Madras High Court
The Reliance General Insurance Company ... vs Periyammal on 5 September, 2024
Author: R.Hemalatha
Bench: R. Hemalatha
CMA.No.536 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.536 of 2024 & C.M.P. No.5329 of 2024
&
Cros. Obj. No.35 of 2024
C.M.A. No.536 of 2024
The Reliance General Insurance Company Limited,
Sakthi Super Market,
3rd Floor, 408 Perundurai Road,
Erode - 638 011. ... Appellant
vs.
1. Periyammal
2. Appusamy
3. Shankar
4. Vijay
5. Meenatchi
6. Moorthi ... Respondents
CROS. OBJ. NO.35 of 2024
Periyammal ... Cross Objector
Vs.
1. The Reliance General Insurance Company Limited,
Sakthi Super Market,
3rd Floor, 408 Perundurai Road,
Erode - 638 011.
2. Appusamy
1/12
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CMA.No.536 of 2024
3. Shankar
4. Vijay
5. Meenatchi
6. Moorthi ... Respondents
PRAYER in C.M.A. No.536 of 2024: Civil Miscellaneous Appeal filed
under Section 173 of the Motor Vehicles Act, 1988 against the Award
dated 21.12.2022 in M.C.O.P.220/2018 on the file of the Motor Accident
Claims Tribunal, IV Additional District & Sessions Judge, Erode at
Bhavani.
PRAYER in CROS.OBJ. No.35 of 2024
Cross objection filed under Order 41 Rule 22 of the Code of Civil
Procedure against the Award dated 21.12.2022 in M.C.O.P.220/2018 on
the file of the Motor Accident Claims Tribunal, IV Additional District &
Sessions Judge, Erode at Bhavani.
Appearance In C.M.A. No.536 of 2024
For Appellant : Mr.P.Suresh Srinivasan
For R1 : Mr.Ma.P.Thangavel
For R2 to R6 : No appearance
Appearance in Cros. Obj. No. 35 of 2024
For Cross Objector : Mr.Ma.P.Thangavel
For R1 : Mr.P.Suresh Srinivasan
For R2 to R6 : No appearance
COMMON JUDGMENT
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The appellant, the Reliance General Insurance Company
Limited in CMA No.536 of 2024 is the 6th respondent, while the Cross
Objector in Cross Objection.35 of 2024 is the claimant in
M.C.O.P.220/2018 on the file of the Motor Accident Claims Tribunal, IV
Additional District & Sessions Judge, Erode at Bhavani.
2. The Cross Objector / claimant filed the claim petition under
Section 166 of the Motor Vehicles Act, seeking compensation of
Rs.20,00,000/- for the death of her son Thangaraj, in a road accident that
took place on 08.11.2017.
3. The case of the claimant in a nutshell is as follows:
3.1. On 08.11.2017, Thangaraj (deceased) was travelling as a
Pillion rider in a two wheeler bearing Registration number TN-36-AT-
4223 driven by the third respondent in MCOP.220/2018 on Coimbatore -
Salem National highways. When they were nearing Kanchikoil Pirivu at
Perundurai, a Maruti Omni Van bearing Registration Number TN-33-BB-
6265, hit the two wheeler, as a result of which, Thangaraj fell down and
sustained injuries all over his body. He was immediately rushed to KMCH
Hospital, Erode, from where he was referred to Government Hospital,
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Erode. However, he succumbed to injuries the next day i.e., 09.11.2017.
3.2. According to the claimant, the rash and negligent driving of
the driver of the two wheeler bearing Registration number TN-36-AT-
4223 as well as the driver of the Maruti Omni Van bearing Registration
number TN-33-BB-6265 were the cause of the accident. Since the owner
of the two wheeler had insured his vehicle with the Reliance General
Insurance Company Limited, the owner of the two wheeler and owner of
the Maruti Omni van as well as the Reliance General Insurance Company
Limited (insurer of the two wheeler) are jointly and severally liable to pay
compensation to her. The Maruti Omni van was not insured.
4. The Tribunal after analysing the evidence on record, fastened
composite negligence on the part of the rider of the two wheeler and the
driver of the Maruti Omni Van in the ratio 35:65 and awarded
compensation of Rs.13,72,700/- vide its orders dated 21.12.2022.
5. Aggrieved over the same, the Reliance General Insurance
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Company Limited filed CMA No.536 of 2024 disputing the Award and
the claimants filed Cross Objection.35 of 2024 seeking enhancement of
compensation.
6. Heard Mr.P.Suresh Srinivasan, learned counsel appearing for
the Reliance General Insurance Company Limited and
Mr.Ma.P.Thangavel, learned counsel for the claimant.
7. Mr.P.Suresh Srinivasan, learned counsel appearing for the
Reliance General Insurance Company Limited contended that the Tribunal
had wrongly fastened composite negligence on the part of the drivers of
two wheeler and Maruti Omni Van in the ratio 35:65, when the Police
after conducting investigation, laid a final report against the driver of the
Maruti Omini van bearing Registration number TN-33-BB-6265. He also
drew the attention of this Court to the evidence of one Chinnasamy
(P.W.2) the eye witness to the occurrence and contended that the driver of
the Maruti Omni van was the wrong doer and in the circumstances,
fastening composite negligence on the part of the rider of the two wheeler
to the extent of 35% is wrong. He therefore prayed for setting aside the
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order of the Tribunal in this regard.
8. Per contra, Mr.Ma.P.Thangavel, learned counsel appearing
for the claimant drew the attention of this Court to the rough sketch
(Ex.P5) and contended that Maruti Omni van was proceeding from South
to North and the two wheeler which was coming from West to East on
Coimbatore-Salem National highways. According to him, both the drivers
while the driving their respective vehicles should have been careful and
therefore, the composite negligence should be fixed as 50:50. He also
relied on the decision of the Hon'ble Supreme Court in Khenyei Vs. New
India Assurance company Ltd., & Ors. reported in 2015 (1) TN MAC
801 (SC) and contended that in the case of composite negligence,
apportionment of compensation between two tort-feasors, is not
permissible and the claimant can recover at his option whole damages
from any of them.
9. In the instant case, both the tort-feasors have been impleaded
and the Tribunal has fastened composite negligence in the ratio 35:65.
since both the drivers were in fault in driving their respective vehicle on
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the road. The scene of occurrence shown in the rough sketch (Ex.P5) goes
to prove that both the vehicles were at fault. Therefore, the ratio of
composite negligence is fixed as 50:50. Since the rider of the two wheeler
bearing Registration number TN-36-AT-4223 did not have a valid driving
licence on the date of accident, the appellant Reliance General Insurance
company Limited can pay 50% of the award amount in the first instance
and then recover the same from the rider of the two wheeler.
10. Quantum of Compensation:
The contention of the learned counsel for the claimant is that the
deceased was aged 27 years on the date of accident. The claimant is the
widowed mother of the deceased. The deceased was working as a Machine
operator in Lakshmi Printing and Dying, Chithodu, Erode District, earning
a sum of Rs.20,000/- per month. However, the Tribunal fixed the notional
monthly income of the deceased as Rs.9,000/-. He therefore prayed for
enhancement of the compensation.
11. It is pertinent to point out that the accident took place in the
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year 2017 and the age of the deceased is 27 years. Considering the year of
the accident as well as the age and avocation of the deceased, this Court is
of the opinion that fixing notional monthly income as Rs.16,000/- would
meet the ends of justice. 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, 40% is added towards future prospects of the deceased.
The deceased died as a bachelor and hence, 50% is deducted towards his
personal expenses. The proper multiplier to be adopted in the instant case
is 17 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.16,000/-
40% Future Prospects = Rs.22,400/-
After 1/3 deduction = Rs.11,200/-
Loss of dependency
= Rs.11,200/- x 12 x 17
= Rs.22,84,800/-
In addition to that, the claimants are entitled to Rs.40,000/-, Rs.15,000/-
and Rs.15,000/- for loss of Consortium, loss of Estate and funeral
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Expenses respectively as per the decision in National Insurance Co. vs
Pranay sethi and others (cited supra). Thus, the claimants are entitled to a
total compensation of Rs.23,54,800/- ( 22,84,800 + 40,000 + 15,000 +
15,000= 23,54,800) as shown in the following tabular column.
S.No. Head Amount granted
by this court
1. Loss of dependency Rs.22,84,800/-
2. Loss of consortium Rs.40,000/-
3. Funeral expenses Rs.15,000/-
4. Loss of Estate Rs.15,000/-
Total Rs.23,54,800/-
12. Thus, the compensation awarded by the Tribunal is
enhanced from Rs.13,72,700/- to Rs.23,54,800/- which would carry
interest at the rate of 7.5% per annum.
13. In the result,
i. The Civil Miscellaneous Appeal No.536 of 2024 and the Cross
Objection.35 of 2024 are partly allowed. No costs. Consequently
connected civil miscellaneous petition is closed.
ii. The compensation awarded by the Tribunal is enhanced from
Rs.13,72,700/- to Rs.23,54,800/-.
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iii. The ratio of composite negligence between the owner of the Maruti
Omni van and the owner of the two wheeler is fixed as 50:50.
iv. The liability of the driver and the owner (Respondents 2 and 3) of
the Maruti Omni Van bearing Registration number TN-33-BB-6265
(owner) is joint and several and the owner of the Omni van, 3rd
respondent is directed to deposit 50% of the enhanced compensation
amount (less the amount already deposited) together with interest @
7.5% per annum from the date of claim petition till the date of
deposit within a period of four weeks from the date of receipt of a
copy of this order/uploading of the order to the credit of
M.C.O.P.No.220/2018 on the file of the Motor Accident Claims
Tribunal, IV Additional District Judge, Erode District at Bhavani.
v. The appellant, Reliance General Insurance Company Limited in
C.M.A. No. 536 of 2024 is directed to deposit 50% of the
compensation amount (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, 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.220/2018 on the file of the Motor Accident Claims
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Tribunal, IV Additional District & Sessions Judge, Erode at
Bhavani in the first instance and then recover the same from the
owner of the two wheeler.
vi. On such deposits being made, the claimant is at liberty to withdraw
the same as per the orders passed by the Tribunal after following
due process of law.
05.09.2024
Index : Yes/No
Speaking/Non-speaking order
Neutral citation : Yes / No
vum
To
1. The Motor Accident Claims Tribunal,
IV Additional District & Sessions Judge,
Erode at Bhavani.
2. The Section Officer, V.R. Section, Madras High Court, Chennai.
R.HEMALATHA, J.
vum
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C.M.A.No.536 of 2024 & C.M.P. No.5329 of 2024
05.09.2024
https://www.mhc.tn.gov.in/judis
