Madras High Court
National Insurance Company Ltd vs K.Saraswathi on 11 March, 2021
C.M.A. No.988 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.988 of 2019
and C.M.P.No.2754 of 2019
National Insurance Company Ltd.,
No.11, 16, State Bank Road,
Coimbatore - 641 018. .. Appellant
Vs.
1. K.Saraswathi
2. K.Saravanakumar
3. K.Vishnupriya
4. R.Gokul .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment and Decree dated 21.12.2017 made
in M.C.O.P.No.295 of 2017 on the file of Motor Accident Claims Tribunal
cum II Additional District Court, Tiruppur.
For Appellant : Mr. S.Vadivel
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C.M.A. No.988 of 2019
JUDGMENT
(The matter is heard through Video Conferencing/Hybrid mode)
This Civil Miscellaneous Appeal has been filed by the appellant-
Insurance Company challenging the quantum of compensation granted by the
Tribunal in the award dated 21.12.2017 made in M.C.O.P.No.295 of 2017 on
the file of Motor Accident Claims Tribunal cum II Additional District Court,
Tiruppur.
2.The appellant is the 2nd respondent in M.C.O.P. No.295 of 2017 on
the file of Motor Accident Claims Tribunal cum II Additional District Court,
Tiruppur. The respondents 1 to 3/claimants filed the said claim petition,
claiming a sum of Rs.35,00,000/- as compensation for the death of one
S.Kittusamy who died in the accident that took place on 08.09.2016.
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C.M.A. No.988 of 2019
3. According to the respondents 1 to 3, on the date of accident, while
the deceased S.Kittusamy was walking at Siruvani Main road, in front of Sri
Ram Materials, from East to West direction, following the traffic rules and
regulations, the 1st respondent, rider-cum-owner of the Motorcycle bearing
Registration No.TN-37-BR-6949 came in the same direction at high speed, in
a rash and negligent manner, without observing traffic rules and regulations,
dashed behind the deceased S.Kittusamy and caused the accident. In the
accident, the deceased sustained fatal injuries. The accident occurred only
due to rash and negligent driving by the 4th respondent, rider-cum-owner of
the Motorcycle and hence, filed the present claim petition claiming
compensation against the 4th respondent as rider-cum-owner and appellant as
insurer of the offending vehicle.
4. The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving of motorcycle by the 4th respondent and directed the appellant as
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C.M.A. No.988 of 2019
insurer of the said vehicle to pay a sum of Rs.22,00,000/- as compensation to
the respondents 1 to 3.
5. Challenging the quantum of compensation granted by the Tribunal in
the award dated 21.12.2017 made in M.C.O.P.No.295 of 2017, the appellant -
Insurance Company has come out with the present appeal.
6. The learned counsel appearing for the appellant-Insurance Company
contended that the respondents 1 to 3 failed to prove the occupation of the
deceased S.Kittusamy as a Milk Vendor by examining P.W.3. During cross-
examination, the said P.W.3 – Vijayakumar has stated that he did not know
whether the deceased was a retail milk vendor or wholesale vendor and also
admitted that he did not know from where the deceased was purchasing the
milk. This proves that the deceased S.Kittusamy was not doing Milk Vending
business, P.W.3 was a procured witness and hence, the Tribunal ought not to
have fixed the income of the deceased as Rs.15,000/- per month, instead of
Rs.7,500/- per month at the most. The Tribunal having fixed the age of the
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C.M.A. No.988 of 2019
deceased as 46 years, erred in adopting the multiplier '14', instead of the
correct multiplier '13', 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 & another]. The Tribunal erred in
awarding compensation under the head, loss of love and affection to the 1st
respondent/wife of the deceased. The total amounts awarded by the Tribunal
is excessive and prayed for reducing the compensation awarded by the
Tribunal.
6.Heard the learned counsel appearing for the appellant-Insurance
Company and perused the materials available on record.
7.It is the case of the respondents 1 to 3 that at the time of accident, the
deceased was a Milk Vendor and was earning a sum of Rs.20,000/- per
month. They examined 2nd respondent, son of the deceased S.Kittusamy and
one Vijayakumar as P.W.3 to prove the same. In the absence of any
documentary evidence to prove the avocation and income of the deceased
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C.M.A. No.988 of 2019
S.Kittusamy, the Tribunal considering the cost of living prevailing on the date
of accident and age of the deceased, fixed a sum of Rs.15,000/- per month as
notional income of the deceased. The accident is of the year 2016.
Considering the date of accident and nature of work done by the deceased,
the monthly income fixed by the Tribunal is not excessive. The Tribunal
considering Ex.P4-post mortem report, fixed age of the deceased as 46 years,
but erroneously applied the multiplier '14', instead of '13' and rightly granted
25% enhancement towards future prospects. There are three dependents of
the deceased. Hence, the Tribunal deducting 1/3rd towards personal expenses
of the deceased, awarded compensation towards loss of dependency. The
same is in order. In addition to awarding a sum of Rs.40,000/- towards loss of
consortium to the 1st respondent/wife of the deceased, the Tribunal
erroneously awarded a sum of Rs.25,000/- each towards loss of love and
affection to the respondents 1 to 3. The 1st respondent/wife of the deceased is
not entitled for any amount towards loss of love and affection. The Tribunal
failed to award any amount towards loss of estate. The Tribunal having
arrived at a sum of Rs.22,45,000/- as total compensation, awarded only a sum
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C.M.A. No.988 of 2019
of Rs.22,00,000/- to the respondents 1 to 3. In view of the same, the sum of
Rs.25,000/- erroneously awarded by the Tribunal towards loss of love and
affection to the 1st respondent and the multiplier '14' adopted by the Tribunal
are not interfered with. The total compensation awarded by the Tribunal is not
excessive, warranting interference by this Court.
8.In the result, this Civil Miscellaneous Appeal is dismissed and the
amount awarded by the Tribunal at Rs.22,00,000/- together with interest at
the rate of 7.5% per annum from the date of petition till the date of deposit is
confirmed. The appellant-Insurance Company is directed to deposit the award
amount along with interest and costs, less the amount already deposited,
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.295 of 2017. On such deposit, the
respondents 1 to 3 are permitted to withdraw their share of the award amount,
determined by the Tribunal, along with proportionate interest and costs, as
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C.M.A. No.988 of 2019
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.
11.03.2021
gsa
To
1.The II Additional District Judge,
(Motor Accident Claims Tribunal),
Tiruppur.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.988 of 2019
V.M.VELUMANI, J.,
gsa
C.M.A.No.988 of 2019
11.03.2021
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