Madras High Court

M/S National Insurance Company ... vs Deepa on 29 April, 2022

                                                                          C.M.A.No.2535 of 2021


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 29.04.2022

                                                    CORAM

                                    THE HONOURABLE MS. JUSTICE P.T.ASHA

                                             C.M.A. No.1029 of 2022
                                                     and
                                             C.M.P.No.7570 of 2022


                     M/s National Insurance Company Ltd.,
                     Pondicherry.                         ... Appellant/III Respondent.

                                                      Vs
                     1.Deepa
                     2.Minor Gokul,
                       Son of Shankar,
                       Represented by his Mother
                       and Guardian Deepa.
                     3.Minor. Divya
                       Represented by her mother and Guardian Deepa.
                     4.Minor. Sabarinathan,
                       Represented by his Mother
                       and Guardian Deepa             ...I-IV Respondent/I-IV Petitioners

                     5.Raju                           ... V Respondent/ I Respondent
                     6.The Managing Director,
                     Puducheri Transport Corporation Limited,
                     Puducheri.                       ... VI Respondent/ II Respondent




                     1/10
https://www.mhc.tn.gov.in/judis
                                                                                        C.M.A.No.2535 of 2021




                     PRAYER: Appeal filed under Section 173 of the Motor Vehicle Act,
                     to set aside the Decree and Judgment dated 09.01.2020 passed in
                     M.C.O.P.No.68 of 2011 by the learned Subordinate Judge, Motor
                     Accidents Claims Tribunal, Chidambaram.


                                          For Appellant         : Mr. J.Micheal Visuvasam
                                          For Respondents       : Mr. T.Gobinath


                                                            JUDGEMENT

Aggrieved by the quantum awarded in M.C.O.P.No.68 of 2011 by

the learned Subordinate Judge, Motor Accidents Claims Tribunal,

Chidambaram, the Insurance Company, who is the 3rd respondent

before the Tribunal, is before this Court. The parties are referred to in

the same array as before the Tribunal.

The facts in brief are as follows:

2.The claimants had filed the above petition seeking

compensation for the death of one Sankar in a road accident on

05.12.2009. The 1st claimant is his wife and the claimants 2 to 4 are his

https://www.mhc.tn.gov.in/judis C.M.A.No.2535 of 2021

children. The claimants would submit that the said Sankar who is aged

about 34 years was a Furniture and Wood work Specialist at Cruzlan

Corpantary Noman and Selch at Dubai and was earning a sum of

Rs.25,000/- to 30,000/- per month. The Accident had occurred only on

account of the rash and negligent driving of the driver of the bus. It is

the case of the claimants that on the said date, the said Sankar was

riding his Hero Honda Motor Cycle, bearing Registration No.TN.31

AW 0474, while so, the bus belonging to the 2nd respondent and driven

by the 1st respondent dashed against the bike, as a result of which, the

said Sankar sustained fatal injuries. The 2nd respondent bus was

insured with the 3rd respondent. Therefore, the claim sought for

compensation from the respondents.

3.The Insurance Company who is the 3rd respondent entered

appearance had filed their counter inter alia denying the contents of the

claim petition and put the claimants to strict proof of the allegations

contained in the claim petition. They had also contended that the

driver of the 2nd respondent's vehicle did not possess his driving license

https://www.mhc.tn.gov.in/judis C.M.A.No.2535 of 2021

and put the claimants to strict proof that the bus was insured with them.

They would also contend that the deceased had driven the bike without

holding a valid driving license and therefore, the claimants cannot seek

compensation from the Insurance Company.

4.The Tribunal below after considering the evidence had held

negligence upon the 2nd respondent's bus. They had also held that the

claimants have not been able to establish the income of the deceased,

but however, adopted a notional income of Rs.15,000/-. 25% was

added towards future prospects and after deducing 1/4th towards

personal expenses had arrived at a compensation of Rs.23,62,500/-

under the head of loss of dependency and ultimately, had awarded a

sum of Rs.25,87,500/-. Aggrieved by the compensation that had been

awarded the Insurance Company is before this Court.

5.The claimants had entered caveat. Therefore, both the counsels

were heard.

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6.As rightly pointed out by the learned counsel for the

appellant/Insurance Company, the claimants had not let in any evidence

to show the income of the deceased Sankar. They have just marked his

Identity Card and his Passport. No documents have been produced

from the employer. The accident had taken place on 05.12.2009. The

deceased was aged about 34 years on the date of the death. The

Tribunal has however on perusal of the various records come to the

conclusion that the deceased was aged about 41 years and therefor, had

adopted a multiplier of 14.

7.In the claim statement, the petitioners had contended that the

deceased Sankar was aged about 34 years, however, the Tribunal has on

perusal of various records and School Certificate has come to the

conclusion that the deceased Sankar was aged 41 years. The Tribunal

has erred in adopting the notional income of Rs.15,000/-. The accident

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has taken place in the year 2009 therefore, a sum of Rs.10,000/- can be

taken as notional income in the interest of Justice was taken as future

prospects to which 25% can be added towards future prospects. Out of

this, 1/4th has to be deducted towards personal expenses and the loss of

dependency has to be re-worked in the above lines. The future

prospects will be Rs.3,125/- (Rs.12,500 / 4). The notional income is

Rs.9,375/- (12,500 – 3125). Hence, a sum of Rs.15,75,000/- is

awarded under the head of loss of dependency (9375 x 12 x 14 =

15,75,000/-).

8.The Tribunal has awarded a sum of Rs.50,000/- each to the

respondents 2 to 4 for loss of love and affection which is contrary to

the Judgment reported in 2017 (16) SCC 680 [National Insurrance

Company v. Pranaya Sethi and another]. The said head is therefore

reduced to a sum of Rs.1,20,000/-. In all other respects, the Award of

the Tribunal below is confirmed. Therefore, taking into consideration

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the above aspects, the modified amount is as follows:

                                  Loss of dependency                :Rs.15,75,000/-
                                  Transportation                    :Rs.     5,000/-
                                  Funeral Expenses                  :Rs. 15,000/-
                                  Loss of estate                    :Rs. 15,000/-
                                  Loss of consortium                :Rs. 40,000/-
                                  Loss of love and affection        :Rs.1,20,000/-
                                                                    ------------------
                                        Total                       :Rs.17,30,000/-
                                                                    ------------------

9.Accordingly, this Civil Miscellaneous Appeal is partly allowed

and the amount is reduced to a sum of Rs.17,30,000/-. The respondent

Insurance Company is directed to deposit the entire compensation

amount with interest @ 7.5% per annum, less the statutory deposit

already made, to the credit of M.C.O.P.No.68 of 2011 on the file of the

learned Subordinate Judge, Motor Accidents Claims Tribunal,

Chidambaram, within a period of six weeks from the date of receipt of

a copy of this order. On such deposit, the 1st claimant is permitted to

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withdraw the amounts as apportioned by the Tribunal by making

necessary applications. The share of the minors 2 to 4/claimants shall

be deposited in any one of the Nationalised Banks in fixed deposit