National Insurance Co. Ltd v. Anbarasi

THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.12.2019

CORAM

THE HONOURABLE MR. JUSTICE M.M. SUNDRESH AND THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY C.M.A.No. 990 of 2015 National Insurance Co., Ltd No.751, Anna Salai, 2nd Floor, Chennai - 2.

... Appellant/2nd Respondent Vs.

1.Anbarasi 2.Minor D.Madhumithra 3.Minor D.Yogeswari ..1 to 3 Respondents/ Petitioners 4.K.Subramani ...4th Respondent/1st Respondent (Minors 2 & 3 rep by their mohter N.F 1st Respondent Anbarasi) PRAYER : Appeal filed under Section 173 of Motor Vehicles Act,1988 against the award and decree dated 06.08.2014 made in M.C.O.P.No.2181 of 2013 on the file of the Motor Accidents Claims Tribunal, II Court of Small Causes, Chennai. For Appellant : Mr.S.Arunkumar For Respondent : Mr.K.Varadha Kamaraj for R1 to R3

JUDGMENT

(Delivered by M.M.SUNDRESH.,J) The appellant is the insurer of the Lorry which was responsible for the fatal accident along with the car in which the deceased was travelling.

2. The deceased was travelling in Innova Car bearing Registration No.TN-05-AF-0712 which dashed against the lorry bearing Registration No.TN-47-M-0578. Due to the accident caused, the deceased died. Respondents 1 to 3 are the claimants, being the wife and the two minor children of the deceased. The

Tribunal has fixed the compensation at Rs.39,25,000/- with appropriate apportionment among the claimants. Challenging the same, the present appeal is filed.

3. The learned counsel appearing for the appellant submitted that the appeal is liable to be allowed both on negligence and quantum. Even as per FIR given under Ex.P1, the car got punctured and thereafter, it veered towards the right and dashed against the lorry which has been insured with the appellant. Therefore, at best, it is the case of composite negligence. In support of his contention, the learned counsel has placed reliance upon the judgement in Khenyei Vs. New India Assurance Company Ltd., & Ors (2015 (1) TNMAC 801 (SC)) .

4. On the question of quantum, it is submitted that the Tribunal has committed an error in fixing the future prospects at 50% instead of 40%, as per the decision of the Apex Court in National Insurance Company Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680. The learned counsel further submitted that not only the owner of the car but also the insured offending vehicle having been involved in other case, appropriate observation may be made in this regard, as the same would have substantial bearing.

5. The learned counsel appearing for respondents/claimants 1 to 3 submitted that the judgment relied upon by the learned counsel appearing for the appellant would certainly help the case of the claimants. The Apex Court was pleased to hold that claimants are entitled to recovery from one of the joint tortfeasors. On the question of quantum, the learned counsel submitted that though the Tribunal has wrongly fixed the future prospects at 50% instead of 40%, considering the entire compensation fixed, no interference is required.

6. We find some force in the submission made by the learned counsel appearing for the appellant on two grounds. While there is no difficulty in holding that the claimants/respondents 1 to 3 are entitled to recover the entire compensation from either one of the joint tort-feasors, the liability per se cannot be eschewed, when the claim is sought for against all of them.

7. A perusal of Ex.P1 would clearly show that there is some negligence on the part of the Driver of the car. Even assuming it can be termed as negligence per se, the reason for accident cannot be completely fastened on the Driver of the lorry alone. Ex.P1 clearly shows that the tyre got punctured which is resulting the car moving from left to right. No doubt, the FIR further speaks that the lorry was also driving at a higher speed, resulting in accident. Therefore, at best, it is a case of composite negligence.

8. It appears that the fourth respondent herein is not even the owner of the vehicle and therefore the recording made by us earlier may not be correct. Unfortunately, neither the owner of the car which was involved in the accident nor the insurer has been made as a party. However, claimants/respondents 1 to 3, shall not suffer for the same. Thus, we are inclined to direct the appellant to make the entire compensation.

9. Insofar as the quantum is concerned, by applying the case of Pranay Sethi (supra), we are inclined to reduce the future prospects from 50% to 40%. Accordingly, the annual income arrived at Rs.3,36,000/- per year. Thus, the loss of income, has been fixed at Rs.33,60,000/- (Rs.3,36,000/- x 1/3 x 15 = Rs.33,60,000/-). After due deduction of one-third amount towards the personal expenses of the deceased and by adding the other conventional heads such as loss of consortium at Rs.40,000/-, loss of love and affection at Rs.80,000/-, funeral expenses at Rs.15,000/- and loss of estate at Rs.15,000/-, total compensation arrived at is Rs.35,10,000/- with 7.5% interest. This, we do so after making due deductions from the award passed by the Tribunal, wherein for loss of consortium, sum of Rs.1 lakh has been awarded apart from loss of love and affection at Rs.2 lakhs. Similarly, the funeral expenses has been fixed at Rs.25,000/-.

The reduced compensation amount shall be apportioned amongst the claimants in the same ratio as ordered by the Tribunal.

10. In the result, the Civil Miscellaneous Appeal stands allowed in part. No costs. Consequently, connected C.M.P.No.26464 of 2014 is closed. However, we also give liberty to the appellant to work out the remedy against the other tortfeasors in tune with the judgment of Apex Court Khenyei Vs. New India Assurance Company Ltd., & Ors (2015 (1) TNMAC 801 (SC)).

11. The appellant insurance company is directed to deposit the reduced compensation amount along with proportionate interest, less the amount if any already deposited, to the credit of M.C.O.P.No.2181 of 2013 on the file of the Motor Accidents Claims Tribunal, II Court of Small Causes, Chennai, within a period of eight weeks from the date of receipt of a copy of the judgment.

12. We also direct the Tribunal to transfer the share of the first claimant by way of RTGS to the bank account of the first claimant within a period of three weeks from the date of deposit of the award amount. On such transfer, the first claimant is entitled to withdraw the same. Insofar as the share of minor second and third claimants are concerned, the same shall be deposited in any one of the nationalised banks till they attain

majority. The first claimant/mother of minor claimants 2 and 3 is permitted to withdraw the interest accrued on the minors' deposit once in three months directly from the Bank. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar ssm To The Motor Accidents Claims Tribunal, II Judge, Court of Small Causes, Chennai.

Copy to:

The Section Officer, VR Section, High Court,Madras.

+1cc to Mr.S.Arunkumar, Advocate SR.No. 102973 +1cc to K.Varadha Kamaraj, Advocate SR.No. 102428 C.M.A.No. 990 of 2015 BP(CO) A.SK(06.09.2021)