Madras High Court
United India Insurance Company ... vs Thilagavathi ... 1St on 24 February, 2021
C.M.A(MD)No.119 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.02.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A(MD)No.119 of 2017
and
C.M.P(MD)No.1347 of 2017
United India Insurance Company Limited,
The Branch Manager,
Seethalakshmi Complex,
Thirunagar,
Madurai – 625 006. ... Appellant/2nd Respondent
Vs.
1.Thilagavathi ... 1st Respondent/
Claimant
2.M/s.Jayalakshmi Textiles Private Limited,
Puliyuraan Road, Sempatti Village,
Aruppukottai Taluk,
Virudhunagar District.
3.Sethuraj
4.Saroja ... Respondents 2 to 4/
Respondents 1, 3 & 4
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the award and decree made in
M.C.O.P.No.5 of 2013, dated 17.03.2016, on the file of the Motor
Accident Claims Tribunal (Subordinate Court), Aruppukottai.
1/12
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C.M.A(MD)No.119 of 2017
For Appellant : Mr.N.Dilip Kumar
For R – 1 : Mr.G.Mariappan
For RR 3 & 4 : Mr.M.Mohammed Sherbudeen
JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA,J.)
Challenging the award, dated 17.03.2016 passed in
M.C.O.P.No.5 of 2013, on the file of the Motor Accidents Claims
Tribunal/Subordinate Court, Aruppukottai, the appellant/United India
Insurance Company Limited has preferred this Civil Miscellaneous
Appeal.
2.In the said M.C.O.P, the first respondent/claimant is the wife of
the deceased-Sivakumar and the respondents 3 and 4 are the father
and mother of the deceased.
3.The brief facts relevant for the consideration of the above case
are that on 20.12.2012, while the deceased-Sivakumar was riding his
two wheeler bearing Registration No.TN-67-AC-7435 along with his
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C.M.A(MD)No.119 of 2017
friend, at that time a bus bearing Registration No.TN-67-D-3929
belonging to the first respondent, which was driven from East to West,
dashed against the two wheeler of the deceased and due to the
sudden impact, the deceased and his friend died on the spot. It was
alleged that the accident had occurred due to the rash and negligent
act of the driving of the bus belonging to the second respondent/first
respondent. The said bus was insured with the appellant/second
respondent. Hence the first respondent/claimant as legal heirs of the
deceased, has filed this claim petition claiming a compensation of
Rs.50,00,000/-.
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 claimant 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, one Kannan was examined
as P.W.2 and Karuppiah was examined as P.W.3 and Exs.P1 to Ex.P.8
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C.M.A(MD)No.119 of 2017
were marked. On the side of the appellant, Sethuraj was examined as
R.W.1, Ravi was examined as R.W.2 and Kannan was examined as
R.W.3 and Exs.R1 and R2 were marked and also Exs.X1 to X4 were
marked.
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 second respondent/first
respondent and that the deceased along with his friend died on the
spot. The Tribunal further held that the appellant/Insurance Company
is liable to pay compensation to the claimant and the respondents 3
and 4, who are the parents of the deceased and had awarded a total
compensation of Rs.31,40,000/- under various heads. Out of the said
compensation amount, the Tribunal had awarded a sum of
Rs.26,40,000/- to the first respondent/claimant, a sum of
Rs.2,00,000/- to the third respondent/father of the deceased and a
sum of Rs.3,00,000/- to the fourth respondent/mother of the
deceased.
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C.M.A(MD)No.119 of 2017
7.The learned counsel appearing for the appellant/Insurance
Company would submit that there was a head on collision involving
two-wheeler and a bus. Admittedly, the rider of the two-wheeler was
riding with two pillion riders and was attempting to overtake a lorry,
which was going in-front of him and in such process, had come under
the wheels of the bus, which was coming in the opposite direction. The
learned counsel would further submit that the quantum awarded by
the Tribunal is on the higher side.
8.The learned counsel appearing for the first
respondent/claimant would submit 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.On a perusal of the materials available on record, it is seen
that even in the counter-affidavit in the said M.C.O.P in paragraph No.
6, it has been specifically stated that the deceased, who was riding the
two-wheeler, had taken two of his friends as pillion riders, which is not
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C.M.A(MD)No.119 of 2017
permissible in law and that was discussed by the Tribunal in issue No.4
in paragraph No.15. However, it has been held by this Court
repeatedly that a two-wheeler rider is mandated to wear a helmet to
save their life. If the helmet is not worn by any of the riders/deceased,
it would amount to contributory negligence. In this case, admittedly,
the deceased had taken two pillion riders, which is not permissible in
law and it is also known to them that they have to wear helmet while
driving vehicles. That apart, it is proved beyond doubt that they were
trying to overtake a vehicle without noticing the on-coming offending
vehicle and colluded with head on collusion, which resulted in
instantaneous death of all the three persons. Therefore, we are of the
view that the rider of the two-wheeler, who is said to be a police
constable, has contributed to the negligence. Though we may fix the
contributory negligence at a higher rate, considering the fact that the
deceased had left behind a widow of 30 years old and his old aged
parents and he being the sole bread winner of the family, we feel it
appropriate to fix the negligence at 15%.
11.Insofar as the quantum of compensation is concerned, the
deceased was aged 30 years old at the time of accident. As the
deceased was a police constable and the deceased had received a sum
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C.M.A(MD)No.119 of 2017
of Rs.16,429/- per month as monthly salary, the Tribunal had fixed the
income of the deceased at Rs.16,429/- per month and added 30%
towards future prospectus. As per the decision of the Hon'ble Supreme
Court in National Insurance Company Limited v. Pranay Sethi
and Others reported in 2018(1) LW 3331, in respect of the person
in permanent job, who is aged below 40 years, future prospects can
be fixed at 50%. Applying the same, by adding 50% towards future
prospectus, loss of earning per month is arrived at Rs.24,644/-
(Rs.16429 + Rs.8,215). Out of which, 1/3rd amount to be deducted
towards personal expenses and as such, it comes to Rs.16,429/-. The
deceased was aged 30 years. Hence, adopting the Multiplier of '17' by
placing reliance upon Smt. Sarla Verma and Other v. Delhi
Transport Corporation [2009 (2) TNMAC 1 (SC)], the loss of
earning is fixed at Rs.33,51,516/- (Rs.16,429/- X 12 X 17).
12.As far as the loss of love and affection is concerned, the
Tribunal had awarded a sum of Rs.50,000/- each to the respondents 3
and 4 and a sum of Rs.1,00,000/- towards loss of consortium to the
first respondent/claimant, which is on the higher side. As per the
decision in Magma General Insurance Co. Ltd., v. Nanu Ram &
Others., reported in 2018 (1) TN MAC 452 (SC), the respondents
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C.M.A(MD)No.119 of 2017
1, 3 and 4 each are entitled to Rs.40,000/- which comes to
Rs.1,20,000/- (Rs.40,000 x 3=Rs.1,20,000/-).
13.The amounts awarded by the Tribunal under the other heads,
viz., a sum of Rs.10,000/- towards transportation charges and a sum
of Rs.25,000/- towards funeral expenses, are very reasonable and
they are confirmed.
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
estate'. Accordingly, the total compensation is arrived at a sum of
Rs.35,21,516/-. As stated supra, deducting 15% towards contributory
negligence, which comes to Rs.29,93,289/- (Rs.35,21,516 – Rs.
5,28,227). In total, the respondents 1, 3 and 4 are entitled to a sum
of Rs.29,93,289/- as compensation. The rate of interest awarded by
the Tribunal at 7.5% per annum remains unaltered.
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C.M.A(MD)No.119 of 2017
15.Accordingly, the Award of the Tribunal is modified as follows:-
S.No Description Amount Amount awarded Award
awarded by by this Court confirmed or
Tribunal (Rs) enhanced or
(Rs) granted
1. Loss of income 29,04,552/- 33,51,516/- enhanced
2. Loss of love and 1,00,000/- 80,000/- reduced
affection to the (50,000 X 2) (40,000 X 2)
respondents 3
and 4
3. Loss of 1,00,000/- 40,000/- reduced
consortium of
the first
respondent
4. Transportation 10,000/- 10,000 confirmed
charges
5. Funeral 25,000 25,000 confirmed
expenses
6. Loss of estate ..... 15,000 Awarded
Total Rs.31,39,552/- Rs.35,21,516/- Reduced by
Deducting 15% Rs.1,46,263/-
towards
contributory
negligence, it
arrives at
Rs.
29,93,289/-
16.In the result, the Civil Miscellaneous Appeal is allowed in part
as follows:-
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C.M.A(MD)No.119 of 2017
(i) The Award of the Tribunal is reduced to
Rs.29,93,289/- from Rs.31,39,552/-
(ii) The interest granted by the Tribunal at 7.5% per
annum is confirmed.
(iii) The appellant-Insurance Company is directed to
deposit the award amount to the credit of claim petition,
less the amount already deposited, if any, within a period
of four weeks from the date of receipt of a copy of this
order.
(iv) The first respondent/claimant is permitted to
withdraw her share amount of Rs.24,93,289/- with
proportionate accrued interest and costs, less the amount
already withdrawn, if any.
(v) As awarded by the Tribunal, the third
respondent is entitled to a sum of Rs.2,00,000/- and the
third respondent is permitted to withdraw the same along
with proportionate accrued interest and costs, less the
amount already withdrawn, if any.
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C.M.A(MD)No.119 of 2017
(vi) As awarded by the Tribunal, the fourth
respondent is entitled to a sum of Rs.3,00,000/- and the
fourth respondent is permitted to withdraw the same
along with proportionate accrued interest and costs, less
the amount already withdrawn, if any.
No costs. Consequently, connected Miscellaneous Petition is closed.
[P.S.N.,J] [S.K.,J.]
24.02.2021
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.119 of 2017
PUSHPA SATHYANARAYANA,J.
and
S.KANNAMMAL,J.
ps
To
1.The Motor Accident Claims Tribunal/
Subordinate Court,
Aruppukottai.
2.The V.R Section (Records),
Madurai Bench of Madras High Court,
Madurai.
C.M.A(MD)No.119 of 2017
24.02.2021
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