Madras High Court
Reliance General Insurance Company Ltd vs F.Pelsi on 12 September, 2011
C.M.A(MD)No.281 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 01.09.2021
Delivered on : 21.10.2021
CORAM:
THE HONOURABLE MRS.JUSTICE R.THARANI
C.M.A(MD) No.281 of 2014
Reliance General Insurance Company Ltd.,
No.570, Nagikam Cross Road,
Royal Industrial Estate,
Wadala(West), Mumbai, 400 031. ... Appellant
Vs.
1.F.Pelsi
2.Managing Partner
M/s.Akin Roadways,
Molakadavu,
Pandakkal, Mahe,
Pondicherry State. ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehilces Act, 1988, against the fair and decreetal order, dated 12.09.2011, made
in M.C.O.P.No.115 of 2011, on the file of the Motor Accident Claims Tribunal
- Additional District Judge / Fast Track Court No.II, Tirunelveli.
For Appellant : Mr.S.Srinivasa Raghavan
For R1 : Mr.T.Selvakumaran
For R2 : No appearance
***
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https://www.mhc.tn.gov.in/judis/
C.M.A(MD)No.281 of 2014
JUDGMENT
This Civil Miscellaneous Appeal is filed against the award, dated 12.09.2011, made in M.C.O.P.No.115 of 2011, on the file of the Motor Accident Claims Tribunal -Additional District Judge /Fast Track Court No.II, Tirunelveli.
2.The appellant herein is the second respondent, the first respondent herein is the claimant and the second respondent herein is the first respondent in the original claim petition.
3.Brief substance of the petition in M.C.O.P.No.115 of 2011 is as follows:-
On 11.11.2010, at about 1.00 p.m., a person, by name, Leema rose was travelling as a pillion rider in an unregistered Bajaj motorcycle driven by one David, at that time, a lorry bearing Registration No.BY-03-4155 was driven by its driver in a rash and negligent manner, dashed against the two wheeler, Leema rose was injured and she died on the way to the hospital. The age of the deceased was 27 years and she has completed +2 and DTP computer course and she worked as DTP operator and was earning Rs.4,500/- per month. The petitioner is the dependent of the deceased and she claimed a sum of Rs.10,00,000/- as compensation.2/10
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4.Brief substance of the counter filed by the second respondent, in M.C.O.P.No.115 of 2011, is as follows:-
Age, avocation and income are all denied. The petitioner has to prove that the vehicle involved in the accident was insured with the second respondent. The petitioner has to prove that the first respondent driver was having valid driving licence. The first respondent failed to inform the particulars of the accident to the second respondent. The manner of accident has to be proved. The rider of the two wheeler was rash and negligent and he is responsible for the accident. The driver of the first respondent's vehicle was not responsible for the accident and the second respondent is not liable to pay compensation.
5.On the side of the petitioner, one witness was examined and fifteen documents were marked. On the side of the respondents, no witness was examined and no document was marked.
6.The Tribunal, after considering both sides, awarded a sum of Rs.4,20,000/- as compensation. Against the same, the second respondent / appellant has preferred this Appeal.
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7.On the side of the appellant, it is stated that the deceased was living in an Orphanage as she was deserted by her parents even from the childhood. The claimant is the sister of the deceased, she is residing independently away from the deceased. The parents of the deceased died 20 years ago. The claimant also deserted the deceased. The claimant is not entitled for compensation. The Tribunal passed the award without analysing the dependency factor. The award is excessive. The rate of interest fixed by the Tribunal is also excessive.
8.On the side of the appellant, it is stated that the sister of the deceased may be a legal representative, but, she is not a dependent. The claimant did not live with the deceased and the deceased was left in an Orphanage by the claimant and by the parents of the deceased. The deceased did not contribute her income to the claimant and prayed the award to be set aside.
9.On the side of the first respondent / claimant, it is stated that the deceased was having some physical ailment and she was not fit for marriage and she was staying in the monastery and she spent all her money to the claimant and she treated the claimant's daughter as her own daughter. 4/10 https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.281 of 2014
10.On the side of the first respondent / claimant, it is stated that the Hon'ble Supreme Court has considered a sister as a legal heir. A judgment of the Hon'ble Supreme Court reported in 2011-ACJ-737 [P.S.Somanathan V. District Insurance Officer] is cited, wherein, it is stated as follows:-
“23. The High Court unfortunately took a very technical view in the matter of applying the multiplier. The High Court cannot keep out of its consideration the claim of the daughter of the first claimant, since the daughter was impleaded, and was 49 years of age. Admittedly, the deceased was looking after the entire family. In determining the age of the mother, the High Court should have accepted the age of the mother at 65, as given in the claim petition, since there is no controversy on that.
By accepting the age of mother at 67, the High Court further reduced the multiplier from 6 to 5, even if we accept the reasoning of the High Court to be correct. The reasoning of the High Court is not correct in view of the ratio in Sarla Verma (supra). Following the same the High Court should have proceeded to compute the compensation on the age of the deceased.”
11.On the side of the first respondent/claimant another judgment of this Court reported in 2016-1-TNMAC-453 (DB) [Branch Manager, ICICI Lombard General Insurance Company V. Kaliyamoorthy] is cited, wherein it 5/10 https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.281 of 2014 is stated as follows:-
“22.As the statue is very clear that all the legal representatives can maintain a claim under Section 166 of the Motor Vehicles Act, 1988, depending upon the loss of monetary benefit or the gratuitous and invaluable services, measured in terms of money, that the legal representative, might have received and the likelihood of loss in the event of death, brother or sister can maintain a claim, the words “legal representatives', cannot be narrowed down to mean only, dependants.”
12.On the side of the first respondent / claimant a judgment of this Court reported in 2021-2-TNMAC-169 (DB) [Saroja V. Parvathy] is cited, wherein, it is stated as follows:-
“44. So far as quantum of compensation awarded by the Tribunal is concerned, it appears to be correct. We find deceased was working as a Teacher in a Government School. Based on Ex.P11 salary certificate, the Tribunal fixed Rs. 31,940/- as monthly income. Thereafter, by deducting 1/3rd Tribunal has fixed Rs.21,300/- as the monthly loss of contribution and by adding 50% towards future prospects and applying multiplier 15 based on the age of the deceased, who was 36 years old, awarded Rs. 57,87,500/- as total compensation. This includes a sum of Rs.15,000/- towards loss of estate, Rs.15,000/- towards Funeral expenses, Rs.6,500/- towards transportation and Rs.80000/-6/10
https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.281 of 2014 towards filial compensation for the appellant and apportioned the amount among the appellant and respondents 1 and 2. We do not find any infirmity or irregularity in awarding such compensation. Therefore, the appeal filed by the appellant has to be dismissed by confirming the award passed by the Tribunal.”
13.It is seen that First Information Report was registered against the lorry driver and there is no serious dispute regarding liability. The contention of the appellant is that the claimant is not the dependent of the deceased. The claimant is the only sister of the deceased. From Ex.P10/ Death Certificate of Dharmaraj, Ex.P11, Death Certificate of Jeyaviyakulamary, it is decided that the parents of the deceased died prior to the death of the deceased. There is no other legal heir for the deceased except the claimant. On the side of the first respondent / claimant, it is stated that the deceased was not fit for marriage and for that reason, she continued to reside in the Orphanage. From the judgment cited on the side of the first respondent / claimant, it is clear that a sister can also be a dependent. There is no evidence on the side of the appellant to prove that the claimant deserted the deceased.
14.In the above circumstances, it is decided that the claimant is entitled for compensation. There is no serious dispute regarding the quantum etc., It is 7/10 https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.281 of 2014 seen that the Tribunal has fixed the interest as 8%, which is excessive. The rate of interest is reduced to 7.5% p.a. With the above modification, this Civil Miscellaneous Appeal is partly allowed and the award, dated 12.09.2011, made in M.C.O.P.No.115 of 2011, on the file of the Motor Accident Claims Tribunal -Additional District Judge /Fast Track Court No.II, Tirunelveli is confirmed. The rate of interest alone is reduced from 8% p.a., to 7.5% p.a.
15.The appellant / Insurance Company is directed to deposit the entire compensation of Rs.4,20,000/- along with interest at the rate of 7.5% p.a from the date of petition till the date of deposit and with cost within a period of eight weeks from the date of receipt of a copy of this judgment, if not already deposited. On such deposit being made, the first respondent / claimant is permitted to withdraw the entire amount, after deducting the amount, if any, already received by her. The Claimant is not entitled for interest for the default period, if there is any default. No costs.
21.10.2021 Index : Yes/No Internet : Yes/No Ls 8/10 https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.281 of 2014 To
1.The Motor Accident Claims Tribunal -
Additional District Judge / Fast Track Court No.II, Tirunelveli.
2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
9/10 https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.281 of 2014 R.THARANI.,J.
Ls Pre-delivery Judgment made in C.M.A(MD)No.281 of 2014 21.10.2021 10/10 https://www.mhc.tn.gov.in/judis/