Madras High Court
The National Insurance Company ... vs Sudalaikan (Died) on 13 December, 2022
C.M.A.(MD)No.1106 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:13.12.2022
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
C.M.A.(MD)No.1106 of 2015
and
M.P(MD)No.3 of 2015
The National Insurance Company Limited,
Through its Branch Manager,
No.58, Rajaji Street,
Kangeyam,
Periyar District. .. Appellant/2nd Respondent
Vs.
1.Sudalaikan (died)
2.Thangam .. 1st & 2nd Respondents/Petitioners
3.Ponnaiah .. 3rd Respondent/1st Respondent
[R1 died and 2nd respondent, who is
already on record is recorded as LR of
the deceased R1 vide order dated
31.03.2022]
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C.M.A.(MD)No.1106 of 2015
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the award and decree, dated
02.04.2014 made in M.C.O.P.No.264 of 2013, on the file of the Motor
Accidents Claims Tribunal/I-Additional District Court, Tirunelveli.
For Appellant : Mr.J.S.Murali
For Respondent No.2 : Mr.S.Siva Ilayaraja
For Respondent No.3 : No appearance
Respondent No.1 : died
JUDGMENT
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
This appeal has been filed by the Insurance Company being
aggrieved by the award dated 02.04.2014 in M.C.O.P.No.264 of 2013
passed by the Motor Accident Claims Tribunal, Tirunelveli, in favour of
the respondents 1 & 2, who are the parents of the deceased. The third
respondent is the owner of the offending vehicle.
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C.M.A.(MD)No.1106 of 2015
2. The brief facts of the case is that the son of the respondents 1 &
2 was hit down by a medium goods vehicle owned by the third
respondent on 06.11.2012 while the son of the respondents 1 & 2 was on
patrol duty near Nanguneri TVS Mill Toll Gate. The Tribunal, taking note
of the fact that the deceased was a bachelor, aged 29 years and was
gainfully employed as a police constable, after deducting 50% of the
salary towards personal expenses, fixed annual income as Rs.1,45,141/-
and taking 18 as the multiplier, has awarded Rs.26,12,538/- [Rs.
1,45,141/-x18 = 26,12,538/-] towards loss of income and for other non
conventional heads, awarded Rs.65,000/-. As against the total award of
Rs.26,77,540/-, with 7.5% interest, the present appeal is filed by the
Insurance Company on the short point of liability that the offending
vehicle is 11900 CC and therefore, the driver of the offending vehicle
ought to have possessed Heavy Motor Vehicle licence whereas
admittedly, the driver of the offending vehicle had only Light Motor
Vehicle licence and therefore, the owner of the vehicle is liable to pay the
compensation whatever fixed by the Court and not the Insurance
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C.M.A.(MD)No.1106 of 2015
Company in view of the violation of policy condition.
3. Further the learned counsel for the appellant/Insurance Company
would submit that even regarding the quantum, the Tribunal, taking note
of the age of the victim, ought to have fixed the multiplier 17 instead of
18 as per the guidelines laid by Sarala Verma's case and followed by
Pranay Sethi's case.
4. The owner of the vehicle, who is arrayed as third respondent is
not represented through counsel though notice served to him. This Court,
on perusing the records finds that the notice served on the third
respondent returned since his residence is not known and the learned
counsel appeared on behalf of the third respondent before the Tribunal is
also not traceable. The respondents 1 & 2 have lost their son. They are yet
to see the compensation amount. Meanwhile, the father of the deceased,
first respondent herein also died pending appeal and the second
respondent is recorded as legal heir of the deceased first respondent. In
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C.M.A.(MD)No.1106 of 2015
such circumstances, this Court is of the view that there is no purpose in
keeping the matter pending any further for want of service to the owner of
the offending vehicle/third respondent.
5. As far as the grounds of appeal is concerned, this Court finds
that there is some error in fixing the multiplier in this case. Instead of
multiplier 17, the Tribunal has fixed multiplier 18 based on the schedule-
II of the Rules whereas the factors to be applied in cases of fatal accident
been reconciled by catena of judgments of the Hon'ble Supreme Court
and as per the settled principle of law, the claimant is entitled for
multiplier 17 if the deceased is between the age of 26 to 30 at the time of
accident.
6. At the time of death, the deceased was serving as constable in
the Tamil Nadu Police and his gross income is mentioned as Rs.17,334/-
as per the pay slip for the month of October, 2012, which is marked as
Ex.D6. In the said salary Rs.100 towards medical claim, Rs.250/- towards
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C.M.A.(MD)No.1106 of 2015
uniform and Rs.300/- towards risk allowance, which is payable only
when he is in service has to be deducted and accordingly, his monthly
salary is fixed at Rs.16,684/- after the deduction being a salaried person
below the age of 40, 50% of his pay to be added towards future prospects.
Thus, when 50% of the pay is added to his last drawn salary, the amount
towards loss of income to be derived as Rs.25,026/-x12=Rs.3,00,312/-.
Thus, his annual salary arrives at Rs.3,00,312/-. Income tax at the rate of
10% for the taxable income of Rs.3,00,312/- is Rs.10,031/- and after
deducting the tax, probably the annual income of the deceased shall be
Rs.2,90,281/-. Being a bachelor, after deducting 50% of the salary
towards his personal expenses, balance arrives to Rs.1,45,141/-. If
multiplier 17 is applied, it comes to Rs.1,45,141x17=24,67,397/-.
7. Apart from the above amount, the claimants are entitled to a sum
of Rs.15,000/- towards 'funeral expenses' and a sum of Rs.5,000/-
towards 'Transport Expenses' and a sum of Rs.40,000/- towards 'loss of
consortium'.
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C.M.A.(MD)No.1106 of 2015
8. Accordingly, the award of the Tribunal in M.C.O.P.No.264 of
2013 is modified as follows:-
Sl. Particulars Amount granted
No.
1 Loss of dependency Rs.24,67,397/-
2. Funeral Expenses Rs.15,000/-
3. Transport Expenses Rs.5,000 /-
4. Loss of Consortium Rs.40,000/-
Total Rs.25,27,397/-
The compensation awarded by the Tribunal is modified from
Rs.26,77,538/- to Rs.25,27,397 /- which shall carry interest at the rate of
7.5% per annum. Since there is a breach of policy condition, the award
amount is directed to be paid by the Insurance Company with liberty to
recover it from the insured, the third respondent herein.
9. In the result,
(i) this Civil Miscellaneous Appeal stands allowed in part by
reducing the compensation from Rs.26,77,538/- to Rs.25,27,397/- with
interest at the rate of 7.5% per annum, from the date of petition till the
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C.M.A.(MD)No.1106 of 2015
date of realisation. No Costs. Consequently, connected miscellaneous
petition is closed.
(ii) the appellant/insurance company is directed to deposit the
modified award amount to the credit of M.C.O.P.No.264 of 2013 on the
file of the learned I-Additional District Court, Tirunelveli, within a period
of eight weeks from today, less the amount, if any already deposited.
(iii) On such deposit being made, the claimant is permitted to
withdraw the modified award amount with proportionate accrued interest
and costs, less the award amount, if any already withdrawn, by filing
necessary application before the Tribunal.
(iv) The Tribunal is directed to refund the excess award
amount, if any, with accrued interest to the appellant/insurance
company.
[G.J., J.] & [S.M., J.]
13.12.2022
Index : Yes/No
Internet : Yes
PJL
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C.M.A.(MD)No.1106 of 2015
To
The I-Additional District Judge/
Motor Accidents Claims Tribunal,
Tirunelveli.
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C.M.A.(MD)No.1106 of 2015
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
PJL
Judgment made in
C.M.A.(MD)No.1106 of 2015
13.12.2022
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