parties are referred to as per
their ranking before the Tribunal.
3.The original claim petitioner is one John Rose filed the above
claim petition seeking compensation for the injuries sustained by him in
the road transport accident on 09.01.2009 and he is a self employed
person as a timber merchant at the time of the accident.
4.Pending MCOP, the claim petitioner died and hence, his wife
and two children were brought on record. While the original claim
petitioner was alive, he was referred to medical board. The medical board
has issued Ex.P.11-disability certificate, fixing the disability at 19%.
When the matter was pending for trial, it appears that the claim
petitioner/injured died on 28.10.2010. Thereafter, I.A.No.51 of 2011,
appears to have been filed to implead the legal heirs and the same was
allowed in C.R.P(MD)No.1702 of 2012, dated 22.11.2016. Subsequently,
after declaration of major petition has also been allowed. The Tribunal
treated the case as if it is a fatal accident and awarded a compensation by
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multiplier method and also awarded loss of estate and hence, the appeal
by the Insurance Company.
5.Mr.V.Sakthivel, learned counsel for the appellant/Insurance
Company would contend that the deceased has not died due to the
accidental injury and hence, the Tribunal has committed an error in
treating the death caused due to the accidental injury and also drew our
attention to Ex.P.11-disability certificate.
6.Mr.S.C.Herold Singh, learned counsel for the respondents 1 to
3 would contend that he has spent the large amount as medical expenses.
7.Heard the learned counsel on either side and perused the
records.
8.Based upon the oral evidence of Ex.P.1-FIR, Ex.P.2-
observation mahazar, Ex.P.3-rough sketch, Ex.P.4-M.V.I report and Ex.P.5
and in the absence of any contra evidence let in by the second
respondent/owner of the vehicle, the Tribunal has rightly come to the
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conclusion that the accident has taken place due to the rash and negligent
driving of the driver of the offending vehicle. To that extent, the finding
of the Tribunal is hereby confirmed.
9(a).On the point of quantum of compensation awarded by the
Tribunal, we have perused Ex.P.11-disability certificate issued by the
Tamil Nadu Medical Board, wherein, the disability was fixed at 19%. As
per Ex.P.6-wound certificate, the injured person has suffered three
injuries and the same reads as under:
1.Type III-A Supracondylar fractuyre (R) Femur.
2.Supracondylar fracture (L) Fenur
3.Lacerated wound over (L) knee (5 x 3 x 2 cm)
The injuries 1 and 2 are grievious and 3rd injury is simple.
The first petitioner was admitted as inpatient for 41 days from
09.01.2009 to 31.01.2009, 02.03.2009 to 06.03.2009 and
27.03.2009 to 08.04.2009.
9(b).As per Ex.P.11, the disability is assessed as a permanent
disability at the rate of 19%. After examination by the Medical Board, the
injured died on 28.10.2010. The cause of death is mentioned as,
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“(i)As per the claim petition column No.11, the
deceased was a suffered from Diabetes Mellity with Diabetic
Nephropathy, Chronic Renal Failure and Hypertension at the
time of the accident.
(ii)The deceased has sustained Type III
Supracondylar Fracture (Rt) Femur, Supracondylar Fracture
(L) Femur and Lacerated Wound over (L) Knee as per the
Wound certificate vide Ex.P.6.
(iii)The deceased was under the treatment as per the
petitioners from 09.01.2002 to 31.01.2009, 02.03.2009 to
06.03.2009 and then finally 27.03.2009 to 08.04.2009 and
thereafter, there is no evidence that the deceased under
treatment till the date of his death ie., on 28.10.2010.
(iv)The diseased suffered by the deceased before the
accident namely, Mellity with Diabetic Nephropathy, Chronic
Renal Failure and Hypertension will be the cause of the death
and it confirms that the death has been resulted only due to the
above mentioned diseases and not because of the injuries
sustained in the accident.”
and this Court finds that the original claim petitioner has not died due to
the accidental injuries and hence, the Tribunal has erred in treating it as a
compensation for the fatal case. However, he is entitled for the injuries
sustained in the accident. On comparison of Ex.P.10 and Ex.P.13 medical
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bills as contended by the learned counsel, both are the same and hence, as
per the evidence of Ex.P.10 and Ex.P.13-medical bills, Rs.4,30,517/-
awarded by the Tribunal is just and reasonable. This Court is of the
considered opinion that the loss of consortium for the spouse does not
arise as it is a case falling under the category of claim for injury not under
the category of claim for death and therefore, Rs.13,44,000/- towards loss
of dependency; Rs.1,32,000/- towards loss of parents and spouse
consortium; Rs.16,500/- towards loss of estate; and Rs.16,500/- towards
funeral expenses awarded by the Tribunal is disallowed for the very same
reason. Accordingly, the loss of dependency, loss of estate and loss of
consortium for the wife and parents and funeral expenses granted by the
Tribunal are set aside and treating the case as an injury, the injured
person/deceased is entitled to get Rs.57,000/- (19 x 3000) [Rs.3,000 per
(%)] as disability compensation. Further, we are inclined to grant
Rs.30,000/- towards Nutrition; Rs.25,000/- towards attender charges;
Rs.25,000/- towards pain and sufferings; Rs.20,000/- towards loss of
amenities; and Rs.15,000/- towards transportation charges.
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10.In view of the above discussion, the compensation is reworked
in the manner hereunder:
Enhanced/
Awarded by the Awarded by
Head reduced/
Tribunal this Court
confirmed
1. Loss of income Rs.13,44,000/- Nil Nil
2. Medical bills Rs.4,30,517/- Rs.4,30,517/- confirmed
3.Loss of parents and Rs.1,32,000/- Nil Nil
spouse consortium
4.Attender expenses Rs.50,000/- Rs.25,000/- reduced
5.Transport charges Rs.18,500/- Rs.15,000/- Reduced
6.Loss of estate Rs.16,500/- Nil Nil
7.Funeral expenses Rs.16,500/- Nil Nil
8. Disability compensation Nil Rs.57,000/- awarded
9.Extra Nourishment Nil Rs.30,000/- awarded
10.Pain and sufferings Nil Rs.25,000/- awarded
11.Loss of Amenities Nil Rs.20,000/- awarded
Total Compensation Rs.20,08,017/- Rs.6,02,517/- Reduced
11. In fine, the Civil Miscellaneous Appeal stands partly allowed
and the award, dated 19.07.2022 made in M.C.O.P.No.76 of 2009 on the
file of the Motor Accident Claims Tribunal, Subordinate Judge,
Kuzhithurai, is hereby modified and the compensation is reduced from
Rs.20,08,017/- to Rs.6,02,517/-.
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12.The appellant / Insurance Company is directed to deposit the
modified award amount of Rs.6,02,517/- along with interest at the rate of
7.5% per annum from the date of claim petition till the date of deposit,
and costs awarded by the Tribunal, less the amount, if any already
deposited, within a period of eight (8) weeks from the date of receipt of a
copy of this judgment. Excess amount, already paid if any, shall be
refunded to the appellant / Insurance Company.
13.On such deposit being made, the respondents herein/ claimants
are permitted to withdraw their respective share amounts, along with
interest and costs as per the apportionment of the Tribunal, less the
amount if any already withdrawn by them, after filing appropriate
application before the Tribunal. There shall be no order as to costs in the
present appeal. Consequently, connected Miscellaneous Petitions are
closed.
(T.K.R.,J.) (P.B.B.,J.)
05.01.2024
NCC : Yes/No
Index : Yes/No
sji
https://www.mhc.tn.gov.in/judis
RMT.TEEKAA RAMAN,J.
AND
P.B.BALAJI, J.
SJI
To
1.The Motor Accident Claims Tribunal,
Subordinate Judge, Kuzhithurai.
2.The Section Officer,
V.R.Section, Madurai Bench of Madras High Court,
Madurai.
05.01.2024
https://www.mhc.tn.gov.in/judis
