Madras High Court
The Branch Manager vs Balamani on 22 February, 2021
C.M.A(MD)No.23 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.02.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A(MD)No.23 of 2018
and
C.M.P(MD)No.287 of 2018
The Branch Manager,
Reliance General Insurance,
15-A, PLA, Kanagu Towers,
Thillai Nagar,
11th Cross,
Trichy – 18. ... Appellant/2nd Respondent
Vs.
1.Balamani
2.Minor Murugesh
3.Minor Akash
4.Karuppiah Thevar
5.Vasantha ... Respondents 1 to 5/
Petitioners
6.Arumugam ... 5th Respondent/1st Respondent
(Minor RR 2 & 3 rep. by their
mother-1st respondent)
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the fair and decreetal order dated
28.03.2017 made in M.C.O.P.No.213 of 2013 on the file of the Motor
Accident Claims Tribunal (Additional District Court), Pudukkottai.
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C.M.A(MD)No.23 of 2018
For Appellant : Mr.S.Srinivasa Raghavan
For RR 1, 4 & 5 : Mr.K.Balasundaram
For R – 6 : No appearance
JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA,J.)
The Insurance Company is the appellant. Challenging the award,
dated 28.03.2017 made in M.C.O.P.No.213 of 2013, on the file of the
Motor Accidents Claims Tribunal (Additional District Court),
Pudukkottai, the present Civil Miscellaneous Appeal is filed.
2.In the said M.C.O.P, the claimants, who are the respondents
1 to 5, have made the claim as compensation for the death of one
Late.Veerapandian, who died in the accident that occurred on
01.10.2008. The respondents 1 to 5 are the wife, children and parents
of the deceased.
3.The brief facts relevant for the consideration of the above case
is that on 01.10.2008, when the deceased-Veerapandian was driving
his Auto bearing Registration No.TN-55-B-3231 along with some
passengers, a tipper lorry bearing Registration No.TN-04-C-4162
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C.M.A(MD)No.23 of 2018
belonging to the sixth respondent/first respondent, insured with the
appellant/second respondent, dashed against the Auto. As a result of
which, the deceased along with other passengers sustained grievous
injuries all over the body and immediately, they were taken to
Aranthangi Government Hospital for treatment, where the deceased
was reported dead. Hence, the respondents 1 to 5/claimants, as legal
heirs of the deceased, has filed this claim petition claiming a
compensation of Rs.15,00,000/-.
4.Resisting the claim petition, the appellant-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 wife of the deceased, the first
respondent herein was examined as P.W.1 and one Karnan was
examined as P.W.2 and Exs.P1 to Ex.P7 were marked. On the side of
the appellant, one Velayutham was examined as R.W.1 and Ex.R1 was
marked.
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C.M.A(MD)No.23 of 2018
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 sixth respondent/first respondent
and and that the deceased sustained injuries and due to the impact,
he died. The Tribunal further held that the appellant/Insurance
Company and the sixth respondent are liable to pay compensation to
the claimants jointly or severally and had awarded a total
compensation of Rs.17,10,000/- under various heads.
7.The learned counsel appearing for the appellant/Insurance
Company would argue that the accident had occurred only on account
of the contributory negligence of the deceased, since the deceased
had driven the Auto in a rash and negligent manner and the deceased
was not in possession of permit, fitness certificate, due, valid and
effective driving licence to drive the Auto at the time of accident. The
learned counsel for the appellant/Insurance Company would further
argue that as regards the quantum of compensation, the fixation of
Rs.10,000/- per month as notional monthly income without proof of
avocation and income, is untenable and unacceptable and the
compensation awarded by the Tribunal under various heads are on
the higher side.
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C.M.A(MD)No.23 of 2018
8.The learned counsel appearing for the respondents 1 to
5/claimants would argue that the Tribunal had correctly awarded the
compensation under various heads and the same need not be
interfered with.
9.Heard the learned counsel appearing on either side and
perused the materials available on record.
10.The Tribunal had found that the accident had occurred only
due to the negligence on the part of the Driver of the Tripper Lorry
based on the evidence of P.W.2, who is an eye-witness to the
occurrence. Insofar as the quantum of compensation is concerned, the
deceased was aged 43 years old at the time of accident. As the
deceased was a Auto driver and he possessed R.C. Book, the Tribunal
had fixed the income of the deceased at Rs.10,000/- per month and
after deducting 1/3rd amount for his personal expenses, fixed the
monthly contribution to the family at Rs.7,500/- and adopted
multiplier of '14' and arrived at a sum of Rs.12,60,000/- (Rs.
7,500X12X14) as loss of income, the same need not be interfered
with.
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C.M.A(MD)No.23 of 2018
11.The Tribunal had awarded a sum of Rs.1,00,000/-, towards
loss of consortium to the first respondent/wife; a sum of Rs.
2,00,000/- towards loss of love and affection to the respondents 2 and
3/minor children and a sum of Rs.1,00,000/- (Rs.50,000 X 2) towards
loss of love and affection to the respondents 4 and 5/parents, which
are on the higher side and the same needs interference. So far as the
loss of love and affection as per the decision in Magma General
Insurance Co. Ltd., v. Nanu Ram & Others., reported in
2018 (1) TN MAC 452 (SC), the claimants 1 to 5 each are entitled
to Rs.40,000/-, which comes to Rs.2,00,000/-
(Rs.40,000x5= Rs.2,00,000/-).
12.Insofar as funeral expenses is concerned, the Tribunal had
awarded a sum of Rs.25,000/-, which is not disputed and the same
stands confirmed.
13.Though the Tribunal had awarded a sum of Rs.20,000/-
towards loss on account of damage to the clothes, article and jewels
etc., which is not permissible and the same has to be deducted.
14.Since the Tribunal had not awarded any sum under the head
of 'loss of estate', a sum of Rs.15,000/- is awarded towards 'loss of
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C.M.A(MD)No.23 of 2018
estate'. In total, the claimants are entitled to a sum of
Rs.15,10,000/-as compensation.
15.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. Loss of income 12,60,000/- 12,60,000/- confirmed
2. Loss of 1,00,000/- 40,000/- reduced
consortium to
the first
respondent
3. Loss of love and 2,00,000/- 80,000/- reduced
affection to the (Rs.40,000 X
minor 2)
respondents 2
and 3
4. Loss of love and 1,00,000/- 80,000/- reduced
affection to the (Rs.40,000 X
respondents 4 2)
and 5
5. Funeral 25,000/- 25,000/- confirmed
expenses
6. Transportation 5,000/- 10,000/- enhanced
charges
7. Loss of estate -- 15,000/- awarded
8. Damages to the 20,000/- --- No amount
article and awarded
jewels etc.
Total Rs.17,10,000/- Rs.15,10,000/- Reduced by
Rs.2,00,000/-
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C.M.A(MD)No.23 of 2018
16.In the result, the Civil Miscellaneous Appeal is allowed in part
as follows:-
(i) The Award of the Tribunal is reduced to
Rs.15,10,000/- from Rs.17,10,000/-.
(ii) The interest granted by the Tribunal at 7.5% per
annum is confirmed.
(iii) The Award amount is apportioned as per the
ratio of apportionment made by the Tribunal.
(iv) The learned counsel appearing for the
appellant-Insurance Company submitted that the entire
award amount has been deposited before the Tribunal.
Further the claimants 1, 4 and 5 have also withdrawn a
portion of their share in the award amount as per the
apportionment made by the Tribunal.
(v) The Tribunal is directed to refund the excess
award amount, if any, to the appellant-Insurance
Company together with interest at the rate 7.5% from the
date of the claim petition.
(vi) The respondents 1, 4 & 5/claimants 1, 4 & 5
are permitted to withdraw their share in the award
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C.M.A(MD)No.23 of 2018
amount with proportionate accrued interest and costs,
less the award amount withdrawn already. The share of
the minor claimants/respondents 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. Consequently, connected Miscellaneous Petition is closed.
[P.S.N.,J] [S.K.,J.]
22.02.2021
Index :Yes/No
Internet :Yes/No
ps
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.23 of 2018
PUSHPA SATHYANARAYANA,J.
and
S.KANNAMMAL,J.
ps
To
1.The Motor Accident Claims Tribunal/
Additional District Court,
Pudukkottai.
2.The V.R Section (Records),
Madurai Bench of Madras High Court,
Madurai.
C.M.A(MD)No.23 of 2018
22.02.2021
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