Madras High Court
Malar vs Shri Pariyur Amman Kraft Papers P. Ltd on 2 January, 2024
C.M.A. Nos. 2790 & 2791 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
Civil Miscellaneous Appeal Nos.2790 and 2791 of 2021
C.M.A. No.2790/2021:
1. Malar
2. Munirathinam
3. Naveena Shree
4. Minor.Kaishka Shree
5. Minor.Paviska Shree
[Minor Apellants represented by their father namely Babu (as per order
passed in I.A.No.2/2020, dated 06/01/2020)
... Appellants / Petitioners
Vs.
1. Shri Pariyur Amman KRAFT Papers P. Ltd.,
Plot No.D-13, D-26,
SIPCOT INDUSTRIAL Growth Centre,
Perundurai, Erode District-638052
Tamilnadu
2. The Branch Manager,
National Insurance Co. Ltd.,
1st Floor, Karthikeyan Complex,
403, B-10, Mettur Main Road,
Bhavani, Erode District-638301.
Tamilnadu ... Respondents / Respondents
1/16
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C.M.A. Nos. 2790 & 2791 of 2021
CMA No.2791/2021:
1. Babu
2. Minor.Kaishka Shree
3. Minor.Paviska Shree
[Minor appellants represented by their father
viz., Babu, the first appellant herein]
4. Malar ... Appellants / Petitioners
Vs.
1. Shri Pariyur Amman KRAFT Papers P. Ltd.,
Plot No.D-13, D-26,
SIPCOT INDUSTRIAL Growth Centre,
Perundurai, Erode District-638052
Tamilnadu
2. The Branch Manager,
National Insurance Co. Ltd.,
1st Floor, Karthikeyan Complex,
403, B-10, Mettur Main Road,
Bhavani, Erode District-638301.
Tamilnadu ... Respondents / Respondents
Common Prayer: Civil Miscellaneous Appeals filed under Section 173 of
the Motor Vehicles Act, 1988 against the Common Award and Decree dated
11.12.2020 passed in M.C.O.P. Nos.71 and 94 of 2020 on the file of the
Motor Accident Claims Tribunal, Special District Court, Krishnagiri.
For Appellants in both appeals : Mr. S.P. Yuvaraj
For R1 in both appeals : No Appearance
For R2 in both appeals : Mr. J. Michael Visuvasam
COMMON JUDGMENT
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C.M.A. Nos. 2790 & 2791 of 2021
Both the Civil Miscellaneous Appeals have been filed by the
claimants seeking enhancement of compensation awarded in the Common
Award passed in M.C.O.P. Nos.71 & 94 of 2020, dated 11.12.2020 on the
file of the Motor Accident Claims Tribunal, Special District Court,
Krishnagiri.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status and ranking before the
Tribunal.
3. Both the claim petitions arising out of the accident taken
place on 18.07.2018 at about 7.30 hours. The deceased No.1 namely
Nataraj, who is the father of the deceased No.2 Ranjitha. The dependants of
the deseased viz., Nataraj and Ranjitha are the claimants in these appeals
have filed separate claim petitions.
4. On 18.07.2018 at about 7.30 hours both the deceased were
travelled as a passenger in Volks Wagon Polo car bearing Registration
No.TN 02 AR 1818 along with other relatives from Krishnagiri to Chennai
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C.M.A. Nos. 2790 & 2791 of 2021
National Highways NH-48. While they reached near Oppathavadi Bus stop,
an Eicher Lorry bearing Registration No.TN 56 B 1623 was running in front
of them in high speed without any signal and sound suddenly entered into
the middle of the road and stopped which resulted in the Volks Wagons Polo
car, in which, the deceased were travelled was dashed on the right rear side
of the lorry. Due to the impact, both the deceased and other passengers
sustained grievous injuries. In this regard, a criminal case was also
registered against the lorry driver in Crime No.273 of 2018 under Sections
279, 337 and 304-A IPC, on the file of the Bargur Police Station. For the
death of the deceased Nataraj, his wife, son, daughter and grandchildren
have filed M.C.O.P. No.71 of 2020 claiming compensation for a sum of
Rs.30,00,000/-. For the death of the deaceased Ranjitha, her husband, her
children and his mother namely Malar have filed M.C.O.P. No.94 of 2020
seeking compensation for a sum of Rs.50,00,000/- along with interest at the
rate of 12% per annum from the date of claim petition till the date of
realization.
5. Since both the claim petitions arising out of same accident,
common enquiry was conducted and common evidence was recorded in
M.C.O.P. No.71 of 2020.
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C.M.A. Nos. 2790 & 2791 of 2021
6. Based on the evidences placed on record, the Tribunal has
accepted the case of the claimants and however it has held that the driver of
the car is also contributed to the accident and accordingly fixed the ratio of
the negligent between the car driver and the driver of the lorry to the extent
of 10% : 90%. Further it has held that the second respondent/Insurance
company is liable to pay the compensation of 90% and 10% shall be bear by
the claimants themselves and quantified the compensation of Rs.11,70,100/-
[Rs.10,53,090/- (90% of award amount) and Rs.1,17,010/- (10% of award
amount)] awarded in M.C.O.P. No.71 of 2020 and a sum of Rs.21,17,800/-
[Rs.19,06,020/- (90% of award amount) and Rs.2,11,780/- (10% of award
amount) awarded in M.C.O.P. No.94 of 2020 tobe paid by the respondents.
7. Aggrieved over the contributory negligence fixed on the driver
of the car and also for seeking enhancement of compensation, this appeal
has been filed by the respective claimants.
8. Since both the appeals arising out of same accident, common
arguments have been heard and I have also perused the records.
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C.M.A. Nos. 2790 & 2791 of 2021
9. The learned counsel for the claimants in both the appeals
submitted that the deceased in both the cases are only a passengers in the
car and they could not be made liable for the contributory negligence caused
by the driver of the car since they cannot be held themselves contributors of
the accident. Since they are the passengers and both vehicles have colluded
each other and it is only a composite negligence of both the vehicles and the
claimants are entitled to claim compensation from anyone of the tortfeasors.
Hence for fixing deduction of 10% of compensation on the side of the
claimants is not valid and prays to set aside the same. He has also states that
the notional income fixed on both the deceased is also on the lower side
hence prays to enhance the same.
10. The learned counsel for the second respondent - Insurance
Company has submitted that it is a clear case of negligence on the part of the
driver of the car but the Tribunal has not considered the nature of the
accident and which itself is sufficient to show that the driver of the car alone
is responsible for the accident and the lorry is no way connected with the
accident. Some of the claimants are not the dependants of the deceased and
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C.M.A. Nos. 2790 & 2791 of 2021
they have been included for the purpose of getting enhanced compensation.
Hence prays to dismiss the appeal.
11. I have considered the rival submissions made on both sides
and also perused the records.
12. The deceased in this case are the passengers who travelled in
the car. According to them, the lorry belongs to the first respondent was
driven by its driver in rash and negligent manner and entered into the middle
of the road and suddenly stopped, which resulted in the car driver could not
control his car and dashed on the rear side of the lorry. Even though, the
Insurance Company claims that the driver of the car also responsible for the
accident being the passengers of the car, the claimants are entitled to claim
compensation from any one of the tortfeasors in case of the accident is made
due to the composite negligence of drivers of two vehicles.
13. In this case, the manner in which the accident had taken place
shows that it is a case of composite negligence, this finding has not been
challenged by any of the insurer of the vehicles and as per the Judgment of
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C.M.A. Nos. 2790 & 2791 of 2021
the Apex court in Khenyei vs. New India Assurance Company Limited and
Others [2015 (9) SCC 273 : 2015 SCC Online SC 433] the claimants are
entitled to get compensation. Being the passengers they shall not be fixed
with any liability as if they have contributed negligence which is squarely
against the principles laid down by the Apex Court in the Judgment cited
supra. Accordingly, this Court is of the view that 10% deduction of payment
of compensation to the claimants is not proper and the same is hereby set
aside and the contested respondents are liable to pay the entire
compensation.
14. As far as the dependency is concerned, the Insurance
Company submitted that in M.C.O.P. No.71 of 2020 the grandchildren of
the deceased Nataraj have been made as claimants whereas they have also
separately filed claim petition in M.C.O.P.No.94 of 2020 for the loss of their
mother in the accident. It is also admitted evidence that the father of the
grandparents is also alive and he is also a claimant in one of the claim
petition in M.C.O.P.No.94 of 2020. Under the said circumstances, this Court
is of the view that the grandparents namely minor Kanishka Sree and minor
Paviska Sree could not be the dependents of the deceased grandfather
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C.M.A. Nos. 2790 & 2791 of 2021
namely Nataraj and they are not entitled to claim compensation in M.C.O.P.
No.71 of 2020. Similarly, in M.C.O.P. No.94 of 2020, the claimant namely
Malar, who is the mother of the deceased Ranjitha could not be termed as
dependent since she has stated in the claim petition in M.C.O.P. No.71 of
2020 that she is the dependant of her deceased husband Nataraj. Hence this
Court is of the view that she could not be claimed compensation as
dependent of her daughter namely Ranjitha and she is entitled to claim
compensation only in M.C.O.P. No.94 of 2020.
15. As far as the quantum of compensation is concerned, the
Tribunal has fixed the notional income of both the deceased as Rs.9,000/-
per month. This Court, in various catena of Judgments has held that for the
accident taken place in the year 2018, fixing of notional income of
Rs.14,000/- by following the Judgment of this Court in Andal and others
vs. The New India Insurance Company Limited [2019 (1)TN MAC 54
DB]. would be appropriate and accordingly fixed the notional income of the
deceased in both cases a sum of Rs.14,100/-. In M.C.O.P.No.71 of 2020, the
age of the deceased is 54 years at the time of accident and the Tribunal has
rightly applied multiplier '11' and this Court is also accept the same. The
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C.M.A. Nos. 2790 & 2791 of 2021
Tribunal has deducted 1/4 for personal expenses of the deceased Nataraj and
this Court decides the minor grandchildren are not entitled to get
compensation in M.C.O.P.No.71 of 2020 as discussed supra and
accordingly the applicable reduction for his personal expenses is 1/3rd.
Accordingly, the following calculations have been made: 14100 x 12 x 11 x
1/3 = Rs.12,40,800/-. The deceased Nataraj is entitled for 10% future
prospects i.e., Rs.1,24,080/- (10% of Rs.12,40,800/-). Each of the claimants
are entitled to get Rs.40,000/- under the head 'Loss of Consortium'. As far as
the other conventional heads are concerned, the same are just and reasonable
and the same are hereby confirmed.
16. 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 this confirmed
Tribunal Court or enhanced
(Rs) (Rs) or reduced
1. Loss of dependency Rs.9,80,100/- Rs.12,40,800/- Enhanced
2 Future Prospects --- Rs.1,24,080/- Granted
3 Loss of Estate Rs.15,000/- Rs.15,000/- Confirmed
4 Funeral expenses Rs.15,000/- Rs.15,000/- Confirmed
Loss of consortium Rs.1,20,000/- Rs.1,20,000/- Confirmed
5 (P1 to P3)
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C.M.A. Nos. 2790 & 2791 of 2021
S. Description Amount Amount Award
No awarded by awarded by this confirmed
Tribunal Court or enhanced
(Rs) (Rs) or reduced
Loss of Consortium Rs.40,000/- --- Set aside
6 (P4 & P5)
Total Compensation Rs.11,70,100/ Rs.15,14,880/- Enhanced
- by
Rs.3,44,780/
-
17. In M.C.O.P.No.94 of 2020, the age of the deceased is 26
years at the time of accident and the Tribunal has rightly applied multiplier
'17' and this Court is also accept the same. The Tribunal has deducted 1/4
for personal expenses of the deceased Ranjitha and this Court decides that
the mother of the deceased Ranjitha is not entitled to get compensation in
M.C.O.P.No.94 of 2020 and accordingly 1/3 is deducted towards personal
expenses of the deceased. Accordingly, the following calculation have been
made: 14100 x 12 x 17 x 1/3 = Rs.19,17,600/-. The deceased Ranjitha is
entitled for 40% future prospects i.e., Rs.7,67,040/- (40% of Rs.19,17,600/-)
as per the dictum laid down in National Insurance Co. Ltd., vs. Pranay
Sethi and other [2017(2) TN MAC 609 (SC): 2017 (16) SCC 680]. In both
cases each claimants are entitled to get Rs.40,000/- under the head 'Loss of
Consortium'. As far as the other conventional heads are concerned, the same
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C.M.A. Nos. 2790 & 2791 of 2021
are just and reasonable and the same are hereby confirmed.
18. 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 dependency Rs.19,27,800/- Rs.19,17,600/- Reduced
2 Future Prospects --- Rs.7,67,040/- Granted
3 Loss of Estate Rs.15,000/- Rs.15,000/- Confirmed
4 Funeral expenses Rs.15,000/- Rs.15,000/- Confirmed
Loss of consortium Rs.1,60,000/- Rs.1,20,000/- Reduced
(P1 to P4) / Loss of
Consortium (P1 to
5 P3)
Total Compensation Rs.21,17,800/ Rs.28,34,640/ Enhanced by
- - Rs.7,16,840/-
19. The Tribunal has awarded interest at 9% per annum on the
compensation award from the date of filing of petition till the date of
realization. The Hon'ble Apex Court in Tamil Nadu State Trasport
Corporation Ltd., vs. S.Rajapriya and Ors [2005 ACJ 1441], has modified
the rate of interest to 7.5% per annum based on the prevailing rate of interest
in bank deposits. By following the same, 7.5% per annum is fixed as the rate
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C.M.A. Nos. 2790 & 2791 of 2021
of interest towards the deposit of the compensation amount awarded from
the date of filing of claim petition till the date of realization.
20. In the result,
(i) C.M.A.No.2790 of 2021 is partly allowed and the
compensation awarded by the Tribunal at Rs.11,70,100/- is hereby
enhanced to Rs.15,14,880/- [Rupees Fifteen Lakhs Fourteen Thousand
Eight Hundred and Eighty 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.
(ii) C.M.A.No.2791 of 2021 is partly allowed and the
compensation awarded by the Tribunal at Rs.21,17,800/- is hereby
enhanced to Rs.28,34,640/- [Rupees Twenty Eight Lakhs Thirty Four
Thousand Six Hundred and Forty 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.
(iii) The second respondent - Insurance Company is directed to
deposit the amount awarded by this Court along with interest and costs, less
the amount already deposited, if any, within a period of six weeks from the
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C.M.A. Nos. 2790 & 2791 of 2021
date of receipt of a copy of this Judgment to the credit of M.C.O.P.Nos.71 &
94 of 2020 respectively on the file of the Motor Accidents Claims Tribunal,
Special District Court, Krishnagiri. On such deposit, the appellants are
permitted to withdraw 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 claimants. The share of the minor appellants/claimants
are directed to be deposited in any one of the Nationalized Bank till the
minor appellants/claimants attains majority. On such deposit, one Babu,
who is the father of the minor claimants is permitted to withdraw the
accrued interest once in three months for the welfare of the minor
appellants/claimants. Since this Court has enhanced the compensation, the
appellants/claimants are directed to pay the necessary Court fee, if any, on
the enhanced compensation. There shall be no order as to costs in both the
appeals.
02.01.2024
ssi
Index:Yes/No
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C.M.A. Nos. 2790 & 2791 of 2021
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
To:
1. The Special District Judge,
Motor Accident Claims Tribunal,
Krishangiri.
2. The Section Officer,
V.R.Section,
High Court,
Chennai.
K. RAJASEKAR, J.
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ssi
C.M.A. Nos. 2790 & 2791 of 2021
02.01.2024
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