Madras High Court
The Branch Manager vs Ochammal on 5 July, 2021
C.M.A.(MD).No.809 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
C.M.A.(MD).No.809 of 2017
and
C.M.P(MD)No.8745 of 2017
The Branch Manager,
Bharti Axa General Insurance Company Ltd.,
Sri Ram Centre,
No.180, Ground Floor,
P.P. Chavadi
Theni Main Road,
Madurai. ... Appellant
Vs.
1.Ochammal
2.Minor Suresh Pradap
3.Minor Dhubiza
4.Rakkammal
5.The Secretary,
Noble Matri Higher Secondary School,
Periyavallikulam Village,
Virudhunagar Taluk. ... Respondents
1/12
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.809 of 2017
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to set aside the decree and Judgment of Motor Accident
Claims Tribunal-Subordinate Judge of Virudhunagar dated 08.12.2016 in
MCOP No.32/2015.
For Appellant : Mr.G.Maruthiah
For Respondents : Mr.G.Sridharan (for R1 to R4)
No appearance for R5
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM,
J.]
Assailing the award of the Motor Accident Claims Tribunal-Subordinate
Judge, Virudhunagar passed in MCOP No.32 of 2015, this appeal has been
filed by the Insurance Company.
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C.M.A.(MD).No.809 of 2017
2.The wife, two minor children and mother filed the claim petition
MCOP No.32 of 2015 seeking compensation of Rs.30,00,000/- for the death
of Thangamuniyandi, who died in an accident on 26.11.2014. It is their case
that the deceased was riding his motorcycle TVS Super XL at 08.30 p.m on
26.11.2014 along with his wife, the first claimant on Aruppukottai-Tuticorin
National Highways near mettu Thottiyankulam villakku. At that time, a bus
bearing Reg.No.TN-45-P-7755 came in a high speed and rammed the
motorcycle. As a result of which, the deceased Thangamuniayandi sustained
multiple grievous injuries and died on the spot. According to them, the
deceased was working as a construction worker in Malaysia and was earning
Rs.40,000/- per month. Since, the accident occurred due to the negligence of
the driver of the bus, the owner as well as the insurer are liable to pay
compensation.
3.The owner filed a counter stating that on the date of accident, the
insurance policy was in-force. The driver of the bus was having valid driving
licence at the relevant point of time, hence, the insurer is bound to satisfy the
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C.M.A.(MD).No.809 of 2017
award. It is further stated that the driver of the bus did not drive the vehicle
rashly and negligently, as alleged in the claim petition.
4.The appellant restricted the claim petition disputing the manner of the
accident and the liability of the insurance company. It is stated that the
deceased drove the two-wheeler carelessly and negligently and dashed against
the first respondent vehicle. Since the deceased himself invited the accident
and responsible for the accident, the insurance company is not liable to pay
any compensation to the claimants. The occupation, income and age of the
deceased were denied as false and incorrect. According to the appellant, the
claim is imaginary and without any basis.
5.During the trial, on behalf of the claimants, the first claimant was
examined as P.W.1 and 8 documents were marked. The insurance company
examined one Balamurugan as R.W.1, but no document was produced. The
Tribunal, upon consideration of the evidence adduced by the parties, held that
the driver of the bus was negligent at the time of accident, awarded
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C.M.A.(MD).No.809 of 2017
compensation of Rs.24,53,000/-. Questioning the same, the present appeal has
been filed.
6.Mr.G.Maruthiah, learned counsel for the appellant/Insurance
Company contended that the income fixed by the Tribunal is on the higher
side. That apart, the direction issued in the case of National Insurance Co.
Ltd. vs. Pranay Sethi and others reported in 2017(2) TN MAC 609(SC),
has not been followed, hence, the award of the Tribunal is to be set side. It is
the submission of the learned counsel that during trial, it was established that
the deceased was working as a construction worker in Malaysia from 2004 to
2008 and there is no evidence to show that on the date of accident, the
deceased is having employment in abroad, hence, the income fixed by the
Tribunal is erroneous.
7.Per contra, Mr.G.Sridharan, learned counsel appearing for the
claimants argued in support of the finding of the Tribunal. It is the submission
of the learned counsel that the Tribunal has awarded a reasonable
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C.M.A.(MD).No.809 of 2017
compensation and no ground is made out to interfere with the finding of the
Tribunal.
8.This Court has carefully considered the rival submission and perused
the materials available on record.
9.In the present case, there is no dispute that the claimants are the legal
heirs of the deceased. It is an undisputed fact that the first claimant became a
widow at the age of 23 years. The second and third claimants have lost their
father at the age of 4 years and 2 years respectively. The mother of the
deceased is a widow and she was 69 years on the date of accident. In the
claim petition, as well as in the evidence, it has been stated that the deceased
was construction worker and he was earning Rs.40,000/- per month. In the
claim petition, it is further stated that he was waiting for Visa to go to
Malaysia. Ex.P.8 Passport reveals that the deceased was in Malaysia between
2004 to 2008.
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C.M.A.(MD).No.809 of 2017
10.It is relevant to point out that the finding on negligence is not
seriously disputed in this appeal. At paragraph 8 of the Judgment, the
Tribunal rejected the evidence of the driver of the bus (R.W.1) and on the
basis of the evidence of P.W.1 and Ex.P.1, it has been held that the driver of
the bus drove it negligently and caused the accident.
11.The learned counsel for the appellant invited the attention of this
Court to Exs.P.7 and P.8, to contend that the deceased was not working in
Malaysia. Even though the claimants have stated that the deceased has earned
Rs.40,000/- per month while working at Malaysia as construction worker, the
Tribunal fixed the notional income at Rs.12,000/- per month. It is submitted
by the learned counsel for the appellant that the deceased is admittedly a
construction worker and hence, it would be appropriate to reduce the income
from Rs.12,000/- to Rs.9,000/-.
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C.M.A.(MD).No.809 of 2017
12.In reply, the learned counsel for the respondents/claimants submitted
that admittedly, the deceased died at the age of 32 years, but no addition was
made for future prospects. So, even if Rs.9,000/- is fixed as income, the
claimants are entitled for additional 40% for future prospects, it will not make
much different.
13.This Court finds force in the submission of the learned counsel for
the respondents. Ex.P.3-Postmortem Certificate, Ex.P.5-Driving Licence and
Ex.P.8-Passport shows that the deceased was 32 years old on the date of
accident, however, no amount has been added for his future prospects.
Hence, the income can be taken as Rs.12,000/- and after deducting 1/4 th, for
his personal expenses, monthly income is determined as Rs.9,000/-. The
Tribunal by applying multiplier '16', has awarded Rs.17,28,000/-. We find no
reason to reduce the amount. In National Insurance Co. Ltd. vs. Pranay
Sethi and others (cited supra), the Constitution Bench of the Hon'ble Apex
Court has awarded Rs.70,000/- for conventional damages. However, in the
subsequent decision of Magma General Insurance Company Limited vs.
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C.M.A.(MD).No.809 of 2017
Nanu Ram alias Chuhru Ram and others reported in (2018)2 TN MAC
452, the Hon'ble Apex Court has awarded Rs.40,000/- as filial consortium for
the parents and minor children of the deceased. Following the ratio laid down
in the above cases, we hereby award Rs.1,60,000/- for loss of consortium; Rs.
15,000/- for funeral expenses and Rs.15,000/- for loss of estate. Accordingly,
the award of the Tribunal is reduced from 24,53,000- to Rs.19,18,000/-.
14.In fine, the Civil Miscellaneous Appeal is partly allowed. The
appellant/Insurance Company is directed to deposit the modified award
amount with accrued interest and costs, less the amount already deposited, if
any, within a period of eight weeks from the date of receipt of a copy of this
order. On such deposit, the first claimant, wife of the deceased is entitled to
Rs.9,00,000/- and the minor claimants are entitled to Rs.4,00,000/- each and
the fourth claimant, the mother of the deceased is entitled to Rs.2,18,000/-.
The major claimants are permitted to withdraw their share, less the amount
already withdrawn, if any, together with proportionate interest and costs by
filing necessary application before the Tribunal. The share of the minor
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C.M.A.(MD).No.809 of 2017
claimants shall be deposited in any one of the nationalised banks, as fixed
deposit under the Cumulative Deposit Scheme, till they attain majority and
hand over the fixed deposit certificates to the mother of the minor claimants.
On attainment of majority, the amount awarded to the minor claimants shall be
disbursed to them with accrued interest and cost. The excess amount, if any,
be returned to the Insurance Company. No costs. Consequently, connected
miscellaneous petition is closed.
[M.K.K.S.,J.] [B.P.,J.]
05.07.2021
skn
Intex : Yes/No
Internet : Yes/No
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.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.809 of 2017
To
1.The Motor Accident Claims Tribunal
-cum-Subordinate Judge, Virudhunagar.
2.V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.809 of 2017
K.KALYANASUNDARAM, J.
and
B.PUGALENDHI, J.
skn
C.M.A.(MD).No.809 of 2017
and
C.M.P(MD)No.8745 of 2017
05.07.2021
https://www.mhc.tn.gov.in/judis/
