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High Court of Judicature at Madras
P.R. SHIVAKUMAR, J.
Kasthuri & Another
Versus
M. Gopu & Another
C.M.A.No.2291 of 2011
Decided on: 20-06-2014
Motor Vehicles Act, 1988 - Section 149(2) - First Information Report - Contract of insurance - Motor Accidents Claims - Appellants herein being wife and daughters who died in an accident that took place near Village on High Road involving motorcycle belonging to first respondent herein bearing Registration made a claim before Motor Accident Claims Tribunal against first respondent and second respondent herein claiming a sum as compensation - Said claim was made based on their contention that while deceased was proceeding in his TVS Champ Moped bearing Registration motorcycle bearing Registration belonging to first respondent came from behind at a high speed and hit deceased due to rash and negligent riding of said motorcycle by its rider and that said impact resulted in fatal injuries leading to death of said - It had been contended further that deceased was and self-employed as a Mason earning per month and that due to his death in accident his wife and daughters suffered pecuniary loss as they suffered loss of monetary support from income of deceased besides first appellant losing consortium and appellants 2 and 3 herein losing love and affection of father - It was also contended that offending vehicle namely motorcycle bearing Registration belonging to first respondent herein stood insured with second respondent and that hence first and second respondents were jointly and severally liable to pay compensation to appellants herein – Held, Tribunal chose to award towards funeral expenses and towards loss of consortium caused to wife of deceased - A sum of awarded by Tribunal is liable to be enhanced following judgment of Supreme Court reported - Age of deceased was years and age of his wife namely first appellant at time of death of her husband - Appellants 2 and 3 are their daughters and both of them got married even prior to death of deceased - Considering said fact and following guidelines provided by Apex Court in cited supra this Court is of considered view that enhancing compensation for loss of consortium caused to first appellant from shall be reasonable - Tribunal has chosen to award a sum on head of loss of Estate - Medical expenditure and transportation charges incurred can be projected as a loss to estate - If at all TribunalCourt comes to a conclusion that apart from contribution made to family and after meeting personal and living expenses deceased could have saved certain portion of his income and such saving is not taken into account for fixing monetary loss caused to claimants then same can be awarded as a loss occasioned to estate of deceased - In absence of any such evidence and in absence of such a finding award of said amount on head of loss of estate cannot be justified and same has got to be disallowed – Hence total amount of compensation awarded by Tribunal is increased rounded off - At cost of repetition split up particulars of above said amount are furnished - Tribunal has rightly applied to be rate of interest to which appellants hereinclaimants were entitled on compensation amount from date of filing of M.C.O.P till date of deposit – Hence there is no need for interference with rate of interest - Since appellants 2 and 3 are married daughters of deceased and first appellant is widow of deceased apportionment of compensation - Appeal is allowed
1. This Civil Miscellaneous Appeal has been preferred against the judgment and decree of the Motor Accidents Claims Tribunal (Principal District Judge), Thiruvallur dated 29.03.2011 made in M.C.O.P.No.240 of 2008 on the file of the said Tribunal.
2. The appellants herein, being the wife and daughters of one Subramani, who died in an accident that took place at about 14.00 hours on 21.04.2007 near Murukkampattu Village on the Tiruttani-Thirupathi High Road, involving the motorcycle belonging to the first respondent herein bearing Registration No.TN02-AA-5951, made a claim before the Motor Accident Claims Tribunal against the first respondent (owner) and the second respondent herein (insurer), claiming a sum of Rs.9,00,000/- as compensation. The said claim was made based on their contention that while the deceased was proceeding in his TVS Champ Moped bearing Registration No.TN20-B-6257, the motorcycle bearing Registration No.TN02-AA-5951 belonging to the first respondent came from behind at a high speed and hit the deceased due to the rash and negligent riding of the said motorcycle by its rider and that the said impact resulted in fatal injuries leading to the death of the said Subramani. It had been contended further that the deceased Subramani was aged about 50 years and was self-employed as a Mason earning Rs.6000-7000/-per month and that due to his death in the accident, his wife and daughters (appellants herein/claimants 1 to 3) suffered pecuniary loss as they suffered loss of monetary support from the income of the deceased, besides the first appellant losing consortium and the appellants 2 and 3 herein losing love and affection of the father. It was also contended that the offending vehicle, namely the motorcycle bearing Registration No.TN02-AA-5951 belonging to the first respondent herein, stood insured with the second respondent (insurer) and that hence the first and second respondents were jointly and severally liable to pay compensation to the appellants herein.
3. The first respondent herein did not contest the M.C.O.P and he remained ex parte. The second respondent/insurer alone contested the case raising all grounds of defence available to the insured, namely the first respondent, apart from the grounds available to the insurer under Section 149(2) of the Motor Vehicles Act, 1988, after getting permission under Section 170 of the Motor Vehicles Act. In the counter statement, besides making general denial of the narration of the accident contained in the M.C.O.P and the age, occupation and income of the deceased, the second respondent contended that the deceased, who was the rider of TVS Champ bearing Registration No.TN20-B-6257, was not having valid Driving Licence; that even the rider of the motorcycle belonging to the first respondent bearing Registration No.TN02-AA-5951 which stood insured with the second respondent did not possess a valid Driving Lincence as on the date of accident and that hence, the second respondent should be exonerated from its liability to satisfy the award that might be passed against the first respondent. It was also contended that the first respondent, who was the rider of the above said motorcycle, was under the influence of alcohol at the time of accident and that the same was also a valid ground for the second respondent/insurer to repudiate the contract of insurance. The further contention raised in the counter statement was that since the insurer of the moped bearing Registration No.TN20-B-6257 in which the deceased was proceeding was not made a party respondent, the M.C.O.P was bad for non-joinder of necessary party and that in view of the violation of the policy conditions regarding the insurance of the alleged offending vehicle, namely motorcycle bearing Registration No.TN02-AA-5951, the appellants could not claim any amount even under Section 140 of the Motor Vehicles Act, unless the appellants would prove that the accident happened solely due to the negligence of the
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