Madras High Court
The Divisional Manager vs Francis on 8 February, 2021
CMA(MD)No.415 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CMA(MD)No.415 of 2019
and
C.M.P(MD).No.4968 of 2019
The Divisional Manager
New India Assurance Company Limited
2nd Floor, Jerome Building
Fort Station Road
Trichy - 2 ...Appellant/ 2nd Respondent
Vs
1.Francis
2.Kanikkai Mary
3.Daniel Raj ...Respondents 1 to 3/Petitioners
4.S.Sasikala ...4th Respondent/1st Respondent
Prayer: This Civil Miscellaneous Appeal has been filed under Section
173 of Motor Vehicle Act, 1988, to call for the records relating to the Fair
and Decreetal order dated 21.12.2018 passed in M.C.O.P.No.570 of 2015
by the Motor Accident Claims Tribunal (Special District Court),
Tiruchirappalli and set aside the same without costs.
1/8
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CMA(MD)No.415 of 2019
For Appellant : Mr.D.Malaichamy
For R1 to R3 : Ms.Jenifer
For R4 : No appearance
JUDGMENT
This appeal has been filed to call for the records relating to the Fair
and Decreetal order dated 21.12.2018 passed in M.C.O.P.No.570 of 2015
by the Motor Accident Claims Tribunal (Special District Court),
Tiruchirappalli and to set aside the same without costs.
2.The brief facts of the case is that on 08.02.2015 at about 5.30
p.m, one Velankanni Raj was riding in a Yamaha Two Wheeler bearing
Registration No.TN-68-J-9070 along with his friend named one
Immanuvel who was traveling as pillion rider on Ukkadai -Ammapettai
Road, when the said Velankanni Raj was proceeding in front of
Ammapettai Nethaji Colony Bus Stop, the first respondent's Tipper lorry
bearing Registration No.TN-49AF-4252 was proceeding ahead the two
wheeler motor cycle in a rash and negligent manner with hectic and
uncontrollable speed, after overtaking the said tipper lorry, the two
wheeler was proceeding ahead the tipper lorry towards Ammapettai,
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CMA(MD)No.415 of 2019
at the same time, a TVS-50 was proceeding on the above said
Ukkadai -Ammapettai road, in order to leave the way to the oncoming
TVS-50 two wheeler, the said Velankanni Raj turned his vehicle on left
side, at that time, the above said 1st respondent's tipper lorry, without
watching the said Velankanni Raj's two wheeler, dashed on his two
wheeler and caused the accident. Due to the accident, the Velankanni Raj
sustained fatal injuries all over the body and died on the spot. Therefore,
the respondents 1 to 3 who are the parents and brother of the deceased
Velankanni Raj, filed a claim petition in M.C.O.P. No.570 of 2015 before
the Motor Accident Claims Tribunal, Special District Judge, Special
District Court, Tiruchirappalli, claiming a sum of Rs.30,00,000/- as
compensation. After hearing the oral and documentary evidence, the
learned Judge, awarded a sum of Rs.15,42,000/- as compensation with
7.5% interest, against which, the present Civil Miscellaneous Appeal has
been filed questioning the negligence and quantum.
3. The learned counsel for the appellant would submit that the
deceased himself was negligent and he drove the vehicle in a rash and
negligent manner without adhering to the traffic rules. The Tribunal has
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CMA(MD)No.415 of 2019
wronly fixed the monthly income of the deceased at Rs.7,000/- which is
totally illegal as there is no proof for the same and without any proof of
self employment, added 40% of income towards future prospects which
is totally illegal. In any event, the award of the Tribunal is not based on
the sound principles of law and also on the material evidence on record
and as such the same is liable to be interfered.
4.Heard the learned counsel for the appellant, respondents 1 to 3
and perused the materials available on record.
5.As far as the negligence is concerned, I am satisfied with the
finding given by the learned Tribunal and therefore, I am not inclined to
interfere with the finding of the learned Judge in respect of negligence.
6.As far as the quantum of compensation is concerned, there is a
specific statement given by the pillion rider, P.W.2, who is the friend of
the deceased, who is stated to have worked together, the deceased has
received a sum of Rs.6,000/- as monthly income. Though the certificate
has been produced to show that the deceased has been working as
Supervisor in Om Namasivayam Transport and earned a sum of
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CMA(MD)No.415 of 2019
Rs.12,000/- as monthly income, the learned Judge had taken Rs.7,500/-
as monthly income of the deceased. Though the certificate was produced
to show that the deceased had earned Rs.12,000/- per month, the
respondents/claimants have not proved the same. Therefore, the learned
Judge ought to have accepted the evidence of PW2 and should have
taken the monthly income as Rs.6,000/- instead of Rs.7,500/-. Therefore,
I am inclined to modify the monthly income as Rs.6,000/- instead of
Rs.7,500/-. At the time of accident, the deceased was aged 24 years.
Therefore, as per judgment of the Apex Court in National Insurance
Company Limited vs. Pranay Sethi and others (Special Leave
Petition(Civil)No.25590 of 2014 dated 31.10.2017), 40% of income is
to be added. If 40% is added towards future prospects, the loss of income
after deducting 1/3th towards the personal expenses and applying 18
multiplier would be arrived at Rs.12,09,600/-(Rs.8400-1/3x12x18). In
view of the above, the amount awarded by the Tribunal under the head of
loss of income is reduced from Rs.15,12,000/- to Rs.12,09,600/- No
amount has been given by the Tribunal under the head of loss of love and
affection. Therefore, this Court fixes a sum of Rs.1,00,000/- under the
head of loss of love and affection.
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CMA(MD)No.415 of 2019
7.Except the award under the head of loss of income and loss of
love and affection, the compensation under other heads are not
interfered with. Accordingly, the award passed by the Tribunal is reduced
from Rs.15,42,000/- to 13,39,600/-. So far as the interest is concerned,
the rate of interest i.e., 7.5% p.a., fixed by the Tribunal is confirmed.
Thus, the compensation is calculated as follows:
Monthly income + Future Rs.6000 +Rs.2400 = Rs. 8,400/-
prospects
Income -1/3 deduction for 8400-2800(8400x1/3)= Rs. 5,600/-
personal expenses
Hence, loss of income Rs. 5600X18X12= Rs.12,09,600/-
arrived at
Loss of love and affection Rs. 1,00,000/-
Loss of estate Rs. 15,000/-
Funeral Expenses Rs. 15,000/-
Total Compensation Rs.13,39,600/-
8.In the result, the appellant is entitled to pay the award amount of
Rs.13,39,600/- with 7.5% interest from the date of petition till the date of
deposit. It is stated that the appellant has already deposited the entire
award amount with interest and costs to the credit of the claim petition.
Therefore, the respondents 1 to 3 herein/claimants are directed to
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CMA(MD)No.415 of 2019
withdraw the entire amount with interest and costs in the ratio
apportioned by the Tribunal, without filing formal permission petition
before the Tribunal. The balance excess amount shall be withdrawn by
the appellant/Insurance Company.
9.With the above direction, this Civil Miscellaneous Appeal is
partly allowed. No costs. Consequently, connected miscellaneous
petition is closed.
08.02.2021
Index : Yes / No
Internet : Yes / No
msa
Note: In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1. The Motor Accident Claims Tribunal
(Special District Court), Tiruchirappalli
2.The Section Officer,
E.R.Section/V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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CMA(MD)No.415 of 2019
J.NISHA BANU, J
msa
CMA(MD)No.415 of 2019
and
C.M.P(MD).No.4968 of 2019
08.02.2021
http://www.judis.nic.in
