Madras High Court
United India Insurance Co.Ltd vs K.S.Mullai on 3 February, 2021
C.M.A.No.2381 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2021
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.2381 of 2019
and
C.M.P. No.10881 of 2019
United India Insurance Co.Ltd.,
No.24, Whites Road,
Chennai – 600 014. ..Appellant
Vs.
1.K.S.Mullai
W/o.Late.A.Munisami
2.M.Padhumavathy
3.S.Farooq Ali
S/o.Syed Ibrahim Sahib
4.T.Sivasankari
W/o.Late.Tamilselvan ..Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
29.07.2016 in M.C.O.P.No.803 of 2013 on the file of the Motor Accident
Claims Tribunal, Special Sub Judge, No.2, Small Causes Court, Chennai.
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C.M.A.No.2381 of 2019
For Appellant :: Mr.S.Arun Kumar
For Respondents :: Mr.R.Shanmugakani
JUDGMENT
(Order of the Court was made by SATHI KUMAR SUKUMARA KURUP,J.)
This Civil Miscellaneous Appeal has been filed against the Judgment
and Decree dated 29.07.2016 in M.C.O.P.No.803 of 2013 on the file of the
Motor Accident Claims Tribunal, Special Sub Judge, No.2, Small Causes
Court, Chennai.
2.The appellant is the respondent in M.C.O.P.No.803 of 2013 on the
file of the Motor Accident Claims Tribunal, Special Sub Judge, No.2, Small
Causes Court, Chennai. The respondents 1, 3 and 4 herein have filed the
said claim petition, claiming a sum of Rs.20,00,000/- as compensation for
the death of one Tamilselvan, who died in the accident that took place on
27.03.2012.
3.According to the respondents 1, 2 and 4, on 27.03.2012, at about
23.00 hours, while the deceased Tamilselvan was carefully riding his
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C.M.A.No.2381 of 2019
Motorcycle bearing Registration No.TN-09-BK-4217, at South West Boag
Road, from East to West direction, Omni Bus bearing Registration No.TN-
04-M-9292 which was coming from South Usman Road, in a rash and
negligent manner, dashed against the motorcycle. As a result of which, the
deceased sustained fatal injuries and later died in the hospital on
17.04.2012. Based on the above averments, the respondents 1, 2 and 4 have
filed the claim petition claiming compensation against the 3rd respondent as
well as appellant/Insurance Company.
4.Per contra, on behalf of the appellant/Insurance Company, a counter
affidavit has been filed, inter alia disputing the age, income and occupation
of the deceased as stated by the respondents 1, 2 and 4 and that the
claimants/respondents are not the legal heir of the deceased. The Insurance
Company, therefore, prayed for dismissal of the claim petition.
5.Before the Tribunal, the 1st respondent, mother of the deceased,
examined herself as P.W.1 and one Mr.R.Suresh, was examined as P.W.2
and marked thirteen documents as Exs.P1 to P13. On the side of the
appellant/Insurance Company, neither oral nor documentary evidence has
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C.M.A.No.2381 of 2019
been adduced.
6.The Tribunal, on consideration of the pleadings, oral and
documentary evidence, held that the accident occurred due to rash and
negligent driving by the driver of the Omni Bus and directed the
appellant/Insurance Company to pay a sum of Rs.54,20,048/- as
compensation to the respondents 1, 2 and 4.
7.Questioning the quantum of compensation awarded by the Tribunal
vide award dated 29.07.2016 in M.C.O.P.No.803 of 2013 granting
compensation to the respondents 1, 2 and 4, the appellant-Insurance
Company has come forward with the present appeal.
8.Mr.S.Arun Kumar, learned counsel appearing for the
appellant/Insurance Company submitted that the award and decree of the
Claims Tribunal is contrary to the law, weight of evidence and probabilities
of this case. The claims Tribunal erred in arriving at conclusion that the
Omni Bus was responsible for the accident despite the fact that the accident
had taken place due to the rash and negligent act of the deceased two-
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C.M.A.No.2381 of 2019
wheeler rider. It is the further submission of the learned counsel appearing
for the appellant/Insurance Company herein that the Tribunal erred in fixing
Rs.25,464/- as monthly salary of the deceased based on a letter-head
certificate issued by a private school and in the absence of monthly
remittance of the said amount. Further, the learned counsel submitted that
the Tribunal ought to have applied above 13 years multiplier since the
respondents 1, 2 and 4 have not produced any proof regarding age of the
deceased either birth certificate, transfer certificate, voter ID or aadhar card
despite the fact that the deceased was employed as a Teacher. The Tribunal
failed to note that the respondents 1, 2 and 4 have not produced any legal
heir certificate to prove that the deceased was a married person and the
respondents 1, 2, and 4 in the appeal were depending upon the deceased.
The Tribunal erred in awarding 50% of the income towards future
prospectus. By any means the award granted by the Tribunal is highly
excessive and contrary to the judgment rendered on just compensation
reported in 2003 AIR SCW 3797. Therefore, the learned counsel appearing
for the appellant prayed for setting aside the award passed by the Tribual
and to reduce the quantum of compensation awarded to the claimants
proportionately.
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C.M.A.No.2381 of 2019
9.Per Contra, Mr.R.Shanmugakani, learned counsel appearing for the
respondents 1, 2 and 4/claimants submitted that the award passed by the
Tribunal is as per the ruling of the Hon'ble Supreme Court in Sarala Varma
Vs. Delhi Transport Corporation Ltd., and there is nothing to show that the
award passed by the Tribunal was perverse, warranting interference by this
Court.
10.Heard the learned counsel appearing for the appellant/Insurance
Company as well as the learned Counsel appearing for the respondents 1, 2
and 4/claimants and perused the materials available on record.
11.Whether the appeal filed by the appellant/Insurance Company
seeking to set aside the award based by the Tribunal is to be allowed and the
award is to be set aside?
Point for Consideration:
12. Perused the petition filed by the respondents 1, 2 and 4/claimants
in M.C.O.P.No.803 of 2013 on the file of the Motor Accident Claims
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C.M.A.No.2381 of 2019
Tribunal, Special Sub Judge, No.2, Small Causes Court, Chennai and the
counter filed by the 2nd respondent/Insurance Company and the award
passed by the Motor Accident Claims Tribunal, Special Sub Judge, No.2,
Small Causes Court, Chennai. On perusal of the above, it is found that on
the basis of the enquiry held by the Tribunal and on appreciation of
evidence, the Tribunal had assessed the loss of income to the respondents 1,
2 and 4/claimants, who were the mother and sister of the deceased
Tamilselvan. The Tribunal had assessed the loss of dependency based on the
salary certificate issued by the school head master under Ex.P12 which was
marked through P.W.1, the mother of the deceased who was examined as
herself as P.W.1 and through her, documents were marked. The respondent
side had not let in any oral evidence disputing the claim of the claimants.
13.During the argument, the learned counsel for the
appellant/Insurance Company stated that as per the claim petition, the
deceased was alleged to have been working as Physical Education Teacher
in State Government Railway Aided School, namely Pananthoppu Railway
Colony Aided Higher Secondary School, Ayanavaram, Chennai – 600 023.
It is the contention of the appellant/Insurance Company, that the letter head
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C.M.A.No.2381 of 2019
certificate, was marked as Ex.P12 showing the salary of the deceased
Tamilselvan, but no acquittance register was marked and no official of the
school were not examined regarding proof of salary. Therefore, the learned
counsel for the appellant disputes the award as it is excessive.
14.On perusal of the original records it is found that P.W.1 was
subjected to cross-examination regarding Ex.P12 that it was a self serving
document preferred by the claimants and denied by the same. She had
admitted the suggestion that she had not furnished the service register,
acquittance register, attendance register from the school where the deceased
was employed as Physical Education Teacher. In the claim petition, it was
clearly stated that the deceased was employed as a school teacher. On
perusal of the original records, viz., the original FIR, proof copy of the
charge sheet, proof copy of the accident register, proof copy of the charge
sheet, proof copy of the accident register, proof copy of the motorcycle
report, medical bills regarding the treatment of the deceased, copy of the
death certificate, copy of the death summary issued by the Malar Hospital,
proof of the inquest report along with Doctors statement, legal heirs
certificate, insurance papers regarding 1st respondents vehicle, family card,
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C.M.A.No.2381 of 2019
pay certificate of the deceased and medical bills all had been duly furnished
by the claimants as Ex.P1 to Ex.P-13 and only on assessment of the same,
the Tribunal assessed the income and loss of dependency caused to the
claimants due to the death of the son of the 1st respondent herein who was
the 1st respondent and sister of the 2nd respondent. The wife of the deceased
was impleaded as 4th respondent in the claim petition. If the respondents 1, 2
and 4 have any serious objection regarding claim of the claimants regarding
pay and avocation of the deceased Tamilselvan, they ought to have collected
details. Invariably the Insurance Company's employees collect details of
every accident claims. Here, the counter of the appellant/Insurance
Company even though resisted each and every claim made by the claimant
in the claim petition, they had not adduced the evidence to disprove the
claim of the claimants before the Tribunal. In such circumstances, it is to be
considered or presumed as that the appellant/Insurance Company had
admitted the fact that the deceased was working as a Physical Teacher. The
head of the school had furnished pay certificate with details as Rs.10,610/-,
Gratuity pay Rs.2,800/-, Dearness Allowance Rs.904/-, House Rent
Allowance Rs.1,400/-, CCE Rs.600/-, Medical Allowance Rs.100/-,
Personal Pay Rs.750/-, Totally it comes to Rs.25,464/-. On perusal of the
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C.M.A.No.2381 of 2019
same, it is found that what had been paid to a teacher of an aided school or
the Government school, more or less the same judicial notice shall be taken
of the pay of the school teacher in a aided school. The split up figure for the
total pay as shown in the salary certificate is found genuine and bonafide
and there is nothing to show, that it is not a genuine document. Therefore,
the learned Tribunal had accepted the pay certificate Ex.P12 in the light of
the Ex.P12, Ex.P7-Death summary issued by the Malar Hospital where it is
stated that it is a severe head injury that was the cause for the death. The age
of the deceased is given as 35 years. On perusal of the award passed by the
Tribunal, it is found that the age of the deceased and the salary as per the
salary certificate Ex.P12 was taken into consideration and the ruling of the
Hon'ble Supreme Court in Sarla Varma Vs. Delhi Transport Corporation
was invoked and the Tribunal had arrived at the reasonable award of
Rs.54,20,048/-. Therefore, nothing material to prove that the award is
excessive. Therefore, this submission of the learned counsel for the
appellant/Insurance Company is rejected the arguments of the learned
counsel for the respondents 1, 2 and 4/claimants are accepted. Accordingly,
Point for consideration is answered in favor of the respondents 1, 2, and 4
and as against the appellant/Insurance Company.
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C.M.A.No.2381 of 2019
15.In the result, this Civil Miscellaneous Appeal is dismissed and a
sum of Rs.54,20,048/- awarded by the Tribunal as compensation to the
respondents 1, 2 and 4/claimants is confirmed. The appellant-Insurance
Company is directed to pay a sum of Rs.54,20,048/- as compensation to the
respondents 1, 2 and 4/claimants along 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. On such deposit, the respondents 1, 2
and 4/claimants are permitted to withdraw the award amount along with
interest and costs, after adjusting the amount already withdrawn, if any, by
making necessary applications before the Tribunal. No costs. Consequently,
connected Miscellaneous Petition is closed.
(R.P.S.J.) (S.S.K.J.)
gbi 03.02.2021
To
1.The Motor Accident Claims Tribunal,
Special Sub Judge, No.2, Small Causes Court, Chennai.
2.The Section Officer,
V.R.Section, High Court of Madras.
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C.M.A.No.2381 of 2019
R.SUBBIAH, J.
AND
SATHI KUMAR SUKUMARA KURUP, J.
gbi
C.M.A.No.2381 of 2019
and C.M.P. No.10881 of 2019
03.02.2021
https://www.mhc.tn.gov.in/judis/
