Madras High Court
The Manager vs M.Pavun on 31 January, 2022
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
and
C.M.P.No.8213 of 2020
C.M.A.No.1249 of 2020
The Manager,
IFFCO TOKIO General Insurance Company Ltd.,
Srishenthi Towers, 3rd Main Road,
No.141, East of EGES Layout, Kasturi Nagar,
Bangalore – 560 084. ... Appellant
Vs.
1.M.Pavun
2.Minor M.Ilaiyamathi
3.Minor Ilaiyaarasan
(Minors represented by their mother,
the first respondent herein)
4.A.Amirtham
5.K.Sridhar ... Respondents
https://www.mhc.tn.gov.in/judis
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to set aside the decree and judgment dated 13.10.2017 passed
in MCOP No.20 of 2015 on the file of the Motor Accident Claims Tribunal-cum-
Subordinate Judge, Tirutani.
For Appellant : Mr.K.Poomalai
For Respondents : Mr.K.R.Ponnusamy for
M/s.Anand and Surya for R1 to R4
R5-exparte
Cross Objection No.38 of 2020
1.M.Pavun
2.Minor M.Ilaiyamathi
3.Minor Ilaiyaarasan
(Minors represented by their mother,
the first respondent herein)
4.A.Amirtham ... Appellants
Vs.
1.K.Sridhar
2.IFFCO TOKIO General Insurance Company Ltd.,
Srishenthi Towers, 3rd Main Road,
No.141, East of EGES Layout, Kasturi Nagar,
Bangalore – 560 084. ... Respondents
https://www.mhc.tn.gov.in/judis
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to set aside the award passed in MCOP No.20 of 2015 dated
13.10.2017 on the file of the Motor Accident Claims Tribunal/Subordinate Judge,
Tirutani.
For Appellant : Mr.K.R.Ponnusamy for
M/s.Anand and Surya
For Respondents : Mr.K.Poomalai for R2
R1-exparte
COMMON JUDGMENT
[Common Judgment of the Court was delivered by
K.KALYANASUNDARAM, J.]
CMA No.1249 of 2020 is filed by the Insurance Company assailing the
award passed in MCOP No.20 of 2015 by the Motor Accident Claims Tribunal
(Subordinate Judge), Tirutani. Cross Objection No.38 of 2020 is filed by the
claimants being dissatisfied with the award of the Tribunal passed in the same
MCOP.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
2.The claimants in MCOP No.20 of 2015 are the legal heirs of the deceased
A.Magi, who died in a motor vehicle accident, which took place on 15.12.2014.
The claimants have averred in the claim petition that the deceased was a
'Harvester Driver' and he was earning Rs.15,000/- per month and paid batta
Rs.250/- per day. The deceased on the faithful day travelled as pillion rider in a
Splender Pro two-wheeler bearing Reg.No.TN-20-BF-9128 and the said vehicle
was hit by a Toyota Altis Car bearing Reg.No.TN-09-BT-1287.
3.The claimants examined P.W.2 as an eyewitness to the incident and also
marked Ex.P.1, First Information Report and Ex.P.4, Charge Sheet. On the side of
the Insurance Company, no witness was examined. Hence, the Tribunal accepting
the evidence of P.W.2 and Ex.P.1 and Ex.P.4, has held that the accident had
occurred only due to the negligence of the driver of the Toyota Car.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
4.P.W.3, Gopi was examined to show that the deceased was employed as
Harvester Driver in Harikrishna Harvester and he was paid Rs.15,000/- per month
and Rs.250/- per day as batta. The Tribunal has fixed the income of the deceased
on the basis of the evidence of P.W.3 and awarded Rs.25,92,000/- towards loss of
dependency. In addition, Rs.1,00,000/- towards loss of consortium, Rs.4,00,000/-
towards loss of love and affection and Rs.10,000/- towards funeral expenses have
been awarded. In total, the Tribunal has awarded Rs.31,02,000/- as
compensation.
5.It is the submission of the learned counsel for the Insurance Company
Mr.K.Poomalai that the income fixed by the Tribunal is on the higher side.
According to the learned counsel, except the oral evidence of P.W.3, no document
has been produced to prove the income of the deceased. It is also stated that the
driving licence of the deceased was not produced.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
6.Per contra, the learned counsel appearing for the claimants
Mr.K.R.Ponnusamy argued that P.W.1 has stated in her evidence that the driving
licence of the deceased lost at the accident site and the employment and avocation
of the deceased was proved through P.W.3.
7.This Court carefully considered the rival submissions and perused the
materials available on record.
8.It is seen that the claimants have categorically stated that the deceased
was a Harvester Driver, but the fact remains that no driving licence was produced
before the Tribunal. P.W.3 would state that the deceased was employed as driver
and he was earning Rs.15,000/- per month. Since no material has been produced
in support of the oral evidence of P.W.3, we are of the opinion that it is
appropriate to fix the income of the deceased as Rs.12,000/-. The Tribunal failed
to add 40% towards future prospects. 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) TNMAC 609 (SC), the deceased is entitled to 40%
https://www.mhc.tn.gov.in/judis
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
addition as future prospects. Hence, after adding 40% of the income, the gross
monthly income works out at Rs.16,800/-. From which, 1/4 was deducted for
personal and living expenses of the deceased, hence, monthly contribution to the
family comes Rs.12,600/-. There is no dispute that the deceased died at the age of
35 years and the proper multiplier is 16. Hence, by applying multiplier '16' the
loss of income is arrived at Rs.24,19,200/- (12600 x 12 x 16). As per the decision
of the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd.,
vs. Nanu Ram and others reported in 2018(1) TN MAC 452 (SC), the claimants
are entitled to Rs.40,000/- each towards consortium, which comes to
Rs.1,60,000/-, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral
expenses. Hence, the amount awarded by the Tribunal under the head of loss of
consortium and loss of love and affection are set aside. This Court awards
Rs.1,60,000/- towards loss of consortium and filial consortium. The amount of
Rs.10,000/- awarded towards funeral expenses is enhanced to Rs.15,000/-.
Accordingly, the compensation awarded by the Tribunal to the claimants is re-
quantified as follows:-
https://www.mhc.tn.gov.in/judis
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
Heads Rs.
Loss of dependency (12600x12x16) 24,19,200/-
Loss of consortium 40000x4 1,60,000/-
Funeral expenses 15,000/-
Loss of Estate 15,000/-
Total 26,09,200/-
Rounded Off 26,09,000/-
9.In such view of the matter, CMA No.1249 of 2020 is partly allowed and
Cross Objection No.38 of 2020 is dismissed. 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 order. The first claimant/wife of the deceased is
entitled to Rs.9,00,000/-; the second and third claimants/children of the deceased
are entitled to Rs.7,50,000/- each; the fourth claimant/mother of the deceased is
entitled to Rs.2,09,000/- 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, less the amount if already withdrawn. The Tribunal is
directed to deposit the share of the minor claimants in any one of the nationalised
https://www.mhc.tn.gov.in/judis
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
banks till they attain majority and the first claimant, who is the guardian of the
minor claimants, is permitted to withdraw interest once in six months directly
from the Bank. No costs. Consequently, connected miscellaneous petition is
closed.
[M.K.K.S.,J.] [V.S.G.,J.]
31.01.2022
Intex : Yes/No
Internet : Yes/No
skn
To
1.The Motor Accident Claims Tribunal,
Sub-Judge, Tirutani.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
skn
C.M.A.No.1249 of 2020 & Cros.Obj.No.38 of 2020
and
C.M.P.No.8213 of 2020
31.01.2022
https://www.mhc.tn.gov.in/judis
