The Branch Manager vs Subramanian
2021 Latest Caselaw 3802 Mad

                                                                     C.M.A.No.4330 of 2019

                                 IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 16.02.2021

                                                    CORAM:

                                 THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                            C.M.A.No.4330 of 2019
                                                     and
                                            C.M.P.No.24572 of 2019

                    The Branch Manager
                    National Insurance Company Ltd.
                    Branch II, No.92, Deverpuram Road
                    Tuticorin-628 003.                                      .. Appellant

                                                      Vs.
                    1.Subramanian

                    2.Rajeswari

                    3.Senthilkumar

                    4.Sasikala

                    5.Maharaja

                    6.Gurusamy

                    7.The Branch Manager
                    United India Insurance Company Ltd.
                    Branch Office
                    No.2/117, PRS Road
                    Chennimalai, Erode District-638 051.                 .. Respondents


                    1/12


http://www.judis.nic.in
                                                                                C.M.A.No.4330 of 2019

                    Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                    Vehicles Act, 1988, against the judgment and decree dated 30.04.2014 made

                    in M.C.O.P.No.290 of 2012 on the file of Motor Accident Claims Tribunal,

                    Principal District Court, Perambalur District.

                                           For Appellant     : Mrs.R.Sreevidhya

                                           For R1 to R4      : Mr.T.Gobinath

                                                       JUDGMENT

This Civil Miscellaneous Appeal has been filed by the

appellant/Insurance Company to set aside the award dated 30.04.2014 made

in M.C.O.P.No.290 of 2012 on the file of Motor Accident Claims Tribunal,

Principal District Court, Perambalur District.

2.The appellant is 2nd respondent/Insurance Company in

M.C.O.P.No.290 of 2012 on the file of Motor Accident Claims Tribunal,

Principal District Court, Perambalur District. The respondents 1 to 4 filed the

said claim petition claiming a sum of Rs.15,00,000/- as compensation for the

death of one Karthikeyan, who died in the accident that took place on

03.05.2012.

3.According to the respondents 1 to 4, on the date of accident i.e., on

http://www.judis.nic.in C.M.A.No.4330 of 2019

03.05.2012 at about 8.45 a.m., while the deceased Karthikeyan along with his

friends Jothibasu and Prasanth were travelling in a two wheel tipping trailer

annexed with Punjab LMV tractor belonging to the 6th respondent insured

with the 7th respondent/Insurance Company towards Dhanalakshmi Medical

College, the driver of the tractor drove the same in a careful manner on the

extreme left side of the road. When the tractor was proceeding on Chennai –

Trichy National Highways near Kalpadi pirivu from North to South direction,

the driver of the Mahindra tourist motor car belonging to the 5 th respondent

insured with the appellant/Insurance Company, who was coming behind the

tractor, drove the same in a rash and negligent manner, dashed on the rear

portion of the trailer annexed with the tractor. Due to the said impact, the said

Karthikeyan, who was sitting at the back side of the vehicle was thrown off

and thus, the accident has occurred. In the accident, the said Karthikeyan

sustained fatal injuries and died. Therefore, the respondents 1 to 4 filed the

above claim petition claiming compensation as against the respondents 5 to 7

and the appellant/Insurance Company.

4.The respondents 5 and 6, owners of car and tractor-trailer

http://www.judis.nic.in C.M.A.No.4330 of 2019

respectively, remained exparte before the Tribunal.

5.The appellant/Insurance Company insurer of the car filed counter

statement denying the averments made in the claim petition and stated that

the deceased Karthikeyan without following the rules, was sitting on the top

of the centering goods in the trailer at the time of accident. The accident has

occurred only due to negligent driving by the driver of the tractor belonging to

the 6th respondent. The driver of the tractor without seeing the road, suddenly

crossed the main road to reach the other side of the road in the wrong place.

On seeing this, the driver of the car blew horn and applied brake, but the

driver of the tractor dashed on the car and invited the accident. The driver of

the car is not responsible for the accident. Therefore, the appellant/Insurance

Company is not liable to pay any compensation to the respondents 1 to 4. The

appellant/Insurance Company has also denied the age, avocation and income

of the deceased. In any event, the compensation claimed by the respondents 1

to 4 is excessive and prayed for dismissal of the claim petition.

6.The appellant/Insurance Company filed additional counter statement

stating that the driver of the car used the car for illicit transmission of liquor at

http://www.judis.nic.in C.M.A.No.4330 of 2019

the time of accident. The Police prosecuted him and a criminal case has also

been filed against the driver of the car belonging to the 5 th respondent. The

Prohibition Enforcement Wing Police also confiscated the car, which is in

violation of policy conditions. Hence, the appellant/Insurance Company is not

liable to pay any compensation to the respondents 1 to 4.

7.The 7th respondent/Insurance Company insurer of the tractor-trailer

filed counter statement denying the averments made in the claim petition and

stated that the accident has occurred only due to rash and negligent driving by

the driver of the car belonging to the 5 th respondent. F.I.R. has been registered

only against the driver of the car. There was no fault on the part of the driver

of the tractor-trailer. Thus, the 5th respondent is vicariously liable to pay

compensation to the respondents 1 to 4. The 7th respondent/Insurance

Company is not liable to pay any compensation to the respondents 1 to 4. In

any event, the compensation claimed by the respondents 1 to 4 is excessive

and prayed for dismissal of the claim petition.

8.Before the Tribunal, the 1st respondent, father of the deceased,

examined himself as P.W.1 and one Prasanth, eye-witness to the accident,

http://www.judis.nic.in C.M.A.No.4330 of 2019

was examined as P.W.2 and 15 documents were marked as Exs.P1 to P15. On

the side of the Insurance Companies, Mr.Kumar, Special Sub-Inspector of

Police, Mr.Alagirisamy, Motor Vehicle Inspector Grade-I, Ms.Kamala, Sub-

Inspector of Police and Mr.Narayanan, Assistant Manager of

appellant/Insurance Company were examined as R.W.1 to R.W.4 respectively

and marked six documents as Exs.R1 to R6.

9.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 car belonging to the 5th respondent, fixed 20 : 80 contributory

negligence on the part of the deceased as well as the driver of the car

belonging to the 5th respondent, directed the appellant/Insurance Company

being insurer of the said car to pay a sum of Rs.11,16,800/- (after deducting

20% negligence) as compensation to the respondents 1 & 2 at the first

instance and recover the same from the 5th respondent, owner of the car as he

has violated the policy conditions and dismissed the claim petition as against

the respondents 6 and 7, who are owner and insurer of tractor-trailer

respectively and the respondents 3 and 4 as they are not dependants of the

http://www.judis.nic.in C.M.A.No.4330 of 2019

deceased.

10.Challenging the quantum of compensation awarded by the Tribunal

in the said award dated 30.04.2014 made in M.C.O.P.No.290 of 2012,

granting compensation to the respondents 1 & 2, the appellant/Insurance

Company has come out with the present appeal.

11.The learned counsel appearing for the appellant/Insurance Company

contended that the respondents 1 to 4 have stated that at the time of accident,

the deceased was working as a scaffolding and centering worker and was

earning a sum of Rs.12,000/- per month. The respondents 1 to 4 have not

filed any material to prove the income of the deceased. In the absence of any

material evidence with regard to income of the deceased, the Tribunal erred in

fixing a sum of Rs.8,000/- per month as notional income of the deceased.

From the Training Certificates produced by the respondents 1 to 4 before the

Tribunal, it is seen that the deceased Karthikeyan underwent some training as

a Machine Operator. The Tribunal ought to have fixed the notional income of

the deceased only at Rs.6,000/- per month. The Tribunal erred in awarding

http://www.judis.nic.in C.M.A.No.4330 of 2019

50% enhancement towards future prospects. The deceased was aged 24 years

at the time of accident. The Tribunal ought to have applied multiplier '13' only

on the basis of the age of the mother of the deceased, who was aged 50 years

at the time of accident and prayed for setting aside the award of the Tribunal.

12.Per contra, the learned counsel appearing for the respondents 1 to 4

contended that the deceased was earning a sum of Rs.12,000/- per month at

the time of accident. The Tribunal without considering the same fixed a sum

of Rs.8,000/- per month as notional income of the deceased, which is meagre.

The total compensation awarded by the Tribunal is not excessive and prayed

for dismissal of the appeal.

13.Heard through “Video-conferencing” the learned counsel appearing

for the appellant/Insurance Company as well as the learned counsel appearing

for the respondents 1 to 4 and perused the entire materials available on

record.

14.From the materials on record, it is seen that it is the contention of

the respondents 1 to 4 that at the time of accident, the deceased was aged 25

years, he was working as a scaffolding and centering worker and was earning

http://www.judis.nic.in C.M.A.No.4330 of 2019

a sum of Rs.12,000/- per month. The respondents 1 to 4 have filed

Ex.P6/Certificate issued by one S.Palani, Proprietor of Balaji body builders,

wherein it has been stated that the deceased Karthikeyan was working under

him as centering contractor and was earning a sum of Rs.400/- per day. The

Tribunal rejected Ex.P6 on the ground that author of Ex.P6 was not examined

and no income tax returns was filed to show that the deceased was earning a

sum of Rs.400/- per day. In the absence of any material evidence with regard

to income, the Tribunal fixed a sum of Rs.8,000/- per month as notional

income of the deceased. The accident is of the year 2012 and the notional

income fixed by the Tribunal is meagre. The Tribunal fixed the age of the

deceased as 24 years as per Exs.P5/Provisional National Trade Certificate,

P11/SSLC mark list and P12/XII standard mark list. As per the judgment of

the Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC) [National

Insurance Co. Ltd. v. Pranay Sethi and others], the age of the deceased is

the basis for applying multiplier. The Tribunal rightly applied multiplier '18'.

The deceased was a bachelor at the time of accident and the Tribunal

deducted 50% towards personal expenses, which is proper. The Tribunal

granted 50% enhancement towards future prospects, which is excessive. As

http://www.judis.nic.in C.M.A.No.4330 of 2019

per the judgment of the Hon'ble Apex Court reported in 2017 (2) TNMAC

609 (SC) [National Insurance Co. Ltd. v. Pranay Sethi and others] cited

supra, the respondents 1 & 2 are entitled to 40% enhancement towards future

prospects. Since the Tribunal has fixed a meagre sum as notional income of

the deceased, 50% enhancement granted by the Tribunal towards future

prospects is not interfered with. Further, Rs.5,000/- and Rs.10,000/- awarded

by the Tribunal towards funeral expenses and loss of estate are also meagre.

Therefore, the total compensation awarded by the Tribunal is not excessive

warranting interference by this Court.

15.In the result, the Civil Miscellaneous Appeal is dismissed and the

sum of Rs.11,16,800/- awarded by the Tribunal as compensation to the

respondents 1 & 2, along with interest and costs is confirmed. The

appellant/Insurance Company is directed to deposit the entire amount

awarded by the Tribunal 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 at the first instance and recover the same from the

5th respondent. On such deposit, the respondents 1 and 2 are permitted to

http://www.judis.nic.in C.M.A.No.4330 of 2019

withdraw their respective share of the award amount as per the apportionment

fixed by the Tribunal, along with proportionate interest and costs, less the

amount if any, already withdrawn. This appeal is dismissed as against the

respondents 3, 4, 6 and 7. Consequently, connected Miscellaneous Petition is

closed. No costs.

16.02.2021 Index : Yes / No kj

To

The Principal District Judge Motor Accidents Claims Tribunal Perambalur.

2.The Section Officer V.R.Section High Court, Chennai.

http://www.judis.nic.in C.M.A.No.4330 of 2019

V.M.VELUMANI, J.,

kj

C.M.A.No.4330 of 2019 and C.M.P.No.24572 of 2019

16.02.2021

http://www.judis.nic.in