Madras High Court

M/S.Cholamandalam Ms General ... vs Lakshmi on 5 January, 2021

                                                         1     CMA No.49 of 2017 and Cross Obj 20 of 2020




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 05.01.2021

                                                     CORAM:

                                   THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

                                                C.M.A.No.49 of 2017
                                                        and
                                              Cross Obj. No.20 of 2020
                                                        and
                                               CMP No.484 of 2017

                     M/s.Cholamandalam MS General Insurance Co. Ltd.,
                     Dare House, 2nd Floor,
                     N.S.C. Bose Road,
                     Chennai 600 001.                                                ...Appellant
                                                                                in CMA 49/2017
                                                                        /R1 in Cross Obj.20/2020
                                                        Vs
                     1.Lakshmi
                     2.M.Poovarasan (Minor)
                     3.Poongodi (Minor)
                     4.Kasi
                     (Respondents 2 and 3 minors represented

by mother and NF 1st respondent)

5.Kumar ...Respondents in CMA 49/2017 /R1 to R4 Cross objectors in Cross Obj.20/2020 R5 as R2 in Cross Obj.20/2020

https://www.mhc.tn.gov.in/judis/

Common PRAYER: Civil Miscellaneous Appeal under Section 173 of

Motor Vehicles Act, 1988 and Cross Objection under Order 41 Rule 22 of

CPC filed against the judgment and decree dated 30.10.2015 made in

M.C.O.P.No.123 of 2014 on the file of the Motor Accidents Claims

Tribunal, Special District Court, Krishnagiri.

                                       For Appellant           : M/s.Harini
                                       /Insurance Company          for M/s.M.B.Gopalan Associates
                                       For Respondents         : Mr.S.P.Yuvaraj
                                       /Claimants
                                                                For R5 in CMA 49/2017 and
                                                               R2 in Cross Obj.20/2020 -steps not
                                                               taken.


                                               COMMON JUDGMENT

(The cases have been heard through Video Conferencing)

Heard the learned counsel for the appellant Insurance Company and

the learned counsel for the claimants, who have filed their Cross Objection.

2.It is the case of fatal accident of 33 years old man, who died leaving

behind his wife, two minor children and father. On 18.06.2013 at about

09.00 p.m. near Parasuramankottai Pirivoo in Uthangarai-Tirupattur Road,

while the deceased was returning home in his two wheeler bearing

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Registration No. TN 24-P-2829 followed by his brother in another two

wheeler, an Auto bearing Registration No. TN 23-BX-4842 owned by the

fifth respondent Kumar insured with the appellant herein, the

Cholamandalam General Insurance Company Limited was coming from the

opposite direction dashed against the two wheeler. The same was

witnessed by his brother, who was following him in another two wheeler.

The injured was taken to the Government Hospital, Uthangarai where he

was reported dead. The claim petition was filed by his wife, two children

and father seeking compensation of Rs.20,00,000/- on the premises that the

deceased was 31 years old at the time of accident earning around

Rs.20,000/- per month as Carpenter and due to his sudden death, they have

lost the income and dependency.

3. Before the Tribunal, the Insurance Company filed counter stating

that the deceased had no valid driving license and the accident occurred due

to the negligence of the deceased, who has driven a high powered engine

two wheeler without license. The Tribunal on considering the rival

pleadings and the evidence placed before it, awarded a sum of

Rs.16,95,000/- as compensation along with 7.5% interest from the date of

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petition till the date of deposit. The Tribunal directed the Insurance

Company to deposit the amount within 60 days and permitted the Insurance

Company to recover the same from the Auto owner, since the driver of the

Auto had no valid driving license.

4. Aggrieved by the said award, the Insurance Company has filed

CMA No.49 of 2017 stating that the computation of the loss of income of

the deceased has been erroneously arrived by the Tribunal assuming that the

deceased was earning Rs.10,000/- per month. In the absence of evidence,

the Tribunal ought not to have fixed such as high amount as notional

income of the deceased. It is also submitted that the Tribunal has awarded

excessive compensation under the other heads like loss of love and affection

and loss of consortium.

5.In the Cross Objection, the claimants put forth their contention on

the ground that the Tribunal had failed to pay just and fair compensation

particularly after fixing the income of the deceased at Rs.10,000/- per

month, no future prospects had been added.

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6. The facts regarding the accident and negligence is not in dispute.

The age of the deceased Murugesan has been fixed as 33 years old by the

Tribunal based on the oral evidence of PW1 and the Death Certificate

Ex.P7. The avocation of the deceased has been spoken by P.W.1 wife and

P.W.2 the brother of the victim, who has witnessed the accident. The First

Information Report as well as ocular evidence of P.W.2 indicates that the

accident occurred when the deceased and his brother returning from their

carpentary work. Though there is no documentary evidence to prove the

income of the deceased, there is no contra evidence to the ocular evidence

adduced by the claimant about the avocation of the deceased.

7. The accident has occurred during the year 2013 and this Court

finds that fixation of Rs.10,000/- per month as notional income of the

deceased person, who claims to be the Carpenter is not excessive.

However, the Tribunal has not taken note of the future prospects of the

deceased, which is now become mandatory in view of the Constitution

Bench judgment of the Supreme Court. The deceased was aged below 40

years and non salaried person, hence 40% of notional income has to be

taken as the future prospects. Since there are four dependents for the

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deceased, 1/4 of his income has to be deducted for his personal expenditure

and the total loss of income shall be computed as Rs.20,16,000/-.

(10000+4000X3/4X16X12). Regarding the compensation given under the

other heads, the contention of the counsel for the Insurance company has to

be accepted in the light of the Constitution Bench judgment rendered in

Pranay Sethy's case.

8. Accordingly, Rs.25,000/- awarded by the Tribunal for funeral

expenses is reduced to Rs.15,000/-. The loss of consortium for the first

claimant/wife fixed as Rs.40,000/- and loss of love and affection for the

other 3 claimants, who are minor son, minor daughter and father of the

deceased is fixed as Rs.60,000/-(Rs.20,000/- each). The award of

Rs.3,000/- for transport expenses and Rs.2000/- for damages to clothes are

confirmed. Thus, the total compensation is enhanced to Rs.21,36,000/- as

below:

Compensation under Various Award passed by this Heads Court Loss of Income Rs.20,16,000/-

Loss of consortium to the first Rs. 40,000/-

claimant/wife

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Compensation under Various Award passed by this Heads Court Funeral expenses Rs. 15,000/-

Loss of love and affection to the Rs. 60,000/-

                                   claimants 2 to 4 (Rs.20,000 each)
                                   Transport Expenses                   Rs.     3,000/-
                                   Damages to Clothes                   Rs.     2,000/-
                                                            Total       Rs.21,36,000/-

9. Accordingly, the award is enhanced to Rs.21,36,000/- with interest

at the rate of 7.5% p.a. from the date of petition till the date of realisation.

The said amount shall be deposited by the Insurance Company within a

period of eight weeks from the date of receipt of a copy of this order. The

said amount shall be apportioned among the claimants as below:

Claimants Apportionment of compensation 1st Claimant/Wife Rs. 7,86,000/-

Claimants 2 and 3/Minors Rs.10,50,000/-

                                   Rs.5,25,000/- each
                                   Claimant 4/father        Rs.3,00,000/-

Till they attain majority, the compensation awarded to the minor claimants 2

and 3 along with accrued interest shall be deposited in the Post Office in a

Scheme, which provides for payment of interest every six months and the

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said interest shall be utilised for the welfare of the minors. The first

claimant is permitted to withdraw the interest and spend the same for the

welfare of the minors until they attain majority. The claimants 1 and 4 are

entitled to withdraw their respective share on appropriate application. The

claim in Cross Objection is restricted to Rs.19,06,410/- and Court fee is paid

advalorem to the claim. Since the Court finds the claimants are entitled for

higher compensation than their claim, the claimants are directed to pay the

deficit Court fees within three weeks from the date of receipt of the order

copy.