Madras High Court
Bajaj Allianz General Insurance Co. Ltd vs N.S.Balaji (Died) on 7 January, 2020
Author: Krishnan Ramasamy
Bench: M.M.Sundresh, Krishnan Ramasamy
C.M.A.Nos.45 & 832 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.01.2020
Coram:
The Honourable Mr.Justice M.M.SUNDRESH
and
The Honourable Mr.Justice KRISHNAN RAMASAMY
C.M.A.Nos.45 & 832 of 2016
C.M.A.No.45 of 2016:
Bajaj Allianz General Insurance Co. Ltd.,
Prince Towers, 4th Floor, No.25 & 26,
College Road, Nungambakkam, Chennai - 6.
...Appellant
Versus
N.S.Balaji (died)
rep. by his mother Mohana
1.S.Mohana (died)
2.N.S.Soundararajan (died)
3.L.Mahadevan
4.Meenakshi
5.N.B.Jayaram (Minor)
6.N.S.Vijayaraghavan
7.N.S.Latha
8.N.S.Harikrishnan
9.N.S.Devi
10.N.S.Latha
(Respondents 6 to 10 brought on record as legal representatives of the
deceased first respondent vide Court order dated 25.09.2018 made in
C.M.P.No.5083 to 5085 of 2018 in C.M.A.No.45 of 2018)
...Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicle Act, 1988 against the judgment and decree dated
23.07.2015 passed in M.C.O.P.No.3176 of 2009 on the file of the
Motor Accidents Claims Tribunal (VI Court of Small Causes), Chennai.
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C.M.A.Nos.45 & 832 of 2016
For Appellant : Mr.J.Michael Visuvasam
For Respondents - 1 & 2 : Mr.K.Suriyanarayanan
Respondent - 3 : No Appearance
Respondent – 4 & 5 : Mr.T.Karunakaran
C.M.A.No.832 of 2016:
1.Mrs.Meenakshi
2.Mr.N.B.Jayaram (Minor)
...Appellants
Versus
N.S.Balaji (Died)
Rep. by his mother Mohana
1.S.Mohana (died)
2.N.S.Soundararajan (died)
3.Mr.L.Mahadevan
4.M/s.Bajaj Allianz General Insurance Co.Ltd.,
Prince Towers, 4th Floor,
No.25 & 26, College Road,
Nungambakkam,
Chennai - 600 006.
...Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the judgment and decree dated
23.07.2015 in M.C.O.P.No.3176 of 2009 on the file of the Motor
Accidents Claims Tribunal in the Small Causes Court No.VI, Chennai.
For Appellants : Mr.T.Karunakaran
For Respondents - 1 & 2 : Mr.K.Suriyanarayanan
Respondent - 3 : No Appearance
Respondent - 4 : Mr.J.Michael Visuvasam
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C.M.A.Nos.45 & 832 of 2016
COMMON JUDGMENT
(Judgment of the Court was delivered by KRISHNAN RAMASAMY, J.,) The Civil Miscellaneous Appeal in C.M.A.No.45 of 2016 has been filed by the Insurance Company questioning the liability fixed and quantum of compensation awarded by the Motor Accidents Claims Tribunal, Chennai in the Court No.VI of Small Causes, Chennai vide judgment and decree dated 23.07.2015 made in M.C.O.P.No.3176 of 2009.
The Civil Miscellaneous Appeal in C.M.A.No.832 of 2016 has been filed by the claimants/wife & minor son of the deceased Balaji against the quantum of award passed by the Motor Accidents Claims Tribunal, Chennai in the Court No.VI of Small Causes, Chennai vide judgment and decree dated 23.07.2015 made in M.C.O.P.No.3176 of 2009.
2. The brief facts of the case reads as follows:
On 29.08.2009, at about 20:15 hours, while one N.S.Balaji was riding the motorcycle bearing Registration No.TN 05 AA 1352 at Anna Flyover, Anna Salai towards South to North direction, at that time, a car bearing Registration No.TN 07 AJ 1724 belonging to one L.Mahadevan/R3 in both the Appeals and insured by the Insurance https://www.mhc.tn.gov.in/judis 3/20 C.M.A.Nos.45 & 832 of 2016 Company/appellant in C.M.A.No.45 of 2016 & R4 in C.M.A.No.832 of 2016 driven by its driver, came from behind and dashed against the said Balaji, as a result of which, the said Balaji sustained grievous head injuries and lost conscious went coma and therefore, died on 05.02.2014. In the year 2009, when the said Balaji was alive, he had preferred a Claim Petition in M.C.O.P.No.3176 of 2009 through his wife as his next friend as against the insured and the insurer claiming a sum of Rs.1,00,00,000/-as compensation.
3. Since both the appeals arise out of the same accident, they were heard together and disposed of by way of this common judgment.
4. The owner of the car (R3 in both the Appeals) remained ex parte before the Tribunal.
5. The Insurance Company (Appellant in C.M.A.No.45 of 2016 and R4 in C.M.A.No.832 of 2016) filed a counter statement denying all the averments made by the said Balaji in the Claim Petition.
6. On 23.07.2015, when the matter came up before the Tribunal, on the side of the claimants, 7 witnesses were examined viz., P.W.1 to P.W.7 and 54 documents were marked as exhibits viz., Ex.P1 https://www.mhc.tn.gov.in/judis 4/20 C.M.A.Nos.45 & 832 of 2016 to Ex.P54 and on the side of the Insurance Company, 3 witnesses were examined viz., R.W.1 to R.W.3 and 6 documents were marked as exhibits viz., Ex.R1 to Ex.R6. One document was also marked on the side of the Court viz., Ex.C1.
7. On appreciation of the oral and documentary evidence produced before it, the Tribunal came to the conclusion that the driver of the offending vehicle (car) was having more opportunity to avoid the accident. Hence, it fixed the negligent on the driver of the car and liability on the shoulder of the owner of the car who is the third respondent in both the Appeals. Further, the Tribunal also held that the offending vehicle (car) was insured with the Insurance Company at the time of accident and therefore, the Insurance Company is liable to pay the compensation. Finally, it awarded a sum of Rs.90,01,000/- as compensation in M.C.O.P.No.3176 of 2009. The break up details of the Tribunal award are as follows:
Sl.No. Head of Damages awarded Amount
awarded by the
Tribunal
1. Medical Expenses Rs.55,00,000/-
2. Pecuniary Damages Rs. 2,00,000/-
3. Loss of dependency is arrived at Rs.21,76,000/-
Rs.1,36,000 x 16
4. Loss of Love and Affection Rs. 2,00,000/-
5. Loss of Consortium Rs. 1,00,000/-
6. Funeral Expenses Rs. 25,000/-
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C.M.A.Nos.45 & 832 of 2016
Sl.No. Head of Damages awarded Amount
awarded by the
Tribunal
7. Mental Agony for mobilizing funds Rs. 8,00,000/-
taking medical care from the date of
accident to till the death of the
deceased by his mother
Total Rs.90,01,000/-
8. After the period of 4½ years from filing of the
M.C.O.P.No.3176 of 2009, the said Balaji died on 05.02.2014 due to the head injuries sustained by him in the accident occurred on 29.08.2009. Subsequent to his death, his mother and father were impleaded as petitioners 2 & 3 and his wife and son were impleaded as respondents 3 & 4 vide order made in M.P.No.3212 of 2014.
9. Mr.T.Karunakaran, learned counsel appearing for the wife and minor son of the deceased viz., R4 & R5 in C.M.A.No.45 of 2016 and Appellants 1 & 2 in C.M.A.No.832 of 2016 fairly submitted that the wife of the deceased left her matrimonial house with her son since her mother-in-law (R1 in both the Appeals) was always shouting with her and abusing a lot. She (mother of the deceased) often scolded the wife and the minor son of the deceased by stating that her son Balaji met with the fateful accident only because of the reason that he married the unlucky woman and also because of the pre-mature birth of his minor son. He further submitted that the wife of the deceased https://www.mhc.tn.gov.in/judis 6/20 C.M.A.Nos.45 & 832 of 2016 pledged her jewels for the medical treatment of her husband Balaji and also borrowed money from her father for the medical expenses of her husband. She (wife of the deceased) almost spent a sum of Rs.7,00,000/- around for the medical expenses for her husband. Though the mother and father of the deceased are not necessary parties, however, they were impleaded as petitioners 2 & 3 in the Claim Petition in order to grab the entire compensation awarded for the death of Balaji. He also submitted that pending the M.C.O.P., the father of the deceased died on 15.03.2015 and while the C.M.A is pending before this Court, the mother of the deceased died on 19.08.2016. The respondents 6 to 10 in C.M.A.No.45 of 2016 are not the legal heirs of the deceased Balaji. The learned counsel therefore prayed that the entire compensation may be given to the wife and the minor son of the deceased since they are the direct legal heirs of the deceased Balaji.
10. Mr.K.Suriyanarayanan, learned counsel appearing for the mother and father of the deceased viz., respondents 1 & 2 in both the Appeals would contend that the parents of the deceased had spent a huge sum of money for the medical treatment of their son Balaji. They have leased out their residential property and spent the entire lease advance amount of Rs.12 Lakhs for the medical treatment of their son Balaji. He would also contend that the wife of the deceased Balaji https://www.mhc.tn.gov.in/judis 7/20 C.M.A.Nos.45 & 832 of 2016 failed to take care of her husband Balaji when he was in coma and she left the matrimonial home with her son. He would further contend that the mother of the deceased left three daughters and two sons as her legal heirs who were impleaded as respondents 6 to 10 in C.M.A.No.45 of 2016.
11. Mr.J.Michael Visuvasam, learned counsel appearing for the Insurance Company viz., R4 in both the Appeals would contend that the deceased would not have sustained head injuries if he wore helmet at the time of accident, however, the deceased Balaji failed to wear the same. As per the Motor Vehicles Act, non-wearing of helmet is considered as an offense. He would further contend that the Tribunal failed to fix the negligent/liability on the shoulder of the deceased as he did not wear the helmet at the time of accident and drove the two wheeler negligently, whereas, it fixed the 100% negligent and liability on the driver of the car.
Liability:
12. The dispute involved in the case on hand is the negligence and liability fixed and quantum of compensation awarded by the Tribunal in M.C.O.P.No.3176 of 2009. Actually, the accident occurred only when the car hit back the two wheeler of the deceased. The rough sketch clearly revealed that the two wheeler of the deceased https://www.mhc.tn.gov.in/judis 8/20 C.M.A.Nos.45 & 832 of 2016 and the offending vehicle (car) of the third respondent were proceeds in the same direction. The driver of the car (R3 in both the Appeals) could have avoided the accident if he used his driving skill properly. One Mr.Vijayaraghavan, brother of the deceased was the eyewitness of the accident who gave a complaint to the Police and the case was registered in Crime No.302/TN3/2009. He also deposed his evidence as P.W.6. From a perusal of the Police complaint given by P.W.6, it is seen that the accident occurred due to the negligent on the part of the owner of the offending vehicle (car). Therefore, the Tribunal rightly held that though the deceased was not wearing helmet at the time of accident, it was not awarded any contributory negligence on the part of the deceased, and the Tribunal fixed the entire negligence on the driver of the car and fixed the liability on the owner of the offending vehicle (car). The car was insured with the fourth respondent and that the Tribunal directed the fourth respondent to pay the entire compensation to the claimants. Hence, this Court is of the opinion that there is no need to interfere with the finding of the Tribunal regarding the fixation of liability.
Quantum:
13. So far as the quantum of compensation is concerned, the offending vehicle (car) was insured with the Insurance Company at the time of accident. So the Tribunal held that the Insurance Company is https://www.mhc.tn.gov.in/judis 9/20 C.M.A.Nos.45 & 832 of 2016 liable to pay the just compensation to the claimants. Accordingly, the Tribunal directed the Insurance Company to deposit a sum of Rs.90,01,000/- with interest at 7.5% per annum from the date of filing of petition till the date of deposit within two months from the date of award. It also held that out of the award amount, the mother of the deceased is entitled to get Rs.68,60,200/- and the wife of the deceased is entitled to a sum of Rs.10,02,800/- and the son of the deceased is entitled to a sum of Rs.11,38,000/- as compensation.
14. The learned counsel appearing for the mother and father of the deceased would contend that the parents of the deceased Balaji had spent a huge sum of money for the medical treatment of their son Balaji and they had also produced the Documents viz., Ex.P13, Nursing Care Bills, Ex.P37, Copy of Certificate of Physiotherapy and Ex.P38, Copy of Identity Card of Physiotherapist before the Tribunal to that effect. He would further contend that the wife of the deceased in her deposition, deposed that she pledged her jewels and also borrowed money from her father for the medical expenses of her husband Balaji. She further stated that she and her only son are the original legal heirs of her deceased husband Balaji. However, there is no material evidence was placed by the wife of the deceased before the Tribunal in order to prove her statement. He also drawn the attention of this https://www.mhc.tn.gov.in/judis 10/20 C.M.A.Nos.45 & 832 of 2016 Court to the details of the medical bills produced by the parents of the deceased which were marked as exhibits viz., Ex.P10, Hospital Bills; Ex.P11, Pharmacy Bills; Ex.P12, Physiotherapist Bills; and Ex.P13, Nursing Care Bills. The details of the said medical bills are mentioned hereinbelow:
Hospital Bills - Rs.22,91,196.43/-
Pharmacy Bills - Rs. 6,65,530.36/-
Physiotherapist Bills - Rs. 8,40,400.00/-
Nursing Care Bills - Rs.16,60,300.79/-
______________________
Total - Rs.54,57,427.00/-
______________________
15. The learned counsel appearing for the Insurance Company fairly submitted that the Insurance Company has no objection to reimburse the Hospital Bills as well as Pharmacy Bills of the deceased, however, he strongly objected to reimburse such a huge sum of Rs.8,40,400.00/- towards Physiotherapist Bills as awarded by the Tribunal since the same is on the higher side. He would contend that even the Physiotherapist attended the injured at his home everyday for 4½ years, by paying a sum of Rs.300/- per day, the maximum amount would have been spent will be a sum of Rs.4,86,000/- only. https://www.mhc.tn.gov.in/judis 11/20 C.M.A.Nos.45 & 832 of 2016
16. We are of the considered view that the amount awarded by the Tribunal towards Hospital Bills and Pharmacy Bills are reasonable and therefore, the same remains unaltered. However, considering the huge amount of Rs.8,40,400/- awarded by the Tribunal towards Physiotherapist Bills, we incline to modify the same. Accordingly, a sum of Rs.8,40,400/- already awarded towards Physiotherapist Bill by the Tribunal is modified by this Court as Rs.4,86,000/-.
17. The learned counsel for the Insurance Company also contended that a sum of Rs.16,60,300/- awarded by the Tribunal towards Nursing Bills of the deceased is on the higher side. He therefore prayed that a reasonable sum of Rs.10,000/- per month may be awarded towards Nursing Bills of the deceased.
18. The said contention of the counsel for Insurance Company is reasonable and acceptable by this Court. Hence, we inclined to award a sum of Rs.5,40,000/- towards Nursing Bills of the deceased.
Rs.10,000/- per month x 54 months = Rs.5,40,000/- Medical Expenses:
19. Therefore, a sum of Rs.55,00,000/- already awarded by the Tribunal towards Medical Expenses is modified by this Court to https://www.mhc.tn.gov.in/judis 12/20 C.M.A.Nos.45 & 832 of 2016 Rs.39,82,726/-. The break up details of the modified Medical Expenses are follows:
Hospital Bills - Rs.22,91,196/-
Pharmacy Bills - Rs. 6,65,530/-
Physiotherapist Bills - Rs. 4,86,000/-
Nursing Bills - Rs. 5,40,000/-
_____________________
Total - Rs.39,82,726/-
_____________________
20. The learned counsel appearing for the Insurance Company contended that the amount awarded by the Tribunal towards Pecuniary Damages; Loss of Love & Affection; Loss of Consortium and Funeral Expenses are on the higher side. He also contended that Rs.21,76,000/- awarded by the Tribunal towards Loss of Dependency is also on the higher side. The Tribunal has fixed the notional income of the deceased as Rs.17,000/- which is on the higher side. The deceased was working as an Executive Trainee, in Ascent Marketing and his monthly income was Rs.8,500/- at that point of time when the accident was occurred. However, the Tribunal has fixed a sum of Rs.17,000/- as notional income of the deceased. Taking into consideration of the fact that on completion of the training he would get higher amount, the Tribunal fixed the notional income of the https://www.mhc.tn.gov.in/judis 13/20 C.M.A.Nos.45 & 832 of 2016 deceased as Rs.17,000/-. He therefore prayed that the notional income of the deceased may be fixed as Rs.11,000/- after appropriate deduction.
21. Admittedly, the age of the deceased was 34 years at the time of accident and he was working as a trainee and drawn a sum of Rs.8,500/- as monthly income at that point of time, even if the job of the deceased is confirmed, he cannot draw a sum of Rs.17,000/- as monthly income. Therefore, we are of the opinion that the Tribunal wrongly assessed the notional income of the deceased as Rs.17,000/- per month in the year 2009. As contended by the learned counsel for the Insurance Company, a sum of Rs.11,000/- is a reasonable notional income of the deceased. Hence, we inclined to fix a sum of Rs.11,000/- as notional income of the deceased for the purpose of determining the Loss of Income for the claimants.
22. In the present case, this Court applies the multiplier '16' and 1/3rd deduction is calculated, as rightly held by the Tribunal. The age of the deceased was 34 years at the time of accident, but, when he was passed away in the year 2014, he was 38 years. As held by the Honourable Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others reported in 2017 (2) TNMAC 609 (SC), for the age group below 40, 40% of income requires to be https://www.mhc.tn.gov.in/judis 14/20 C.M.A.Nos.45 & 832 of 2016 added towards Future Prospects. Accordingly, we inclined to add 40% of income towards the Future Prospects of the deceased.
Rs.11,000/- + Rs.4,400/- (40%) = Rs.15,400/-
After deducting 1/3rd towards personal expenses of the deceased, the Loss of Income would be Rs.10,267/-
Rs.15,400 x 2/3 = Rs.10,267/- per month.
Loss of Dependency:
23. By applying the multiplier '16', Loss of Dependency would be Rs.19,71,264/-.
Rs.10,267/- x 12 x 16 = Rs.19,71,264/-
Pecuniary Damages, Loss of Love & Affection and Loss of Consortium:
24. The Tribunal awarded sum of Rs.2,00,000/- towards Pecuniary Damages; Rs.2,00,000/- towards Loss of Love & Affection to the mother and the minor son of the deceased and Rs.1,00,000/-
towards Loss of Consortium, which are too high. Therefore, this Court inclined to modify the amount awarded by the Tribunal towards Pecuniary Damages, Loss of Love & Affection and Loss of Consortium. Accordingly, this Court modifies the amount awarded by the Tribunal towards Pecuniary Damages as Rs.1,00,000/-; Loss of Love & Affection https://www.mhc.tn.gov.in/judis 15/20 C.M.A.Nos.45 & 832 of 2016 as Rs.80,000/- i.e., Rs.40,000/- each to the mother and minor son of the deceased and Loss of Consortium as Rs.40,000/- to the wife. Funeral Expenses:
25. The Tribunal awarded a sum of Rs.25,000/- towards Funeral Expenses, however, in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others reported in 2017 (2) TNMAC 609 (SC), the Honourable Apex Court even fixed only a sum of Rs.15,000/-
towards Funeral Expenses. Hence, following the judgment of the Apex Court in Pranay Sethi's case, this Court awards a sum of Rs.15,000/- towards Funeral Expenses.
Mental Agony:
26. The Tribunal awarded a sum of Rs.8,00,000/- towards Mental Agony which is quite unusual. No doubt, over 4½ years, the deceased had gone through the mental agony, but, such a huge sum of Rs.8,00,000/- awarded towards Mental Agony by the Tribunal is really too high and therefore, we inclined to modify the same as Rs.50,000/-. Accordingly, the amount already awarded by the Tribunal towards Mental Agony is reduced to Rs.50,000/- by this Court.
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27. The Tribunal already awarded a sum of Rs.90,01,000/- as compensation to the claimants and now, this Court modifies the said award and arrived at a total sum of Rs.62,38,990/- which is rounded as Rs.62,39,000/-. The break-up details of the award as modified by this Court are as follows:
S.No. Description Amount Amount Award
awarded by awarded by confirmed
the Tribunal this Court or
modified
or
granted
1 Medical Rs.55,00,000/- Rs.39,82,726/- Modified
Expenses
2 Pecuniary Rs. 2,00,000/- Rs. 1,00,000/- Modified
Damages
3 Loss of Rs.21,76,000/- Rs.19,71,264/- Modified
Dependency
is arrived at
Rs.10,267 x
12 x 16
4 Loss of Love Rs. 2,00,000/- Rs. 80,000/- Modified
and Affection
5 Loss of Rs. 1,00,000/- Rs. 40,000/- Modified
Consortium
6 Funeral Rs. 25,000/- Rs. 15,000/- Modified
Expenses
7 Mental Agony Rs. 8,00,000/- Rs. 50,000/- Modified
Total Rs.90,01,000/- Rs.62,38,990/- Modified
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28. In the result,
(i) C.M.A.No.45 of 2016 is partly allowed and a sum of Rs.90,01,000/- (Rupees Ninety Lakhs One Thousand) awarded by the Tribunal is modified by this Court to a sum of Rs.62,38,990/- which is rounded off as Rs.62,39,000/- (Rupees Sixty Two Lakhs Thirty Nine Thousand). Out of the modified award amount, wife of the deceased is entitled to a sum of Rs.30,00,000/-; minor son of the deceased is entitled to Rs.12,39,000/- and the five legal heirs of the deceased first respondent in both the Appeals viz., respondents 6 to 10 in C.M.A.No.45 of 2016 are entitled to Rs.20,00,000/- i.e., Rs.4,00,000/- each. The fourth respondent/Insurance Company is directed to deposit the award amount modified by this Court, deduct the amount, if any, already deposited, along with interest at 7.5% per annum from the date of petition till the date of deposit to the credit of M.C.O.P.No.3176 of 2009 within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit being made, the Tribunal is directed to transfer the award amount directly to the respective bank account of the wife of the deceased and the legal heirs of the deceased first respondent in both the Appeals viz., respondents 6 to 10 in C.M.A.No.45 of 2016, as per the ratio of apportionment ordered by this Court, through RTGS, within a period of three weeks thereafter. So far the minor son of the deceased is concerned, the https://www.mhc.tn.gov.in/judis 18/20 C.M.A.Nos.45 & 832 of 2016 Tribunal shall deposit the amount of the minor claimant in a fixed deposit in any one of the Nationalized Banks, till he attain majority and the interest accrued thereon may be withdrawn by the guardian of the minor claimant once in three months, directly from the Bank. Necessary Court fee, if any, shall be paid by the claimants herein before receiving the copy of the judgment.
(ii) C.M.A.No.832 of 2016 is dismissed. No costs.
(M.M.S.J.,) (K.R.J.,)
07.01.2020
mrr
Index : Yes / No
Speaking Order (or) Non-Speaking Order
To
1.The Judge,
Small Causes Court No.VI,
Motor Accidents Claims Tribunal,
Chennai.
2. The Public Prosecutor,
High Court,
Madras.
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C.M.A.Nos.45 & 832 of 2016
M.M.SUNDRESH, J.,
and
KRISHNAN RAMASAMY, J.,
mrr
C.M.A.Nos.45 & 832 of 2016
07.01.2020
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