Madras High Court
United India Insurance Company ... vs N.S.Indrica on 5 February, 2021
C.M.A.No.670 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.670 of 2019
and
C.M.P.Nos.2038 & 7863 of 2019
United India Insurance Company Limited,
Motor Third Party Claims Cell,
No.134, Greams Road, 5th Floor,
Chennai – 600 006. .. Appellant
Vs.
1.N.S.Indrica
2.C.Kinsajenibar
3.Vijayakumar
4.M.Christ Doss .. Respondents
(4th respondent impleaded-amendment carried
out as per order dated 21.06.2017 made in
M.P.No.1062 of 2016)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
12.09.2018 made in M.C.O.P.No.4105 of 2014 on the file of the Motor
Accidents Claims Tribunal, IV Small Causes Court, Chennai.
For Appellant : Mr.D.Bhaskaran
For RR 1 & 2 : Mr.U.Chithambaram
for Mr.K.Varadha Kamaraj
For R3 : No appearance
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.No.670 of 2019
JUDGMENT
The matter is heard through “Video-Conferencing”.
2.This Civil Miscellaneous Appeal has been filed to set aside the award
dated 12.09.2018 made in M.C.O.P.No.4105 of 2014 on the file of the Motor
Accidents Claims Tribunal, IV Small Causes Court, Chennai.
3.The appellant is the 2nd respondent in M.C.O.P.No.4105 of 2014 on
the file of the Motor Accidents Claims Tribunal, IV Small Causes Court,
Chennai. The respondents 1 and 2 filed the said claim petition, claiming a
sum of Rs.20,00,000/- as compensation for the death of one C.Victor, who
died in the accident that took place on 23.04.2014. The 4 th respondent was
impleaded in the claim petition and amendment was carried out as per the
order dated 21.06.2017 made in M.P.No.1062 of 2016.
4.According to respondents 1 and 2, on 23.04.2014 at about 20.45
hours, while the deceased C.Victor was travelling as a pillion rider in a
motorcycle bearing Registration No.TN 18 D 6255 from North to South
direction on M.R.H.Road opposite to Adeshwar Metal Godown, the driver of
the lorry bearing Registration No.TN 02 J 9909 belonging to 3rd respondent
https://www.mhc.tn.gov.in/judis/
C.M.A.No.670 of 2019
drove the same in a rash and negligent manner without observing the Traffic
Rules and without minding the vehicles in the same direction, tried to
overtake the motorcycle in which the deceased was travelling as a pillion
rider, dashed on the backside of the motorcycle and caused the accident. Due
to the said impact, the said C.Victor fell down from the motorcycle on the
road and the right wheel of the lorry ran over his head. Due to the same, the
said C.Victor, sustained fatal injuries on his head and died on the spot.
Therefore, the respondents 1 and 2 filed the said claim petition claiming a
sum of Rs.20,00,000/- as compensation against the 3rd respondent and
appellant-Insurance Company, being the owner and insurer of the Lorry
respectively.
5.The 3rd respondent-owner of the Lorry remained exparte before the
Tribunal.
6.The appellant-Insurance Company, being the insurer of the Lorry
filed counter statement and denied all the averments made by the respondents
1 and 2. According to the appellant, the driver of the lorry has to be
impleaded as necessary party in the claim petition. The respondents 1 and 2
have to prove that the said C.Victor died in the accident involving the lorry
https://www.mhc.tn.gov.in/judis/
C.M.A.No.670 of 2019
bearing Registration No.TN 02 J 9909 belonging to 3rd respondent. The
appellant denied the place, date and time of accident and also the fact that the
3rd respondent's lorry was insured with them at the time of accident. The
respondents 1 and 2 have to prove that the driver of the lorry belonging to 3 rd
respondent was possessing valid driving license at the time of accident. The
appellant denied the relationship of the deceased with the respondents 1 and 2
and also the age, avocation and income of the deceased. In any event, the
quantum of compensation claimed by the respondents 1 and 2 is highly
excessive and prayed for dismissal of the claim petition.
7.Before the Tribunal, the 1st respondent examined herself as P.W.1,
one Selvakumar, eyewitness to the accident was examined as P.W.2 and one
Mathiyas, employer of the deceased was examined as P.W.3 and 18
documents were marked as Exs.P1 to P18. The appellant-Insurance Company
did not let in any oral and documentary evidence.
8.The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occurred due to rash and negligent driving by
the driver of the Lorry belonging to 3rd respondent and directed the appellant
to pay a sum of Rs.32,04,000/- as compensation to the respondents 1, 2 and 4.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.670 of 2019
9.Questioning the quantum of compensation awarded by the Tribunal
in the award dated 12.09.2018 made in M.C.O.P.No.4105 of 2014, the
appellant has come out with the present appeal.
10.The learned counsel appearing for the appellant contended that the
Tribunal failed to note that mere production of Ex.P14 to P18, cannot be
presumed that the deceased was employed under P.W.3 and was getting
salary. There is no material to show that the deceased was a skilled person
and the Tribunal ought to have considered that deceased was only unskilled
person. The Tribunal in the absence of materials, erred in fixing a sum of
Rs.15,000/- per month as notional income of the deceased for a 19 years old
boy. The deceased was a bachelor at the time of accident and the Tribunal
ought to have deducted 50% towards personal expenses of the deceased
instead of deducting 1/3rd. The sum of Rs.1,50,000/- awarded by the Tribunal
for loss of love and affection is excessive and contrary to the judgment of the
Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC), [National
Insurance Company Limited Vs. Pranay Sethi and others] and prayed for
setting aside the award of the Tribunal.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.670 of 2019
11.Per contra, the learned counsel appearing for the respondents 1 and
2 contended that at the time of accident, the deceased was aged 19 years, was
a Worker in M.L.Industries, Korattur, Chennai – 600 020 and was earning a
sum of Rs.20,000/- per month. The respondents 1 and 2 examined one
Mathiyas, employer of the deceased as P.W.3 and marked Ex.P6/salary
certificate to show that deceased was earning a sum of Rs.20,000/- per month.
The Tribunal erroneously did not accept the salary certificate and fixed only a
sum of Rs.15,000/- as monthly income of the deceased on the ground that
salary was paid by cash and no Bank Statement was produced. The total
compensation awarded by the Tribunal is not excessive and prayed for
dismissal of the appeal.
12.Though notice has been served on the 3rd respondent and his name
is printed in the cause list, there is no representation for him, either in person
or through counsel.
13.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondents 1 and 2 and perused the entire
materials on record.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.670 of 2019
14.It is the case of the respondents 1 and 2 that at the time of accident,
the deceased was aged 19 years, was a Worker in M.L.Industries, Korattur,
Chennai – 600 020 belonging to P.W.3. According to respondents 1 and 2,
the deceased was earning a sum of Rs.20,000/- per month. In support of their
case, the respondents 1 and 2 examined the employer of the deceased as
P.W.3 and marked documents Exs.P14 to P18 to show that existence of
industries belonging to P.W.3. The respondents 1 and 2 filed Ex.P6/salary
certificate of the deceased. Apart from the salary certificate, P.W.3 has not
produced the Attendance Register, Salary Register and Payment Voucher. In
the absence of these documents, the Tribunal did not accept Ex.P6/salary
certificate and fixed a sum of Rs.15,000/- per month as notional income of
the deceased. A sum of Rs.15,000/- per month fixed by the Tribunal as
notional income of the deceased after not accepting the salary certificate is
excessive and the same is reduced to Rs.13,000/- per month. The deceased
was a bachelor at the time of accident. As per the judgment of the Hon'ble
Apex Court reported in 2009 (2) TNMAC 1 SC Supreme Court, [Sarla
Verma & others Vs. Delhi Transport Corporation & another], the Tribunal
ought to have deducted 50% towards personal expenses of the deceased
instead of deducting 1/3rd. In view of the above, the amount awarded by the
Tribunal towards loss of dependency is modified to Rs.19,65,600/-
https://www.mhc.tn.gov.in/judis/
C.M.A.No.670 of 2019
{Rs.18,200/- [Rs.13,000/- + Rs.5,200/- (40% of Rs.13,000/-)] X 12 X 18 X
½}. The Tribunal has awarded a sum of Rs.1,50,000/- towards loss of love
and affection, which is excessive and the same is reduced to Rs.80,000/-. The
amounts awarded by the Tribunal under other heads are just and reasonable
and hence, the same are hereby confirmed. Thus, the compensation awarded
by the Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Loss of dependency 30,24,000/- 19,65,600/- Reduced
2. Loss of love and 1,50,000/- 80,000/- Reduced
affection
3. Loss of estate 15,000/- 15,000/- Confirmed
4. Funeral expenses 15,000/- 15,000/- Confirmed
Total Rs.32,04,000/- Rs.20,75,600/- Reduced by
Rs.11,28,400/-
15.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.32,04,000/- is hereby
reduced to Rs.20,75,600/- together with interest at the rate of 7.5% per annum
from the date of petition till the date of deposit. The appellant-Insurance
Company is directed to deposit the modified award amount now determined
by this Court 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
https://www.mhc.tn.gov.in/judis/
C.M.A.No.670 of 2019
judgment, to the credit of M.C.O.P.No.4105 of 2014 on the file of the Motor
Accidents Claims Tribunal, IV Small Causes Court, Chennai. On such
deposit, the respondents 1, 2 and 4 are permitted to withdraw their respective
share of the award amount now determined by this Court, as per the ratio of
apportionment fixed by the Tribunal, along with proportionate interest and
costs, less the amount if any, already withdrawn by making necessary
applications before the Tribunal. The appellant-Insurance Company is
permitted to withdraw the excess amount lying in the credit of
M.C.O.P.No.4105 of 2014, if the award amount has already been deposited
by them. Consequently the connected Miscellaneous Petitions are closed. No
costs.
05.02.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The IV Judge,
Motor Accidents Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.670 of 2019
V.M.VELUMANI, J.
krk
C.M.A.No.670 of 2019
05.02.2021
https://www.mhc.tn.gov.in/judis/
