Cholamandam Ms General Ins Co Ltd v. K. Bhanupriya

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.02.2024 CORAM THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI,J. and Cross Objection No.3 of 2022 and C.M.P.No.18959 of 2021 Cholamandalam MS General Insurance Co. Ltd., No.443, Magnum Towers, 3rd floor, Dr.Nanjappan Road, Coimbatore 641 018

…Appellant Vs.

¶1K.Bhanupriya

¶2Minor Nivedha

¶3Minor Hari Haran (Minors represented by their guardian and mother K.Bhanupriya)

¶4Mangeeswari

¶5Palanisamy

¶6A.Kasiyappan

…Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act,1988, to set aside the decree and judgment dated 3rd day of November, 2018 made in M.C.O.P.No.502 of 2015 on the file of the Motor Accident Claims Tribunal (Sub Court), Sathyamangalam. For Appellant : Mr.K.Vinod For Respondents : For R1 to R5 : Mr.Nalliyappan For R6 : No Appearance Cross Objection No.3 of 2022

¶1K.Bhanupriya

¶2Minor Nivedha

¶3Minor Hari Haran (Minors represented by their guardian and mother K.Bhanupriya)

¶4Mangeeswari

¶5Palanisamy ...Cross Appellants Vs.

¶1Cholamandalam MS General Insurance Co. Ltd., No.443, Magnum Towers, 3rd floor, Dr.Nanjappan Road, Coimbatore 641 018

¶2A.Kasiappan

…Respondents

Prayer: This Cross Appeal is filed under Order XLI Rule 22 of C.P.C to enhance the award with interest at the rate of 18% per annum and costs. For Cross Appellants : Mr.R.Nalliyappan

For Respondents : For R1 : Mr.K.Vinod For R2 : No Appearance COMMON JUDGMENT The above Civil Miscellaneous Petition is directed against the order passed by the Motor Accident Claims Tribunal (Sub Court), Sathyamangalam dated 03.11.2018 made in M.C.O.P.No.502 of 2015.

¶2The Cross-Objection has been filed by the claimant seeking enhancement of compensation granted by the Tribunal in the award dated

03.11.2018 made in M.C.O.P.No.502 of 2015 on the file of the Motor Accident Claims Tribunal (Sub Court), Sathyamangalam

¶3Shortly stated, on 21.05.2015 at about 3.00 p.m., the deceased Karuppasamy was riding his TVS XL Super moped bearing Registration No.TN 41 AL 1071 at Vaalaparai to Pollachi main road in the direction of south to north at the left extreme end of the road. When the deceased Karuppasamy reached near Rajalakshmi Thirumana Mandapam, at that time a Maruthi 800 car bearing Registration No.TN 41 AA 4429 came in a rash and negligent manner in the same direction and hit the back side of the deceased Karuppasamy vehicle, which made the deceased Karuppasamy fell down and caused the accident. Due to the accident, he sustained serious head injury. Immediately, he was taken to the A.R.Ortho Hospital, Pollachi for first aid and thereafter, for further treatment, he was admitted at the Coimbatore Medical College Hospital. However, the said karruppasamy succummed to his injuries and died at about 9.40 p.m. At the time of accident, the said Karuppasamy was aged about 26 years, who was a Mason and his earning was a sum of Rs.9000/- per month. Accordingly, claiming for compensation for a sum of Rs.30,00,000/- has been made by the legal heirs of the deceased.

¶4The appellant/Insurance Company in their counter statement resisted the claim of the claimants stating that the accident did not take place as narrated in the claim petition. It is further submitted that the accident took place only due to the carelessness of the deceased, since the deceased drove his motorcycle in a negligent manner with high speed without following the traffic rules and came into the line of motion of the vehicle and dashed against the car. It is also further submitted that the two vehicles involved in the accident, the owner and insurance company of the motorcycle bearing Registration No.TN 41 AL 1071 is also necessary party in this petition. Hence, this petition is bad for non joinder of necessary parties. Hence prays for dismissal of the above petition.

¶5Based on the pleadings, the Tribunal has formulated the following points for consideration: 1/ tpgj;jhdJ ahUila ftdf;Fiwt[ kw;Wk; m$hf;fpuijahy; Vw;gl;lJ> 2/ kDjhuUf;F ,Hg;gPL ahuhy; bfhLf;fg;gl ntz;Lk;> 3/ ,Hg;gPl;od; mst[ vd;d> 4/ kDjhuUf;F bfhLf;f ntz;oa ntW gupfhu';fs; vd;d>

¶6The Tribunal after considering the materials placed on record, it came to the conclusion that the accident took place as alleged and claimants are entitled to claim compensation jointly and severally from the owner and driver of the car bearing Registration No.TN 41 AA 4429. Hence, the Tribunal directed the 2nd respondent/ Insurance Company to pay the compensation of Rs.22,44,600/- carrying interest at the rate of 7.5% per annum. The conclusive portion of the Tribunal is extracted here under: @9/,Wjpapy; ,e;j kD mDkjpf;fg;gLfpwJ. kDjhuUf;F 2k; vjph;kDjhuh; ,Hg;gPlhf U:/22.44.600-? brYj;j ntz;Lbkd;Wk; cj;jputplg;gLfpwJ/ ,Hg;gPl;Lj;bjhiff;F kD jhf;fy; bra;J njjpapypUe;J bjhif brYj;Jk; njjp tiu 7/5# tPjk; tl;oa[k; brYj;j ntz;Lk;/ ,Hg;gPl;Lj; bjhifia cj;jput[ njjpapypUe;J xU khjj;jpw;Fs; ePjpkd;wj;jpy; MAC Tribunal (Subordinate Judge) Sathyamangala, SBI Current Account No:36022156650 IFSC Code No.SBI N0001498 vd;w fz;f;fpy; itg;gPL bra;a ntz;Lk;/ nkw;go ,Hg;gPl;Lj; bjhifia kDjhuh;fSf;F jyh U:/4.48.920-? tH';f ntz;Lk; vd;W cj;jtplg;gLfpwJ/ 2 kw;Wk; 3k; kDjhuh;fs; ,stuhf ,Ug;gjhy; mth; nk$uhFk; tiu mtuh;fsJ g';F bjhifia njrpakakhf;fg;gl t';fpapy; itg;gPL bra;a cj;jputplg;gLfpwJ/ 1k; kDjhuh; nkw;go 2 kw;Wk; 3 kDjhuh;fspd; itg;gPl;Lj;bjhifapy; fpilf;Fk; tl;oia 3 khjj;jpw;F xUKiw neuoahf bgw;Wf;bfhs;s mDkjpf;fg;gLfpwJ/ bjhif brYj;jpa gpwF kDjhuh; bjhifiag; bgw;Wf; bfhs;s eltof;if vLf;ftpy;iy vdpy; ,Hg;gPl;Lj; bjhifia njrpakakhf;fg;gl;l t';fp xd;wpy; 3 Mz;LfSf;F itg;gPL bra;a cj;jutplg;gLfpwJ/ ghf;fp ePjpkd;w fl;lzj;ij kDjhuh; 10 ehl;fSf;Fs; brYj;j ntz;Lbkd;Wk; cj;jutplg;gLfpwJ/ tHf;Fiu h; fl;lzj;ij nkny fz;l t';fp fz;f;fpy; brYj;j "

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¶7Against the said award dated 03.11.2018 made in M.C.O.P.No.502 of 2015, the appellant/Insurance Company has come out with the present appeal and not being satisfied with the amounts awarded by the Tribunal, the claimants has come out with the present cross objection for enhancement of compensation.

¶8Through this appeal, award has been challenged on grounds namely the quantum, multiplier applied and with regard to deduction towards personal expenses. There is no dispute with regard to the manner of accident as alleged by the claimants. But for rash and negligent driving of the vehicle, the said accident would not have happend. The finding recorded by the Tribunal in this regard is confirmed.

¶9There is a dispute with regard to the income of the deceased. According to the claimants, the deceased was working as a Mason and was earning Rs.9,000/- per month. However, the Tribunal has fixed a sum of Rs.12,000/- per month as monthly income of the deceased.

¶10The learned counsel appearing for the appellant/Insurance Company would submit that in the absence of any proof of income, the Tribunal has erroneously fixed the monthly income of the deceased at the rate of Rs.12,000/- per month requires interference.

¶11On the other hand, the learned counsel appearing for the claimants would submit that the date of accident was of the year 2015. At that point of time, the income of the Mason per day would not be less than Rs.1000/-. Since there is no documentary evidence for proving the income of the deceased, considering the facts and circumstances of the case, this Court thinks fit that the monthly income of the deceased can be fixed at Rs.10,000/- which would be reasonable.

¶12In the cross objections, it is submitted that the Tribunal has failed to award any amount towards future prospects. Applying the principles laid down in the judgment of the Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC), [National Insurance Company Limited Vs. Pranay Sethi and others], the Tribunal ought to have awarded compensation under the head of Future Prospects. Accordingly, taking into consideration the age of the deceased, at that time of accident he was 26 years old, the claiments are entitled for 40% of future prospects.

¶13The learned counsel appearing for the appellant/Insurance Company would further submit that the Tribunal has erroneously applied multiplier '18' instead of '17', which is applicable for the age 26. The said multiplier is found to be acceptable and accordingly, multiplier '17' is applied. The Tribunal erred in taking 1/5th instead of 1/4th for the personal expenses of the deceased. The Tribunal ought to have taken 1/4th for the personal expenses of the deceased, since there are five dependents. Therefore, applying multiplier '17' and deducting 1/4th towards the personal expenses of the deceased, the compensation granted by the Tribunal towards loss of income is enhanced to Rs.21,42,000/- {Rs.14,000/- [Rs.10,000/- + Rs.4,000/- (40% of Rs.10,000/-)] X 12 X 17 X 3/4}.

¶14It is also submitted that though the claimants are wife, children and parents of the deceased, the Motor Accident Claims Tribunal has awarded only a sum of Rs.1,50,000/- for loss of love and affection. Applying the Principles of Megma General Insurance Co. Ltd., vs. Nanu Ram @ Chuhru Ram reported in AirOnline 2018 SC 189, the claimants are entitled for Loss of Consortium and Loss of Filial Consortium. Accordingly, a sum of Rs.2,00,000/- has been awarded.

¶15It is also found that the Tribunal has not awarded any amount towards loss of estate. Hence, a sum of Rs.15,000/- has been awarded under the head loss of estate. Since the Tribunal has awarded compensation for funeral expanses as Rs.15,000/-, the claimants are not entitled to any amount as compensation for trasportation. Thus the compensation awarded by the Tribunal is modified as follows: S. Description Amount awarded by Tribunal

(Rs) Amount awarded by this Court

(Rs) Award confirmed or enhanced or granted Loss of income 20,73,600/-21,42,000/-Enhanced Loss of Consortium and Loss of Filial Consortium 1,50,000/-2,00,000/-Enhanced Funeral expenses 15,000/-15,000/-Confimed Transportation 6,000/--Set aside Loss of estate -15,000/-Granted Total Rs.22,44,600/-Rs.23,72,000/-enhanced by Rs.1,27,400/-

¶16The compensation awarded by the Tribunal at Rs.22,44,600/- is hereby enhanced to Rs.23,72,000/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The appellant/Insurance Company is directed to deposit the award amount now determined 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.502 of 2015 on the file of the Motor Accident Claims Tribunal (Sub Court), Sathyamangalam. On such deposit, the 1st respondent/wife is permitted to withdraw an amount of Rs.8,72,000/- along with proportionate interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The respondents 4 and 5, who are the parents of the deceased are permitted to withdraw Rs.2,50,000/- each (Totally Rs.5,00,000/-) along with proportionate interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The minor respondents 2 and 3 are entitled to Rs.5,00,000/- each (Totally Rs.10,00,000/-) along with proportionate interest and the share of the minor respondents 2 and 3 are directed to be deposited in any one of the Nationalized Banks, till they attain majority. On such deposit, the 1st respondent, being the mother of the minor respondents 2 and 3 is permitted to withdraw the accrued interest once in three months for the welfare of the minor respondents 2 and 3. The respondents 1 to 5 are directed to pay the necessary Court fee for the enhanced amount of compensation now determined by this Court.

¶17In the result, the Civil Miscellaneous Appeal filed by the appellant/Insurance Company is dismissed and the Cross Objection filed by the respondents 1 to 5 is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.

02.02.2024 mac Internet:Yes/No Index:Yes/No Speaking/Non-speaking order To

¶1The Motor Accident Claims Tribunal, Sathyamangalam.

¶2The Section Officer, VR Section, High Court, Madras. C.M.A.No.3332oofo2021 oKoo .GOVINDARAJANoTHILAKAVADI,oJo . mac C.M.A.No.3332oofo2021 and CrossoObjectionoNo.3oofo2022 and C.M.P.No.18959oofo2021

02.02.2024