Madras High Court
S. Kavithadevi vs R. Venkateshwaran on 2 December, 2021
CMA No.796 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.M.A.No.796 of 2020
1.S. Kavithadevi
2.T. Surendran
3.S. Naveenkumar ... Appellants
Vs.
1.R. Venkateshwaran
2.Reliance General Insurance Co., Limited,
No.6, Haddows Road,
6th Floor, Nungambakkam,
Chennai - 600 006. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, to set aside the judgment and decree dated 05.02.2013
passed in M.C.O.P.No.339/2011 by the learned II Judge, Court of Small
Causes cum Motor Accident Claims Tribunal, Chennai and enhance the
award amount.
For Appellants : Mr. Amar D. Pandiya
For Respondents : Mrs. C. Bhuvanasundari, for R2
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CMA No.796 of 2020
JUDGMENT
The claimants are on appeal terming the award in MCOP.No.329
of 2011 as meager.
2. The compensation was sought for the death of one Premkumar,
aged 23 years, in a motor accident that occurred on 01.01.2011. According
to the claimants, while Premekumar was riding the motorcycle bearing
Reg.No.TN-31-AY7418 at EVR Salai, Panjali Amman Koil Street Junction,
Chennai, a tipper lorry bearing Reg.No.TN01-W-3835, owned by the 1st
respondent and insured with the 2nd respondent driven in a rash and
negligent manner by its driver, came from behind and dashed against the
motorcycle. As a result of the impact, the deceased was thrown out of the
motorcycle and suffered multiple injuries. He died on the way to hospital.
3. Contending that the death of Premkumar, who was a graduate
Engineer at the tender age of 23 years, has apart from resulting in extreme
grief, resulted in loss of financial support. It is also claimed that the
appellants were dependent on the deceased for their sustenance.
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CMA No.796 of 2020
4. Insurance Company resisted the claim contending that the
deceased had contributed to the accident. The claim that the driver of the
tipper lorry, drove the lorry in a negligent manner was denied. The quantum
of compensation claimed at Rs.15,00,000/- was claimed to be excessive.
5. The Tribunal upon consideration of the evidence on record,
concluded that it is the driver of the lorry, who was negligent and held that
the negligence of the lorry driver was the cause of the accident. On the said
finding, the Tribunal concluded that the Insurance Company is liable to pay
the compensation.
6. On the quantum, the Tribunal took monthly income at
Rs.12,000/- added 30% towards future prospects and arrived at a total
income of Rs.15,600/-. The Tribunal arrived at a loss of annual dependency
at Rs.1,87,200/- and had made deduction of 50%, as the claimant was a
bachelor and arrived at the loss of annual dependency at Rs.93,600/-. The
Tribunal applied multiplier '13', taking into account the age of the parents
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CMA No.796 of 2020
and arrived at a total loss of dependency at Rs.12,16,800/-. The Tribunal
granted a sum of Rs.13,200/- towards funeral expenses and Rs.1,50,000/-
towards loss of love and affection and the total compensation was fixed at
Rs.13,80,000/-.
7. I have heard Mr.Amar D Pandia, learned counsel appearing for
the appellants and Mrs.C.Bhuvanasundari, learned counsel appearing for the
Insurance Company.
8. Mr.Amar D Pandiya, learned counsel appearing for the
appellants would contend that the trial Court was not right in taking the
income of the deceased at Rs.12,000/-. Considering the fact that he was an
engineering graduate, according to him, the Tribunal ought to have fixed the
income at Rs.15,000/- per month.
9. Relying upon the judgment of the Hon'ble Supreme Court in
National Insurance Co. Ltd vs. Pranay Sethi and others reported in 2017
(2) TN MAC 271, the learned counsel would contend that the Tribunal erred
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CMA No.796 of 2020
in fixing the future prospects at 30% and adopting the multiplier based on
the age of the claimants. He would submit that as per the judgment of the
Hon'ble Supreme Court, the Tribunal should have taken future prospects at
40%. Since the deceased was aged only 23 years, the Tribunal should have
taken the age of the deceased for fixing the multiplier.
10. Mrs.C.Bhuvanasundari, learned counsel appearing for the
Insurance Company would contend that the compensation is just and
reasonable. She would also add that the accident having taken place in the
year 2011, the Tribunal was right in taking 30% as future prospects and
taking the age of the claimants for fixing the multiplier.
11. I am unable to accept the contention of the learned counsel for
the Insurance Company. In view of the judgment of the Hon'ble Supreme
Court in National Insurance Co. Ltd vs Pranay Sethi and others cited
supra, even thought the accident occurred in 2011, the law declared by the
Hon'ble Supreme Court would apply, unless the award is shown to have
become final. All the judgments are retrospective unless they are made
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CMA No.796 of 2020
specifically prospective. The judgment in National Insurance Co. Ltd vs
Pranay Sethi and others referred to supra, is not made specifically
prospective. Therefore, the said judgment can be applied even for
determining compensation for the victim of the accident that took place
prior to the judgment, provided the award has not become final.
12. If we are to ascertain the compensation on the basis of the law
laid down in National Insurance Co. Ltd vs Pranay Sethi and others
referred to supra, the monthly income of the deceased must be taken at
Rs.12,000/- and 40% should be added towards future prospects as
contended by the counsel for the appellant. The monthly income comes to
Rs.16,800/-. 50% should be deducted for personal expenses, as the
deceased was a bachelor. Therefore, the monthly contribution is Rs.8,400/-.
Annual contribution or loss of dependency would be Rs.1,00,800/-. Since
the deceased was aged about 23 years, the multiplier to be applied is '18', as
the Hon'ble Supreme Court has pointed out that the age of the deceased
alone should be taken into account and not the age of the claimants for
determining the compensation. Thus calculated, the total loss of
dependency would be Rs.18,14,400/-.
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CMA No.796 of 2020
13. The Tribunal has awarded Rs.13,200/- for funeral expenses
the same is enhanced to Rs.15,000/-. The Tribunal has awarded a sum of
Rs.1,50,000/- towards loss of love and affection. The claimants are parents
and brother of the deceased. Therefore, I find that the award under the head
of loss of love and affection is on the higher side and the same is reduced to
Rs.1,00,000/-. Thus, the total amount works out to Rs.19,29,400/- and the
same is rounded off to Rs.19,29,000/-.
14. The appeal is therefore partly allowed and the award of the
Tribunal is enhanced to Rs.19,29,000/- with interest as awarded by the
Tribunal. The Insurance Company is directed to deposit the enhanced
compensation amount with interest as awarded by the Tribunal, less the
amount, if any, already deposited within a period of six weeks from the date
of receipt of a copy of the judgment and on such deposit the claimants will
be entitled to withdraw the same. No costs.
02.12.2021
Index : No
Speaking order
dsa
https://www.mhc.tn.gov.in/judis
CMA No.796 of 2020
R.SUBRAMANIAN, J.
dsa
To
The II Judge, Court of Small Causes Court
cum Motor Accident Claims Tribunal, Chennai.
C.M.A.No.796 of 2020
02.12.2021
https://www.mhc.tn.gov.in/judis
