Madras High Court
Shriram General Insurance Company Ltd vs Elumalai on 22 April, 2014
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 22.04.2014 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.No.1341 of 2014 and M.P.No.1 of 2014 Shriram General Insurance Company Ltd., City Centre Complex, 2nd Floor, No.66, Thirumalai Pillai Road, T.Nagar,Chennai 17 ... Appellant Vs. 1.Elumalai 2.Latha 3.P.R.Mathiarasu ... Respondents The Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act against the award & Decree dated 25.06.2013 made in M.C.O.P.No.231 of 2012 on the file of the Motor Accidents Claims Tribunal (District Judge), Ranipet. For Appellant : Mr.B.Murugavel JUDGMENT
In the accident which occurred on 08.09.2011, a three year child died. Driver of the Mahendra Van bearing Regn.No.TN27 K 7841, insured with Shriram General Insurance Company Limited, Chennai, has been charge sheeted by Arcot Town Police in Cr.No.818 of 2011 under Sections 279 and 304-A IPC.
2. The claims tribunal, upon perusal of Ex.R1 dated 29.10.2009 driving licence of Selvam, driver of the van and Ex.R2, Registration certificate of the vehicle, found that the vehicle was intended to be used for commercial purpose, and that the driver did not posses the required licence and a badge to drive the commercial vehicle. From the testimony of RW1, Clerk of the RTO, the claims tribunal found that the driver did not obtain a necessary badge endorsement to drive a goods transport vehicle. Thus, by holding that owner of the van bearing Regn.No.TN 27 K 7841, insured with the appellant-Insurance Company, has violated the policy conditions and after considering the decisions of this Court in Susai Raj @ Anthuvan Susai Vs. Guruprasad and others [2013 (1) TNMAC 276], National Insurance Company Limited Vs. Geetha and Others [2012 (2) TNMAC 532 (Del.), Branch Manager, Oriental Insurance Company Limited Vs. V.Mansoor Husain an Another [2013(1) TN MAC 216], S.Raju alia Raji Vs. S.Thanavantha Perumal and others [2013(1) TNMAC 185], directed the appellant herein, to pay compensation of Rs.2,50,000/- with interest, at the rate of 7.5% per annum to the parents, who have lost their child.
3. Questioning the direction of the claims tribunal, directing the insurance company to pay compensation of Rs.2,50,000/- to the parents, who have lost their child, appeal has been filed. Quantum of compensation of Rs.2,50,000/- is also challenged contending that it is excessive.
4. Heard Mr.B.Murugavel, learned counsel for the appellant insurance company and perused the materials available on record.
5. Quantum of compensation of Rs.2,50,000/- awarded to the parents who have lost their child aged about 3 years is a pittance. Way back in 2009, in R.K.Malik v. Kiran Pal reported in 2009 (1) TNMAC 593 (SC), the Supreme Court has standardised the payment of compensation for the death of the children, upto the age of 18 years, by applying different multipliers, further awarded, non-pecuniary loss of Rs.75,000/- and compensation of Rs.75,000/- for future prospects, which remained same, irrespective of the age group. In the reported case, the accident occurred on 18.11.1997, when a School bus, carrying children, while breaking the railing, got drowned in Yamuna river at Wazirabad Yamuna Bridge, killing 29 children. Though all the legal representatives of the deceased filed separate claims, the Tribunal, by its common award, dated 06.12.2004, awarded a sum of Rs.1,55,000/- to the dependents of children, between the age group of 10 to 15 years and Rs.1,65,000/- between 15 to 18 years. Three of the children, viz., Kailash Rathi, Neena Jain and Jatish Sharma were less than 10 years. In the case of Kailash Rathi, compensation of Rs.1,05,000/- was awarded and in the cases of Neena Jain and Jatish Sharma, compensation of Rs.1,30,000/- and Rs.1,31,000/- respectively, was awarded. In addition to the above, Rs.1,000/- was awarded in the case of Jatish Sharma, as in some other cases, for loss of books. The Tribunal has awarded Rs.5,000/- each, towards funeral and last rites. While computing the dependency compensation, Rs.5,000/- was deducted towards the personal living expenses, after applying '15' multiplier for children below 15 years and '16' multiplier for children between 16 and 18 years respectively.
6. In Jitender Kumar v. Oriental Insurance Co., Ltd., reported in 2010 (1) TNMAC 688 (Del.), a child, aged about 3 years, was killed in the accident. The Tribunal fixed the notional income at Rs.15,000/- per annum and deducted 1/3rd for his personal and living expenses and applied multiplier of '15' to compute the loss of dependency at Rs.1,50,000/. Rs.2,500/- has been awarded towards loss of Estate and Rs.2,500/- has been awarded towards Funeral Expenses. Altogether, the Tribunal awarded Rs.1,54,500/-. The reported judgment further shows that while enhancement was sought for, reliance has been placed on a decision of the Delhi High Court in National Insurance Co. Ltd., v. Farzana [M.A.C.App.No.13 of 2007, dated 14.07.2009], in which, the High Court determined the compensation at Rs.3,75,000/- for the death of a child aged 7 years, following the decisions of the Supreme Court and Delhi High Court in Manju Devi v. Sukhvir Singh [2004 (2) TNMAC 262 (SC) : 2005 (7) SLT 257], Sobhagya Devi v. Sukhvir Singh [2006 (2) ACC 1997], Syam Narayan v. Kitty Tours and Travels [2006 ACJ 320], R.K.Malik v. Kiran Pal [2006 (2) TNMAC 553 (Del.) : 2006 (3) ACC 261 and R.K.Malik v. Kiran Pal [2009 (1) TNMAC 593 (SC)]. Finding that Jitender's case as squarely applicable, the same Court in Farzana's case, allowed the appeal and enhanced the compensation to Rs.3,75,000/- from Rs.1,54,500/- already awarded by the Tribunal, restricting the rate of interest to 7.5% per annum on the enhanced amount.
7. The Apex Court, in R.K.Malik's case for the death of children on 18.11.1997, has held that in cases relating to death of minors, upto the age of 18 years, the parents who have lost their children are entitled to a just and reasonable compensation including the head future prospects of a child and estimated the same, taking into consideration the date of accident and in paragraph Nos.7 to10 of the said judgment, has observed as follows:
7. Feeling aggrieved, the appellants have preferred the present special leave petition contending that the High Court ought to have applied the ratio of Lata Wadhwa v. State of Bihar to the facts of the case and also that it failed to award a fair and reasonable compensation. It was submitted that the High Court ought to have awarded compensation of Rs 10,00,000. It was the further contention that the High Court erred in applying notional income of deceased child as Rs 15,000 per annum only. It was further contended that the Tribunal ought to have enhanced the income considering the rise in cost of living as well as inflation.
8. Undoubtedly, the compensation in law is paid to restore the person, who has suffered damage or loss in the same position, if the tortious act or the breach of contract had not been committed. The law requires that the party suffering should be put in the same position, if the contract had been performed or the wrong had not been committed. The law in all such matters requires payment of adequate, reasonable and just monetary compensation.
9. In cases of motor accidents the endeavour is to put the dependants/claimants in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely.
10. To put it simplypecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non-pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life, etc. The Act provides for payment of just compensation vide Sections 166 and 168. It is left to the courts to decide what would be just compensation in the facts of a case.
8. The insurance company feigning ignorance of the judgment of the Apex Court, repeatedly, blame the Claims tribunals and by unconscionable objections has objected that the quantum of compensation awarded to the parents, who have lost the minor child, as grossly excessive and seeks for reduction. The decision in R.K.Malik's case by the Apex Court is rendered in the year 2009.
9. In view of the above, the compensation awarded by the tribunal in the present case cannot be termed as just compensation. In the instant case, the claim is for Rs.6,00,000/-. Considering the decision in R.K.Malik's case and considering the inadequacy of the compensation of Rs.2,50,000/- awarded to the respondents/parents, who have lost their minor child, this Court in exercise of the powers under Order 41, Rule 33 CPC, proposes to enhance the compensation suo motu and the compensation is enhanced to Rs.4,00,000/-, with interest, at the rate of 7.5% per annum from the date of claim till the date of realisation.
10. Further, despite repeated pronouncements of the Hon'ble Apex Court that for non possession of a valid and effective driving licence by the driver of the offending vehicle, the insurance company, has to pay compensation to the 3rd party victims and thereafter, to seek for indemnification by the insured, by way of recovery of the compensation amount paid to the injured, repeatedly, appeals are being filed by the Insurance companies, questioning the verdict of the claims tribunal contending inter alia that they, have exceeded in their jurisdiction, in passing an order of pay and recover. Though there are several decisions, reference can be made to few Hon'ble Division Bench judgments in United India Insurance Company Ltd., v. S.Saravanan reported in 2009 (2) TNMAC 103 (DB), United India Insurance Company Limited, Salem, Vs. V.Vijayakumar, represented by his mother Kalamani and three others, reported in 2010 (2) TN MAC 388 (DB) and Bajaj Alliance General Insurance Company Ltd., Pune, Vs. Manimozhi and four others, reported in 2010 (2) TN MAC 542 (DB). This issue has also been considered in length by this Court in ICICI Lombard General Insurance Company Vs. Annakkili, reported in 2012 (1) TN MAC 226. Even in the latest decision of the Hon'ble Supreme Court in S.Iyyappan Vs. M/s. United India Insurance Company ltd., and another, reported in (2013) 7 SCC 62, the said challenge has been rejected, and an order of pay and recover has been passed, with liberty to the insurance company therein to recover the compensation amount from the insured.
11. The attitude of the appellant Insurance company, in questioning the decision of claims tribunals, in directing them to pay the compensation amount, to the third party victims, and thereafter, to recover from the insurer in the case of no badge or in other words, a valid and effective driving licence to drive that kind of vehicle is deprecated and amounts to questioning the very verdict of the Apex Court. Though, repeatedly the Apex Court, as well as the Hon'ble Division Bench, have reiterated the legal position, the insurance companies and their battery of lawyers, raise the same issue before this Court, as if the judgments do not bind upon them. Under Article 141 of the Constitution of India, the law declared by the Supreme Court shall bind on all Courts, within the territory of India. Parties to the lis, on similar set of facts are bound by the judgment, on the principles of law or ratio decidendi. When the Constitution of India mandates the tribunals and Courts to follow the judgments, on the principles of law decided, it is the practice of the insurance companies, to question the decisions of the claims tribunal, which adhere the Constitution mandate. The recalcitrant attitude of the insurance companies in filing appeals, on the very same issue of driving licence, in the humble opinion of this Court is nothing short of a contumacious act. Hence, cost of Rs.25,000/- is imposed on the appellant -Shriram General Insurance Company Limited, Chennai. The Civil Miscellaneous Appeal is dismissed with a suo motu enhancement and costs. Consequently, the connected Miscellaneous Petition is closed.
12. Consequent to the dismissal of the appeal with costs, the insurance company is directed to deposit the enhanced compensation of Rs.4,00,000/-
S.MANIKUMAR, J., ars with proportionate accrued interest at the rate of 7.5% per annum from the date of claim till the date of realisation and costs, along with the cost of Rs.25,000/- now imposed, less the statutory deposit, to the credit of M.C.O.P.No.231 of 2012 on the file of the Motor Accidents Claims Tribunal (District Judge), Ranipet, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the respondents/claimants are permitted to withdraw their share in the award amount, with proportionate accrued interest and costs, as apportioned by the tribunal, by making necessary applications.
22.04.2014 Index: Yes/No Internet: Yes/No ars To
1. The Motor Accident Claims Tribunal, District Judge, Ranipet.
2. The Section Officer, VR Section, High Court, Madras.
C.M.A.No.1341 of 2014