C.M.A.No.2010 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A. No.2010 of 2022
and C.M.P.No.15364 of 2022
Reliance Gen. Ins. Co. Ltd.,
Dhanums Tower, 1st Floor, No.1, Binny Road,
Park Road Street, Tiruppur 641 601. .. Appellant
Vs.
1.K.Magali
2.M.Thirumal
3.K.Veerammal
4.Minor K.Prasanth
(rep. By next friend & mother, 3rd respondent)
5.G.Thirunavukkarasu .. Respondents
_____
1/10
https://www.mhc.tn.gov.in/judis
C.M.A.No.2010 of 2022
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 26.08.2021, made
in M.C.O.P. No.1647 of 2018, on the file of the District Court, (Motor
Accident Claims Tribunal), Tiruppur.
For Appellant : Mrs.C.Bhuvanasundari
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.] This Civil Miscellaneous Appeal has been filed by the appellant- Insurance Company against the judgment and decree dated 26.08.2021, made in M.C.O.P. No.1647 of 2018, on the file of the District Court, (Motor Accident Claims Tribunal), Tiruppur.
2.The appellant is the 2nd respondent in M.C.O.P. No.1647 of 2018, on the file of the District Court, (Motor Accident Claims Tribunal), Tiruppur. _____ 2/10 https://www.mhc.tn.gov.in/judis C.M.A.No.2010 of 2022 The respondents 1 to 4/claimants filed the said claim petition, claiming a sum of Rs.40,00,000/- as compensation for the death of one M.Kittan who died in the accident that took place on 23.07.2018.
3.According to the respondents 1 to 4, on the date of accident, at about 9.00 p.m., when the deceased M.Kittan was walking at Kamanaickenpalayam to Karadivavi road, near Pulliyampatti Pirivu, from South to North direction observing all the traffic rules and regulations, the 5th respondent rode the Pulsar Motorcycle bearing Registration No.TN-37-CJ-7223 in the said road in the same direction in a rash and negligent manner and dashed behind the deceased M.Kittan and caused the accident. In the accident, the said M.Kittan sustained fatal injuries and died on the way to Hospital. The accident occurred only due to rash and negligent riding by the 5th respondent/rider of the Pulsar Motorcycle and hence, the respondents 1 to 4 filed the said claim petition claiming compensation against the 5th respondent and appellant- Insurance Company as rider-cum-owner and insurer of the Pulsar Motorcycle respectively.
_____ 3/10 https://www.mhc.tn.gov.in/judis C.M.A.No.2010 of 2022
4.The 5th respondent, rider-cum-owner of the Pulsar Motorcycle, remained exparte before the Tribunal.
5.The appellant, insurer of the Pulsar Motorcycle, filed counter statement and denied all the averments made by the respondents 1 to 4 in the claim petition, including involvement of Pulsar Motorcycle and occurrence of alleged accident. According to the appellant-Insurance Company, the accident occurred only due to the negligence on the part of the deceased M.Kittan. The 5th respondent violated policy conditions by riding the vehicle which was only temporarily registered, without possessing vaild driving license. For such violation of policy conditions, the appellant is not liable to indemnify the 5th respondent. In any event, the respondents 1 to 4 have to prove the age, avocation and income of the deceased M.Kittan to claim compensation and prayed for dismissal of the claim petition. _____ 4/10 https://www.mhc.tn.gov.in/judis C.M.A.No.2010 of 2022
6.Before the Tribunal, the 3rd respondent examined herself as P.W.1 and marked 10 documents as Exs.P1 to P10. The appellant did not let in any oral and documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent riding by 5th respondent/rider of the Pulsar Motorcycle and directed the appellant as insurer of the said vehicle to pay a sum of Rs.25,27,000/- as compensation to the respondents 1 to 4.
8.Against the said award of the Tribunal dated 26.08.2021, made in M.C.O.P. No.1647 of 2018, the appellant - Insurance Company has come out with the present appeal.
9.Though the appellant-Insurance Company raised various grounds with regard to negligence, at the time of arguments, the learned counsel _____ 5/10 https://www.mhc.tn.gov.in/judis C.M.A.No.2010 of 2022 appearing for the appellant restricted her arguments only with regard to multiplier applied and 40% enhancement granted towards future prospects. The learned counsel appearing for the appellant-Insurance Company contended that the Tribunal having rightly held that the deceased M.Kittan has completed 40 years at the time of accident, erroneously applied the multiplier '15' instead of correct multiplier '14' and erroneously granted 40% enhancement towards future prospects instead of granting only 25%, in awarding compensation towards loss of income and hence, prayed for reducing the compensation awarded by the Tribunal to the respondents 1 to 4.
10.Heard the learned counsel appearing for the appellant-Insurance Company and perused the entire materials available on record.
11.From the materials on record, it is seen that it is the case of the respondents 1 to 4 that at the time of accident the deceased M.Kittan was aged 40 years. To substantiate the same, they have marked Ex.P10 – Aadhar card of the deceased. The Tribunal considering Ex.P10 wherein it has been _____ 6/10 https://www.mhc.tn.gov.in/judis C.M.A.No.2010 of 2022 mentioned that the deceased M.Kittan was born in the year 1978 and the accident of the year 2018, held that the deceased has completed 40 years at the time of accident. The Tribunal taking into consideration the completed age of the deceased as 40 years, rightly applied the correct multiplier '15', but erroneously granted 40% enhancement towards future prospects. As per the judgment of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others], for the age group between 40 – 50 years, 25% enhancement is granted towards future prospects in respect of person self-employed or on fixed salary. It is the case of the respondents 1 to 4 that the decaesed M.Kittan was working in a Power Loom and was earning a sum of Rs.20,000/- per month. P.W.1, wife of the deceased deposed to that effect. Except the evidence of P.W.1, the respondents 1 to 4 did not file any document to prove the same. In the absence of any documentary evidence to prove the avocation and income of the deceased, the Tribunal considering the nature of work done by him, fixed a sum of Rs.13,000/- per month as notional income of the deceased. The accident is of the year 2018. The monthly income fixed by the Tribunal is _____ 7/10 https://www.mhc.tn.gov.in/judis C.M.A.No.2010 of 2022 meagre. In view of the meagre amount fixed by the Tribunal, the 40% enhancement granted by the Tribunal towards future prospects, instead of granting 25% is not interfered with. The amounts awarded by the Tribunal under other heads are not excessive. There is no error in the said award of the Tribunal warranting interference by this Court.
12.In the result, the appeal is dismissed and the amount awarded by the Tribunal at Rs.25,27,000/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit is confirmed. The appellant-Insurance Company is directed to deposit the award amount together with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.1647 of 2018. On such deposit, the respondents 1 to 3 are permitted to withdraw their share of the award amount, along with proportionate interest and costs, as per the apportionment fixed by the Tribunal, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. The share of the minor 4th _____ 8/10 https://www.mhc.tn.gov.in/judis C.M.A.No.2010 of 2022 respondent is directed to be deposited in any one of the Nationalized Bank, till the minor attains majority. The 3rd respondent, mother of the minor 4th respondent is permitted to withdraw the accrued interest, once in three months for the welfare of the minor 4th respondent. Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (V.S.G., J) 15.09.2022 Index : Yes/No Speaking Order : Yes/No gsa To
1.The Principal Judge, District Court, (Motor Accident Claims Tribunal), Tiruppur.
2.The Section Officer, V.R Section, High Court, Madras.
_____ 9/10 https://www.mhc.tn.gov.in/judis C.M.A.No.2010 of 2022 V.M.VELUMANI, J.
and V.SIVAGNANAM, J.
(gsa) C.M.A. No.2010 of 2022 15.09.2022 _____ 10/10 https://www.mhc.tn.gov.in/judis