Madras High Court

The National Insurance Co. Ltd vs Mallika on 19 October, 2024

                                                                   C.M.A.(MD) No.786 of 2018 &
                                                                      Cros.Obj(MD)No.5 of 2023

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 19.10.2024

                                                    CORAM

                                  THE HON'BLE MR.JUSTICE SUNDER MOHAN

                                          C.M.A.(MD) No.786 of 2018
                                                     and
                                          Cros.Obj (MD)No.5 of 2023

                    In C.M.A.(MD)No.786 of 2018:

                    The National Insurance Co. Ltd.,
                    Anguvilas Building,
                    North Car Streets,
                    Nagercoil Village,
                    Agastheeswaram Taluk,
                    Kanyakumari.
                    Represented by its Branch Manager.                        ... Appellant


                                                       Vs.

                    1.Mallika,
                    2.Laila,
                    3.Ranjith,
                    4.Neelarajan.
                    5.Rengasamy.                                              ... Respondents

                    Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                    Vehicles Act, 1988, against the judgement and decree dated 24.07.2015
                    passed in M.C.O.P.No.2 of 2014, on the file of the Motor Accidents
                    Claims Tribunal, Chief Judicial Magistrate), Nagercoil.


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                    Page No. 1 of 11
                                                                  C.M.A.(MD) No.786 of 2018 &
                                                                     Cros.Obj(MD)No.5 of 2023



                                  For Appellant    : Mr.S.Srinivasa Raghavan

                                  For Respondents
                                        for R1 to R3: Mr.C.Sankar Prakash
                                        for R4      : Dismissed
                                        for R5      : No appearance

                    In Cros.Obj (MD)No.5 of 2023:

                    1.Mallika,
                    2.Laila,
                    3.Ranjith.                                              ... Appellants

                                                   Vs.


                    1.The National Insurance Co. Ltd.,
                    Anguvilas Building,
                    North Car Streets,
                    Nagercoil Village,
                    Agastheeswaram Taluk,
                    Kanyakumari.
                    Represented by its Branch Manager.
                    2.Neelarajan.
                    3.Rengasamy.                                            ... Respondents


                    Prayer: Civil Miscellaneous Appeal filed under Order XLI Rule 22 of
                    C.P.C. to allow this cross objection and enhance the award amount in the
                    judgement and decree dated 24.07.2015 passed in M.C.O.P.No.2 of 2014,
                    on the file of the Motor Accidents Claims Tribunal, Chief Judicial
                    Magistrate), Nagercoil.




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                    Page No. 2 of 11
                                                                         C.M.A.(MD) No.786 of 2018 &
                                                                            Cros.Obj(MD)No.5 of 2023

                                      For Appellants     : Mr.C.Sankar Prakash

                                      For Respondents
                                            for R1    : Mr.S.Srinivasa Raghavan
                                            for R2    : Dismissed
                                            for R3    : No appearance
                                                         *****

                                             COMMON JUDGMENT

C.M.A.(MD)No.789 of 2018 has been filed by the Insurance

Company challenging the finding on liability and quantum of

compensation. The claimants have filed the cross objection in Cro.Obj.

(MD)No.5 of 2023 seeking enhancement of the compensation.

2. For the sake of convenience, the parties are referred to as per

their ranking in C.M.A.(MD)No.786 of 2018.

3. The respondents 1 to 3/claimants filed a claim petition stating

that while the deceased was travelling as a pillion rider, the rider of the

two wheeler rode the two wheeler in a rash and negligent manner and

dashed against a tree, as a result of which the deceased sustained fatal

injuries.

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C.M.A.(MD) No.786 of 2018 &

4. The respondents 4 and 5 herein, who were shown as the

respondents 1 and 2 before the Tribunal, remained ex parte before the

Tribunal.

5. The appellant filed a counter denying the averments made in the

claim petition and submitted that the accident did not take place in the

manner alleged by the claimants; and that the rider of the two wheeler did

not have a valid licence.

6. Before the Tribunal, the claimants examined P.W.1 to P.W.3

and marked Exs.P1 to P17. The appellant examined R.W.1 and marked

Exs.R1 to R4.

7. The Tribunal, after taking into consideration the oral and

documentary evidence, held that the rider of the two wheeler, which was

insured with the appellant, did not have a valid licence; that the accident

took place only due to the negligence of the rider of the two wheeler; that

the appellant is liable to pay compensation of Rs.13,82,000/-; and that

since the rider did not have a valid licence, the appellant is liable to pay

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C.M.A.(MD) No.786 of 2018 &

the compensation and recover it from the owner and rider of the two

wheeler/respondents 4 and 5 herein.

8. The learned counsel for the appellant/Insurance Company

submitted that the rider of the two wheeler did not have a valid licence

and hence, they are not liable to pay any compensation; and that in any

case, the compensation awarded by the Tribunal is excessive and hence

prayed for setting aside the award.

9. The learned counsel for the respondents 1 to 3/cross

objectors/claimants, per contra, submitted that the award of the Tribunal,

holding that the appellant is liable to pay compensation and directing the

appellant to recover it from the owner and rider of the two wheeler, cannot

be faulted; and that the compensation awarded by the Tribunal has to be

enhanced in view of the evidence on record.

10. Though notice sent to the fifth respondent has been served and

the name is printed in the cause list, none has entered appearance. The

appeal was dismissed by this Court vide order dated 14.11.2019, as

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C.M.A.(MD) No.786 of 2018 &

against the fourth respondent/rider of the two wheeler.

11. The points for consideration in the instant appeal are as

follows:

‘a. Whether the appellant is liable to pay the compensation

awarded by the Tribunal?

b. Whether the quantum of compensation awarded by the

Tribunal is just and reasonable?’

12. As regards the first point, it is seen that though the appellant

had pleaded before the Tribunal that the rider of the two wheeler did not

have a valid licence, no evidence has been let in to substantiate their plea.

Though R.W.1, the official employee under the appellant, deposed that the

rider of the two wheeler did not have a valid licence, the appellant had not

examined RTO officials to prove that no licence was granted to the rider

of the two wheeler. In such circumstances, this Court is of the view that it

cannot be presumed that the rider did not have a valid licence. Therefore,

this Court finds that the finding of the Tribunal granting permission to the

appellant to pay and recover also cannot be sustained. It is fairly conceded

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C.M.A.(MD) No.786 of 2018 &

by the learned counsel that the appellant had not challenged the finding

regarding negligence. Hence, this Court is of the view that the appellant

would be liable to pay compensation.

13. Further, though the owner of the two wheeler has not

preferred any appeal, this Court, in exercise of its power under Order XLI

Rule 33 of C.P.C., holds that the appellant is liable to pay compensation

as the violation of the policy condition has not been established. Point

No.1 is answered accordingly.

14. As regards the quantum, this Court is of the view that the

claimant had examined P.W.3/employer of the deceased, which would

show that he was earning Rs.15,000/- per month and was also earning

daily batta at Rs.70/-. The said certificate was issued by P.W.3/employer

of the deceased in his letter pad. There is no other document to

substantiate his version. The claimant had also established that the

deceased was a bright student and marked Ex.P12-consolidated mark

statement to show that he had secured almost 80% in his diploma

examination and that he was a diploma holder in Automobile Engineering.

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C.M.A.(MD) No.786 of 2018 &

Considering the above fact and the age of the deceased at the time of

accident, this Court is of the view that the notional income of the deceased

can be fixed at Rs.12,000/- p.m. 40% has to be added towards future

prospects. The multiplier applicable is ‘18’. Since the deceased was a

bachelor, 50% has to be deducted towards the personal expenses. Hence,

the compensation under the head ‘loss of income’ has to be Rs.12,000/- +

Rs.4,800/- (40%) x 12 x 18 x ½ = Rs.18,14,400/-.

15. The first respondent is the mother and the respondents 2 and 3

are sisters of the deceased. Hence, each are entitled to Rs.40,000/- towards

‘loss of consortium’. Hence, the award under the head ‘loss of

consortium’ is reduced from Rs.1,50,000/- to Rs.1,20,000/-. The

compensation under the other heads is confirmed. Thus, the compensation

awarded by the Tribunal is modified as follows:

                     Sl.           Description         Amount             Amount             Award
                     No                             awarded by the     awarded by this     confirmed,
                                                      Tribunal             Court          enhanced or
                                                                                            granted
                       1 Loss of income               Rs.10,80,000/-     Rs.18,14,400/-    Enhanced
                       2 Medical expenses             Rs. 1,22,000/-     Rs. 1,22,000/-   Confirmed
                       3 Damages to clothes           Rs.    3,000/-     Rs.    3,000/-   Confirmed
                       4 Transportation               Rs.    2,000/-     Rs.    2,000/-   Confirmed
                         charges


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                                                                     C.M.A.(MD) No.786 of 2018 &


                       5 Funeral expenses          Rs.   25,000/-   Rs.   25,000/-   Confirmed
                       6 Loss of love and          Rs. 1,50,000/-   Rs. 1,20,000/-   Reduced
                         affection/consortium
                                    Total          Rs.13,82,000/-   Rs.20,86,400/- Enhanced by
                                                                                   Rs.7,04,400/-

16. The appellant in C.M.A.(MD)No.786 of 2018/Insurance

Company is directed to pay the enhanced compensation of Rs.20,86,400/-

(Rupees Twenty Lakhs Eighty Six Thousand and Four Hundred only)

together with interest at 7.5% p.a., from the date of the claim petition till

the date of realization and costs, less the amount already deposited, if any,

within a period of four (4) weeks from the date of receipt of a copy of this

order.

17. On such deposit, the respondents 1, 2 and 3 in C.M.A.

(MD)No.786 of 2018/claimants are permitted to withdraw 80%, 10% and

10% of the award amount, respectively, with proportionate interest and

costs, less the amount already withdrawn, if any, by filing appropriate

application before the Tribunal.