Madras High Court
M.Vincent vs Parivallal on 18 February, 2021
C.M.A(MD)No.1561 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.02.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A(MD)No.1561 of 2013
1.M.Vincent
2.Minor Vibin Ponraj
3.Minor Jerusha Vincent
4.Daisy John ... Appellants/Respondents
Vs.
1.Parivallal
2.ICICI Lombard General Insurance Company Limited,
Rep. by its Branch Manager,
Jennith House,
Krishnarao Khade Marg,
Mahalakshmi,
Mumbai. ... Respondents/Respondents
(Minor AA 2 & 3 are rep. by their
father-1st appellant)
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the award and decree dated 28.03.2013
made in M.C.O.P.No.515 of 2010, on the file of the Motor Accident
Claims Tribunal cum III Additional District and Sessions Court,
Tirunelveli.
For Appellants : Mr.I.Velpradeep
For R – 1 : No appearance
For R – 2 : Mr.K.K.Ramakrishnan
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C.M.A(MD)No.1561 of 2013
JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA,J.)
Seeking enhancement of compensation, the appellants/claimants
have preferred this Civil Miscellaneous Appeal against the award,
dated 28.03.2013 passed in M.C.O.P.No.515 of 2010, on the file of the
Motor Accident Claims Tribunal cum III Additional District and Sessions
Court, Tirunelveli.
2.In the said M.C.O.P, the appellants/claimants 1 to 4 are the
husband, two minor children and mother of the deceased-Ponselvi.
The Tribunal had awarded a sum of Rs.38,60,000/- on various heads.
The said award is now challenged in the present Civil Miscellaneous
Appeal only on the quantum alone.
3.The brief facts relevant for the consideration of the above case
is that on 29.10.2009, when the deceased-Ponselvi was standing on
the edge of the Zebra crossing on the extreme left side of the
Trivandrum Main Road near Palayamkottai Bus Stand for crossing the
said road, a trailer lorry bearing Registration No.TN-28-H-9185
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C.M.A(MD)No.1561 of 2013
belonging to the first respondent, insured with the second
respondent/Insurance Company, hit the deceased. As a result of
which, the deceased was thrown away and sustained grievous injuries
all over the body. Immediately, she was taken to TVMC Hospital at
Palayamkottai for treatment, where she was reported dead. Hence the
appellants/claimants, as legal heirs of the deceased, has filed this
claim petition claiming a compensation of Rs.3,00,00,000/-.
4.Resisting the claim petition, the second respondent/Insurance
Company has filed a counter affidavit contending that the accident had
occurred only due to the reckless act of the deceased and the
quantum of compensation claimed by the claimants is highly excessive
and without any basis.
5.Before the Tribunal, the husband of the deceased, the first
respondent herein was examined as P.W.1 and Exs.P1 to Ex.P14 were
marked. On the side of the appellant, no witness was examined and
no document was marked.
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C.M.A(MD)No.1561 of 2013
6.The Tribunal, after considering the oral and documentary
evidences, held that the accident had occurred due to the rash and
negligent driving of the driver of the first respondent and that the
deceased sustained injuries and due to the impact, she died. The
Tribunal further held that the second respondent/Insurance Company
is liable to pay compensation to the claimants and had awarded a total
compensation of Rs.38,60,000/- under various heads.
7.Heard the learned counsel appearing on either side and
perused the materials available on record.
8.The learned counsel appearing for the appellants/claimants
would submit that the deceased was employed as a staff nurse in
Hamad Medical Corporation, Doha, Qatar and that she was drawing a
basic salary of Qrs.5,625/- per month in addition to Transport
Allowance and Housing Allowance, but the Tribunal had fixed the
salary at Qrs.1,250/- per month, which was valued at Rs.18,625/- and
the same has to be enhanced and that the Tribunal has not added the
future prospectus. The learned counsel would further submit that the
Tribunal has awarded a sum of Rs.50,000/- towards loss of love and
affection, which is very meagre and the same needs enhancement.
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C.M.A(MD)No.1561 of 2013
9.The appellants/claimants have filed M.P(MD)No.1 of 2013 to
receive the documents by way of additional evidence, viz., Certificate
of Diploma in General Nursing and Midwifery, letter dated 12.03.2013
and course completion Certificate for Diploma in General Nursing and
Midwifery.
10.The learned counsel for the second respondent/Insurance
Company strongly opposed the said petition by contending that the
Petitioner has not given sufficient reason as to the delay in marking
those documents at a belated stage and hence, it cannot be received
as the additional documents.
11.With regard to the Certificate of Diploma in General Nursing
and Midwifery and course completion Certificate, there is no dispute.
The only disputed document is letter, dated 12.03.2013 from Hamad
Medical Corporation, which is a salary certificate issued to the
deceased. However, the same is not marked or proved through the
author of the document and the same is disputed by the second
respondent. Hence, the said certificate cannot be considered.
Accordingly, M.P(MD)No.1 of 2013 stands closed.
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C.M.A(MD)No.1561 of 2013
12.The learned counsel appearing for the second
respondent/Insurance Company would submit that the Tribunal had
correctly awarded the compensation and relied on the decision of the
Hon'ble Supreme Court in United India Insurance Company
Limited Vs. Satinder Kaur alias Satwinder Kaur and others
reported in 2020 SCC Online SC 1106, wherein, in paragraph Nos.
80 and 81, it has been held as follows:-
“80.Even though in Sarla Verma (supra), it was
held that the deduction towards personal and living
expenses should be 1/4th, if the number of dependant
family members is four, in the present case, we feel that
50% of the income of the deceased would be required to
be deducted, since he was living in a foreign Country.
81.The deceased had to maintain an establishment
there, and incur expenditure for the same in
commensurate with the high cost of living in a foreign
Country. Therefore, we are of the view that the High
Court rightly deducted 50% of his income towards
personal and living expenses.”
13.On a perusal of the materials available on record, it is seen
that the Tribunal has fixed the income of the deceased as Qrs.1250
and arrived at a sum of Rs.18,625/-, and adopted multiplier '17' and
arrived at the loss of income as Rs.38,00,000/- (Rs.18,625 X12 X 17)
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C.M.A(MD)No.1561 of 2013
and the Tribunal has not added the future prospectus, which requires
modification. Though the Tribunal has valued one Qatar at Rs.14.09/-
at the relevant point of time, now the existing value is at Rs.13.002/-
and as such, it comes to Rs.16,250/- (1250 X 13.002) and adopting
multiplier '17', it comes to Rs.33,15,000/- (Rs.16,250 X 12 X 17) and
adding further the future prospectus as 40%, the same is arrived at
Rs.46,41,000/- (Rs.33,15,000 + Rs.13,26,000). Hence, the loss of
income arrived at Rs.46,41,000/- to the claimants.
14.With regard to the funeral expenses, the Tribunal has
awarded a sum of Rs.10,000/-, which needs no interference.
15.With regard to loss of love and affection, the Tribunal has
fixed a sum of Rs.50,000/- to the claimants, which seems to be very
meagre and since there are four claimants, each claimants are entitled
to a sum of Rs.40,000/- and in total, a sum of Rs.1,60,000/-
(Rs.40,000 X 4) is awarded towards loss of love and affection.
16.Since the Tribunal has not awarded any sum under the head
of loss of estate, this Court awards a sum of Rs.10,000/- to the first
claimant/husband, under the said head.
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C.M.A(MD)No.1561 of 2013
17.Accordingly, the Award of the Tribunal is modified as follows:-
S.No Description Amount Amount Award confirmed
awarded by awarded by this or enhanced or
Tribunal Court granted
(Rs) (Rs)
1. Funeral Rs.10,000/- 10,000/- confirmed
expenses
2. Love and 50,000 1,60,000/- enhanced
affection to the (40,000 X 4)
claimants
3. Loss of income 38,00,000/- 46,41,000/- enhanced
4. Loss of Estate .... 10,000/- Awarded
to the first
claimant/husban
d
Total Rs.38,60,000/- Rs.48,21,000/- Enhanced by
Rs.9,61,000/-
18.In the result, the Civil Miscellaneous Appeal is allowed in part
as follows:-
(i) The Award of the Tribunal is enhanced to
Rs.48,21,000/- from Rs.38,60,000/-.
(ii) The interest granted by the Tribunal at 8% per
annum is confirmed.
(iii) The Award amount is apportioned as per the
ratio of apportionment made by the Tribunal.
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C.M.A(MD)No.1561 of 2013
(iv) The learned counsel appearing for the second
respondent-Insurance Company submitted that the award
amount as ordered by the Tribunal, has been deposited.
The second respondent-Insurance Company is directed to
deposit the enhanced award amount together with
accrued interest and costs to the credit of claim petition,
less the amount already deposited, if any, within a period
of six weeks from the date of receipt of a copy of this
order.
(v) The appellants 1 and 4/claimants 1 and 4 are
permitted to withdraw their share in the award amount
with proportionate accrued interest and costs. The share
of the minor claimants/appellants 2 and 3 are permitted
to be kept in any of the Nationalised Bank till they attain
majority and the guardian/first respondent is permitted to
withdraw the interest amount once in three months and
utilize the same for the welfare of the minor children.
No costs.
[P.S.N.,J] [S.K.,J.]
18.02.2021
Index :Yes/No
Internet :Yes/No
ps
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C.M.A(MD)No.1561 of 2013
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.
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C.M.A(MD)No.1561 of 2013
PUSHPA SATHYANARAYANA,J.
and
S.KANNAMMAL,J.
ps
To
1.The Motor Accident Claims Tribunal/
III Additional District and Sessions Court,
Tirunelveli.
2.The V.R Section (Records),
Madurai Bench of Madras High Court,
Madurai.
C.M.A(MD)No.1561 of 2013
18.02.2021
http://www.judis.nic.in
