M/S.United India Insurance Co. ... vs Mariappan
2022 Latest Caselaw 11436 Mad

                                                                        C.M.A.No.380 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 29.06.2022

                                                    CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI
                                                   and
                                   THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                              C.M.A. No.380 of 2022
                                            and C.M.P.No.2639 of 2022

                  M/s.United India Insurance Co. Ltd.,
                  No.28, Meenakshi Complex,
                  Mailam Road, Tindivanam,
                  Villupuram 604 001.                                        .. Appellant

                                                         Vs.

                  1.Mariappan

                  2.Gomathi

                  3.Revathy

                  4.Vimalraj

                  5.Adiparasakthi Charitable Medical
                        Education and Cultural Trust,
                    Melmaruvathur, Cheyur Taluk,
                    Kanchipuram District 603 319.                            .. Respondents


                  _____
                  1/13




https://www.mhc.tn.gov.in/judis
                                                                                C.M.A.No.380 of 2022


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                  Vehicles Act, 1988, against the judgment and decree dated 30.11.2020, made
                  in M.C.O.P. No.7289 of 2013, on the file of the Special Sub Court No.2,
                  (Motor Accident Claims Tribunal), Chennai.
                                            For Appellant    : Mr.S.Arunkumar

                                            For RR1 to 4     : Mr.V.Velu

                                            For R5           : No appearance

                                                     JUDGMENT

[Judgment of the Court was delivered by V.M.VELUMANI,J.]

This Civil Miscellaneous Appeal has been filed by the appellant-

Insurance Company challenging the quantum of compensation granted by the

Tribunal in the award dated 30.11.2020, made in M.C.O.P. No.7289 of 2013,

on the file of the Special Sub Court No.2, (Motor Accident Claims Tribunal),

Chennai.

2.The appellant is the 2nd respondent in M.C.O.P. No.7289 of 2013, on

the file of the Special Sub Court No.2, (Motor Accident Claims Tribunal),

Chennai. The respondents 1 to 4 filed the said claim petition, claiming a sum

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of Rs.20,00,000/- as compensation for the death of one M.Valarmathi, who

died in the accident that took place on 05.10.2013.

3.According to the respondents 1 to 4, on the date of accident, at about

14.00 hrs., when the deceased M.Valarmathi was standing with the workers

near Echur Pudhu Colony Road, the driver of the Tata Magic Van bearing

Registration No.TN-19-Z-5490 owned by the 5th respondent, drove the same

in a rash and negligent manner and dashed on the said Valarmathi, as a result,

she sustained multiple grievous injuries and died in GH, Maduranthakam.

The accident occurred only due to rash and negligent driving by driver of the

Tata Magic Van and hence, the respondents 1 to 4 filed the said claim

petition, claiming compensation against the 5th respondent and appellant-

Insurance Company as owner and insurer of the Tata Magic Van respectively.

4.The 5th respondent, owner of the Tata Magic Van, filed counter

statement and denied all the averments made by the respondents 1 to 4 in the

claim petition. According to the 5th respondent, at the time of accident, their

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Tata Magic Van was insured with the appellant-Insurance Company and the

insurance was in force for the period from 08.03.2013 to 07.03.2014. In any

event, the accident occurred when the deceased M.Valarmathi along with two

other women were crossing the Echur Pudhu Colony road negligently without

minding the oncoming Tata Magic Van. The driver of the said Van, on seeing

the negligent act of the deceased women, applied sudden brake, inspite of

which the accident occurred. Since the accident occurred only due to the

negligence of the deceased M.Valarmathi, the 5th respondent is not liable to

pay any compensation to the respondents 1 to 4 and prayed for dismissal of

the claim petition.

5.The appellant, insurer of the Tata Magic Van, filed counter statement,

denying all the averments made by the respondents 1 to 4 in the claim

petition, including the manner of accident. According to the appellant-

Insurance Company, at the time of accident, the driver of the said Tata Magic

Van was under the influence of alcohol, contrary to the Motor Vehicles Act,

Rules and terms of Policy. For such violation of terms and conditions of the

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Policy, the appellant-Insurance Company is not liable to pay any

compensation to the respondents 1 to 4. In any event, the respondents 1 to 4

have to prove the age, avocation and income of the deceased M.Valarmathi to

claim compensation. The total compensation claimed by the respondents 1 to

4 is excessive and prayed for dismissal of the claim petition.

6.Before the Tribunal, the 1st respondent examined himself as P.W.4

and 1st claimant in other connected claim petitions examined themselves as

P.W.1 to P.W.3 & P.W.5 to P.W.12 and marked 61 documents as Exs.P1 to

P61. The appellant did not let in any oral or documentary evidence. Three

Court documents were marked as Exs.C1 to C3.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred only due to rash and negligent

driving by driver of the Tata Magic Van owned by the 5th respondent and

directed the appellant-Insurance Company to pay a sum of Rs.18,91,000/- as

compensation to the respondents 1 to 4.

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8.Questioning the quantum of compensation granted by the Tribunal in

the award dated 30.11.2020, made in M.C.O.P. No.7289 of 2013, the

appellant - Insurance Company has come out with the present appeal.

9.The learned counsel appearing for the appellant-Insurance Company

contended that the respondents 1 to 4 did not file any document to prove the

avocation and income of the deceased. In the absence of any documents, the

Tribunal excessively fixed a sum of Rs.9,000/- per month as notional income

of the deceased and erred in granting 40% enhancement towards future

prospects of the deceased. The respondents 1 to 4 are not dependents on the

deceased. In such case, the Tribunal ought to have deduced 50% towards

personal expenses of the deceased. In the absence of any documents such as

Aadhar card and Voter ID of the deceased to prove her age, the Tribunal erred

in calculating loss for 15 years. The total compensation awarded by the

Tribunal is excessive and prayed for reducing the compensation awarded by

the Tribunal.

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10.On 22.06.2022, Mr.Terry Chella Raja, learned counsel, appeared

before this Court and reported that the 1st daughter of the deceased was aged

21 years at the time of accident and he will produce the Aadhar card of the

respondents 1 to 4 and also copy of the Aadhar card of the deceased

Valarmathi to prove the age of the deceased. He also stated that the

respondents 1 to 4 have filed Cross-Objection and the same is pending in SR

22901 of 2022. Today, Mr.V.Velu, learned counsel appearing for the

respondents 1 to 4 submitted that the respondents 1 to 4/claimants are not

going to press the Cross-Objection and made an endorsement to that effect

and produced a copy of the Aadhar card of the 1st respondent. He further

submitted that copy of the Aadhar card of the deceased is not available and

made submissions in the appeal filed by the Insurance Company. He

contended that at the time of accident, the deceased Valarmathi was working

as a Tailor and was earning a sum of Rs.15,000/- per month. The Tribunal

fixed only a meagre sum of Rs.9,000/- per month as notional income of the

deceased, without considering the nature of work done by the deceased

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Valarmathi. The amounts awarded by the Tribunal under different heads are

not excessive and prayed for dismissal of the appeal.

11.Though notice has been served on the 5th respondent and their name

is printed in the cause list, there is no representation for them either in person

or through counsel.

12.Heard the learned counsel appearing for the appellant-Insurance

Company as well as the respondents 1 to 4 and perused the entire materials

available on record.

13.It is the contention of the respondents 1 to 4 that the deceased

Valarmathi was working as a Tailor and was earning a sum of Rs.15,000/- per

month. The respondents 1 to 4 did not file any document to prove the

avocation and income of the deceased. In the absence of any materials with

regard to avocation and income, the Tribunal fixed a sum of Rs.9,000/- per

month as notional income of the deceased. The accident is of the year 2013.

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The notional income fixed by the Tribunal is not excessive. According to the

respondents 1 to 4, the deceased was aged 35 years at the time of accident.

They did not file any document to prove the age of the deceased. In the

absence of documents, the Tribunal, taking into consideration the Post-

Mortem certificate marked as Ex.P18, has rightly fixed the age of the

deceased as 40 years and following the judgment of the Hon'ble Apex Court

reported in 2009 (2) TNMAC 1 SC Supreme Court [Sarla Verma & others

vs. Delhi Transport Corporation & another], applied the multiplier '15'. As

per the judgment of the Hon'ble Apex Court reported in 2017 (2) TN MAC

609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others], the

respondents 1 to 4 are entitled to only 25% enhancement towards future

prospects. The Tribunal has erroneously granted 40% enhancement towards

future prospects. The 1st respondent is husband, respondents 2 and 3 are

daughters and 4th respondent is son of the deceased. From and out of the

income the deceased Valarmathi received, she would have definitely

contributed some amount to her husband and children. Hence, the contention

of the learned counsel appearing for the appellant-Insurance Company that

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the respondents 1 to 4 are not dependents of the deceased is not acceptable.

The Tribunal has rightly deducted 1/4th towards personal expenses of the

deceased. Hence, fixing Rs.9,000/- per month as notional income of the

deceased, granting 25% enhancement towards future prospects, applying the

multiplier '15' and deducting 1/4th towards personal expenses of the deceased,

the amounts awarded towards loss of dependency is modified to

Rs.15,18,750/- {Rs.9,000/- + Rs.2,250/- (25% of Rs.9,000/-)] x 12 x 15 x ¾}.

The amounts awarded by the Tribunal under other heads are just and

reasonable and hence, the same are hereby confirmed. Thus, the

compensation awarded by the Tribunal is modified as follows:

S. No Description Amount awarded Amount Award by Tribunal awarded by this confirmed or (Rs) Court (Rs) enhanced or granted

1. Loss of dependency 17,01,000/- 15,18,750/- Reduced

2. Loss of consortium to 1st 40,000/- 40,000/- Confirmed respondent

3. Loss of love and 1,20,000/- 1,20,000/- Confirmed affection to respondents 2 to 4

4. Funeral expenses 15,000/- 15,000/- Confirmed

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5. Loss of estate 15,000/- 15,000/- Confirmed Total 18,91,000/- 17,08,750/- Reduced by Rs.1,82,250/-

14.In the result, the appeal is partly allowed and the amount awarded

by the Tribunal at Rs.18,91,000/- is modified to Rs.17,08,750/- together with

interest at the rate of 7.5% per annum from the date of petition till the date of

deposit. The appellant-Insurance Company is directed to deposit the award

amount, now determined by this Court, along with interest and costs, within a

period of six weeks from the date of receipt of a copy of this judgment, to the

credit of M.C.O.P. No.7289 of 2013. On such deposit, the respondents 1 to 4

are permitted to withdraw their share of the award amount now determined by

this Court, along with proportionate interest and costs, as per the ratio of

apportionment fixed by the Tribunal, after adjusting the amount, if any,

already withdrawn, by filing necessary applications before the Tribunal. The

appellant-Insurance Company is permitted to withdraw the excess amount

lying in the deposit to the credit of M.C.O.P.No.7289 of 2013, if the entire

amount has already been deposited by them. Consequently, connected

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Miscellaneous Petition is closed. No costs.

(V.M.V., J) (S.S., J) 29.06.2022 Index : Yes/No Speaking Order : Yes/No gsa

To

1.The Special Subordinate Judge No.2, (Motor Accident Claims Tribunal), Small Causes Court, Chennai.

2.The Section Officer, V.R Section, High Court, Madras.

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V.M.VELUMANI, J.

and S.SOUNTHAR,J.

(gsa)

C.M.A. No.380 of 2022

29.06.2022

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