Madras High Court
The New India Assurance Company ... vs Krishnaveni on 5 July, 2021
C.M.A.Nos.1870, 1871 & 1872 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.Nos.1870, 1871 & 1872 of 2015 &
M.P.Nos.1, 1 & 1 of 2015
The New India Assurance Company Ltd.,
Patullous Road Branch,
2nd floor B wing,
No.21, Patullous Road,
Chennai – 600 001. ... Appellant in all CMAs.
Vs
1.Krishnaveni
2.Munusamy
3.D.Ravindra Reddy
... Respondents in CMA.No.1870 of 2015
1.S.Vasantha
2.S.Thulasi
3.S.Dhana Bakkiyam
4.S.Poovazhagi
5.S.Rajeswari
6.S.Bhuvaneswari
(R4 & R5 declared as major
and discharge the
guardianship vide order of this
Court dated 15.06.2017 in
CMP.Nos.10805 & 10806 of
C.M.A.Nos.1870, 1871 & 1872 of 2015
2016)
7.D.Ravindra Reddy
... Respondents in CMA.No.1871 of 2015
1.V.Malliga
2.M.Vellu
3.V.Nandhini
(R3 declared as major and
discharge the guardianship
vide order of this Court dated
15.06.2017 in
CMP.No.10807 of 2016)
4.D.Ravindra Reddy
... Respondents in CMA.No.1872 of 2015
COMMON PRAYER: Civil Miscellaneous Appeals filed under Section
173 of Motor Vehicles Act against the decree and judgment dated
12.09.2014 made in MCOP.Nos.1900, 1901 & 1904 of 2010 on the file of
the Motor Accident Claims Tribunal No.VI Small Causes Court, Chennai.
For Appellant : Mr.R.Neethi Perumal
For Respondents 1 & 2
in CMA.No.1870 of 2015,
for respondents 1 to 6
in CMA.No.1871 of 2015 &
for respondents 1 to 3
in CMA.No.1872 of 2015 : Mr.R.Kalaiarasan
C.M.A.Nos.1870, 1871 & 1872 of 2015
COMMON JUDGMENT
(These cases are heard through Video Conferencing)
These appeals have been filed by the Insurance Company challenging
the common award dated 12.09.2014 passed by the Motor Accident Claims
Tribunal (VIth Court of Small Causes, Chennai) in MCOP.Nos.1900, 1901
& 1904 of 2010.
2. The Appellant/Insurance Company has challenged the impugned
common award on the ground that (a) the Tribunal failed to fix any
contributory negligence on the part of the respective deceased also and (b)
the quantum of compensation awarded to the respective claimants is also
excessive.
3. Heard Mr.R.Neethi Perumal, learned counsel for the Appellant and
Mr.R.Kalaiarasan, learned counsel for the respondents 1 & 2 in
C.M.A.No.1870 of 2015, for respondents 1 to 6 in C.M.A.No.1871 of 2015
& for respondents 1 to 3 in CMA.No.1872 of 2015. The owner of the
vehicle viz., Mr.D.Ravindra Reddy has remained exparte in all these appeals
both before the Tribunal as well as this Court.
C.M.A.Nos.1870, 1871 & 1872 of 2015
4. The details of the compensation awarded by the Tribunal to the
respective claimants in MCOP.Nos.1900, 1901 & 1904 of 2010 are as
follows:
CMA.No.1870 of 2015 corresponds to MCOP.No.1900 of 2010
Heads Amount awarded by the
Tribunal
(Rs.)
Loss of pecuniary benefits 10,53,000/-
(6,500 x 12 = 78,000 +
50% = 117000 – ½ =
58500 x 18)
Funeral Expenses 25,000/-
Loss of love and affection, mental 2,00,000/-
agony and loss of companionship
to the parents
Total 12,78,000/-
CMA.No.1871 of 2015 corresponds to MCOP.No.1901 of 2010
Heads Amount awarded by the
Tribunal
(Rs.)
Loss of pecuniary benefits 14,04,000/-
(6,500 x 12 = 78,000 +
50% = 117000 – 1/3 =
78000 x 18)
Funeral Expenses 25,000/-
Loss of love and affection, mental 2,00,000/-
agony and loss of companionship
to the parents
C.M.A.Nos.1870, 1871 & 1872 of 2015
Heads Amount awarded by the
Tribunal
(Rs.)
Total 16,29,000/-
CMA.No.1872 of 2015 corresponds to MCOP.No.1904 of 2010
Heads Amount awarded by the
Tribunal
(Rs.)
Loss of pecuniary benefits 10,53,000/-
(6,500 x 12 = 78,000 +
50% = 117000 – ½ =
58500 x 18)
Funeral Expenses 25,000/-
Loss of love and affection, mental 2,00,000/-
agony and loss of companionship
to the parents
Total 12,78,000/-
5. The accident happened on 23.05.2010 as a result of a collision
between a motor cycle bearing registration No.TN20 BU 5495 and a
stationery lorry bearing registration No TN09V5499 insured with the
Appellant.
C.M.A.Nos.1870, 1871 & 1872 of 2015
6. The case of the claimants in all the three claims is that only due to
the fault of the insured lorry which was parked in the middle of the road
without any indicator lamps, the accident had happened which resulted in
the death of the respective deceased. The respective deceased were the rider
and the pillion riders in the motor cycle bearing registration
No.TN20BU5495 who died on the spot as a result of the accident.
7. The main grievance of the Insurance company in these appeals are
that the deceased were also at fault as the insured lorry was stationery at the
time of the accident.
8. Before the Tribunal, the claimants who are the dependants of the
respective deceased have filed twenty documents which were marked as
Ex.P1 to Ex.P20 and six witnesses were examined as PW1 to PW6. On the
side of the Appellant Insurance Company, neither any document was filed
nor any witness examined before the Tribunal.
C.M.A.Nos.1870, 1871 & 1872 of 2015
9. The FIR was registered only against the insured lorry which was
marked as Ex.P1 before the Tribunal. The charge sheet was also filed
subsequently only against the driver of the insured lorry which was marked
as Ex.P20 before the Tribunal. The Rough Sketch which was marked as
Ex.19 before the Tribunal, discloses the details of the accident. The
Tribunal has taken into consideration the aforementioned documents and
has held that the entire fault is on the part of the driver of the insured lorry
and the Appellant Insurance Company was directed to pay the determined
compensation amount to the respective claimants. Admittedly, the insured
lorry was in a stationery position, when the two wheeler in which the
respective deceased were travelling and dashed against it. The deceased
could have very well avoided the accident, if the rider of the said two
wheeler was cautious while driving the vehicle. Therefore, it is clear that
there is some amount of negligence on the part of the motor cycle also. The
Tribunal under the impugned award failed to take note of this fact. But
instead held that the entire responsibility for the cause of the accident is
only on the part of the driver of the insured lorry which in the considered
view of this court is not a correct assessment. The Rough Sketch which was
C.M.A.Nos.1870, 1871 & 1872 of 2015
marked as Ex.P19 before the Tribunal also reveals that the motor cycle in
which the deceased were travelling was coming from west to east direction
and dashed against the lorry from behind which will clearly indicate that the
rider of the motorcycle could have avoided the accident, if he was little
more cautious and therefore, he is also to some extent responsible for the
cause of the accident. Hence, this Court fixes the contributory negligence of
the rider of the motorcycle bearing registration No.TN20BU5495 at 10%
and the driver of the insured lorry at 90%.
10. With regard to the quantum of compensation awarded by the
Tribunal to the respective claimants is concerned, this Court is of the
considered view that under certain heads, the Tribunal has awarded
excessive amounts which is not in accordance with the Constitution Bench
Judgment of the Hon'ble Supreme Court in the case of National Insurance
Company Limited vs. Pranay Sethi and others reported in 2017 (16) SCC
680.
11. Coming to the first claim viz., MCOP.No.1900 of 2010, the
Tribunal has awarded a compensation of Rs.12,78,000/- to the claimants.
C.M.A.Nos.1870, 1871 & 1872 of 2015
The deceased was a Bachelor and his parents are the claimants. The
deceased was a painter by profession. The Tribunal has awarded 50%
towards loss of future prospects to the claimants which is not in accordance
with Pranay Sethi's Judgment referred to supra as the deceased was only 23
years old at the time of the accident. Instead of awarding 40% towards loss
of future prospects, the Tribunal has erroneously awarded 50% which is
excessive. Accordingly, this Court reduces the loss of future prospects to
the claimants to 40%. The Tribunal has rightly deducted 50% towards
personal expenses of the deceased, since the deceased was a bachelor at the
time of the accident. The Tribunal has also rightly deducted the correct
multiplier of 18, since the deceased was aged 23 years at the time of the
accident. Hence the loss of pecuniary benefits and loss of estate of the
deceased is reduced to Rs.9,82,800/- from Rs.10,53,000/- fixed by the
Tribunal as detailed hereunder:
(6,500 x 12 = 78,000 + 40% = 1,09,200 – ½ = 54,600 x 18)
12. Insofar as the compensation towards loss of love and affection
awarded by the Tribunal at Rs.2,00,000/- is concerned, the same is also
C.M.A.Nos.1870, 1871 & 1872 of 2015
excessive and not in accordance with Pranay Sethi's Judgment referred to
supra. The dependants of the deceased are his parents and hence, the
Tribunal ought to have awarded only Rs.80,000/- calculated at Rs.40,000/-
for each of the claimants and not Rs.2,00,000/-. Hence, the compensation
awarded by the Tribunal towards loss of love and affection is reduced to
Rs.80,000/- from Rs.2,00,000/- by this Court.
13. The Tribunal has erroneously failed to award any compensation
towards loss of estate of the deceased which the claimants are legally
entitled to as per Pranay Sethi's Judgment referred to supra. In accordance
with the said judgment, this Court awards a compensation of Rs.15,000/-
towards loss of estate of the deceased to the claimants.
14. With regard to the compensation towards funeral expenses is
concerned, the Tribunal has awarded an excess amount of Rs.25,000/-
which is also not in accordance with Pranay Sethi's Judgment referred to
supra. Accordingly, this Court reduces the same to Rs.15,000/- from
Rs.25,000/- fixed by the Tribunal.
C.M.A.Nos.1870, 1871 & 1872 of 2015
15. For the foregoing reasons, the compensation awarded by the
Tribunal to the claimants in MCOP.No.1900 of 2010 which corresponds to
CMA.No.1870 of 2015 is reduced to Rs.9,83,520/- from Rs.12,78,000/- in
the following manner:
Heads Amount awarded by Amount awarded by
the Tribunal this Court
(Rs.) (Rs.)
Loss of pecuniary 10,53,000/- 9,82,800/-
benefits (6,500 x 12 = 78,000 + (6,500 x 12 = 78,000 +
50% = 117000 – ½ = 40% = 1,09,200 – ½ =
58500 x 18) 54,600 x 18)
Funeral Expenses 25,000/- 15,000/-
Loss of love and 2,00,000/- 80,000/-
affection, mental agony
and loss of
companionship to the
parents
Loss of estate --- 15,000/-
Total 16,29,000/- 10,92,800/-
Less: Contributory -- 1,09,280/-
negligence of the
deceased at 10%
Award Amount 16,29,000/- 9,83,520/-
16. Insofar as CMA.No.1871 of 2015 which corresponds to
MCOP.No.1901 of 2010 is concerned, this Courts assessment are as
follows:
C.M.A.Nos.1870, 1871 & 1872 of 2015
(a) The Tribunal has awarded a total compensation of Rs.16,29,000/-
to the claimants who are six in number and they are the mother and five
sisters of the deceased out of which 3 of them were minors at the time of the
accident.
(b) Here also, the deceased was a painter by profession, and aged 20
years at the time of the accident. In this case also, the Tribunal has
erroneously awarded 50% towards loss of future prospects which will have
to be reduced to 40% as per Pranay Sethi's judgment referred to supra.
Accordingly, the loss of future prospects to the claimants is reduced to 40%
from 50% fixed by the Tribunal. The Tribunal has rightly deducted 1/3 rd
towards personal expenses of the deceased. The Tribunal has also rightly
adopted the multiplier of 18 after giving due consideration to the age of the
deceased who was 20 years at the time of the accident. For the foregoing
reasons, the loss of pecuniary benefits to the claimants in respect of
MCOP.No. 1901 of 2010 is reduced by this court to Rs.13,10,400/- from
Rs.14,04,000/- in the following manner:
(6,500 + 40% = 9,100 x 12 = 1,09,200 – 1/3rd = 72,800 x 18)
(c) As in the earlier case in MCOP.No.1900 of 2010, the Tribunal has
C.M.A.Nos.1870, 1871 & 1872 of 2015
awarded an excess amount of Rs.25,000/- towards funeral expenses. In this
case also, it has to be reduced to Rs.15,000/- in accordance with Pranay
Sethi's Judgment referred to supra. Accordingly, the compensation awarded
towards funeral expenses is reduced to Rs.15,000/- by this Court.
(d) Here, there are six claimants namely the mother and five
unmarried sisters of the deceased out of which three were also minors at the
time of the accident. But instead of awarding total compensation of
Rs.2,40,000/- to the claimants towards loss of love and affection in
accordance with Pranay Sethi's Judgment referred to supra calculated at
Rs.40,000/- for each of the claimants, the Tribunal has awarded a lesser
compensation of Rs.2,00,000/- towards loss of love and affection.
Accordingly, this Court fixes the compensation towards loss of love and
affection at Rs.2,40,000/- instead of Rs.2,00,000/- fixed by the Tribunal.
(e) Similarly, as in the earlier case, the Tribunal has committed error
by not awarding any compensation towards loss of estate of the deceased
which the claimants are legally entitled to as per the settled law. Therefore,
this Court awards a compensation of Rs.15,000/- towards loss of estate of
the deceased to the claimants.
C.M.A.Nos.1870, 1871 & 1872 of 2015
(f) As in the earlier case, 10% contributory negligence is also fixed on
the part of the deceased as he was also travelling in the very same motor
cycle which dashed against the stationery lorry insured with the Appellant.
17. For the foregoing reasons, the compensation awarded by the
Tribunal at Rs.16,29,000/- is reduced to Rs.14,22,360/- by this Court as
detailed hereunder:
Heads Amount awarded by the Amount awarded by
Tribunal this Court
(Rs.) (Rs.)
Loss of pecuniary 14,04,000/- 13,10,400/-
benefits (6,500 x 12 = 78,000 + (6,500 x 12 = 78,000 +
50% = 117000 – 1/3 = 40% = 1,09,200 – 1/3 =
78,000 x 18) 72,800 x 18)
Funeral Expenses 25,000/- 15,000/-
Loss of love and 2,00,000/- 2,00,000/-
affection, mental agony
and loss of
companionship to the
parents
Loss of estate --- 15,000/-
Total 12,78,000/- 15,80,400/-
Less: Contributory -- 1,58,040/-
negligence of the
deceased at 10%
Award Amount 12,78,000/- 14,22,360/-
C.M.A.Nos.1870, 1871 & 1872 of 2015
18. Insofar as the third claim namely MCOP.No.1904 of 2010 which
corresponds to CMA.No.1872 of 2015 is concerned, this Courts assessment
are as follows:
(a) In this case also, the deceased was a painter by profession and
aged 19 years at the time of the accident. However, the Tribunal has
erroneously awarded 50% towards loss of future prospects, though the
claimants are only entitled to 40% in accordance with Pranay Sethi's
Judgment referred to supra. Accordingly, this Court reduces the
compensation towards loss of future prospects to the claimants from 50% to
40%. The Tribunal has rightly deducted 50% towards personal expenses of
the deceased, since the deceased was bachelor at the time of the accident.
The Tribunal has also rightly adopted the multiplier of 18, since the age of
the deceased at the time of the accident was 19 years. In view of the
reduction of loss of future prospects from 50% to 40% by this court, the
compensation towards loss of pecuniary benefits is reduced from
Rs.10,53,000/- to Rs.9,82,800/- by this Court in the following manner:
(6,500 x 12 = 78,000 + 40% = 1,09,200 – ½ = 54,600 x 18)
C.M.A.Nos.1870, 1871 & 1872 of 2015
(b) In this case also, the compensation awarded by the Tribunal
towards funeral expenses at Rs.25,000/- is not in accordance with Pranay
Sethi's judgment referred to supra and hence, the same is reduced to
Rs.15,000/- by this court.
(c) In this case, the dependants are the parents and an unmarried sister
of the deceased and they are three in number. Therefore, the Tribunal ought
to have awarded only a compensation of Rs.1,20,000/- towards loss of Love
and affection in accordance with Pranay Sethi's Judgment referred to supra
calculated at Rs.40,000/- for each of the dependants, instead the Tribunal
has erroneously awarded Rs.2,00,000/- under the said head. Hence, this
Court reduces the compensation towards loss of love and affection from
Rs.2,00,000/- to Rs.1,20,000/-.
(d) Here also, the Tribunal erroneously failed to award any
compensation towards loss of estate of the deceased which the claimants are
legally entitled to as per the settled law. In accordance with Pranay Sethi's
Judgment, the claimants are entitled to Rs.15,000/- towards loss of estate of
the deceased. Accordingly, the same is granted by this Court to the
claimants.
C.M.A.Nos.1870, 1871 & 1872 of 2015
(e) As in the earlier cases, the deceased who was also travelling in the
very same motorcycle is also responsible for the cause of the accident and as
in the earlier cases, the contributory negligence on the part of the deceased
in this case also is fixed at 10%.
19. For the foregoing reasons, the compensation awarded by the
Tribunal to the claimants is reduced from Rs.12,78,000/- to Rs.10,19,520/-
as detailed hereunder:
Heads Amount awarded by Amount awarded by
the Tribunal this Court
(Rs.) (Rs.)
Loss of pecuniary 10,53,000/- 9,82,800/-
benefits (6,500 x 12 = 78,000 + (6,500 x 12 = 78,000 +
50% = 117000 – ½ = 40% = 1,09,200 – ½ =
58500 x 18) 54,600 x 18)
Funeral Expenses 25,000/- 15,000/-
Loss of love and 2,00,000/- 1,20,000/-
affection, mental agony
and loss of
companionship to the
parents
Loss of estate --- 15,000/-
Total 12,78,000/- 11,32,800/-
Less: Contributory -- 1,13,280/-
negligence of the
deceased at 10%
Award Amount 12,78,000/- 10,19,520/-
C.M.A.Nos.1870, 1871 & 1872 of 2015
20. In the result, these appeals are partly allowed by fixing the
contributory negligence on the part of the respective deceased at 10% and
also by modifying the award amount.
21. It is represented by the learned counsel for the Appellant that the
Appellant Insurance Company has already deposited the entire amount
awarded by the Tribunal. Since this Court has reduced the compensation
amount awarded by the Tribunal, the Appellant Insurance Company is
permitted to withdraw the excess amount deposited by them, if any, in all
the three claims together with accrued interest if any, by filing appropriate
applications.
22. The Tribunal shall transfer the amount lying to the credit of
MCOP.No.1900 of 2010 to the bank account of the claimants/respondents 1
& 2 in C.M.A.No.1870 of 2015 through RTGS and the Tribunal shall also
transfer the respective shares of compensation amount lying to the credit of
MCOP.No.1901 of 2010 to the bank account of the claimants/respondents 1
to 5 in CMA.No.1871 of 2015 as per the ratio apportioned by the Tribunal
through RTGS and the Tribunal shall also transfer the respective share of
C.M.A.Nos.1870, 1871 & 1872 of 2015
compensation amount lying to the credit of MCOP.No.1904 of 2010 to the
bank account of the claimants/respondents 1 to 3 in CMA.No.1872 of 2015
through RTGS as per the ratio apportioned by the Tribunal within a period
of one week. Since the sixth respondent in CMA.No.1871 of 2015 is a
minor, her share of award amount shall be deposited in any one of the
Nationalised Banks till she attains the age of majority. The guardian/her
mother, the first respondent in CMA.No.1871 of 2015 is permitted to
withdraw the interest accrued once in six months for the welfare of the
minor. If she attains the age of majority, it is open for her to file a formal
petition to declare her as major. Consequently, connected miscellaneous
petitions are closed. No costs.
05.07.2021
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Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The VIth Small Causes Court, Chennai.
2.The Section Officer, V.R.Section, High Court of Madras.
C.M.A.Nos.1870, 1871 & 1872 of 2015
ABDUL QUDDHOSE, J.
nl
C.M.A.Nos.1870, 1871 & 1872 of 2015
05.07.2021
