Madras High Court
Branch Manager vs M. Geetha on 20 January, 2021
C.M.A.No.3343 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. No.3343 of 2019
and C.M.P.No.19461 of 2019
Branch Manager,
HDFC ERGO General Insurance Co. Ltd.,
2nd Floor, Chicago Plaza, Rajaji Road,
Near KSRTC Bus Stand, Ernakulam. .. Appellant
Vs.
1.M. Geetha
2.M. Murali
3.T. Narayanan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 18.12.2018, made
in M.C.O.P. No.2197 of 2017, on the file of the II Additional District and
Sessions Judge, (Motor Accident Claims Tribunal), Tiruppur.
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C.M.A.No.3343 of 2019
For Appellant : Ms.G.P.Bhargavi
For Respondents : Mr.K.Myilsamy (For R1 & R2)
No appearance (For R3)
JUDGMENT
The matter is heard through "Video Conferencing".
This Civil Miscellaneous Appeal has been filed by the appellant-
Insurance Company against the judgment and decree dated 18.12.2018, made
in M.C.O.P. No.2197 of 2017, on the file of the II Additional District and
Sessions Judge, (Motor Accident Claims Tribunal), Tiruppur.
2.The appellant is the 2nd respondent in M.C.O.P. No.2197 of 2017, on
the file of the II Additional District and Sessions Judge, (Motor Accident
Claims Tribunal), Tiruppur. The respondents 1 & 2/claimants filed the said
claim petition, claiming a sum of Rs.40,00,000/- as compensation for the
death of one Marimuthu, who died in the accident that took place on
13.10.2017.
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C.M.A.No.3343 of 2019
3.According to the respondents 1 & 2, on the date of accident, when
the deceased was riding his Motorcycle bearing Registration No.TN-39-CA-
9351 from East to West in the Thirumuruganpoondi Ring Road, in front of
Kethubagavan Koil, Tirupur, the driver of the Container Lorry bearing
Registration No.KL-07-4957 belonging to the 3rd respondent drove the same
from West to East in a rash and negligent manner and dashed on the
Motorcycle ridden by the deceased and caused the accident. In the accident,
the deceased succumbed to fatal injuries. The accident occurred only due to
rash and negligent driving by the driver of the Container Lorry belonging to
the 3rd respondent. Hence, the respondents 1 & 2 filed the claim petition
claiming compensation against the 3rd respondent and appellant as owner and
insurer of the offending vehicle respectively.
4.The 3rd respondent, owner of the Container Lorry, remained exparte
before the Tribunal.
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C.M.A.No.3343 of 2019
5.The appellant-Insurance Company, filed counter statement and
denied all the averments made by the respondents 1 & 2 in the claim petition.
According to the appellant, the accident occurred only due to rash and
negligent riding by the deceased and not by the driver of the Container Lorry
belonging to the 3rd respondent. At the time of accident, both the rider of the
Motorcycle as well as the driver of the Container Lorry did not possess valid
driving license to ply the vehicle. The appellant did not receive any
information about the accident from the 3rd respondent, owner of the vehicle.
Hence, the appellant is not entitled to indemnify the 3rd respondent. In any
event, the claim petition is bad for non-joinder of owner and insurer of the
Motorcycle. The respondents 1 and 2 have to prove the age, avocation and
income of the deceased to claim compensation and prayed for dismissal of the
claim petition.
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C.M.A.No.3343 of 2019
6.Before the Tribunal, the 1st respondent examined herself as P.W.1,
examined two eye witnesses as P.W.2 and P.W.3 and marked 4 documents as
Exs.P1 to P4. The appellant did not let in any oral and documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred due to rash and negligent
driving by the driver of the Container Lorry belonging to the 3rd respondent
and directed the appellant as insurer of the said vehicle to pay a sum of
Rs.18,00,000/- as compensation to the respondents 1 & 2.
8.Questioning the quantum of compensation granted by the Tribunal in
the award dated 18.12.2018, made in M.C.O.P. No.2197 of 2017, the
appellant - Insurance Company has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company
contended that the respondents 1 and 2 failed to file documents to prove the
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C.M.A.No.3343 of 2019
age, avocation and income of the deceased. In the absence of any materials,
the Tribunal fixed the age of the deceased as 48 years, relying on the Post
Mortem Certificate. The Post Mortem Certificate is not a conclusive proof of
age and it is only approximate. The respondents 1 and 2 ought to have
produced Aadhaar Card of the deceased to prove the age. The Tribunal failed
to see that age of the deceased is crucial for arriving at compensation for loss
of dependency. The Tribunal having fixed the age of the deceased at 48 years,
erroneously applied the multiplier '14', instead of '13'. The Tribunal, in the
absence of materials, erroneously fixed the monthly income of the deceased
at Rs.12,000/- and granted 25% enhancement towards future prospects. The
amounts granted by the Tribunal for loss of love and affection and other
heads are excessive and prayed for setting aside the award of the Tribunal.
10.Per contra, the learned counsel appearing for the respondents 1 and
2 contended that the deceased was working as a Cutting Master in Shanthi
Hosieries, Tirupur and was earning a sum of Rs.20,000/- per month. The 1 st
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C.M.A.No.3343 of 2019
respondent, who is wife of the deceased deposed as P.W.1 with regard to the
age, avocation and income of the deceased. The Tribunal erroneously rejected
the evidence of P.W.1 and fixed meagre sum of Rs.12,000/- per month as
notional income of the deceased. The total compensation awarded by the
Tribunal under different heads are not excessive and prayed for dismissal of
the appeal.
11.Though notice has been served on the 3rd respondent and his name is
printed in the cause list, there is no representation for him either in person or
through counsel.
12.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the respondents 1 and 2 and perused the materials
available on record.
13.It is the contention of the respondents 1 and 2 that the deceased was
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C.M.A.No.3343 of 2019
aged 45 years at the time of accident, working as a Cutting Master and was
earning a sum of Rs.20,000/- per month. The respondents 1 and 2 did not
produce any materials to prove the age, avocation and income of the
deceased. In the absence of any materials, the Tribunal fixed the age of the
deceased as 48 years, as per Post Mortem certificate. In the absence of any
materials, the Tribunal considering the age mentioned in the Post Mortem
certificate, fixed the age of the deceased as 48 years. The appellant has not
produced any document to show that the deceased was not aged 48 years at
the time of accident. In the absence of any contra evidence, the Tribunal fixed
the age of the deceased as 48 years, based on Post Mortem certificate, which
is correct. Hence, the age fixed by the Tribunal is not interfered with. In the
absence of evidence produced by the respondents 1 and 2, the Tribunal fixed
a sum of Rs.12,000/- per month as notional income. The accident is of the
year 2017. The monthly income fixed by the Tribunal is not excessive. As per
the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC
Supreme Court [Sarla Verma & others vs. Delhi Transport Corporation &
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C.M.A.No.3343 of 2019
another], the correct multiplier applicable for the age group 46 - 50 is '13'.
The Tribunal erroneously applied the multiplier '14'. Hence, by applying the
multiplier '13', the amount awarded by the Tribunal towards disability is
modified to Rs.15,60,000/- {[Rs.12,000/- + Rs.3,000/- (25% of Rs.12,000/-)]
x 12 x 13 x 2/3}. The respondents 1 and 2 are wife and son of the deceased.
The Tribunal has granted compensation for both the respondents 1 and 2
under two different heads viz., loss of love and affection and loss of
consortium, which they are not entitled to. Hence, the amounts granted by the
Tribunal under the heads loss of love and affection and loss of consortium to
both the respondents 1 and 2 are set aside. This Court grants a sum of
Rs.40,000/- towards loss of consortium to the 1st respondent, who is wife of
the deceased and Rs.40,000/- towards loss of love and affection to the 2nd
respondent, who is son of the deceased. The Tribunal failed to award any
amount towards loss of estate. The respondents 1 and 2 are entitled to a sum
of Rs.15,000/- towards loss of estate. The amount awarded by the Tribunal
towards funeral expenses is just and reasonable and hence, the same is
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C.M.A.No.3343 of 2019
confirmed. Thus, the compensation awarded by the Tribunal is modified as
follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by this confirmed or
(Rs) Court (Rs) enhanced or
granted
1. Loss of dependency 16,80,000/- 15,60,000/- Reduced
2. Loss of estate - 15,000/- Granted
3. Funeral expenses 15,000/- 15,000/- Confirmed
4. Loss of love and 50,000/- - Set aside
affection to respondents
1 and 2
5. Loss of consortium to 80,000/- - Set aside
the respondents 1 and 2
6. Loss of consortium to 1st - 40,000/- Granted
respondent
7. Loss of love and - 40,000/- Granted
affection to 2nd
respondent
8. Transportation 10,000/- 10,000/- Confirmed
Total 18,35,000/- 16,80,000/- Reduced by
Rs.1,20,000/-
rounded off to
18,00,000/-
14.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.18,00,000/- is modified to Rs.16,80,000/- together with
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C.M.A.No.3343 of 2019
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit. The appellant-Insurance Company is directed to deposit the award
amount, now determined by this Court, along with interest and costs, within a
period of six weeks from the date of receipt of a copy of this judgment, to the
credit of M.C.O.P. No.2197 of 2017. On such deposit, the respondents 1 and
2 are permitted to withdraw their respective share of the award amount, now
determined by this Court, along with proportionate interest and costs, as per
the ratio of apportionment fixed by the Tribunal, after adjusting the amount, if
any, already withdrawn, by filing necessary applications before the Tribunal.
Consequently, connected Miscellaneous Petition is closed. No costs.
20.01.2021
Index : Yes/No
Speaking Order : Yes/No
gsa
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C.M.A.No.3343 of 2019
V.M.VELUMANI, J.,
gsa
To
1.The II Additional District and Sessions Judge,
(Motor Accident Claims Tribunal),
Tiruppur.
2.The Section Officer,
V.R Section,
High Court, Madras.
C.M.A. No.3343 of 2019
20.01.2021
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