Madras High Court
The Oriental Insurance Company ... vs F.Parveen on 12 November, 2021
C.M.A.Nos.2161 and 2987 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.Nos.2161 and 2987 of 2014
and M.P.Nos. 1 & 2 of 2014
C.M.A.No.2161 of 2014
The Oriental Insurance Company Limited,
No.115/216, Prakasam Salai,
Chennai 600 104. .. Appellant
Vs.
1.F.Parveen
2.Hawama Aforze
3.Rihana Ferdoze
4.Katheeja Tul kubra
5.Mansur Alumkhan .. Respondents
(5th respondent set exparte in the lower
Court. Hence, notice is dispensed with)
C.M.A.No.2987 of 2014
1.F.Parveen
2.Hawama Aforze
3.Rihana Ferdoze
4.Katheeja Tul kubra .. Appellants
Vs.
1. Mansur Alumkhan
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
2.The Oriental Insurance Company Limited,
No.115/216, Prakasam Salai,
Chennai 600 104. .. Respondents
Prayer: These Civil Miscellaneous Appeals are filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated 24.03.2014
made in M.C.O.P.No.911 of 2012 on the file of the Motor Accidents Claims
Tribunal, II Small Causes Court, Chennai.
In C.M.A.No.2161 of 2014
For Appellant : Mr.R.Sivakumar
For RR1 to 4 : Mr.K.Varadhakamaraj
In C.M.A.No.2987 of 2014
For Appellants : Mr.Varadhakamaraj
For R2 : Mr.R.Sivakumar
COMMON JUDGMENT
(This matter is heard through video conferencing/Hybrid mode)
C.M.A.No.2161 of 2014 is filed by the Insurance Company against the
award dated 24.03.2014 made in M.C.O.P.No.911 of 2012 on the file of the
Motor Accidents Claims Tribunal, II Small Causes Court, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
C.M.A.No.2987 of 2014 is filed by the claimants for enhancement of
compensation granted by the Tribunal in the award dated 24.03.2014 made in
M.C.O.P.No.911 of 2012 on the file of the Motor Accidents Claims Tribunal,
II Small Causes Court, Chennai.
2.Both the appeals arise out of the same accident and same award and
hence, they are disposed of by this common judgment. Parties in these
appeals are referred to by their respective ranks in the claim petition for the
sake of convenience.
3.The claimants filed M.C.O.P.No.911 of 2012 on the file of the Motor
Accidents Claims Tribunal, II Small Causes Court, Chennai, claiming a sum
of Rs.20,00,000/- as compensation for the death of one F.Adam Basha, son of
1st claimant and brother of other claimants, who died in the accident that took
place on 24.01.2012.
4.According to the claimants, on the date of accident i.e., on
24.01.2012 at about 12.30 hours, while the deceased was a pillion rider in the
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
motorcycle and one Syed Shamiyullah Basha was riding the motorcycle
bearing Registration No. TN-07 BF 8120 belonging to the 1st respondent on
the North side of Gurusamy Bridge, near E.V.R.Salai from South to North
direction, the rider of the motorcycle rode the same in a rash and negligent
manner and dashed on the center median line. Due to the said impact, the
deceased thrown out, sustained grievous injuries and died on 28.01.2012.
Therefore, the claimants filed the above said claim petition claiming a sum of
Rs.20,00,000/- as compensation for the death of the said Adam Basha against
the respondents, being the owner and insurer of the motorcycle bearing
Registration No. TN-07 BF 8120 respectively.
5.The 1st respondent, owner of the motorcycle, remained exparte before
the Tribunal.
6.The 2nd respondent Insurance Company, insurer of the motorcycle
filed counter statement denying the averments made in the claim petition and
stated that the accident has not occurred due to negligence on the part of the
rider of the motorcycle. The rider of the motorcycle did not possess valid
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
driving license at the time of accident. Therefore, the 2nd respondent/
Insurance Company is not liable to pay any compensation to the claimants.
The 2nd respondent Insurance Company has also denied the age, nature of
injuries and income of the deceased. In any event, the compensation claimed
by the claimants is excessive and prayed for dismissal of the claim petition.
7.Before the Tribunal, the 1st claimant was examined herself as P.W.1,
one Stalin, eyewitness was examined as P.W.2 and the 4th claimant was
examined as P.W.3 and six documents were marked as Exs.P1 to P6. The 2nd
respondent/Insurance Company examined one K.Sampath, the Assistant of 2nd
responden's Insurance Company and marked four documents as Exs.R1 to
R4.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred due to rash and negligent riding
by the rider of the motorcycle belonging to the 1 st respondent and directed the
2nd respondent/Insurance Company being insurer of the said motorcycle to
pay a sum of Rs.14,75,000/- as compensation to the claimants at the first
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
instance and recover the same from the 1st respondent, owner of the
motorcycle.
9.Against the said award dated 24.03.2014 made in M.C.O.P.No.911 of
2012, the 2nd respondent/Insurance Company has come out with
C.M.A.No.2161 of 2014 challenging the liability as well as quantum of
compensation. Not being satisfied with the amounts awarded by the Tribunal,
the claimants have come out with C.M.A.No.2987 of 2014 seeking
enhancement of compensation.
10.Though the learned counsel appearing for the 2nd
respondent/Insurance Company raised grounds with regard to pay and
recovery, at the time of arguments, he restricted his arguments only with
regard to quantum of compensation granted by the Tribunal and contended
that the deceased was a student and non-earning member at the time of
accident. The Tribunal has erroneously fixed a sum of Rs.10,000/- per month
as notional income of the deceased. The amounts awarded by the Tribunal for
loss of love and affection to the mother and three sisters of the deceased, loss
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
of estate and funeral expenses are excessive. The claimants are not entitled
any compensation towards loss of expectation of life and hence, he prayed for
setting aside the award of the Tribunal.
11. Per contra, Mr.K.Varadhakamaraj, the learned counsel appearing
for the claimants contended that the deceased was studying 2nd year B.U.M.S
in Unani and after completing his study, he would have practised as a unani
doctor and would earn considerable income. The deceased was aged 28 years
at the time of accident. The Tribunal fixed a meagre sum of Rs.10,000/- per
month as notional income of the deceased. The Tribunal has failed to grant
enhancement towards future prospects. The claimants are mother and sisters
of the deceased. The Tribunal ought to have deducted 1/3rd instead of 50%
towards personal expenses and prayed for enhancement of compensation.
12.The 1st respondent, owner of the motorcycle remained ex-parte
before the Tribunal. Both the learned counsel appearing for the claimants and
2nd respondent have given up the 1st respondent, owner of the vehicle.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
13. Heard the learned counsel appearing for the claimants as well as the
learned counsel appearing for the 2nd respondent-Insurance Company and
perused the materials available on record.
14.The issue to be decided in both the appeals is only with regard to
the quantum of compensation.
15.From the materials available on record, it is seen that the deceased
was studying 2nd year B.U.M.S in Unani at the time of accident. The deceased
was non-earning member of his family, but he was studying to become a
Unani Doctor. The Tribunal considering the said fact, fixed a notional income
of the deceased at Rs.10,000/- per month. The accident is of the year 2012.
Considering the nature of course of study and date of accident, a sum of
Rs.10,000/- fixed by the Tribunal is neither meagre and nor excessive. The
deceased was aged 28 years at the time of accident. The Tribunal has not
granted any enhancement towards future prospects. The claimants are entitled
to 40% enhancement towards future prospects. The contention of the learned
counsel for the claimants that the Tribunal ought to have deducted 1/3rd
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
instead of 50% towards personal expenses is not acceptable. The deceased
was a bachelor at the time of accident. The Tribunal rightly deducted 50%
towards personal expenses and applied multiplier '17'. By granting 40%
enhancement towards future prospects, the amount granted by the Tribunal
towards loss of dependency is modified to Rs.14,28,000/- {Rs.14,000/-
[Rs.10,000/- + Rs.4,000/- (40% of Rs.10,000/-)] X 12 X 17 X 1/2}. The
amounts granted by the Tribunal towards funeral expenses, loss of estate, loss
of love and affection are excessive. As per the decision of the Hon'ble Apex
Court, the claimants are entitled to Rs.15,000/- towards funeral expenses,
Rs.15,000/- towards loss of estate and Rs.40,000/- towards loss of love and
affection. The claimants are not entitled to any amount towards loss of
expectation of life and hence, a sum of Rs.2,00,000/- awarded by the Tribunal
towards loss of expectation of life is liable to be set aside and is hereby set
aside. Thus, the compensation awarded by the Tribunal is modified as
follows:
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
S.No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court enhanced or
(Rs) granted or
reduced
1. Loss of 10,20,000 14,28,000 Enhanced
dependency
2. Funeral 25,000 15,000 Reduced
expenses
3. Loss of love 1,30,000 40,000 Reduced
and affection
4. Loss of 2,00,000 - Set aside
Expectation of
life
5. Loss of estate 1,00,000 15,000 Reduced
Total 14,75,000 14,98,000 Enhanced by
Rs.23,000/-
16.In the result, C.M.A.No.2161 of 2014 filed by the Insurance
Company is partly allowed in respect of the heads “loss of expectation of life,
funeral expenses, loss of love and affection and loss of estate” and
C.M.A.No.2987 of 2014 filed by the claimants is partly allowed and the
compensation of Rs.14,75,000/- awarded by the Tribunal is hereby enhanced
to Rs.14,98,000/- together with interest at the rate of 7.5% per annum from
the date of petition till the date of deposit. The Insurance Company is
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
directed to deposit the award amount now determined by this Court along
with interest and costs, less the amount already deposited, if any, within a
period of six weeks from the date of receipt of a copy of this judgment, at the
first instance and recover the same from the 1st respondent, owner of the
vehicle. On such deposit, the claimants are permitted to withdraw their
respective share of the award amount now determined by this Court as per the
apportionment fixed by the Tribunal, along with proportionate interest and
costs, after adjusting the amount if any, already withdrawn. Consequently,
connected Miscellaneous Petitions are closed. No costs.
12.11.2021
Index : Yes / No
Internet : Yes/ No
vkr
To
1.The learned II Judge,
Small Causes Court,
The Motor Accident Claims Tribunal
Chennai.
2.The Section Officer
V.R.Section, High Court, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2161 and 2987 of 2014
V.M.VELUMANI, J.,
vkr
C.M.A.Nos.2161 and 2987 of 2014
and M.P.Nos. 1 & 2 of 2014
12.11.2021
https://www.mhc.tn.gov.in/judis
