Nirmala,W/O.Subramani v. Manikandan,S/O.Sakthivel

In the High Court of Judicature at Madras Dated : 28.7.2021 Coram The Honourable Mr.Justice ABDUL QUDDHOSE Civil Miscellaneous Appeal Nos.338 & 989 of 2016 & CMP.Nos.7546 of 2016 & 11044 of 2018 1.Nirmala 2.Subramani 3.Minor Priyanka 4.Minor Boobalan minors are represented by their next guardian/next friend mother Nirmala ...Appellants in CMA.No.338/2016 & R1 to R4 in CMA.No.989 of 2016 Vs 1.Manikandan ...R1 in CMA.No.338 of 2016 & R5 in CMA.No.989 of 2016 2.Reliance General Insurance Co. Ltd., 3rd Floor, Sakthi Super Market Building, No.408, Perundurai Road, Erode-638 011.

...R2 in CMA.No.338 of 2016 & applt.In CMA.No.989 of 2016 APPEALS under Section 173 of the Motor Vehicles Act, 1988 against the fair and decretal order dated 23.6.2015 in MCOP.No.881 of 2013 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Namakkal. For Claimants :Mr.C.Paraneedharan For Insurance Company : Mr.S.Arunkumar owner of the vehicle : set ex parte

COMMON JUDGMENT I have heard the learned counsel for the claimants and the learned counsel appearing for the Insurance Company.

2. CMA.No.338 of 2016 has been filed by the claimants challenging the award dated 23.6.2015 in MCOP.No.881 of 2013 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Namakkal on the ground that the quantum of compensation awarded by the Tribunal is inadequate and it has to be enhanced.

3. CMA.No.989 of 2016 has been filed by the Insurance Company challenging the very same award primarily on the ground that no pay and recovery rights were granted to them despite the fact that rider of the two wheeler was not possessing a valid driving licence at the time of accident. Hence, according to them, the insured having committed a policy violation, pay and recovery rights ought to have been granted to them by the Tribunal, which has been erroneously omitted to be granted by the Tribunal.

4. The claimants, who are the appellants in CMA.No.338 of 2016, has filed the appeal unsatisfied with the quantum of compensation awarded by the Tribunal and they sought for enhancement.

5. The details of compensation awarded by the Tribunal to the claimants under the impugned award are as follows : S.No Head Amount awarded by the Tribunal Loss of Income Rs. 4,80,000/- Funeral Expenses Rs. 5,000/- Loss of love and affection Rs. 10,000/- Total Rs. 4,95,000/-

6. Before the Tribunal, the Insurance Company filed three documents, which were marked as Ex.R1 to Ex.R3. They filed their insurance policy, the lawyer's notice sent by them to the insured calling upon him to produce a copy of the driving licence as well as the acknowledgment card, which proved that the lawyer's notice was duly acknowledged. Despite the fact that the insured received notice from the Insurance Company, admittedly, the insured has not produced the driving licence of the rider of the two wheeler

(insured vehicle at the time of accident). The owner of the insured vehicle also remained ex parte before the Tribunal.

7. Despite the Insurance Company having been able to prove before the Tribunal that the rider of the motor vehicle (insured vehicle) was not possessing a driving licence at the time of accident, the Tribunal has erroneously failed to grant pay and recovery rights to them. Since non possession of the driving licence at the time of accident is a policy violation under the insurance policy, the Tribunal ought to have granted pay and recovery rights to the Insurance Company, but has erroneously failed to grant the said right to the Insurance Company. Hence, this Court grants pay and recovery rights to the Insurance Company, which is the appellant in CMA.No.989 of 2016.

8. With regard to the quantum of compensation, this Court deems it fit to enhance the compensation under the following heads :

(a) The Tribunal has awarded a total compensation of Rs.4,95,000/- to the claimants and adopted the multiplier method for the assessment of compensation towards the loss of income, which has been assessed by the Tribunal at Rs.4,80,000/-. This Court is of the considered view that the said assessment is a correct assessment and does not call for any interference. (b) However, with regard to the quantum of compensation awarded by the Tribunal towards funeral expenses at Rs.5,000/- and towards loss of love and affection at Rs.10,000/-, the same have to be necessarily enhanced. In respect of the funeral expenses, as per the decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi [reported in 2017 (16) SCC 680], the compensation towards funeral expenses will have to be assessed at Rs.

15,000/- and not at Rs.5,000/- as fixed by the Tribunal. Accordingly, the compensation towards funeral expenses is enhanced by this Court to Rs.15,000/-. (c) The claimants are parents and two brothers of the deceased. Before the Tribunal, the claimants have not been able to establish that the brothers of the deceased are also dependents. As per the said decision of the Hon'ble Supreme Court in the case of Pranay Sethi referred to supra, each of the dependents is entitled to a compensation of Rs.40,000/- towards loss of love and affection. However, the Tribunal fixed the compensation towards love and affection at a meager amount of Rs.10,000/-, which has to be necessarily enhanced. Since the parents of the deceased are the dependents, both of them are entitled to a total sum of Rs.80,000/- calculated at Rs.40,000/- each.

towards loss of love and affection. Therefore, this Court enhances the compensation towards loss of love and affection from Rs.10,000/- to Rs.80,000/-.

(d) The Tribunal has erroneously failed to award any compensation amount towards loss of estate, which the claimants are legally entitled to as per the said decision of the Hon'ble Supreme Court in the case of Pranay Sethi referred to supra. This Court, in accordance with the said judgment, awards a compensation of Rs.15,000/- to the claimants towards loss of estate.

9. For the foregoing reasons, the total compensation awarded by the Tribunal is enhanced from Rs.4,95,000/- to Rs.5,90,000/- (Rupees five lakhs and ninety thousand only) to the following extent :

S.No Head Amount awarded by the Tribunal Amount awarded by this Court Loss of Income Rs.4,80,000/- Rs. 4,80,000/- Funeral Expenses Rs. 5,000/- Rs. 15,000/- Loss of love and affection Rs. 10,000/- Rs. 80,000/- Loss of estate NIL Rs. 15,000/- Total Rs.4,95,000/- Rs.5,90,000/-

10. In the result, the appeal in CMA.No.338 of 2016 filed by the claimants seeking enhancement of compensation is partly allowed and the appeal in CMA.No.989 of 2016 filed by the Insurance Company is allowed by granting pay and recovery rights The Insurance Company is directed to pay the determined compensation amount to the claimants and recover the same from the insured thereafter. No costs. Consequently, the connected CMPs are closed.

11. The Insurance Company is directed to deposit the entire award amount as determined by this Court in this appeal together with interest and costs at the rate of 7.5% per annum from the date of petition till date of realization less the amount already deposited to the credit of the claim petition within two weeks from the date of receipt of a copy of this judgment. The Tribunal itself, at the time of passing the award, permitted claimants 1

and 2 to withdraw 50% of the award amount after deposit of the award amount by the Insurance Company. Now that the minors attained majority, it is made clear that on deposit of the entire award amount to the extent indicated in this judgment, the Tribunal is directed to transfer the balance award amount together with interest lying to the credit of the claim petition as apportioned by the Tribunal directly to the bank accounts of the respective claimants through RTGS within two weeks thereafter. Proportionate court fee has to be paid by the appellants in CMA.No.338 of 2016/claimants before receiving the copy of this judgment.

Sd/- Assistant Registrar(R) // True Copy // Sub Assistant Registrar RS To 1.The Motor Accidents Claims Tribunal (Principal District Court), Namakkal.

2.The Section Officer, V.R.Section, High Court, Madras.

CMA.Nos.338 & 989 of 2016 & CMP.Nos.7546 of 2016 & 11044 of 2018 AK(CO) CB(06/12/2021)