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2025 DIGILAW 572 (MAD)

New India Assurance Co. ltd. , v. Margarette Rani

2025-01-28

J.NISHA BANU, R.SAKTHIVEL

body2025
JUDGMENT : R.SAKTHIVEL, J. Feeling aggrieved by the Award dated January 6, 2022 passed by the ‘Motor Accidents Claims Tribunal, III Additional District Court, Coimbatore’ (‘Tribunal’ for short) in M.C.O.P.Nos.1945 and 1946 of 2016, the third respondent/Insurance Company therein, namely the New India Assurance Co., Ltd., has preferred the CMA.Nos. 1752 & 1754 of 2022 challenging its liability and the quantum of compensation. 2. Dissatisfied with the aforesaid Award passed by the Tribunal, the petitioners in MCOP.No.1946 of 2016 have filed Cross Objection No.62 of 2024. CASE OF THE PETITIONERS IN MCOP.NOS.1945 & 1946 OF 2016 3. The case of the petitioners in both the Original Petitions is that on January 2, 2015, at about 3.45 am., Antony Raj was proceeding to Bengaluru in his car bearing Registration No.TN-37-BR-5982 along with his friend – Rajilash on Bengaluru to Dharmapuri – Krishnagiri Highway. While nearing Nattankottai Pirivu, Krishnagiri, the driver of the ‘lorry bearing Registration No.AP-02-X-8568’ [‘alleged offending vehicle’ for convenience] made a sudden, rash and negligent U-turn without any signal on National Highway Road. As a result, the car in which the duo was travelling, hit the diesel tank of the lorry and a fire broke out and Antony Raj and Rajilesh were charred to death. At the time of accident the deceased - Antony Raj was 30 years old while the deceased – Rajilash was 34 years old. Both were earning Rs.45,000/- per month each from his mobile and its accessories retail business. Dependents of deceased - Antony Raj, namely his mother - Margarette Rani, wife - Sona and daughter - Minor Ananya, have filed M.C.O.P.No.1945 of 2016 seeking a sum of Rs.1,05,00,000/- as compensation, against the second respondent who is the owner of the alleged offending vehicle and the third respondent who is its insurer. Similarly, the parents, wife and children of the deceased - Rajilesh have filed M.C.O.P.No.1946 of 2016 claiming a sum of Rs.1,35,00,000/- as compensation from the respondents 2 and 3. RESPONDENTS NOS.1 AND 2 4. Despite notice to the respondents 1 & 2, they did not choose to contest the original petitions, hence they were called absent and set ex-parte. THIRD RESPONDENT’S CASE IN BOTH THE ORIGINAL PETITIONS 5. The third respondent filed a counter stating that the accident occurred solely due to the rash and negligent driving of the deceased - Antony Raj. Despite notice to the respondents 1 & 2, they did not choose to contest the original petitions, hence they were called absent and set ex-parte. THIRD RESPONDENT’S CASE IN BOTH THE ORIGINAL PETITIONS 5. The third respondent filed a counter stating that the accident occurred solely due to the rash and negligent driving of the deceased - Antony Raj. The first respondent was acquitted in the criminal case filed against him with regard to this accident. As the deceased was responsible for the accident, 3rd respondent cannot be made liable to pay compensation. In this case, the owner and insurer of TN-37-BR-5982 are necessary and proper parties and as they are not added, the Original Petitions are not maintainable. The petitioners have to prove that the said car had all records properly and its driver – Anthony Raj had a valid and effective driving license to drive the vehicle. The petitioners have to prove that both the deceased were earning Rs.30,000/- per month each. The third respondent is not liable to pay the compensation to the petitioners in both MCOPs. Accordingly, it prayed to dismiss the Original Petitions. TRIBUNAL 6. In MCOP.No.1945 of 2016, on the side of the petitioners therein, the second petitioner therein was examined as P.W.1, one Nithyanantham was examined as P.W.2 and Ex.P1 to Ex.P8 were marked; on the side of the respondents, one Chidambaram Pillai, who is the Junior Assistant attached the Krishnagiri Transport office was examined as R.W.1 and Ex-R.1 to Ex-R.5 were marked. 6.1. In MCOP.No.1946 of 2016, on the side of the petitioners therein the third petitioner therein was examined as P.W.1 and Ex-P.1 to Ex-P.4 were marked; on the side of the respondents, one Chidambaram Pillai, who is the Junior assistant attached the Krishnagiri Transport office was examined as R.W.1 and Ex.R1 to Ex.R5 were marked. 7. The Tribunal after hearing both sides and considering the evidence available on record, based on the First Information Report (FIR) and Ex.R4 - Final Report which were registered against the driver of the alleged offending vehicle came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the second respondent. At the time of the accident, the alleged offending vehicle was insured with the third respondent hence, the third respondent is liable to pay the compensation to the petitioners in both the petitions. 7.1. At the time of the accident, the alleged offending vehicle was insured with the third respondent hence, the third respondent is liable to pay the compensation to the petitioners in both the petitions. 7.1. With regard to the quantum of compensation in MCOP.No.1945 of 2016, the Tribunal based on the evidence of P.W.2- Nithyanantham and Ex-P.8 - Certificate of Registration of mobile phone shop, took a sum of Rs.20,000/- as notional income, deducted 1/3 rd amount towards personal expenses and computed compensation as stated below:- Sl.No. Head Amount 1. Loss of dependency (20,000+8000 (40%) = 28,000, 1/3 of Rs.28,000 = 9333/- (Rs.28000 - 9333 =18667) 18667x12x17) Rs.38,08,068/- 2. Loss of consortium Rs.44,000/- 3. Loss of parental consortium Rs.44,000/- 4. Loss of filial consortium Rs.44,000/- 5. Loss of estate Rs.16,500/- 6. Funeral expenses Rs.16,500/- Total Rs.39,73,068/- 7.2. With regard to quantum of compensation in MCOP.No.1946 of 2016, since the deceased was doing business in mobile phones, the tribunal took a sum of Rs.20,000/- as his notional income, deducted 1/4 th amount towards personal expenses and computed compensation as stated below:- Sl.No. Head Amount 1. Loss of dependency (20,000+8000 (40%) = 28,000, 1/4 of Rs.28,000 = 7000/- (Rs.28000 - 7000 =21000) 21000x12x15) Rs.37,80,000/- 2. Loss of consortium to the third petitioner Rs.44,000/- 3. Loss of parental consortium to the petitioners 4 & 5 Rs.88,000/- 4. Loss of filial consortium to the petitioners 1 & 2 Rs.88,000/- 5. Loss of estate Rs.16,500/- 6. Funeral expenses Rs.16,500/- Total Rs.40,33,000/- 8. Feeling aggrieved by the quantum of compensation awarded by the Tribunal, the third respondent/insurance company has filed CMA.Nos.1752 & 1754 of 2022. The Petitioners in MCOP.No.1946 of 2016 have filed the cross objection in Cross Objection.No.62 of 2024 seeking for enhancement of compensation amount. ARGUMENTS: 9. Mr.S.Arunkumar, learned counsel appearing for the appellant/insurance company in both appeals would submit that the accident occurred due to rash and negligent driving of the deceased - Antony Raj, The accident had occurred in the early morning and none have witnessed it. In such circumstances, it is for the petitioners to prove that the accident had occurred due to the negligence of the first respondent. There is no witness examined to prove the negligence. Hence, the Tribunal erred in fastening the entire liability on the second respondent’s driver. In such circumstances, it is for the petitioners to prove that the accident had occurred due to the negligence of the first respondent. There is no witness examined to prove the negligence. Hence, the Tribunal erred in fastening the entire liability on the second respondent’s driver. With respect to the quantum of compensation, the learned counsel argued that the petitioners did not produce any documents to substantiate that the deceased were earning a sum of Rs.20,000/-. The Tribunal in the absence of any document erred in taking their monthly notional income based on surmises and conjecture. The accident occurred in the year 2015, hence the notional income of Rs.20,000/- taken by the Tribunal is on the higher side. Accordingly, the learned counsel prayed to allow the both Civil Miscellaneous Appeals. 10. Per contra, the learned counsel appearing for the respondents/petitioners in both appeals would argue that the accident occurred only due to the rash and negligent act of the second respondent’s driver and hence, the Tribunal was right in fastening the entire liability on the appellant. There is no reason to interfere with the findings with respect to negligence aspect and accordingly, he prayed to dismiss the both Civil Miscellaneous Appeals. 10.1. With regard to the Cross Objection filed by the petitioners in MCOP.No.1946 of 2016, he would submit that the Tribunal failed to award appropriate amount by taking note of the age of the deceased - Rajilesh, and his future prospects to earn. Therefore, he prayed for enhancement of compensation. DISCUSSION 11. This Court has considered arguments advanced on either side and perused the materials available on record. 12. Admittedly, the accident occurred in the early morning in Bengaluru to Dharmapuri – Krishnagiri Highway. According to the petitioners, the FIR was registered against the first respondent who suddenly took a U-turn in the national highway without following traffic rules or any indication and caused the accident. Based on the FIR, Police conducted investigation and filed the charge sheet against the first respondent/second respondent’s driver. On behalf of the respondents no witness, except the Junior Assistant from the Motor Vehicle Inspector office (R.W.1), was examined to disprove the claim of the petitioners. In these circumstances, this Court is of the view that the Tribunal is right in coming to the conclusion that the second respondent’s driver is alone responsible for the accident. On behalf of the respondents no witness, except the Junior Assistant from the Motor Vehicle Inspector office (R.W.1), was examined to disprove the claim of the petitioners. In these circumstances, this Court is of the view that the Tribunal is right in coming to the conclusion that the second respondent’s driver is alone responsible for the accident. There is no reason to deviate from the findings rendered by the Tribunal. At the time of the accident, the alleged offending vehicle was insured with the third respondent/insurance company and hence, the Tribunal is right in holding that the respondents 2 & 3 are jointly and severally liable to pay the compensation to the dependants of the deceased persons. 13. With regard to quantum of compensation in M.C.O.P.No.1945 of 2016, the accident occurred in the year 2015. P.W.2 therein has deposed that the deceased was running a mobile shop in the name and style ‘Friends Mobile Shop’ at Thudiyalur Coimbatore and to that effect, its certificate of registration was produced under Ex-P.8. But no document was produced to show the income of the deceased – Anthony Raj. The mobile shops are thriving business nowadays, hence, the Tribunal was of the opinion that at least he would have earned a sum of Rs.20,000/- per month. This Court is of the view that there is no reason to interfere with the said findings of the Tribunal. At the time of the accident, the deceased was aged 29 years [Ex-P.2 -Death Certificate], hence, the Tribunal has rightly taken multiplier of 17 as per the judgments of the Hon’ble Supreme Court in Judgement of Hon'ble Supreme Court in Sarla Verma -vs- Delhi Transport Corporation reported in (2009) 6 SCC 121 . The Tribunal has added 40% Future Prospects and deducted 1/3rd towards personal expenses which are right and in tune with Judgement of Hon'ble Supreme Court in National Insurance Company Limited -vs- Pranay Sethi reported in (2017) 16 SCC 680 . In all other aspects, the Award of the Tribunal in M.C.O.P.No.1945 of 2016 holds good. Thus, there is no reason to interfere with the award passed by the Tribunal in assessing the quantum of compensation payable to the petitioners. 14. With regard to quantum of compensation in M.C.O.P.No.1946 of 2016, the deceased - Rajilash was running mobile shop at Thudiyalur, Coimbatore. But, the petitioners therein did not produce any documents to substantiate the same. Thus, there is no reason to interfere with the award passed by the Tribunal in assessing the quantum of compensation payable to the petitioners. 14. With regard to quantum of compensation in M.C.O.P.No.1946 of 2016, the deceased - Rajilash was running mobile shop at Thudiyalur, Coimbatore. But, the petitioners therein did not produce any documents to substantiate the same. In the absence of any evidence, the Tribunal has taken notional income of Rs. 20,000/- per month and it is on the higher side. Hence, this Court is view that the Tribunal is not right in taking a sum of Rs.20,000/- as his notional income without any document. Considering the age of the deceased viz., 38 years [Ex-P.2 -Death Certificate] and number of the dependents, this Court is of the view that the deceased would have earned not less than a sum of Rs.18,000/- and hence, this court takes a sum of Rs.18,000/- as his notional monthly income. Accordingly, this Court arrives at a sum of Rs.34,02,000/- as compensation under the head ‘loss of dependency’. Insofar as 40% addition towards future prospects, 1/4 th deduction for his personal expenses and the multiplier of 15 adopted by the Tribunal are concerned, they are correct and they are as per the Judgments of the Hon’ble Supreme Court in Pranay Sethi’s Case and Sarla Verma’s case (cited supra). 14.1. That apart, for Loss of spousal consortium, the third petitioner is entitled to a sum of Rs.44,000/-. The petitioners 1 and 2 are entitled to a sum of Rs.44,000/- each towards filial consortium. The petitioners 4 & 5 are entitled to a sum of Rs.44,000/- each towards parental consortium. The petitioners are also entitled to a sum of Rs.16,500/- towards ‘funeral expenses’ and another sum of Rs.16,500/- towards ‘loss of estate’. The Tribunal has rightly awarded the same. To sum up, the petitioners in M.C.O.P.No.1946 of 2016 are entitled to compensation as tabulated hereunder :- S.No. Head Amount in Rs. 1. Loss of Income (18000+7200 (40%) = 25,200 x 12x 15 x1/4) Rs. 34,02,000/- 2. Loss of Filial Consortium (44000 x 2) Rs.88,000/- 3. Loss of Spousal Consortium Rs.44,000/- 4. Loss of Parental Consortium (44000 x 2) Rs.88,000/- 5. Loss of Estate Rs.16,500/- 6. Funeral Expenses Rs.16,500/- Total Rs.36,55,000/- 15. 1. Loss of Income (18000+7200 (40%) = 25,200 x 12x 15 x1/4) Rs. 34,02,000/- 2. Loss of Filial Consortium (44000 x 2) Rs.88,000/- 3. Loss of Spousal Consortium Rs.44,000/- 4. Loss of Parental Consortium (44000 x 2) Rs.88,000/- 5. Loss of Estate Rs.16,500/- 6. Funeral Expenses Rs.16,500/- Total Rs.36,55,000/- 15. In the result, (i) The Civil Miscellaneous Appeal filed by the third respondent/insurance company in CMA.No.1752 of 2022 is dismissed and accordingly, the Award dated January 6, 2022 made in M.C.O.P.No.1945 of 2016 on the file of the Motor Accidents Claims Tribunal, III Additional District Judge, Coimbatore is confirmed. (ii) The Civil Miscellaneous Appeal filed by the third respondent/insurance company in CMA.No.1754 of 2022 is partly allowed and the compensation awarded by the Tribunal viz., Rs.40,33,000/- is hereby reduced to Rs.36,55,000/-. The third respondent/Insurance Company is directed to deposit the reduced compensation amount along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, less the amount if any already deposited, to the credit of M.C.O.P.No.1946 of 2016 on the file of Motor Accidents Claims Tribunal, III Additional District Judge, Coimbatore, within a period of eight (8) weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the petitioners are entitled to withdraw the same by filing proper application. Apportionment shall be propotionate to that made by the Tribunal. The share amount of the Minor petitioners 4 & 5 shall be invested in any one of the Nationalised Banks, until they attain majority and the third petitioner being their mother and natural guardian is permitted to withdraw the interest accrued thereon once in three months for the maintenance and welfare of the minors. (iii) Cross Objection No.62 of 2024 filed by the petitioners in M.C.O.P.No.1946 of 2016 is also dismissed. (iv) In view of the facts and circumstances of this case, there shall be no order as to costs. (v) Consequently, connected miscellaneous petitions are closed.