Madras High Court

Cholamandalam Ms General Insurance ... vs E. Vishnupriya on 5 September, 2024

Author: R.Hemalatha

Bench: R. Hemalatha

                                                        CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 05.09.2024

                                                   CORAM:

                                  THE HONOURABLE MRS.JUSTICE R. HEMALATHA

                         C.M.A.No.1443 of 2020 & C.M.P. Nos.10600 of 2020 and 9499 of
                                                    2024
                                                      &
                                           Cros. Obj. No.13 of 2024

                     C.M.A. No.1443 of 2020


                     Cholamandalam MS General Insurance Company Limited,
                     2nd Floor, Dare House, No.2, NSC Bose Road
                     Chennai 600 001.                                    ... Appellant

                                                      vs.

                     1. E. Vishnupriya
                     2. Minor. E. Naveenkumar
                     3. Minor E. Yoheshwaran
                     4. Thirumathal
                     5. A. Senthil Kumar
                     6. A Maheswari                                            ...Respondents

                     CROS. OBJ. NO.13 of 2024
                     1. E. Vishnupriya
                     2. Minor. E. Naveenkumar
                     3. Minor E. Yoheshwaran
                     4. Thirumathal                                    ...Cross Objectors

                                                      Vs.


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                                                               CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024




                     1. Cholamandalam MS General Insurance Company Limited
                       2nd Floor, Dare House, No.2, NSC Bose Road
                       Chennai 600 001.
                     2. A. Senthil Kumar
                     3. A Maheswari                                   ...Respondents

                     PRAYER in C.M.A. No.1443 of 2020: Civil Miscellaneous Appeal filed
                     under Section 173 of the Motor Vehicles Act, 1988 against the Award
                     dated 27.08.2018 in M.C.O.P.85/2017 on the file of the Special District
                     Court, Motor Accident Claims Tribunal, Erode.


                     PRAYER in CROS.OBJ. No.13 of 2024
                     Cross objection filed under Order 41 Rule 22 of the Code of Civil
                     Procedure against the Award dated 27.08.2018 in M.C.O.P.85/2017 on
                     the file of the Special District Court, Motor Accident Claims Tribunal,
                     Erode.


                     Appearance In C.M.A. No.1443 of 2020
                                  For Appellant         :   Mr. K. Vinod
                                  For R1 to R4          :   Mr. R. Nalliyappan
                                  R5 & R6               :   No appearance


                     Appearance in Cros. Obj. No. 13 of 2024

                                  For Cross Objectors            :   Mr. R. Nalliyappan
                                  For R1                         :   Mr. K. Vinod
                                  For R2                         :   No appearance.



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                                                               CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024



                                                COMMON JUDGMENT

The appellant in CMA No.1443 of 2020 is the Insurance

Company while the Cross Objectors in Cros. Obj. 13/2024 are the

claimants in MCOP No.85/2017 on the file of the Special District Court,

Motor Accident Claims Tribunal, Erode.

2. The Cross Objectors / claimants filed the claim petition under

Section 166 of the Motor Vehicles Act, seeking compensation of

Rs.30,00,000/- for the death of one Ethiraj (husband of the first claimant,

father of the claimants 2 and 3 and son of the claimant 4) in a road

accident that took place on 06.11.2016.

3. The case of the claimants in a nutshell is as follows:

3.1. On 06.11.2016, Ethiraj (since deceased) was travelling as a

pillion rider on TVS XL moped bearing Registration No.TN-41-P-7293,

driven by his friend Thirugnanam on Kottur-Pondaliyur Road and a 407

van bearing Registration No.TN-43-A-5978, owned by the second

respondent, came in the opposite direction in a rash and negligent manner

https://www.mhc.tn.gov.in/judis CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

and hit the two wheeler, as a result of which, Ethiraj fell down and

sustained injuries all over his body. He was immediately rushed to the

hospital. However he succumbed to injuries on 30.11.2016.

3.2. According to the claimants the rash and negligent driving

of the driver of the second respondent's van, bearing Registration No.TN-

43-A-5978, was the cause of the accident and that since the said vehicle

was insured with the third respondent, both of them are jointly and

severally liable to pay compensation to them.

4. The respondents contested the claim petition by filing their

counters.

5.The Tribunal, after analysing the evidence on record,

fastened negligence on the part of the driver of the van bearing

Registration No.TN-43-A-5978. Since the driver of the said van did not

have a valid driving license to drive a goods vehicle on the date of

accident, the Tribunal directed the appellant Insurance Company to pay

compensation of Rs.26,04,000/- to the claimants together with interest at

https://www.mhc.tn.gov.in/judis CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

the rate of 7.5% per annum from the date of petition till the date of

realisation in the first instance, and then recover the same from the owner

of the vehicle, vide its orders dated 27.08.2018.

6. Challenging fastening of negligence on the part of the driver

of 407 van bearing Registration No.TN-43-A-5978, the Cholamandalam

MS General Insurance Company Limited, Chennai,has filed CMA

No.1443 of 2020, and the claimants filed Cross Obj. 13/2024 seeking

enhancement of compensation.

7. Heard Mr. K. Vinod, learned counsel for the appellant in

C.M.A. No.1443 of 2020 and Mr. R. Nalliyappan, learned counsel for the

respondents.

8. Mr.K. Vinod, learned counsel appearing for the appellant,

the Cholamandalam MS General Insurance Company Limited, contended

that the driver of the van bearing Registration No.TN-43-A-5978 was

examined as R.W.1 and that he has deposed that the rider of the two

wheeler came in the opposite direction in a rash and negligent manner and

https://www.mhc.tn.gov.in/judis CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

hit the van. In the circumstances, the Tribunal was wrong in fixing the

entire negligence on the part of the driver of the van bearing Registration

No.TN-43-A-5978. He therefore, prayed for setting aside the order of the

Tribunal in this regard. He also contended that the compensation awarded

by the Tribunal is also on the higher side.

9. Per contra Mr. R.Nalliyappan, learned counsel for the cross

objectors/claimants contended that FIR was registered against the driver of

407 van bearing Registration No.TN-43-A-5978 and the eye witness

account is that the driver of the van was rash and negligent in driving his

vehicle. Hence, the Tribunal had rightly fastened negligence on the part of

the driver of the van. He also contended that the deceased was a driver

by profession earning as sum of Rs.40,000/- per month. However, the

Tribunal had fixed notional monthly income of the deceased only as

Rs.15,000/-, which, according to him, is very much on the lower side and

the same has to be enhanced.

10. The scene of occurrence, as per the rough sketch Ex.P2, is

https://www.mhc.tn.gov.in/judis CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

on the left hand side of Kottur-Pongaliyur Road which runs North-South.

The two wheeler was proceeding towards Pongaliyur from Kottur i.e. from

North to South. The place of occurrence, as already observed, is on the

left hand side of the said road, which clearly shows that the driver of the

van bearing Registration No.TN-43-A-5978 was rash and negligent in

driving his vehicle. The police had also, after conducting preliminary

enquiry, registered FIR against the driver of the van. In the circumstances,

fastening negligence on the part of the driver of the van is perfectly in

order.

10.1. In the absence of income proof, the Tribunal had fixed the

notional monthly income of the deceased as Rs.15,000/-. The deceased

was aged about 42 years on the date of accident. Therefore, the notional

monthly income of Rs.15,000/- fixed by the Tribunal cannot be found

fault with. The Tribunal had awarded compensation under the

following heads.

                                       S.No.                  Head                   Amount granted
                                                                                    by this court (Rs.)
                                  1.             Compensation fixed as loss of               23,94,000/-


https://www.mhc.tn.gov.in/judis

CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

S.No. Head Amount granted by this court (Rs.) income to the petitioners

2. Compensation towards loss of 1,00,000/-

consortium

3. Compensation towards loss of 75,000/-

                                               love and affection for 2nd, 3rd
                                               and     4th     petitioner   at
                                               Rs.25,000/- each
                                  4.           compensation towards funeral                   25,000/-
                                               expenses
                                  5.           Compensation           towards                 10,000/-
                                               transportation
                                               Total compensation                         26,04,000/-

As per the decision in National Insurance Co. vs Pranay sethi and

others reported in 2017 (2) TNMAC 601, Rs,40,000/- alone can be

awarded to each of the claimant towards loss of consortium, Rs.15,000/-

towards Loss of estate and and Rs.15,000/- towards funeral Expenses

and therefore, the Award passed by the Tribunal is liable to be set aside.

10.2. As per the decision of the Supreme Court of India in

National Insurance Co. vs Pranay sethi and others reported in 2017 (2)

TNMAC 601, 25% towards future prospects is added to the notional

monthly income of the deceased. Since the deceased had four

https://www.mhc.tn.gov.in/judis CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

dependents, 1/4 is deducted towards his personal expenses. The deceased

was aged 42 years on the date of the accident and the proper multiplier to

be adopted in the instant case is 14 as per the decision rendered in Sarla

Verma and others vs. Delhi Transport Corporation and another

reported in (2009) 6 SCC 121.

Calculation

Notional Income = Rs.15,000/-

25% future prospects = Rs.18,750/-

After 1/4 deduction = Rs.14,063/-

Loss of dependency

= Rs.14,063/- x 12 x 14

= Rs.23,62,584/-

In addition to that the claimants are entitled to Rs.1,60,000/- (40,000 x 4),

Rs.15,000/- and Rs.15,000/- for Loss of Consortium, Loss of Estate and

Funeral Expenses respectively as per the decision in National Insurance

Co. vs Pranay sethi and others (cited supra).

10.3. The modified amount under the different heads are

https://www.mhc.tn.gov.in/judis CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

detailed hereunder:

                                       S.No.                Head                     Amount granted
                                                                                    by this court (Rs.)
                                  1.            Loss of dependency                           23,62,584/-
                                  2.            Loss of consortium                             1,60,000/-
                                                (Rs.40,000/- x 4)
                                  3.            Funeral expenses                                 15,000/-
                                  4.            Loss of Estate                                   15,000/-
                                                Total                                        25,52,584/-

This amount shall carry interest at the rate of 7.5% per annum from the

date of claim petition till the date of deposit.

11. In the result,

i. The appeal in C.M.A. No.1582 of 2022 is partly allowed and the

Cross Objection Number 13 of 2024 stands dismissed. No costs.

Consequently connected miscellaneous petitions are closed.

ii. The compensation awarded by the Tribunal is scaled down to

Rs.25,52,584/- from Rs.26,04,000/-.

iii. The appellant,Cholamandalam MS General Insurance Company

https://www.mhc.tn.gov.in/judis CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

Limited, in C.M.A. No. 1443 of 2020 is directed to deposit the

compensation amount i.e., Rs.25,52,584/- (less the amount already

deposited) together with interest at the rate of 7.5% per annum from

the date of claim petition till the date of deposit, in the first instance,

within a period of four weeks from the date of receipt of a copy of

this order, to the credit of M.C.O.P.No.85/2017 on the file of the

Special District Court, Motor Accident Claims Tribunal, Erode, and

then recover the same from the owner of the vehicle under the same

cause of action.

iv. The modified compensation amount of Rs.25,52,584/-, is

apportioned to the claimants as shown below:

Vishnu Priya (first claimant) Rs.6,52,584/-

with costs and interest.

                                       Minor.       E.Naveenkumar                     Rs.8,00,000/-
                                       (second claimant)
                                       Minor E. Yoheswaran (third                     Rs.8,00,000/-
                                       claimant)
                                       Thirumathal (fourth claimant)                  Rs.3,00,000/-

v. On such deposit being made, the appellants 1 and 4 are at liberty to

https://www.mhc.tn.gov.in/judis CMA.No.1443 of 2020 & Cross.Obj. No.13 of 2024

withdraw their share as per the apportionment made by this Court,

with costs and interest, after filing a proper petition for withdrawal.

Since the appellants 2 and 3 are minors, their share, shall be

deposited in a fixed deposit in any one of the Nationalised bank

until they attain majority.