Madras High Court
M/S.United India Insurance ... vs Muthumari on 26 February, 2021
C.M.A(MD)No.218 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.218 of 2018
M/s.United India Insurance Company Limited,
Gobichettipalayam. ... Appellant/3rd Respondent
Vs.
1.Muthumari
2.Sakthivel ... Respondents 1 & 2/Claimants
3.Mani
4.Sri Bannariamman Transport,
Rangasamudram Post,
Sathyamangalam,
Coimbatore District.
5.IFFCO TOKIO General Insurance Company Limited,
Trivandram Road,
Palayamkottai,
Tirunelveli. ... Respondent 3 to 5/
Respondents 1, 2 & 4
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the fair and decreetal order dated
24.10.2017 made in M.C.O.P.No.49 of 2017 on the file of the Motor
Accident Claims Tribunal (Additional District Court), Tenkasi.
For Appellant : Mr.C.Jawahar Ravindran
For RR 1 & 2 : Mr.R.J.Karthik
http://www.judis.nic.in
1/12
C.M.A(MD)No.218 of 2018
JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA,J.)
The United India Insurance Company is the appellant.
Challenging the award, dated 24.10.2017 made in M.C.O.P.No.49 of
2017, on the file of the Motor Accident Claims Tribunal (Additional
District Court), Tenkasi, the present Civil Miscellaneous Appeal is
filed.
2.In the said M.C.O.P, the claimants, who are the respondents
1 & 2, have made the claim as compensation for the death of one
Kalyanikumar, who died in the accident that occurred on 18.09.2013.
The respondents 1 & 2 are the mother and brother of the deceased.
3.The brief facts relevant for the consideration of the above case
are that on 18.09.2013, when the deceased-Kalyanikumar was riding
a Hero Honda CBZ motor cycle bearing Registration No.TN-76-K-3511
on the extreme left side of the road from Courtalam to Shencottai
main road, a private bus belonging to the fourth respondent/second
respondent bearing Registration No.TN-36-T-4566, dashed against the
motor cycle. Due to the said impact, the deceased sustained grievous
injuries and he was immediately taken to the Government Hospital,
http://www.judis.nic.in
C.M.A(MD)No.218 of 2018
Tenkasi for treatment. But, he succumbed to injuries on the way to
Hospital. Hence, the respondents 1 & 2/claimants, as legal heirs of the
deceased, has filed this claim petition claiming a compensation of Rs.
50,00,000/-. The third respondent/first respondent being the driver of
the private bus, the fourth respondent/second respondent being the
owner of the private bus, the appellant/third respondent being the
insurer of the private bus and the fifth respondent/fourth respondent
being the insurer of the Hero Honda Motor Cycle.
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. The second claimant is not a dependent of the
deceased, as he also works in Saudi.
5.Before the Tribunal, the wife of the deceased, the first
respondent herein was examined as P.W.1, Ganesan was examined as
P.W.2 and Palusamy was examined as P.W.3 and Exs.P1 to Ex.P21
were marked. On the side of the appellant, one Ramamoorthy was
examined as R.W.1 and Ex.R1 was marked.
http://www.judis.nic.in
C.M.A(MD)No.218 of 2018
6.The Tribunal, after considering the oral and documentary
evidence, held that the accident had occurred only due to the rash and
negligent driving of the driver of the third respondent/first respondent
and that the deceased sustained injuries and due to the impact, he
died. The Tribunal further held that the appellant/Insurance Company
is liable to pay compensation to the claimants and had awarded a total
compensation of Rs.34,45,200/- under various heads.
7.The learned counsel appearing for the appellant/Insurance
Company would submit that the Tribunal had awarded excessive
compensation under different heads. He would further submit that the
Tribunal had excessively fixed the monthly income of the deceased at
Rs.37,950/-, based on the salary certificate-Ex.P.7, which is also on
the higher side.
8.The learned counsel appearing for the respondents 1 &
2/claimants would submit that the Tribunal had correctly awarded the
compensation under various heads and the same need not be
interfered with.
http://www.judis.nic.in
C.M.A(MD)No.218 of 2018
9.Heard the learned counsel appearing on either side and
perused the materials available on record.
10.On a perusal of the entire materials available on record, it is
seen that the deceased was employed in Saudi Arabia as a Fitter and
the same was established by producing his passport visa and he has
travelled back to India. The salary certificate, during the relevant
period, was also produced as Ex.P.7. The salary certificate shows that
he had been employed from May 2011 onwards in the position of
instrument Technician with salary of SR2,300/- (in Saudi Rial), apart
from free accommodation and transportation. Converting the said
Saudi Rial into Indian currency on the date concerned, the salary is
calculated at Rs.37,950/-. The deceased was a bachelor aged about
26 years, the respondents 1 and 2/claimants are his mother and
brother, only the first respondent/mother can be the legal heir and
dependent and the brother is already employed and hence, he cannot
be the dependent of the deceased. Since the deceased was employed
outside the Country, considering the nature of the job and his
prospects of coming back to Country, the Tribunal had adopted a split
multiplier '5' + '12' for the income earned in Saudi Arabia and India
respectively.
http://www.judis.nic.in
C.M.A(MD)No.218 of 2018
11.As mentioned above, the monthly salary of the deceased was
Rs.37,950/- per month, when converted into Indian currency, from
which, 50% has to be deducted for the personal expenses of the
deceased, which would come to Rs.18,975/-. Though the Tribunal had
deducted further 10% towards Income Tax, as the deceased was
earning only in Saudi Arabia, where income is not taxable, 10% need
not be deducted. Considering the fact that the deceased was
employed as a Fitter, the future prospects in the Foreign Country is
also not considered. Therefore, loss of dependency, immediately
following the next five years from the date of death of the deceased,
would be Rs.11,38,500/- (Rs.18,975 X 12 X 5).
12.Now, the loss of dependency based on the income in Indian
rupees, which was taken at Rs.18,000/- per month by the Tribunal
notionally, which we do not want to disturb. In addition to
Rs.18,000/-, 40% to be added for future prospects, which would be
Rs.25,200/- (Rs.18,000 + Rs.7200). In the claim petition filed by the
respondents 1 and 2/claimants, in fact, the monthly income of the
deceased was shown only as Rs.25,000/- per month and they have
not mentioned any earning in terms of Saudi Rial. Therefore,
presuming that the deceased would have earned Rs.18,000/- per
http://www.judis.nic.in
C.M.A(MD)No.218 of 2018
month in India and adding 40% future prospects, the amount is
Rs.25,200/-, from which, 50% has to be deducted for personal
expenses, which would make the income available at Rs.12,600/-.
Therefore, the loss of dependency, after return of the deceased to
India, would be Rs.18,14,400/- (Rs.12,600 X 12 X 12).
13.In fine, loss of dependency would be as per '5' multiplier,
arrived at Rs.11,38,500/- and with '12' multiplier, it is arrived at
Rs.18,14,400/-, making the total loss of earning at Rs.29,52,900/-.
14.The Tribunal had awarded a sum of Rs.50,000/- each to the
first and second respondents under the head loss of love and
affection, which 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 first respondent, who is the mother of the deceased, alone is
entitled to Rs.40,000/-. A sum of Rs.50,000/- awarded under the head
of loss of love and affection to the second respondent, who is the
brother of the deceased cannot be awarded and the same is deleted.
http://www.judis.nic.in
C.M.A(MD)No.218 of 2018
15.The Tribunal had jointly awarded a sum of Rs.25,000/-
towards funeral and transportation expenses, which needs
interference and the same is modified and a sum of Rs.25,000/- is
awarded towards funeral expenses and a sum of Rs.10,000/- is
awarded towards transportation expenses.
16.Though the Tribunal had awarded a sum of Rs.10,000/-
towards loss of estate, which is on the lower side, a sum of Rs.
15,000/- is awarded towards loss of estate.
17.The Tribunal had awarded the compensation being shared
between the first respondent/mother and the second
respondent/brother of the deceased. Admittedly, the brother of the
deceased is also employed in a Foreign Country and he would not
even be the heir of the deceased, we are of the opinion that the entire
compensation has to go the first respondent/mother of the deceased.
Now, the said amounts are modified and compensation payable to the
first respondent has become Rs.30,42,900/- as indicated above.
18.Accordingly, the Award of the Tribunal is modified as follows:-
http://www.judis.nic.in
C.M.A(MD)No.218 of 2018
S.No Description Amount Amount Award confirmed
awarded by awarded by this or enhanced or
Tribunal Court granted
(Rs) (Rs)
1. Loss of 13,66,200/- 11,38,500/- reduced
dependency
(during the
employment at
Saudi)
2. Loss of 19,44,000/- 18,14,400/- reduced
dependency
(after return to
India)
3. Loss of estate 10,000/- 15,000/- enhanced
4. Loss of love and 1,00,000/- 40,000/- reduced
affection to the (Rs.50,000 X 2) (first
respondents 1 & respondent
2 alone)
5. Funeral 25,000/- 35,000/- enhanced
expenses & (25,000 +
Transportation 10,000)
expenses
Total Rs.34,45,200/- Rs.30,42,900/- Reduced by
Rs.4,02,300/-
19.In the result, the Civil Miscellaneous Appeal is allowed in part
as follows:-
(i) The Award of the Tribunal is reduced to
Rs.30,42,900 /- from Rs.34,45,200/-.
http://www.judis.nic.in
C.M.A(MD)No.218 of 2018
(ii) The interest granted by the Tribunal at 9% per
annum is confirmed.
(iii) The Insurance Company is directed to deposit
the 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 Tribunal is directed to refund the excess
award amount, if any, to the appellant-Insurance
Company together with interest at the rate of 9% from
the date of the claim petition.
(vi) The first respondent is permitted to withdraw
the entire award amount with proportionate accrued
interest and costs, less the award amount withdrawn
already.
No costs.
[P.S.N.,J] [S.K.,J.]
26.02.2021
Index :Yes/No
Internet :Yes/No
ps
http://www.judis.nic.in
C.M.A(MD)No.218 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 Accident Claims Tribunal/
Additional District Court,
Tenkasi.
2.The V.R Section (Records),
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
C.M.A(MD)No.218 of 2018
PUSHPA SATHYANARAYANA,J.
and
S.KANNAMMAL,J.
ps
C.M.A(MD)No.218 of 2018
26.02.2021
http://www.judis.nic.in
