Madras High Court
The Oriental Insurance Co. Ltd vs L.Ariamala on 7 January, 2019
Author: V.M.Velumani
Bench: V.M.Velumani
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.01.2019
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.Nos.2957 of 2018 and 1240 of 2017
and C.M.P.No.22408 of 2018
The Oriental Insurance Co. Ltd.,
Motor Third Party Cell,
No.8, Esplanade UIL Building,
Chennai 108. .. Appellant in C.M.A.No.2957 of 2018
1.L.Ariamala
2.S.Loganathan
(died vide memo dated 07.01.2019
recorded in para-7 of this judgment)
3.L.Gokula Lakshmi .. Appellants in C.M.A.No.1240 of 2017
Vs.
1.L.Ariamala
2.S.Loganathan
(died vide memo dated 07.01.2019
recorded in para-7 of this judgment)
3.L.Gokula Lakshmi
4.S.Gopalakrishnan .. Respondents in C.M.A.No.2957 of 2018
http://www.judis.nic.in
2
1.S.Gopalakrishnan
2.The Oriental Insurance Co. Ltd.,
Motor Third Party Cell,
No.8, Esplanade UIL Building,
Chennai 108. .. Respondents in C.M.A.No.1240 of 2017
(first respondent remained exparte
before the Tribunal)
PRAYER in both C.M.As: Civil Miscellaneous Appeals are filed under
Section 173 of Motor Vehicles Act, against the judgment and decree
dated 26.02.2015 made in M.A.C.T.O.P.No.4614 of 2006 on the file
of the Motor Accidents Claims Tribunal, Chief Judge, Court of Small
Causes at Chennai.
In C.M.A.No.2957 of 2018
For Appellant : Mr.M.Krishnamoorthy
For R1 to R3 : Mr.R.Kalaiarasan
for Mr.N.M.Muthurajan
In C.M.A.No.1240 of 2017
For Appellants : Mr.N.M.Muthurajan
For R2 : Mr.M.Krishnamoorthy
COMMON JUDGMENT
C.M.A.No.2957 of 2018 is filed by the Insurance Company against the award dated 26.02.2015 made in M.A.C.T.O.P.No.4614 http://www.judis.nic.in 3 of 2006 on the file of the Motor Accidents Claims Tribunal, Chief Judge, Court of Small Causes at Chennai.
C.M.A.No.1240 of 2017 is filed by the claimants seeking enhancement of compensation granted by the Tribunal in the award dated 26.02.2015 made in M.A.C.T.O.P.No.4614 of 2006 on the file of the Motor Accidents Claims Tribunal, Chief Judge, Court of Small Causes at Chennai.
2.Both the appeals arise out of the same accident and same award and hence, they are disposed of by this common judgment.
3.Parties in these appeals are referred to by their respective ranks in the claim petition for the sake of convenience.
4.The claimants have filed the above claim petition claiming a sum of Rs.10,00,000/- as compensation for the death of one Sundaramurthy, who died in the accident that took place on 23.11.2006.
5.The Tribunal considering the pleadings, oral and documentary evidence held that the accident occurred only due to http://www.judis.nic.in 4 rash and negligent driving by the driver-cum-owner of the car/first respondent and directed both first respondent as well as the second respondent/Insurance Company being the insurer of the first respondent's vehicle to pay a sum of Rs.7,28,000/- as compensation to the claimants 1 and 2 alone.
6.Against the said award dated 26.02.2015 made in M.A.C.T.O.P.No.4614 of 2006, the second respondent/Insurance Company has come out with C.M.A.No.2957 of 2018 challenging the liability fastened on them. Not being satisfied with the award amount granted by the Tribunal, the claimants have come out with C.M.A.No.1240 of 2017 seeking enhancement of compensation.
7.The learned counsel appearing for the claimants submitted that the second claimant/father of the deceased died and the claimants 1 and 3 are the only legal heirs of the deceased Sundaramurthy and he has filed memo to that effect and the same is recorded.
8.The learned counsel appearing for the second respondent/Insurance Company contended that the deceased http://www.judis.nic.in 5 sustained only simple injuries and he died only due to pre-existing liver disease. The Tribunal has erroneously held that the deceased died due to the injuries sustained by him in the accident. In the post-mortem report, it has been stated that the deceased would have been died due to liver disease. The Tribunal on assumption held that pre-existing liver disease could have aggravated due to shock and injuries sustained by him in the accident. The Tribunal ought to have seen that it is for the claimants to prove that the deceased died due to the injuries sustained by him in the accident and erred in shifting burden on the second respondent/Insurance company to prove that the deceased died only due to pre-existing liver disease. The finding of the Tribunal that the deceased died due to the injuries sustained by him in the accident is not supported by any evidence and prayed for setting aside the award of the Tribunal. The learned counsel further contended that in any event, the amount awarded by the Tribunal is not meagre and prayed for dismissal of C.M.A.No.1240 of 2017 filed by the claimants.
9.Per Contra, the learned counsel appearing for the claimants contended that the claimants have let in evidence to show that the deceased died only due to the injuries sustained by him in the http://www.judis.nic.in 6 accident. The post-mortem report did not show that the deceased died only due to pre-existing liver disease. The deceased was second year ITI student. After completing the course, he would have got a job as welder and earned a sum of Rs.10,000/- per month. The Tribunal has erred in fixing meagre amount of Rs.6,000/- per month as notional income of the deceased and the deceased was 22 years at the time of accident. The Tribunal did not award any amount towards future prospects. The amounts awarded by the Tribunal under different heads are very meagre and prayed for enhancement of compensation.
10.Heard the learned counsel appearing for the claimants as well as the learned counsel appearing for the Insurance Company and perused the materials available on record.
11.The contention of the learned counsel appearing for the second respondent/Insurance company is that the deceased suffered only simple injury in the accident and did not die due to such injuries. He died only due to pre-existing liver disease and it has been stated so in the post-mortem report. The second respondent/Insurance Company has not substantiated their case http://www.judis.nic.in 7 that the deceased sustained only simple injury. On the other hand, the claimants have produced the post-mortem report. The Tribunal considering the post-mortem report, has concluded that pre-existing liver disease could have been aggravated due to shock of the accident. There is no error in the said reasoning of the Tribunal. In the absence of any evidence with regard to nature of injuries sustained by the deceased, the Tribunal has rightly held that the second respondent/Insurance Company failed to examine any Doctor to substantiate their contention. The second respondent having taken a specific stand in the additional counter affidavit that the deceased died only due to pre-existing liver disease, the burden is on the second respondent to prove the same and the second respondent has failed to discharge the said burden. It is pertinent to note that the accident took place on 23.11.2006 and the deceased died on 30.11.2006 within seven days of the accident. Hence, the finding of the Tribunal that the deceased died due to the injuries sustained in the accident is valid and proper. There is no error in the said findings of the Tribunal warranting interference by this Court.
12.As far as quantum of compensation is concerned, the deceased was a second year ITI student and was not earning any http://www.judis.nic.in 8 income. The Tribunal considering the nature of course studied by the deceased, fixed notional income of the deceased at Rs.6,000/- per month as the accident occurred in the year 2006. The deceased was 22 years at the time of accident. The Tribunal has not awarded any amount towards future prospects. As per the judgement of the Hon'ble Apex Court reported in 2017(2)TNMAC 609 (SC) (National Insurance Company v. Pranay Sethi), the claimants are entitled to 40% enhancement towards future prospects. Thus, the compensation awarded by the Tribunal towards pecuniary loss is modified as follows:
Rs.6,000/- + 2400 (40% of Rs.6,000) X 12 X 18 X 1/2 = Rs.9,07,200/-
The amounts awarded by the Tribunal under other heads are confirmed. Thus, the compensation awarded by the Tribunal is modified as follows:
http://www.judis.nic.in 9 S.No Description Amount Amount Award awarded by awarded by confirmed or Tribunal this Court enhanced or (Rs) (Rs) granted
1. Pecuniary loss 6,48,000 9,07,200 Enhanced
2. Loss of love 50,000 50,000 Confirmed and affection
3. Funeral 25,000 25,000 Confirmed expenses
4. Transportation 5,000 5,000 Confirmed Total 7,28,000 9,87,200 Enhanced by Rs.2,59,200/-
13.In the result, C.M.A.No.2957 of 2018 filed by the second respondent/Insurance Company is dismissed and C.M.A.No.1240 of 2017 filed by the claimants is partly allowed and the compensation awarded by the Tribunal at Rs.7,28,000/- is enhanced to a sum of Rs.9,87,200/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. Both the second respondent/Insurance Company and the first respondent are directed to deposit the enhanced 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. On such deposit, the first http://www.judis.nic.in 10 claimant being the mother of the deceased alone is permitted to withdraw the entire award amount along with interest and costs, as the second claimant died, after adjusting the amount, if any, already withdrawn. No costs. Consequently, connected Miscellaneous Petition is closed.
07.01.2019
Index : Yes/No
kj/rst
To
The Motor Accident Claims Tribunal,
Chief Judge, Court of Small Causes,
Chennai.
http://www.judis.nic.in
11
V.M.VELUMANI, J.
kj/rst
C.M.A.Nos.2957 of 2018 and 1240 of 2017
and C.M.P.No.22408 of 2018
07.01.2019
http://www.judis.nic.in