Madras High Court
United India Insurance Company ... vs Vimala on 30 April, 2021
C.M.A. No.1965 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.04.2021
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A. No.1965 of 2016
and
CMP No.14240 of 2016
United India Insurance Company Ltd.,
Rep. by its Divisional Manager,
Divisional Office at
104-A, Peramanur Road,
Salem - 7. .... Appellant
versus
1. Vimala
2. Minor Sugavaneswaran
(amended as per order in
I.A. No.558/14, dated 4.3.2014)
Minor represented by N/F Mother Vimala
3. Mahesh
4. G. Manimegalai ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the award and decree dated 02.06.2016 made in
O.P. No.318 of 2012 on the file of the Motor Accidents Claims Tribunal
(Special District Court), Salem.
For Appellant : Mr.D. Bhaskaran
For Respondents : Mr.M.Sivakumar for R1 to R3
R4 - No such address
1/13
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C.M.A. No.1965 of 2016
JUDGMENT
This appeal has been filed by the Insurance Company challenging the
award dated 02.06.2016 passed by the Motor Accident Claims Tribunal,
(Special District Court), Salem in M.C.O.P. No.318 of 2012.
2.A person by name Prabhu died on 12.01.2012 as a result of an
accident caused by an Auto bearing Registration No.TN 30 AH 9396
owned by the 4th respondent and insured with the Appellant. The accident
happened when the deceased was riding a two wheeler ( TVS Star City)
bearing Registration No.TN-30-U-6331 in Trichy Main Road from Salem
Town towards Dadagapatty when the insured Auto bearing TN 30 AH 9396
came in a rash and negligent manner on the extreme right side in the
opposite direction of the deceased vehicle and suddenly turned to his right
to pickup the passengers on the right side of the road and thus dashed
against the two wheeler and as a result of the same, Prabhu sustained
grievous injuries and he died in the hospital.
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C.M.A. No.1965 of 2016
3. The Tribunal under the impugned award directed the appellant /
Insurance Company to pay the respondents / claimants a compensation of
Rs.9,51,000/- for the death of Prabhu caused by the vehicle insured with
the appellant.
4. The details of the compensation awarded by the Tribunal are as
follows :
Heads Amount awarded
by the Tribunal
(Rs.)
Loss of Pecuniary Benefits 8,16,000/-
(Rs.6,000/- Less 1/3rd x 12 x
17)
Loss of Consortium 50,000/-
Loss of Love and affection - 50,000/-
son
Loss of love and affection - 10,000/-
mother
Funeral expenses 25,000/-
Total compensation 9,51,000/-
5. Out of the total compensation, the Tribunal determined the amount
payable to the first claimant, being the wife of the deceased at Rs.5,51,000/-
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C.M.A. No.1965 of 2016
the second claimant being the minor son of the deceased at Rs.3,00,000/-
and the third claimant being the mother of the deceased at Rs.1,00,000/-.
6a. The first ground of challenge raised by the appellant / Insurance
Company under the impugned award is that the Tribunal has erroneously
fixed the contributory negligence on the Driver of the Auto insured with the
appellant / Insurance Company. According to them, FIR has been registered
only against the deceased and hence the driver of the insured Auto was not
responsible. Further, according to them, even as per spot sketch, the
deceased came to extreme right side of the road and hit against rear right
portion of the auto and fell down and sustained fatal injuries and thus, they
are not liable to compensate the claim of respondents / claimants.
According to them, the Tribunal has erroneously mulcted the liability on the
appellant / Insurance Company despite the fact that the evidence available
on record conclusively establishes that only due to the negligence of the
deceased, the accident happened which resulted in the fatal accident.
6b. The second ground of challenge raised by the appellant /
Insurance Company is that the quantum of compensation awarded by the
Tribunal is excessive.
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C.M.A. No.1965 of 2016
7. Heard Mr.D. Bhaskaran, learned counsel for the appellant and
Mr.M.Sivakumar, learned counsel for the respondents 1 to 3. Since no
adverse orders are going to be passed against the 4th respondent, notice to
the 4th respondent is dispensed with.
8. This Court has perused the materials and evidence available on
record before the Tribunal.
9. Before the Tribunal, the claimants have filed three documents,
which were marked as Exs.P1 to P3 and two witnesses were examined on
their side viz., Vimala, the wife of the deceased (PW1) and Ganesan, an eye
witness to the accident (PW2). On the side of the appellant / Insurance
Company two documents were marked as Ex.R1, copy of the insurance
policy and Ex.R2, copy of sketch and two witnesses were examined viz.,
the Driver of the Auto as RW1 and Insurance Company Official as RW2.
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C.M.A. No.1965 of 2016
10. FIR (EX.P1) has been registered only against the deceased, who
was the rider of the two wheeler bearing Registration No. TN-30-U-6331.
The spot sketch which was marked as Ex.R2 also reveals that the deceased
would have been equally responsible for the cause of the accident. A
consistent stand has been taken by the appellant / Insurance Company
before the Tribunal that the deceased as a rider of the motor cycle came to
the extreme right side of the road and hit against the rear right portion of the
insured Auto and fell down which resulted in his death. The Tribunal has
failed to take note of these factors before coming to the conclusion that the
insured Auto is alone responsible for the cause of the accident. This Court
is of the considered view that the evidence available on record will clearly
indicate that the deceased who was the rider of the motor cycle was also
equally responsible for the cause of the accident along with the Driver of the
Insured Auto. Hence, this Court sets aside the finding of the Tribunal that
the insured Auto is alone responsible for the cause of the accident by
modifying the said finding by holding that the deceased is also equally
responsible for the cause of the accident along with the driver of the
insured Auto. Therefore, the contributory negligence of the deceased is
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C.M.A. No.1965 of 2016
fixed by this Court at 50% along with Driver of the insured Auto whose
contributory negligence is also fixed at 50%.
11. The deceased Prabhu was aged 29 years at the time of the
accident. In the claim petition filed by the appellants / claimants, who are
the legal Representatives and the dependants of the deceased, they have
pleaded that Prabhu was self employed and doing business in making silver
ornaments and was earning Rs.10,000/- p.m. The accident happened on
12.01.2012. However, the Tribunal fixed the notional monthly income of
the deceased Prabhu at Rs.6,000/- This Court is of the considered view that
the Tribunal failed to give due consideration to the year of the accident
before fixing the notional monthly income of the deceased. Therefore, after
giving due consideration to the year of the accident, this Court fixes the
notional monthly income of the deceased at Rs.8,500/- instead of Rs.6,000/-
fixed by the Tribunal. However, the Tribunal has failed to award any
compensation towards loss of future prospects, which the appellants /
claimants are legally entitled to as per Constitution Bench judgment of the
Hon'ble Supreme Court in the case of National Insurance Company
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C.M.A. No.1965 of 2016
Limited vs. Pranay Sethi & others reported in 2017 16 SCC 680. The
deceased was aged 29 years at the time of the accident. For a person aged
29 years, the loss of future prospects payable is 40%. Accordingly, this
Court awards 40% towards loss of future prospects to the appellants /
claimants. The Tribunal has rightly deducted 1/3rd towards personal
expenses of the deceased, after giving due consideration to the number of
dependants. The Tribunal has rightly adopted the correct multiplier.
Therefore, the loss of pecuniary benefits awarded to the appellants /
claimants is enhanced from Rs.8,16,000/- to Rs.15,23,000/- (Rs.8,000 +
40% – 1/3 x 12 x 17 ).
12. Insofar as the compensation awarded by the Tribunal under
various other heads viz., Rs.50,000/- towards loss of Consortium,
Rs.50,000/- towards loss of love and affection to the minor son and
Rs.25,000/- towards funeral expenses are concerned, this Court is of the
view that the same are on the higher side and accordingly, this Court
reduces the same to Rs.40,000/-; Rs.40,000/- and Rs.15,000/- respectively.
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C.M.A. No.1965 of 2016
13. However, the Tribunal has awarded only a sum of Rs.10,000/-
towards loss of love and affection to the 3rd appellant / 3rd claimant, which
in the considered view of this Court is low, considering her age. In the
considered view of this Court, a sum of Rs.40,000/- will be an adequate
compensation towards loss of love and affection instead of Rs.10,000/-
fixed by the Tribunal.
14. The Tribunal has also failed to award any compensation towards
loss of estate to the appellants / claimants, which they are legally entitled to
in accordance with the judgment of the Hon'ble Supreme Court in the case
of National Insurance Company Limited vs. Pranay Sethi & others
reported in 2017 16 SCC 680. In accordance with the said judgment, this
Court awards a compensation of Rs.15,000/- to the appellants / claimants
towards loss of estate.
15. Accordingly, the total compensation awarded by the Tribunal has
to be reduced.
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C.M.A. No.1965 of 2016
16. For the foregoing reasons, the award of the Tribunal is hereby
modified in the following manner :
Heads Amount awarded Amount reduced
by the Tribunal by this Court
(Rs.) (Rs.)
Loss of Pecuniary Benefits 8,16,000/- 15,23,000/-
*Rs.6,000/- Less 1/3rd x 12 x * #
# Rs.8,000/- + 40% - 1/3rd x
12 x 17
Loss of Consortium 50,000/- 40,000/-
Loss of Love and affection - 40,000/-
son 50,000/-
Loss of love and affection - 40,000/-
mother 10,000/-
Funeral expenses 25,000/- 15,000/-
Loss of estate - 15,000/-
Total compensation 9,51,000/- 16,73,000/-
Less 50% towards own 8,36,500/-
negligence of the deceased
Award against the appellant 9,51,000/- 8,36,500/-
17. In the result, the appeal filed by the appellant / Insurance
Company, stands partly allowed by reducing the compensation from
Rs.9,51,000/- to 8,36,500/- as indicated above. No costs. Consequently,
connected miscellaneous petition is closed.
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C.M.A. No.1965 of 2016
18a. The second respondent / Insurance Company is directed to
deposit the modified award amount (Rs.8,36,500/-), as assessed by this
Court together with interest at 7.5% p.a. from the date of claim petition till
the date of realization, less the amount, if any, already deposited to the
credit of M.C.O.P. No.318 of 2012 on the file of the Motor Accidents
Claims Tribunal (Special District Court), Salem, within a period of four
weeks from the date of receipt of a copy of this Judgment. It is made clear
that the appellant / Insurance Company is permitted to withdraw excess
amount, if any paid by them.
18b.On such deposit being made, the Tribunal is directed to transfer
the award amount directly to the bank account of the respondents 1 and 3
/claimants 1 and 3, as per the same ratio of apportionment made by the
Tribunal, through RTGS, within a period of two weeks thereafter. Insofar as
the share of the second respondent / minor claimant is concerned, the same
shall be deposited in Fixed deposit in any one of the Nationalized Banks, till
he attains the age of majority and the interest accrued thereon shall be
withdrawn by the guardian of the minor claimant once in three months,
directly from the Bank. If the second respondent / minor claimant has
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C.M.A. No.1965 of 2016
attained the age of majority, it is open to him to file formal petition before
the Tribunal to get his share of apportionment.
30.04.2021
Index : Yes / No
Internet : Yes / No
Speaking / Non speaking
vsi2
To :
1. The Special District Court,
Motor Accidents Claims Tribunal,
Salem.
2. The Section Officer,
V.R. section,
High Court, Madras - 104.
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C.M.A. No.1965 of 2016
ABDUL QUDDHOSE, J.
vsi2
C.M.A. No.1965 of 2016
30.04.2021
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