Madras High Court
Royal Sundaram Aliance Insurance ... vs A.Sudha on 9 February, 2022
C.M.A.No.1624 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.1624 of 2019
and
C.M.P.No.4654 of 2019
Royal Sundaram Aliance Insurance Co. Ltd,
I Floor, Sri Krishna Plaza,
No.1, Natchiappa Street,
Erode. ... Appellant
Vs.
1.A.Sudha
2.Minor V.K.Kanishka
3.Sundarammal
4.Chellappan
5.Silamba Gounder
... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to set aside the award dated 05.03.2018 passed in MACTOP
No.485 of 2012 on the file of the Motor Accident Claims Tribunal, Sub Judge,
Sankagiri.
1/11
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C.M.A.No.1624 of 2019
For Appellant : Mr.G.Vasudevan
For Respondents : Mr.M.Devaraj for R1 to R3
Mr.Arul Muruganantham for R5
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
Heard Mr.G.Vasudevan, learned counsel appearing for the
appellant/Insurance Company, Mr.M.Devaraj, learned counsel appearing for the
respondents 1 to 3/claimants and Mr.Arul Muruganantham, learned counsel
appearing for the fifth respondent and perused the materials available on record.
2. This appeal is directed against the award passed by the Motor Accident
Claims Tribunal, Sub-Judge, Sankagiri in MCOP No.485 of 2012 dated
05.03.2018.
3. One Krishnamoorthy, aged about 32 years, met with an accident on
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C.M.A.No.1624 of 2019
24.07.2012 and when he was carried to hospital, he succumbed to the injuries.
Hence, the wife, minor daughter and parents filed a claim petition seeking
compensation of Rs.60,00,000/-. According to the claimants, the deceased was a
M.A., graduate and he was working as 'Insurance Adviser' and also running
Finance Company in the name of Veerapathirasamy Finance. That apart, he owns
agricultural lands and was also owner of SKM Transport and thereby, he was
earning Rs.1,20,000/- per month. It is their further case that on 24.07.2012
during the night hours, when he was riding his motorcycle on Mettur to Bhavani
main road, a lorry bearing Reg.No.TN-3-Y-8521 was parked in the middle of the
road without any signal and oil got spilled on the road. Hence, the rider of the
motorcycle hit against the stationary lorry and suffered fatal injuries. Hence, the
owner of the lorry as well as its insurer are liable to pay compensation.
4. The stand of the appellant/Insurance Company before the Tribunal was
that the lorry was under repair and it was properly parked on the left side of the
road by taking all precautionary method by putting stones on the side of the lorry
and by putting parking lamps on the lorries. Hence, the deceased was wholely
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C.M.A.No.1624 of 2019
responsible for the accident, for which, the appellant/Insurance Company need
not be pay any compensation. It is also stated that the amount claimed is
excessive and exorbitant.
5.Before the Tribunal, two witnesses were examined and 15 documents
were marked on the side of the claimants and on the side of the Insurance
Company, the driver of the lorry gave evidence as R.W.1 and Exs.R.1 to 5 were
produced. After analyzing the entire evidence adduced by parties, the Tribunal
came to the conclusion that the driver of the lorry caused the accident and
awarded compensation of Rs.35,95,000/- as follows:-
S.No Heads Amount (Rs.)
1 Future Prospectus 30,24,000/-
2 Loss of Consortium 40,000/-
3 Loss of love and affection 3,50,000/-
4 Medical Expenses 91,000/-
5 Pain and Suffering 50,000/-
6 Transportation 10,000/-
7 Loss of Estate 15,000/-
8 Funeral Expenses 15,000/-
Total 35,95,000/-
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C.M.A.No.1624 of 2019
Questioning the same, the present appeal has been filed by the Insurance
Company.
6. Learned counsel appearing for the appellant Mr.G.Vasudevan urged that
the Tribunal fixed the income of the deceased based on the Income Tax Returns,
but as per the decision of the Hon'ble Supreme Court in the case of National
Insurance Company Ltd., vs. Pranay Sethi and others reported in 2017 (2)
TN MAC 609 (SC), the claimants would be entitled for 40% addition towards
future prospects, but the Tribunal ordered 50%. It is next contended that under
the head of loss of love and affection, the Tribunal has awarded Rs.3,50,000/-
instead of Rs.1,20,000/- as per the decision in the case of Magma General
Insurance Co. Ltd., vs. Nanu Ram and others reported in 2018 (1) TN MAC
452 (SC).
7.Per contra, the learned counsel appearing for the claimants submitted that
the first claimant is the wife and she became widow, aged about 28 years and the
second claimant was only a two year old child. Taking note of these aspects, the
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C.M.A.No.1624 of 2019
Tribunal has rightly awarded compensation and hence, there is no merit in the
appeal.
8.We have considered the rival submissions of the learned counsel
appearing on either side and perused the materials available on record.
9.With regard to the negligence, R.W.1 in his evidence, has admitted that
when he was driving the offending vehicle, the oil tube got damaged, hence, he
parked the vehicle. In the evidence, the cleaner has also stated that due to oil spill
on the road, the driver lost the control of the two wheeler at the night hours and it
hit against the stationary lorry. In the light of the admission made by the driver of
the lorry, in our considered opinion, the findings on negligence warrants no
interference.
10.P.W.1, in her oral evidence, has deposed in the line of the averments
made in the claim petition and also produced Income Tax Return, which was
marked as Ex.P.8. On the basis of the evidence of P.W.1 and Ex.P8 (Income Tax
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C.M.A.No.1624 of 2019
Return), the Tribunal fixed the income of the deceased at Rs.1,68,000/- per
annum. It is an admitted fact that the deceased was not a permanent employee
and hence, as per the decision of the Pranay Sethi (supra), the Tribunal ought to
have added 40% of income as future prospects instead of 50%. The annual
income of the deceased is fixed at Rs.1,68,000/-. Adding 40% towards future
prospects and after deducting 1/4 towards personal and living expenses,
contribution to the family comes Rs.1,76,400/- per annum. By applying proper
multiplier '16', the loss of income is arrived at Rs.28,22,400/- (176400 x16).
Hence, this Court awards Rs.28,22,400/- towards loss of dependency by setting
aside the amount of Rs.30,24,000/- awarded by the Tribunal towards future
prospects. As per the decision of the Hon'ble Apex Court in the case of Magma
General Insurance Co. Ltd., vs. Nanu Ram and others (supra), the claimants
are entitled to Rs.40,000/- each towards consortium and Filial consortium, which
comes Rs.1,60,000/-. Hence, this Court awards Rs.1,60,000/- . The amounts
awarded by the Tribunal under the head of loss of consortium and loss of love and
affection are set aside. Since this is a case of fatal accident, the amount awarded
under the head of pain and suffering is set aside. The amount awarded under the
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C.M.A.No.1624 of 2019
head of medical expenses, transportation, loss of estate and funeral expenses and
the rate of interest fixed by the Tribunal are also confirmed. Accordingly, the
compensation awarded by the Tribunal to the claimants is re-quantified as
follows:-
Heads Rs.
Loss of dependency 1,76,400 x 16 28,22,400/-
Loss of consortium 40000 x 4 1,60,000/-
Medical Expenses 91,000/-
Funeral expenses 15,000/-
Loss of Estate 15,000/-
Transportation 10,000/-
Total 31,13,400/-
Rounded off 31,15,000/-
11. For the foregoing reasons, this Civil Miscellaneous Appeal is partly
allowed. The appellant/Insurance Company is directed to deposit the modified
award amount with accrued interest and costs, less the amount already deposited,
if any, within a period of eight weeks from the date of receipt of a copy of this
Judgment. It is represented that the fourth claimant/father of the deceased died
during the pendency of the appeal. Hence, the first claimant/wife of the deceased
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C.M.A.No.1624 of 2019
is entitled to Rs.12,00,000/- and the second claimant/daughter of the deceased is
entitled to Rs.13,15,000/- and third claimant/mother of the deceased is entitled to
Rs.6,00,000/- together with proportionate interest and costs. The major claimants
are permitted to withdraw their share after filing a memo, along with a copy of
this order. The Tribunal is directed to deposit the entire share of the minor
claimant in any one of the nationalised banks until the minor attains majority and
the first claimant, who is the guardian of the minor claimant, is permitted to
withdraw interest once in six months directly from the Bank. The second
respondent/V.K.Kanishka on attaining majority is permitted to withdraw her
share. No costs. Consequently, connected miscellaneous petition is closed.
[M.K.K.S.,J.] [V.S.G.,J.]
09.02.2022
skn
Index : Yes/No
Speaking Order :Yes/No
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C.M.A.No.1624 of 2019
To
1.The Motor Accident Claims Tribunal, Sub Judge, Sankagiri.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
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C.M.A.No.1624 of 2019
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
skn
JUDGMENT MADE IN
C.M.A.No.1624 of 2019
and
C.M.P.No.4654 of 2019
09.02.2022
https://www.mhc.tn.gov.in/judis
