Madras High Court
United India Insurance Company ... vs Kavitha on 11 November, 2021
C.M.A.(MD) No.498 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A(MD)No.498 of 2020
and
C.M.P(MD)No.1291 of 2021
and
CROS.OBJ.(MD)No.6 of 2021
C.M.A(MD)No.498 of 2020
United India Insurance Company Limited
Thiruchirappalli,
Represented by its Kumbakonam
Divisional Manager ... Appellant / Respondent
Vs.
1.Kavitha,
2.Thangam
3.Thilagam
4.Prema
5.Jeevitha ... Respondents 1 to 5 / Petitioners
6.Selvamary
7.Rajaraman
8.United India Insurance Company Limited,
Kumbakonam represented by its
Divisional Manager ... Respondents 6 to 8 /
1st, 3rd and 4th Respondents
1/12
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C.M.A.(MD) No.498 of 2020
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, to set aside the order passed by the learned Additional Motor
Accident Claims Tribunal / Additional District Judge (Fast Track Court),
Kumbakonam in M.C.O.P.No.320 of 2017, dated 31.01.2020, as against the
appellant and allow the appeal.
CROS.OBJ.(MD)No.6 of 2021
1.Kavitha,
2.Thangam
3.Thilagam
4.Prema
5.Jeevitha ... Cross-Objectors
Vs.
1.United India Insurance Company Limited,
Thiruchirappalli,
Represented by its Kumbakonam
Divisional Manager ... Appellant / Respondent
2.Selvamary
3.Rajaraman
4.United India Insurance Company Limited,
Kumbakonam represented by its
Divisional Manager ... Respondents /
Respondents 6 to 8
PRAYER: Cross Objection is filed under Order 41, Rule 22 of C.P.C.,
against the Fair and Decreetal order passed in M.C.O.P.No.320 of 2017, on
2/12
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C.M.A.(MD) No.498 of 2020
the file of the learned Additional Motor Accident Claims Tribunal /
Additional District Judge (Fast Track Court), Kumbakonam, dated
31.01.2020, for enhancement of compensation insofar as the disallowed
portion.
For Appellant in : Mr.N.Dilip Kumar
CMA.498/2020 &
For R.1 in
Cros.Obj.6/2021
For R1 to R5 in : Mr.M.Karunanidhi
CMA.498/2020 &
For Appellant in
Cros.Obj.6/2021
For R7 to R8 in : No Appearance
CMA.498/2020 &
For R.2 to R4 in
Cros.Obj.6/2021
COMMON JUDGMENT
S.VAIDYANATHAN,J.
and
DR.G.JAYACHANDRAN,J.
The appeal is directed against the Award passed by the Additional
Motor Accident Claims Tribunal / Additional District Judge (Fast Track
Court) Kumbakonam in M.C.O.P.No.320 of 2017. The appeal is filed by the
Insurance Company, aggrieved by the quantum of compensation awarded
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C.M.A.(MD) No.498 of 2020
to the claimants, whereas, the claimants have also filed the Cross Appeal,
seeking enhancement of compensation.
2. The brief facts of the case is that on 10.09.2017, while one
Deivasigamani riding his two wheeler, viz., Bajaj Discover, bearing
Reg.No.TN-68-H-2308 in Kumbakonam to Chennai main road, at
Pandanallur Junction, was hit by a lorry, bearing Reg.No.TN-28-J-6109.
Due to the impact, the said Deivasigamani succumbed to the injuries.
3.The claimants are the married sisters of the deceased
Deivasigamani. At the time of death, Deivasigamani was a bachelor,
working as 'Turner Operator' in 'KEF Infrastructure India Private Ltd'.,
Krishnagiri Taluk, earning a sum of Rs.27,000/- per month. Claiming as
dependants of the deceased Deivasigamani, claim petition was filed,
claiming a sum of Rs.75,00,000/-, as compensation.
4. The claim was contested by the Insurance Company on the ground
that the deceased was cause for the accident and only due to his
negligence, accident had occurred and it was a head on collusion, but for
his contribution, the accident could not have occurred. The Insurance
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C.M.A.(MD) No.498 of 2020
Company also disputed the alleged earning capacity of the deceased
person and the dependency of the claimants upon the deceased.
5. Before the Tribunal, the claimants have examined 3 witnesses and
marked 56 exhibits.
6. Regarding accident, there is no dispute. As far as negligence is
concerned, the Tribunal held that the negligence was on the part of the
lorry driver against whom the FIR was registered and held that the
Insurance Company, which has insured the lorry, is liable to pay
compensation. Accepting the salary certificate and employment certificate
furnished on behalf of the claimants, fixed the monthly income of the
deceased person as Rs.27,000/-, by adding 50% towards future prospects
and deducting 50% for his personal expenses, being a bachelor, a total sum
of Rs.41,31,000/- was awarded towards the loss of income and on the other
heads, a sum of Rs.1,75,000/- in addition, was awarded.
7.The Insurance Company, being aggrieved by the quantum, has
preferred the appeal on the following grounds;-
i. The Tribunal erred in not appreciating the
negligence on the part of the deceased. The
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C.M.A.(MD) No.498 of 2020
accident victim violated the Motor Vehicle Rules by
not wearing helmet and so voluntarily invited death.
(ii) The salary certificate furnished by the
claimants are not genuine, since the Company, 'KEF
Infrastructure India Private Ltd', in which, the
deceased alleged to have been employed was
admittedly taken over by another Company and the
certificate furnished are not from that company.;
and
(iii) Furthermore, the claimants are not real
dependants of the deceased person and they are all
married and settled. Neither physical or financial
dependency proved by them.
8. It is to be noted that the claimants, on receipt of notice in the
appeal, had chosen to file cross-appeal stating that the award passed by
the Tribunal is inadequate. For loss of consortium, as per the principle laid
down by the Hon'ble Supreme Court in National Insurance Company
Ltd., Vs. Pranay Sethi and Others reported in (2017 MACD 137),
each of the claimants ought to have been awarded Rs.40,000/-, whereas,
the Tribunal has awarded only Rs.25,000/- each.
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C.M.A.(MD) No.498 of 2020
9. We have heard the counsels and perused the records.
10. The Judgments of the Hon'ble Supreme Court and other Courts
were circulated in support of their respective claims. The first point to be
addressed by this Court is that whether there was any contributory
negligence on the part of the deceased. The evidence indicates that the
accident took place, when the two wheeler driven by the deceased and the
lorry owned by the 3rd respondent had an head on collusion near
Kumbakonam – Chennai main road, Pandanallur Junction. The
Postmortem report / Ex.P4 indicates that the deceased sustained severe
head injuries and it was the cause for his death. Undoubtedly, had the
deceased followed the Motor Vehicle Rules scrupulously, by wearing a
helmet, he could have avoided the head injury, which was fatal in this case.
A violator of the Rule cannot be a beneficiary. This Court on several
occasions has held that, if injuries sustained due to violation of Motor
Vehicle Rules, like non-wearing of helmet, non-possession of driving
licence, drunken drive etc., the violator cannot be awarded with
compensation and even if any compensation awarded, the Award should be
adequately reduced, subject to the contribution negligence and breach of
Motor Vehicle Rules.
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C.M.A.(MD) No.498 of 2020
11. In this case, it is clear that the deceased died only due to head
injuries and non-wearing of helmet has aggravated the cause of death.
Therefore, this Court is of the view that 10% of the compensation to be
deducted towards the contribution. As far as the quantum of compensation
on other heads are concerned, though doubt created over the salary
certificate and the employment certificate, which are marked as Exs.P11 to
P16, this Court is of the opinion that the evidence of P.W.3 / Kelvin Jerald,
who was working as Human Rights Resources Department Officer of
'Kattara India Private Limited', which has taken over 'KEF Infrastructure
India Private Limited', stands unimpeached. Therefore, the Tribunal's
decision of fixing the monthly salary of the deceased as Rs.27,000/- is
confirmed.
12. The victim, being age of 28 years and employed with monthly
salary, the future prospects of the deceased has been fixed as 50% by the
Tribunal. The learned counsel appearing for the Insurance company
would submit that it is not a permanent job and therefore, applying the
principles laid down in Pranay Sethi's case (cited supra), only 40% of the
income to be added as future prospects and not 50%. The learned counsel
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C.M.A.(MD) No.498 of 2020
for the claimants would submit that the deceased was employed on
permanent basis, with basic pay of Rs.13,500/-, he was allotted Provident
Fund number and Employment I.D. And therefore, he has to be considered
as permanent employee under 'KEF Infrastructure India Private Limited',
which was taken over subsequently by 'Kattara India Private Limited'. This
Court is fully in agreement with the said submissions of the claimants'
counsel.
13. As far as the Cross Objection for enhancement of compensation is
concerned, this Court is of the view that the married sisters of the
deceased person, due to sudden demise of their brother, has lost love and
affection. The Tribunal awarded a sum of Rs.25,000/- each, as
compensation, under the head, 'loss of love and affection', which is
enhanced to Rs.40,000/- each. As far as the compensation awarded under
other heads viz., loss of estate, funeral expenses and transport expenses
are concerned, though there is minor deviation from the guidelines of the
Supreme Court laid in Pranay Sethi's case (cited supra), being a very
minimal amount, this Court is not inclined to interfere with the award
under those heads and confirms the same. Thus, this Court, modifies the
Award of the Tribunal, as follows:-
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C.M.A.(MD) No.498 of 2020
Amount Amount
S.No. Description Awarded by Awarded by Award status
Tribunal this Court
1 Loss of Income 41,31,000 37,17,900 Reduced
2 Loss of love and 1,25,000 2,00,000 Enhanced
affection for the
petitioners 1 to 5.
3 Loss of estate 15,000 15,000 Confirmed
4 Funeral Expenses 15,000 15,000 Confirmed
5 Transport Expenses 10,000 10,000 Confirmed
TOTAL 42,96,000 39,57,900
14. In the result, both the Civil Miscellaneous Appeal and the Cross
Objection are allowed in part. The amount awarded by the Tribunal is
reduced to Rs.39,57,900/- from Rs.42,96,000/-. The appellant Insurance
Company is directed to deposit the award amount, now fixed by this Court,
less the amount already deposited, if any, with interest at 7.5% p.a., from
the date of claim petition till the date of deposit, in M.C.O.P.No.320 of
2017, on the file of Additional Motor Accident Claims Tribunal / Additional
District Judge (Fast Track Court), Kumbakonam, within a period of eight
weeks from the date of receipt of a copy of this order, if not already
deposited. On such deposit is being made, the claimants are permitted to
withdraw their share in the award amount together with proportionate
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C.M.A.(MD) No.498 of 2020
accrued interest and costs, as per the ratio of apportionment made by the
Tribunal, by filing necessary application before the Tribunal. If the entire
award amount is already deposited, the appellant Insurance Company is
permitted to withdraw the excess award amount with accrued interest and
costs. No costs. Consequently, the connected miscellaneous petition is
closed.
[S.V.N.,J.] [G.J.,J.]
11.11.2021
Index : Yes / No
Internet : Yes / No
MPK
To
1. The Additional Motor Accident Claims Tribunal /
Additional District Judge
(Fast Track Court),
Kumbakonam.
2. The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.498 of 2020
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
MPK
JUDGMENT MADE IN
C.M.A(MD)No.498 of 2020
and
CROS.OBJ.(MD)No.6 of 2021
11.11.2021
https://www.mhc.tn.gov.in/judis
