Madras High Court
The Oriental Insurance Co. Ltd vs Sumathi on 9 March, 2021
C.M.A. No.693 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 09.03.2021
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A. No.693 of 2021
and CMP.No.4174 of 2021
The Oriental Insurance Co. Ltd.,
Lakshmi Complex,
Salai Road, Trichy 18. .. Appellant
Versus
1. Sumathi
2. Muthulakshmi
3. Minor Balachandran
4. Minor Padma
[3 & 4 minors rep. by
their Guardian / Mother Sumathi]
5. Vijayalakshmi .. Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the judgment and decree dated 23.06.2020 made in
MCOP.No.121 of 2018 on the file of the Motor Accident Claims Tribunal /
III Additional District Judge, Virudhachalam.
For appellant : Mr.S.Arun Kumar
1/9
C.M.A. No.693 of 2021
JUDGMENT
(The Judgment of the Court was delivered by R.Subbiah, J)
The appeal is heard through video conferencing.
2. This appeal has been filed by the Insurance Company challenging the
award dated 23.06.2020 made in MCOP No.121 of 2018 on the file of the
Motor Accidents Claims Tribunal, III Additional District Judge,
Virudhachalam.
3. The respondents 1 to 4 herein are the claimants before the Tribunal
and they are the wife, mother and 2 minor children of the deceased
Thirumoorthi. It is the case of the claimants before the Tribunal that on
09.03.2018 at about 4.00 p.m., the deceased was travelling from Veppur to
Adari in a two wheeler bearing registration No.TN 61 E 4520 from East to
West direction on the left side of the road. While nearing Periyanesalur Bus
Stop, a Car bearing Registration No.TN 48 AF 4255 was driven by its driver
behind the two wheeler in a rash and negligent manner and hit on its rear side.
Due to the impact, the deceased was thrown out of his vehicle and died on the
spot. It is the further case of the claimants that the deceased was employed in
Kuwait and was earning a sum of Rs.50,000/- in Indian Currency and he came
to India with a return Visa on 08.05.2018. He is the only bread winner of the
C.M.A. No.693 of 2021
family and due to his sudden demise, the family was left in the lurch. Hence,
they made a claim for a sum of Rs.50,00,000/- as compensation.
4. The said claim petition was resisted by the Insurance Company by
filing a counter statement denying the manner of accident as projected by the
claimants in the claim petition. It is the specific defence of the Insurance
Company that the accident had occurred only due to the sudden stoppage of
the two wheeler by the deceased without giving any signal to the vehicles
coming behind. Though the driver of the said Car made best of his efforts to
avoid the accident, he could not do so. Hence, the deceased was solely
responsible for the accident.
5. In order to prove the claim on the side of the claimants, first claimant
was examined as PW1, besides examining one Sampathkumar, the eyewitness
to the accident, as PW2 and Exs.P1 to P15 were marked. On the side of the
Insurance Company, no oral or documentary evidence was adduced.
6. The Tribunal after analysing the oral and documentary evidence held
that the Insurance Company failed to prove their contention that the accident
occurred due to the sudden stoppage of the two wheeler by the deceased. The
C.M.A. No.693 of 2021
Tribunal, by relying upon the evidence of the eye witness PW2,
Sampathkumar, came to the conclusion that the accident occurred only due to
the rash and negligent driving by the driver of the Car. As the deceased had not
worn helmet at the time of the accident, the Tribunal fixed 15% negligence on
the part of the deceased and awarded a sum of Rs.27,65,900/- as compensation
to the claimants. The break-up details of the amounts awarded by the Tribunal
under various heads are as follows:
S.No. Compensation awarded Amount
under the heads (Rs.)
1. Loss of Income 30,24,000
2. Loss of Consortium to 1st claimant 40,000
3. Loss of Love and Affection to Claimants 2 1,500,000
to 4
4. Damages to clothes 15,000
5. Funeral Expenses 15,000
6. Transportation Expenses 10,000
Total 32,54,000
Less the Contributory Negligence (15%) 4,88,100
Compensation awarded to the claimants 27,65,900
7. The learned counsel for the Insurance Company submitted that
though the Tribunal accepted the defence of the Insurance Company that the
accident is the result of contributory negligence and it has chosen to fix only
15% negligence on the part of the deceased for not wearing helmet. The
Tribunal ought to have fixed negligence equally on both the driver of the Car as
C.M.A. No.693 of 2021
well as the deceased. But instead of doing so, the Tribunal fixed only 15%
negligence on the part of the deceased. That apart, it is the submission of the
learned counsel for the Insurance Company that the amounts awarded by the
Tribunal under each heads are on the higher side and the same needs
appropriate reduction.
8. This Court considered the submissions of the learned counsel for the
petitioner and perused the materials available on record.
9. It is the contention of the learned counsel for the claimants before the
Tribunal that though the deceased rode his two wheeler on the extreme left side
of the road, the driver of the Car bearing Registration No.TN 48 AF 4255
drove the vehicle in a rash and negligent manner and hit on its rear side and
caused the accident. PW2, an eye witness to the accident, had also
corroborated the same. Though the above contention is accepted, if the
deceased had worn helmet at the time of the accident, he would have survived.
Hence, there was a contributory negligence on the part of both the driver of the
car as well as the deceased. In fact, the Tribunal, considering the said aspect,
had rightly fixed negligence on the part of the deceased at 15%, which needs
no interference by this Court.
C.M.A. No.693 of 2021
10. Insofar as the quantum of compensation is concerned, it is the
contention of the Insurance Company that in the absence of any proof towards
nature of employment and period of employment of the deceased, the Tribunal
ought not to have fixed Rs.16,000/- as monthly income, which resulted in
awarding exorbitant sum of Rs.30,24,000/- under the head "Loss of Income".
However, this Court is of the view that the claimants, by marking Ex.P9,
original Passport, Ex.P10, return Visa and Ex.P11, Salary Slip of the deceased,
proved that the deceased was working in Kuwait. Considering the cost of living
prevalent at the time of the accident, the sum of Rs.16,000/- fixed by the
Tribunal as monthly income of the deceased cannot be said to be on the higher
side. Thus, the Tribunal by rightly fixing a sum of Rs.16,000/- as monthly
income of the deceased and by adding 40% towards future prospects, arrived
the actual monthly salary of the deceased at Rs.22,400/- [16,000 + 6400].
Thus, the Tribunal arrived at the annual income at Rs.2,68,800/- [22,400 x
12]. Since the number of dependents are 4, 1/4th of the amount was deducted
towards personal expenses of the deceased and the loss of dependency was
arrived at Rs.2,01,600/- [2,68,800 - 67,200]. Considering the age of the
deceased being 39 at the time of the accident, multiplier "15" was taken and
the Tribunal awarded a sum of Rs.30,24,000/- [2,01,600 x 15] under the head
C.M.A. No.693 of 2021
"Loss of Income". The above calculation made by the Tribunal is fair and
reasonable and hence, the same is confirmed.
11. It is the next contention of the learned counsel for the Insurance
Company that the Tribunal awarded an exorbitant sum of Rs.50,000/- under
the head "Loss of Love and Affection" instead of Rs.40,000/- as held by the
Supreme Court, in the decision in National Insurance Company Limited vs.
Pranay Sethi and others [(2017) 16 SCC 680]. Considering the tender age of
the children and the sufferings undergone by them for the loss of their father,
we are not inclined to modify the said amount and hence the same is
confirmed.
12. Further, the amount awarded by the Tribunal in all the other heads
are also fair and reasonable and hence, they are confirmed.
13. Thus, we are of the view that absolutely there is no need to interfere
with the award passed by the Tribunal and hence the same is confirmed.
14. In the result, the Civil Miscellaneous Appeal is dismissed. The
appellant insurance company is directed to deposit the compensation of
Rs.27,65,900/- (Rupees twenty seven lakhs sixty five thousand and nine
hundred only) together with interest at 7.5% p.a. from the date of petition till
the date of deposit within a period of six weeks from the date of receipt of this
C.M.A. No.693 of 2021
judgment. On such deposit, claimants 1 and 2 / wife and mother of the
deceased are entitled to withdraw their respective shares, as apportioned by the
Tribunal, on due application. The shares of minor claimants 3 and 4/children
of deceased shall be deposited in a fixed deposit in any one of the Nationalised
Bank till they attain majority. First respondent/mother of the minors is entitled
to withdraw interest thereon once in three months towards taking care of the
minor claimants. No costs. Consequently, connected miscellaneous petition is
closed.
[R.P.S., J] [S.S.K., J]
09.03.2021
Speaking Order : Yes / No
Index : Yes / No
pvs
To
1. The Motor Accidents Claims Tribunal,
III Additional District Judge, Virudhachalam
2. The Section Officer,
V.R.Section, High Court, Madras.
C.M.A. No.693 of 2021
R.SUBBIAH, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
pvs
C.M.A. No.693 of 2021
and CMP.No.4174 of 2021
09.03.2021
