Madras High Court
S.Ravamma vs S.Jayaraman on 8 August, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.262 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
AND
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.262 of 2021
and C.M.P.No.1764 of 2021
1.S.Ravamma
2.S.Chandrasekar
3.S.Manjula .. Appellants
Vs.
1.S.Jayaraman
2.The New India Assurance Co. Ltd.
Motor Third Party Claims Cell
No.45, Moore street
Chennai-600 001.
(Now operating from at No.232,
NSC Bose Road, 6th floor
Chennai-600 001.) .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
26.02.2020 made in M.C.O.P.No.7198 of 2015 on the file of Motor
Accident Claims Tribunal, Chief Small Causes Court, Chennai.
For Appellants : Mr.G.Balaji Prasad
https://www.mhc.tn.gov.in/judis
1/17
C.M.A.No.262 of 2021
For R2 : Mr.M.Krishnamoorthy
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI,J.) The Civil Miscellaneous Appeal is filed challenging the dismissal order passed by the Tribunal in the award dated 26.02.2020 made in M.C.O.P.No.7198 of 2015 on the file of Motor Accident Claims Tribunal, Chief Small Causes Court, Chennai.
2.The appellants are claimants in M.C.O.P.No.7198 of 2015 on the file of Motor Accident Claims Tribunal, Chief Small Causes Court, Chennai. They filed the said claim petition claiming a sum of Rs.25,00,000/- as compensation for the death of one S.Jayaramaiah, who died in the accident that took place on 13.03.2015.
3.According to the appellants, on the date of accident i.e., on 13.03.2015, at about 5.15 a.m., while the deceased S.Jayaramaiah, husband of the 1st appellant and father of the appellants 2 & 3, was walking on Nagari to Puttur Main Road, Opposite to Old APSRTC Bus Stand, Nagari Mandal, Chittoor District, Andhra Pradesh, the driver of the TATA Sumo bearing Registration No.TN-02-W-0005 belonging to the https://www.mhc.tn.gov.in/judis 2/17 C.M.A.No.262 of 2021 1st respondent, insured with the 2nd respondent, drove the same in a rash and negligent manner, dashed against the motorcycle bearing Registration No.AP-03-Y-1259 and also dashed against the said Jayaramaiah and caused the accident. Due to the said impact, the said Jayaramaiah was thrown out and sustained multiple injuries. He was given treatment in various hospitals and in spite of treatment, he died on 03.05.2015. According to the appellants, the accident has occurred due to rash and negligent driving by the driver of TATA Sumo belonging to the 1st respondent, insured with the 2nd respondent and therefore, they filed the claim petition claiming compensation against the respondents.
4.The 1st respondent, owner of the TATA Sumo remained exparte before the Tribunal.
5.According to the 2nd respondent/Insurance Company, the accident did not occur as alleged by the appellants. The driver of the TATA Sumo did not possess driving license at the time of accident. One motorcycle is also involved in the accident as alleged by the appellants. The owner and insurer of the said motorcycle are not made as parties and hence, the claim petition is bad for non-joinder of necessary parties. https://www.mhc.tn.gov.in/judis 3/17 C.M.A.No.262 of 2021 Therefore, the 2nd respondent is not liable to pay any compensation to the appellants. In any event, the compensation claimed by the appellants is excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st appellant, wife of the deceased examined herself as P.W.1, one C.Venkatesh, eye-witness to the accident was examined as P.W.2, one Murali Krishna, Junior Assistant, Southern Power Distribution Company, Tirupathi, was examined as P.W.3 and 31 documents were marked as Exs.P1 to P31. The 2nd respondent/Insurance Company did not let in any oral evidence and marked the copy of Pension Certificate through P.W.3 during cross-examination, as Ex.R1.
7.The Tribunal considering the pleadings, oral and documentary evidence and other materials on record, dismissed the claim petition holding that the appellants have failed to establish their case by filing documents and the manner of accident as alleged by them was not proved.
8.Challenging the dismissal order passed by the Tribunal in the award dated 26.02.2020 made in M.C.O.P.No.7198 of 2015, the appellants have come out with the present appeal.
https://www.mhc.tn.gov.in/judis 4/17 C.M.A.No.262 of 2021
9.The learned counsel appearing for the appellants contended that the Tribunal erroneously rejected the evidence of P.W.2/eye-witness, relying on F.I.R. on the ground that the appellants did not file charge sheet, final report, accident register copy, rough sketch, Motor Vehicle Inspector's Report and driving license of the driver of TATA Sumo. The Tribunal failed to consider the averments made in the counter statement filed by the 2nd respondent/Insurance Company. The 2nd respondent did not deny the accident. On the other hand, the 2nd respondent has stated in the counter statement that driver of TATA Sumo did not possess driving license at the time of accident and the driver was acquitted in the criminal case. The reason given by the Tribunal for dismissing the claim petition is not valid. The Investigating Officer after investigation, filed charge sheet against the driver of TATA Sumo and the driver was acquitted in the criminal case. In view of the charge sheet and criminal proceedings, the Tribunal ought not to have rejected the claim of the appellants on the ground that they did not file charge sheet, final report, accident register copy, rough sketch, Motor Vehicle Inspector's Report and driving license of the driver of TATA Sumo.
https://www.mhc.tn.gov.in/judis 5/17 C.M.A.No.262 of 2021 9(i). The learned counsel for the appellants further contended that in the very same accident, two persons died and the legal heirs of the deceased Y.Chiranjeevi, Police Constable, filed claim petition in M.V.O.P.No.169 of 2016 on the file of the Motor Accident Claims Tribunal, IX Additional District Court, Chittoor. In the said claim petition, the Tribunal, by the order dated 03.07.2017 fixed negligence on the part of the driver of TATA Sumo and directed the driver, owner and insurer of the said TATA Sumo, the respondents therein, to pay compensation. The 2nd respondent did not file any appeal against the said award.
9(ii). In respect of quantum of compensation, the learned counsel appearing for the appellants contended that the accident has occurred on 13.03.2015. The deceased Jayaramaiah has taken treatment as in-patient in various private hospitals and Government Hospital for nearly two months. In spite of treatment, he died on 03.05.2015 and during the course of treatment, the appellants have spent nearly Rs.3,18,000/- towards medical expenses. At the time of accident, the deceased was aged 65 years, he was a retired employee of Electricity Board, he was getting pension to the tune of Rs.40,000/- and also getting Rs.10,000/- by https://www.mhc.tn.gov.in/judis 6/17 C.M.A.No.262 of 2021 doing real estate business. To substantiate their claim, the appellants have examined one Murali Krishna as P.W.3. The Tribunal erroneously dismissed the claim petition without computing the amounts under various heads. The appellants are entitled to claim compensation and prayed for allowing the appeal and awarding compensation. In support of his contentions, the learned counsel appearing for the appellants relied on the judgment of the Hon'ble Apex Court reported in 2015 (1) TNMAC 785 (SC) (Shashikala and others vs. Gangalakshmamma and another);
10.Per contra, the learned counsel appearing for the 2nd respondent/Insurance Company contended that according to the appellants, the driver of TATA sumo dashed against the motorcycle and then the rider of the motorcycle hit the deceased Jayaramaiah, who was walking on Nagari to Puttur Main Road. In the claim petition filed by the legal heirs of deceased Y.Chiranjeevi, Police Constable, rider of the motorcycle, before the Motor Accident Claims Tribunal, IX Additional District Court, Chittoor, it was stated that as per F.I.R. and charge sheet, the driver of TATA Sumo dashed against on going motorcycle and the rider of the motorcycle dashed against the pedestrian, who is the https://www.mhc.tn.gov.in/judis 7/17 C.M.A.No.262 of 2021 deceased Jayaramaiah in this case. The rider of the motorcycle died in that case. The impact is not with the TATA Sumo, but with the motorcycle and therefore, owner and insurer of the said motorcycle are necessary parties to this proceedings. On this ground, the Tribunal has rightly rejected the claim petition.
10(i). Learned counsel appearing for the 2nd respondent further contended that F.I.R. was registered based on the complaint given by one K.S.Gajendra, Police Constable. In the F.I.R., it has been specifically stated that the accident was hit and run case. Therefore, P.W.2/eye- witness is not the complainant and his evidence cannot be relied on. Considering all the above materials, the Tribunal did not accept the claim of the appellants and rightly dismissed the claim petition.
10(ii).In respect of quantum of compensation, the learned counsel appearing for the 2nd respondent contended that at the time of accident, the deceased was getting pension. After his death, his wife is getting family pension and there is no loss of income. The appellants have not made out any case for compensation and prayed for dismissal of the appeal.
https://www.mhc.tn.gov.in/judis 8/17 C.M.A.No.262 of 2021
11.Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the 2nd respondent/Insurance Company and perused the entire materials on record.
12.From the materials on record, it is seen that the case of the appellants was not accepted by the Tribunal on the ground that in the F.I.R., it has been stated that the accident has occurred due to involvement of unknown vehicle and appellants failed to file charge sheet, final report, accident register copy, rough sketch, Motor Vehicle Inspector's Report and driving license of the driver of TATA Sumo. Considering Ex.P1/F.I.R., the Tribunal rejected the evidence of P.W.2 as he could not even be an eye-witness. The 2nd respondent in the counter statement has not denied the involvement of TATA Sumo belonging to the 1st respondent. On the other hand, the 2nd respondent has taken a stand that the driver of TATA Sumo did not possess driving license and he was acquitted in the criminal case. The 2nd respondent also did not examine anybody to deny the manner of accident as alleged by the appellants. The appellants have now filed charge sheet and judgment of the criminal Court, wherein the driver of TATA Sumo was prosecuted. From the charge sheet, it is seen that after investigation, it was found that vehicle https://www.mhc.tn.gov.in/judis 9/17 C.M.A.No.262 of 2021 belonging to 1st respondent was involved in the accident and vehicle was seized by the Investigating Officer. In the charge sheet, they have mentioned about the damage of the vehicle. The 1st respondent, owner of TATA Sumo, did not contest the case and deny the involvement of the vehicle. From the judgment of the criminal Court, it is seen that the driver of TATA Sumo was acquitted as witness turned hostile. Even though it is well settled that the contents of F.I.R. and the judgment of criminal proceedings are not binding on the Tribunal, the same can be considered along with materials placed before the Tribunal.
12(i).In the present case, the appellants have examined the eye- witness to the accident as P.W.2. The Tribunal dismissed the claim petition relying on the F.I.R. that the appellants did not file charge sheet, final report, accident register copy, rough sketch, Motor Vehicle Inspector's Report and driving license of the driver of TATA Sumo. The Tribunal did not accept the evidence of P.W.2 as he did not give any complaint and he was not examined by the Police. The Tribunal failed to consider the contention of the 2nd respondent that driver of the TATA sumo did not possess driving license and was acquitted in the criminal case. The learned counsel appearing for the appellants submitted that in https://www.mhc.tn.gov.in/judis 10/17 C.M.A.No.262 of 2021 the claim petition filed by the legal heirs of one Y.Chiranjeevi, Police Constable, rider of the motorcycle, who died in the very same accident, negligence was fixed on the driver of TATA Sumo and the 2 nd respondent was made liable to pay compensation to the claimants therein. The learned counsel appearing for the 2nd respondent also admitted that they have not filed any appeal challenging the said award. Considering all the above materials, we are of the opinion that finding of the Tribunal dismissing the claim petition is erroneous, the same is liable to be set aside and is hereby set aside. The accident has occurred only due to rash and negligent driving by the driver of TATA Sumo belonging to the 1st respondent. The said TATA Sumo was insured with the 2nd respondent at the time of accident and the learned counsel appearing for the 2nd respondent has also not denied that the vehicle was insured with them at the time of accident. In view of the same, both the respondents 1 and 2 are liable to pay compensation to the appellants.
13.As far as quantum of compensation is concerned, it is the claim of the appellants that at the time of accident, the deceased was a retired lineman of Southern Power Distribution Company of Andhra Pradesh Limited, he was getting pension to the tune of Rs.40,944/- and also https://www.mhc.tn.gov.in/judis 11/17 C.M.A.No.262 of 2021 earning Rs.10,000/- by doing real estate business. Now the 1st appellant is getting family pension to the tune of Rs.19,414/-. To substantiate their claim, the appellants have examined one Murali Krishna, Junior Assistant of Southern Power Distribution Company of Andhra Pradesh Limited, as P.W.3 and marked the pension certificate as Ex.P31. The appellants failed to file any material with regard to income earned by the deceased through real estate business. After deducting family pension of Rs.19,414/- from the pension amount of Rs.40,944/-, the income of the deceased would be Rs.21,530/- per month (Rs.40,944/- (-) Rs.19,414/-).
13(i).As per Ex.P31/pension certificate, the date of birth of the deceased is 29.06.1949. The accident has occurred on 13.03.2015. Therefore, the deceased had completed 65 years, 8 months and 13 days at the time of accident. The learned counsel appearing for the appellants relied on the judgment of the Hon'ble Apex Court reported in 2015 (1) TNMAC 785 (SC) (Shashikala and others vs. Gangalakshmamma and another) and submitted that the Hon'ble Apex Court has taken only the completed age of the deceased for applying multiplier. The relevant paragraph is extracted hereunder:
https://www.mhc.tn.gov.in/judis 12/17 C.M.A.No.262 of 2021 “17. Insofar as appropriate Multiplier, the date of birth of the deceased as per Driving License was 16.6.1961. On the date of accident i.e. 14.12.2006, the deceased was aged 45 years, 5 months and 28 days and the Tribunal has taken the age as 46 years. Since the deceased has completed only 45 years, the High Court has rightly taken the age of the deceased as 45 years and adopted Multiplier 14 which is the appropriate Multiplier and the same is maintained. Total Loss of Dependency is calculated at Rs.16,82,310/-
(Rs.1,20,165/- X 14).” In view of the above judgment, the age of the deceased is fixed as 65 years. As per the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC [Sarla Verma & Others vs. Delhi Transport Corporation & another], the multiplier applicable is '7'. There are three dependants of the deceased and 1/3rd has to be deducted towards personal expenses. Thus, a sum of Rs.12,05,680/- (Rs.21,530/- X 12 X 7 X 2/3) is awarded towards loss of dependency.
13(ii).The appellants have claimed that the accident has occurred on 13.03.2015 and in spite of treatment, the deceased Jayaramaiah died on 03.05.2015. After the accident, the deceased has taken treatment in https://www.mhc.tn.gov.in/judis 13/17 C.M.A.No.262 of 2021 Government Hospital as well as various private hospitals and amounts have been spent towards medical expenses, details as follows -
Exhibits Name of the Date of Date of Amount spent
Hospital admission discharge
Ex.P6 Global Health City 13.03.2015 13.03.2015 Rs.25,655/-
Hospital,
Perumbakkam,
Chennai
Exs.P8 and VHM Hospitals 13.03.2015 25.03.2015 Rs.1,54,678/-
P9 Private Limited, Rs.23,000/-
Saligramam,
Chennai.
Ex.P12 Rajiv Gandhi 25.03.2015 06.04.2015 Rs.7,525/-
Government General
Hospital, Chennai
Exs.P14 and Sri Balaji Hospital, 06.04.2015 22.04.2015 Rs.63,286/-
P15 Guindy, Chennai Rs.44,950/-
Ex.P17 Sooriya Hospital, Rs.1,500/-
Chennai
Total = Rs.3,20,594/-
Therefore, the appellants are entitled to a sum of Rs.3,20,594/- spent by them towards medical expenses.
13(iii). In addition to the above, it would be just and proper to award a sum of Rs.40,000/- towards loss of consortium to the 1st appellant, wife of the deceased, Rs.40,000/- each towards loss of love and affection to the appellants 2 & 3, who are son and daughter of the deceased and Rs.15,000/- each towards funeral expenses and loss of estate. Thus, the appellants are entitled to the following compensation:
https://www.mhc.tn.gov.in/judis 14/17 C.M.A.No.262 of 2021 Sl. Description Amount awarded No. by this Court (Rs)
1. Loss of dependency 12,05,680
2. Loss of consortium to 40,000 the 1st appellant
3. Loss of love and 80,000 affection to the appellants 2 and 3
4. Funeral expenses 15,000
5. Loss of estate 15,000
6. Medical expenses 3,20,594 Total 16,76,274/-
14.In the result, the Civil Miscellaneous Appeal is allowed. A sum of Rs.16,76,274/- is awarded as compensation to the appellants together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 1st appellant being wife of the deceased is entitled to a sum of Rs.10,76,274/-, the appellants 2 and 3, who are son and daughter of the deceased, are entitled to Rs.3,00,000/- each as compensation. The appellants are directed to pay necessary Court fee, if any on the compensation awarded by this Court. The respondents 1 and 2 are directed to deposit the award amount now determined by this Court, along with interest and costs, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the appellants are https://www.mhc.tn.gov.in/judis 15/17 C.M.A.No.262 of 2021 permitted to withdraw their respective share of the award amount now determined by this Court, along with proportionate interest and costs. No costs. Consequently, connected Miscellaneous Petition is closed.
(V.M.V., J) (S.S., J)
08.08.2022
Index : Yes / No
Internet : Yes / No
kj
To
1.The Chief Judge
Motor Accident Claims Tribunal
Small Causes Court, Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
16/17
C.M.A.No.262 of 2021
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
kj
C.M.A.No.262 of 2021
and C.M.P.No.1764 of 2021
08.08.2022.
https://www.mhc.tn.gov.in/judis
17/17