Madras High Court
Sahida Banu vs Anthoni Ambroise Raja on 2 January, 2024
C.M.A. No. 2695 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
C.M.A. No. 2695 of 2021
1. Sahida Banu
2. Minor Hasini
3. Minor Ritheesh
[Minor appellants represented by their mother
viz., Sahida Banu, the first appellant herein]
... Appellants / Petitioners
Vs.
1. Anthoni Ambroise Raja
2. The TATA AIG General Insurance Company Ltd.,
Rep., by its Branch Manager,
No.202, 100 feet Road, Mudaliarpet,
Puducherry-605 004.
3. Arumaikkanu ... Respondents / Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the Award and Decree dated 12.05.2020 passed
in M.C.O.P. No.230 of 2018 on the file of the Motor Accident Claims
Tribunal, District Judge, Karaikal.
For Appellant : Mr.K.Varadha Kamaraj
1/13
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C.M.A. No. 2695 of 2021
For R1 to R3 : No appearance
For R2 : Mr.J.Michael Visuvasam
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the claimants
seeking enhancement of compensation awarded in M.C.O.P. No.230 of
2018, dated 12.05.2020 on the file of the Motor Accident Claims Tribunal,
District Judge, Karaikal, for the death of the deceased/Ramachandiran.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status and ranking before the
Tribunal.
3. The claimants herein are the dependents of one
Ramachandiran, Son of Selvaraj, who was working as a cleaner and helper
under the first respondent herein. On 25.08.2018 at about 16.20 hours,while
the deceased Ramachandran was travelling with the driver in a goods
vehicle bearing Registration No. PY 02 R 8677, TATA Ace on Nagore main
road, from North to South direction, while the goods vehicle reached
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opposite to the Hotel namely Arun Inn, the goods vehicle was driven by its
driver so negligently and hit on the Tree which was standing on the Eastern
side of the road, which resulted in causing grievous injuries to the cleaner
Ramachandiran and subsequently, he succumbed to the same. In this regard,
a criminal case was also registered against the driver of the lorry belongs to
the first respondent herein in Crime No.66 of 2018 on the file of
T.R.Pattinam Police Station under Sections 279, 337 and 304-A IPC. The
deceased was aged about 30 years and was earning a sum of Rs.500/- per
day. The claimants are the wife and children and the third respondent is the
mother of the deceased Ramachandiran.
4. The second respondent – Insurance Company has filed their
counter and contended that the deceased has travelled in the goods vehicle
as an unauthorized passenger in the goods vehicle and there is a violation of
policy condition and that the claimants have to prove the age, dependency
and income of the deceased and other aspects also. Hence prays to dismiss
the claim.
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5. The first respondent, who is the owner of the vehicle has not
appeared before the Tribunal and was remained ex-parte. However, before
the Tribunal, both the driver as well as the owner of the lorry, who is the
first respondent have appeared and gave evidence stating that the deceased
was a cleaner and was employed by the first respondent and has also
received Rs.500/- per day as a salary.
6. The Tribunal has held that the cleaner cum helper has been
covered under the insurance policy hence, the second respondent is liable to
indemnify the first respondent and thereafter quantified the compensation
and awarded a sum of Rs.27,15,000/- along with interest at the rate of 7.5%
per annum as compensation.
7. The Tribunal further held that, the deceased is not a
unauthorized passenger and he was cleaner working under Respondent
No.1. The claimant has come forward with this appeal seeking enhancement
of compensation.
8. The learned counsel for the claimants has submitted that even
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though, there is an ample evidence placed on record to show that the
claimants are entitled to get just compensation, the Tribunal has not awarded
future prospects to the claimants. Hence prays for enhancement of
compensation for the death of the deceased Ramachandiran.
9. Per Contra, the learned counsel appearing for the Second
Respondent-Insurance Company has submitted that in this case, the first
respondent who is the owner of the vehicle, instead of filing his counter and
submit his evidence, chosen to go with the claimants and gave evidence
infavour of the claimants admittedly the claim made by them. More
particularly, admitting the employment of the deceased and his salary paid
by him. This is strange and this itself is sufficient to show that there is a
collusion between the owner of the vehicle and the claimants herein. Hence
prays to dismiss the appeal.
10. I have heard the rival submissions made on both sides and also
perused the records.
11. Admittedly, before the Tribunal, the driver of the lorry has been
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examined as P.W.2 and he has admitted the negligent act committed by him.
Based on this evidence, the Tribunal has held that the driver of the lorry is a
tortfeasor and that the owner of the vehicle and the Insurance company are
liable to pay compensation to the claimants. It is also admitted fact that the
cleaner of vehicle having insurance coverage for the injuries sustained or
death caused to him. It is true that the first respondent has not been
examined as a witness on behalf of the claimants instead he shall be
examined only on the respondent side evidence if the first respondent has
come forward to adduce his evidence in this case. The claimants are not
entitled to examine the respondent and his evidence and it is open to the
claimants that they can only seek for indulgence of this Court or the
Tribunal to raise adverse inference if any of the evidence available with the
respondent has not been produced before the Adjudicating Authority or the
Tribunal.
12. In this case, even though, the Tribunal has examined the first
respondent as P.W.3 for witness on behalf of the claimants, it seems second
respondent, who is the contesting respondent before the Tribunal has not
properly placed their objections for examining P.W.3 before the Tribunal.
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The Insurance company has also examined their side witness as R.W.1 to
show that apart from the deceased in this case, two other persons have
travelled in the goods vehicle, the Tribunal has held that since the deceased
in this case is a cleaner and has having insurance coverage, he is entitled to
claim compensation. This Court finds there is no infirmity in such finding.
Once the driver of the goods vehicle accepts that the deceased herein is the
cleaner who travelled with him and since there is an insurance coverage for
cleaner, he is entitled for compensation as claimed by the claimants. Hence
this Court finds no infirmity in awarding compensation and directing the
second respondent – Insurance Company to indemnify the first respondent
herein.
13. With regard to the quantum of compensation, the Tribunal has
failed to award future prospectus as held by the Apex Court in National
Insurance Co. Ltd., vs. Pranay Sethi and other reported in [2017(2) TN
MAC 609 (SC): 2017 (16) SCC 680] and this Court is of the view that
considering the age of the deceased the claimants are entitled to get 40% of
compensation as future prospects and only on the limited point,
enhancement is prayed. The Tribunal by notionally fixed the income of the
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deceased as Rs.15,000/- per month and this Court finds there is no infirmity
in the finding. The deceased is aged about 30 years at the time of accident
and considering the age of the deceased, the Tribunal has applied proper
multiplier '17' as per the Judgment of the Apex Court in Sarla Verma and
Others vs. Delhi Transport Corporation and Another [2009 (2) TNMAC 1
SC : 2009 (6) SCC 121]. The claimants are three in persons and hence the
Tribunal has deducted 1/3 as personal expenses of the deceased since the
third respondent is the mother of the deceased and accordingly a sum of
Rs.22,95,000/- [15000 x 12 x 17 x 1/4] was awarded under the head loss of
income of the deceased and this Court is inclined to accept the same.
Accordingly a sum of Rs.9,18,000/- [40% of Rs.22,95,000/-] added as
future prostects of the deceased.
14. The Tribunal has awarded a sum of Rs.3,50,000/- under the
head loss of love and affection to the petitioners 1 to 3 and also a sum of
Rs.40,000/- awarded under the head loss of consortium. Considering the
Judgment of the Apex court in National Insurance Co. Ltd., vs. Pranay
Sethi and other reported in [2017(2) TN MAC 609 (SC): 2017 (16) SCC
680] and the United India Insurance Co., Limited vs. Satinder Kaur and
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Ors. [MANU/SC/0500/2020 : (2021) 11 SCC 780] held thus compensation
awarded under the head Loss of Consortium includes Loss of Love and
Affection, Loss of Consortium awarded under the head Loss of Love and
Affection is hereby cancelled. Accordingly, this Court modifies the
compensation awarded under both heads and granted a sum of Rs.40,000/-
to the each claimants and the third respondent under the head loss of
consortium. As far as other conventional heads are concerned, the same are
reasonable and the same are hereby confirmed.
15. Accordingly, the Award passed by the Tribunal under various
heads are hereby modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) reduced
1 Loss of Income Rs.22,95,000/- Rs.22,95,000/- Enhanced
Loss of Love and Rs.3,50,000/- --- Rejected
2 Affection
3 Loss of Consortium Rs.40,000/- Rs.1,60,000/- Enhanced
4 Loss of Estate Rs.15,000/- Rs.15,000/- Confirmed
5 Funeral Expenses Rs.15,000/- Rs.15,000/- Confirmed
6 Future Prospects --- Rs.9,18,000/- Granted
Total Compensation Rs.27,15,000/- Rs.34,03,000/- Enhanced by
Rs.6,88,000/-
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16. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.27,15,000/- is hereby
enhanced to Rs.34,03,000/- [Rupees Thirty Four Lakhs and Three Thousand
only] together with interest at the rate of 7.5% per annum from the date of
filing of Claim Petition till the date of deposit, excluding the default period,
if any. The second respondent - Insurance Company is directed to deposit
the amount now awarded by this Court 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 to the credit of M.C.O.P.No.230
of 2018 on the file of the Motor Accidents Claims Tribunal, District Court,
Karaikal. On such deposit, the appellants are permitted to withdraw their
respective shares of the award amount now determined by this Court along
with interest and costs, less the amount if any, already withdrawn, as per the
apportionment fixed by the Tribunal. The Tribunal shall disburse the
amount now awarded by this Court by directly giving credit to the Savings
Bank Account of the claimant. The share of the minor appellants are
directed to be deposited in any one of the Nationalized Bank till the minor
claimants attains majority. On such deposit, the first claimant being the
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mother of the minor claimants is permitted to withdraw the accrued interest
once in three months for the welfare of the minor appellants. Since this
Court has enhanced the compensation the appellants/claimants are directed
to pay necessary Court fee on the enhanced compensation. There shall be no
order as to costs in the present appeal.
02.01.2024
ssi
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
To:
1. The District Judge,
Motor Accident Claims Tribunal,
Karaikal.
2. The Section Officer,
V.R.Section,
High Court,
Chennai.
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K. RAJASEKAR, J.
ssi
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02.01.2024
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