Madras High Court
Hdfc Ergo General Insurance ... vs B.Bommi on 26 February, 2021
W.A(MD)No.103 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.02.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A(MD)No.103 of 2018
and
C.M.P(MD)No.1574 of 2018
HDFC ERGO General Insurance Company Limited,
First Floor, 165-166, Bank Bay Reclamation,
H.T.Parekh Marg,
Church Gate,
Mumbai – 400 020. : Appellant /Respondent No.2
Vs.
1.B.Bommi
2.B.Ilakkiya
(Amended as per order in I.A.No.59.17,
dated 27.02.2017)
3.P.Priyadarshini
(Amended as per order in I.A.No.61 of 2017,
dated 27.02.2017)
4.Minor P.Bhavani Suruthi
5.Subbiah
6.S.Seeniyammal :Respondents 46/Petitioners 46
7.Jubi Issac : 7th Respondents/ Respondent No.I
(4th respondent being minor, representedby her mother
and natural guardian, the first respondent herein.)
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W.A(MD)No.103 of 2018
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the fair and decretal order made in
M.C.O.P.No.114 of 2014, dated 26.10.2017,on the file of the Motor
Accident Claims Tribunal(Sub-Court), Uthamapalayam.
For Appellant : Mr.S.Srinivasa Raghavan
For Respondents : Mr.G.Vanjinathan
1 to 6
For Respondent-7 : No appearance
JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA, J.)
Being aggrieved by the Award and Decree, dated 26.10.2017
passed by the Motor Accidents Claims Tribunal/Sub-Court,
Uthamapalayam in M.C.O.P.No.114 of 2014 in respect of the quantum of
compensation awarded to the claimants for the death of the deceased
Bodhiraj in a road traffic accident occurred on 10.09.2014, Appellant –
The HDFC ERGO Insurance Company Limited,Mumbai-20 has preferred
this appeal.
2.Brief facts are that on 10.09.2014 at about 7.00 p.m., while the
deceased Bodhirajan along with one Ambeth, both belonging to the
same village, were driving their Bajaj two-wheeler vehcile bearing
Registration No. TN 60 H 0375 in south to north direction, near Veeriah
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W.A(MD)No.103 of 2018
Chettiar thottam at Kottur Road, the Santro Car bearing Registration
No. KL 5 Y 8136, belonging to the 7th respondent herein/Ist respondent
in M.C.O.P, insured with the 2nd respondent in M.C.O.P/appellant here,
was driven by its driver towards south to north direction in a rash and
negligent manner dashed against their vehicle and in the impact, the said
Bodhirajan died on spot and the said Ambeth died during treatment. In
this regard a case in Crime No.486 of 2014 under Sections 279, 337 and
304 of IPC and it is pending at the stage of trial before the learned
Judicial Magistrate, Uthamapalayam.For the death of the said Bodhirajan,
the claimants/respondents 1 to 6 herein have filed the claim petition
claiming a compensation of Rs.30 lakhs along with 9% interest and costs.
3.Resisting the Claim Petition, Appellant – Insurance Company has
filed a counter affidavit contending that the accident had not occurred
due to the negligence on the part of the 7th respondent herein and the
quantum of compensation claimed by Claimants is highly excessive and
the same is claimed without any basis.
4.Before the Tribunal, On the side of the claimants, the wife of the
deceased, the first respondent herein was examined as P.W.1 and one
Anandan was examined as P.W.2 and Ex.P1 to Ex.P11 were marked. On
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W.A(MD)No.103 of 2018
the side of the appellant, one Ashok, driver of the offending vehicle,
was examined as R.W.1 and Ex.R1 was marked.
5.Upon consideration of both oral and documentary evidence
adduced on either side and on appreciation of the same, the Tribunal
has fastened the liability on the sixth respondent/vehicle, which was
insured with the appellant/Insurance Company and directed the appellant
to pay compensation to the claimants and awarded a total compensation
of Rs.25,00,000/-(Rupees twenty five lakhs only),under various heads.
6.Heard the learned counsels appearing on either side and perused
the materials available on record.
7.The learned counsel for the appellant has filed this appeal mainly
disputing the quantum of compensation awarded by the Tribunal stating
that the Tribunal had erred in fixing a sum of Rs.15,000/- as notional
income of the deceased and that there was no proof for the avocation
and income of the deceased and that the Tribunal has awarded a sum of
Rs.2 lakhs for loss of consortium and another sum of Rs.2 lakhs for loss
of love and affection which is on higher side and hence the same is liable
to be reduced considerably.
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W.A(MD)No.103 of 2018
8.The deceased was found to be an agriculturist besides doing the
job of Mechanic and other jobs and he was earning a sum of Rs.15,000/-
as monthly income. Though it is admitted by the learned counsel for the
appellant/Insurance company that there is no proof for the income,
considering the fact that there are six claimants who are wife, children
and parents of the deceased,we are inclined to retain the said Rs.
15,000/- as monthly income, however, without adding any sum towards
furture prospects. Therefore the annual income of the deceased would
come to Rs.15,000 x 12 = Rs.1,80,000/-, from which, 1/5th amount has
to be deducted which comes to Rs.36,000/- and hence the annual
income comes to Rs.1,44,000/-(Rs.1,80,000/- - Rs.36,000/- = Rs.
1,44,000/-).Considering the age of the deceased the proper multiplier
to be adopted is '14' which would make the total loss income at Rs.
20,16,000/- (Rs.1,44,000 x 14 = Rs.20,16,000/-) Insofar as the loss of
consortium and loss of love and affection to the first respondent/wife is
concerned , as per the Magma General Insurance Co. Ltd., v. Nanu
Ram & Others., reported in 2018 (1) TN MAC 452 (SC), it is only
Rs.40,000/- permissible for each of the claimants which would come to
Rs.40,000/- x 6 =Rs.2,40,000/-. In addition, this Court awards a sum of
Rs.15,000/- towards loss of estate and Rs.25,000/- towards funeral
expenses and another sum of Rs.10,000/-towards transport
expenses(total Rs.50,00/-). In total, the claimants are entitled to a sum
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W.A(MD)No.103 of 2018
of Rs.23,06,000/-.
9.The Tribunal had granted a sum of Rs. 2 lakhs to the first
respondent/wife towards loss of consortium and loss of love and affection
, a sum of Rs.2 lakhs towards loss of love and affection to the
respondents 2,3 and 4/children and another sum of Rs.1 lakhs to the
respondents 5 and 6/parents towards loss of love and affection.The
above said amounts are modified as indicated above as per the Magma
Insurance case. Therefore the award of Rs.25 lakhs as awarded by the
Tribunal is reduced to Rs.23,06,000/-.The interest as awarded by the
Tribunal at 7.5% stands confirmed.
10.Accordingly, the Award of the Tribunal is modified as follows:-
S.No Description Amount awarded Amount Award confirmed or
by Tribunal awarded by this enhanced or
(Rs) Court granted
(Rs)
1. Loss of income 20,25,000/- 20,26,000/- enhanced
2. Loss of 2,00,000 40,000/- reduced
Consortium to
the 1st petitioner,
wife of the
deceased
3. Loss of love 2,00,000/- Rs.1,20,000/- reduced
affection to the
two minor (40,000 X 3)
children
(Respondents 2,3
and 4)
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W.A(MD)No.103 of 2018
4. Funeral 15,000 25,000 enhanced
Expenses
5. Transport ---- 10,000 Newly awarded
Charges
6. Loss of Estate ----- 15,000 Newly awarded
7. For loss of love 1,00,000 80,000 reduced
and affection to (Rs.40,000/- x
the respondents 2)
5 and 6
8. Total Rs.25,40,000/- Rs.23,06,000/- Reduced by Rs.
rounded off to 1,94,000/-
Rs.25,00,000/-
11.In the result, the Civil Miscellaneous Appeal is allowed in part as
follows:-
(i)The Award of the Tribunal is reduced to
Rs.25,00,000/- from Rs.23,06,000/-.
(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)It is represented by the learned counsel for the
appellant/Insurance Company that the entire award amount
has been deposited to the credit of Claim Petition and the
claimants have also withdrawn 50% of the award amount.
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W.A(MD)No.103 of 2018
(v)The respondents 1,2,3,5 and 6/claimants 1,2,3,5
and 6 are permitted to withdraw their remaining share in
the modified award amount with proportionate accrued
interest and costs by filing formal application before the
Tribunal.The share of the minor claimant/ Respondent No.4
is permitted to be kept in interest bearing fixed deposit, in
any of the Nationalised Bank till she attain majority and the
guardian / first respondent/mother of the minor daughter is
permitted to withdraw the interest amount once in three
months and utilize the same for the welfare of the minor
daughter.
(vi)The Tribunal is directed to refund the excess award
amount, if any, to the appellant/Insurance Company, along
with proportionate accrued interest.
No Costs. Consequently, connected Miscellaneous Petition is closed.
(P.S.N.J.,) (S.K.J.,)
26.02.2021
Index :yes/No
Internet :yes/No
vsn
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W.A(MD)No.103 of 2018
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 Vehicles Accident Claims Tribunal/
Sub-Court, Uthamapalayam.
2.The Section Officer,
VR Section,Madurai Bench of Madras High Court,
Madurai.
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W.A(MD)No.103 of 2018
PUSHPA SATHYANARAYANA, J.
AND
S.KANNAMMAL, J.
vsn
Judgment made in
C.M.A(MD)No.103 of 2018
26.02.2021
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