Madras High Court
New India Assurance Co Ltd vs G.Karpagavalli on 23 March, 2022
C.M.A.No.1630 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.1630 of 2021
and
C.M.P.No.8623 of 2021
New India Assurance Co Ltd,
Bombay Mutual Building,
6th Floor, No.232, N.S.C. Bose Road,
Chennai - 600 001. ... Appellant
Vs.
1.G.Karpagavalli
2.Pradeep (Minor),
3.Jaigopal (Minor),
2nd and 3rd Minor Petitioners rep. By their
Mother and Next Friend Mrs.G.Karpagavalli
4.Anna Lakshmi
all are residing at
No.265, Ganthiuram 4th Street,
K.Pudur, Madurai – 625 007.
5. E.Lakshmi,
No.130, Tathaneri,
Madurai – 625 018.
(5th Respondent was set exparte in
the lower Court. Hence notice to
5th respondent is dispensed with) ... Respondents
1/9
https://www.mhc.tn.gov.in/judis
C.M.A.No.1630 of 2021
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988, praying to set aside the award and decree dated 20.08.2020
passed in M.C.O.P.No.4188 of 2018, on the file of the Motor Accident Claims
Tribunal, Chennai (In the II Court of Small Causes, Chennai).
For Appellant : Mr.R.Sivakumar
For Respondents : Mr.A.G.F.Terry Chella Raja (for R1 to R3)
for R4-Notice served-No appearance
for R5-Notice dispensed with
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
Challenging the Judgment and award passed by the Motor Accident Claims
Tribunal, II Court of Small Causes, Chennai in M.C.O.P.No.4188 of 2018, dated
20.08.2020, the present appeal has been filed by the appellant/Insurance
Company, which was arrayed as 2nd respondent in the claim petition.
2.The facts in brief:-
The legal heirs of one Gopalakrishnan filed the claim petition seeking
compensation of Rs.80 lakhs on the ground that the deceased traveled in a Car
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C.M.A.No.1630 of 2021
bearing Registration No.TN-59-BH-5159 from Thiruvannamalai to Vellore CC
Road National High Way and when the car nearing Munivanthangal Earikkarai
area, the driver lost his control over the car and hence, it dashed against a
Tamarind Tree. In the accident, the deceased sustained fatal injuries and died on
the spot.
3. It is the further case of the claimants that the deceased was an Advocate
by profession and he was earning around Rs.50,000/- per month. However, he
died at the age of 39 years. Since the accident occurred due to rash and negligent
driving by the driver of the car, the owner as well as the the insurer of the Car,
are jointly and severally liable to pay the compensation.
4. The appellant resisted the claim petition by denying the entire allegations
including the age, occupation and monthly income of the deceased. The further
contention of the appellant is that the driver of the car did not possess a valid and
effective driving license at the relevant point of time and hence no liability can be
fastened on the insurance company.
5. During the trial on the side of the claimants 2 witnesses were examined
and 20 documents were marked. On the other hand, the appellant/Insurance
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C.M.A.No.1630 of 2021
Company neither examined any witnesses nor produced any documents.
6. After analyzing the evidence adduced by the claimants, the Tribunal
came to the conclusion that the accident occurred only due to the rash and
negligent driving of the driver of the Car and he was holding a valid driving
license at that time and awarded compensation of Rs.63,60,000/- together with
the interest at the rate of 7.5% per annum. Questioning the same the present
appeal has been filed.
7.Mr.R.Sivakumar, the learned counsel appearing for the
appellant/Insurance Company states that the notional income fixed by the tribunal
is on the higher side. That apart, addition of 50% towards the future prospects is
not in consonance with the directions issued by the Hon'ble Apex Court in the
case of National Insurance Co., Ltd., Vs. Pranay Sethi and others, as per the
decision, under the heads of 'loss of spousal consortium', 'Parental & Filial
consortium', the Tribunal ought to have awarded Rs.1,60,000/- altogether, instead
the Tribunal had awarded a sum of Rs.2,55,000/-.
8.Per contra, the learned counsel appearing for the claimants would state
that the wife of the deceased gave evidence as P.W.1 and deposed that the
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C.M.A.No.1630 of 2021
deceased died at the age of 38 years and was earning Rs.50,000/- per month
through the advocate profession, but the Tribunal has fixed only Rs.30,000/- as a
monthly income and the same cannot be said to be on the higher side. According
to the learned counsel for the claimants, the award amount is reasonable and no
interference is required by this Court.
9.Heard the learned counsels appearing on either side and perused the
materials available on record.
10.In the matter on hand, it is not in dispute that the claimants are the legal
heirs of the deceased and to prove the same they have produced Ex.P5- legal heir
ship certificate issued by the Revenue Authorities. Ex.P6 to P9 - Enrollment
Certificate, Bar Council Membership Certificate and Bar Council Identity Card
establish that the deceased had sufficient experience in the Advocate profession.
Hence the contention of the learned counsel appearing for the appellant/Insurance
Company that the Tribunal without any basis fixed the income at Rs.30,000/-
cannot be accepted. The Tribunal has added 50% towards the future prospectus.
As rightly pointed out by the learned counsel for the appellant/Insurance
Company the tribunal ought to have added 40% instead of 50% towards future
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C.M.A.No.1630 of 2021
prospectus. Hence, the income of the deceased is fixed at Rs.42,000/-
(Rs.30,000/- + Rs.12,000/-). The Tribunal has rightly held that the deceased died
at the age of 39 years and hence the proper multiplier would be '15' and after
deducing 1/4th towards the personal expenses, the loss of income is assessed at
Rs.56,70,000/- (Rs.42,000/- x 12 x 15 x ¾) . As per the decision of the Hon'ble
Apex Court in the case of Magma General Insurance Company Vs. Nanuram
@ Chuhru Ram and Others, the claimants are entitled for Rs.40,000/- each for
loss of consortium. Therefore, the amount awarded under the head 'Parental
consortium' is reduced to Rs.80,000/- from Rs.2,00,000/- and the amount awarded
under the head 'filial consortium' Rs.15,000/- is enhanced to Rs.40,000/-.
Rs.15,000/- granted under the head 'loss of Estate' and Rs.15,000/- for 'funeral
expenses' are hereby confirmed. Thus the amounts awarded by the Tribunal is
recalculated as follows:-
Sl. No Description Amount awarded Amount Award
by Tribunal awarded by this confirmed or
(Rs) Court (Rs) enhanced or
reduced or
granted
1. Loss of dependency 60,75,000/- 56,70,000/- reduced
2. Loss of spousal 40,000/- 40,000/- confirmed
consortium
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C.M.A.No.1630 of 2021
3. Parental consortium 2,00,000/- 80,000/- reduced
4. Filial consortium 15,000/- 40,000/- enhanced
5. Funeral expenses 15,000/- 15,000/- Confirmed
6. Loss of estate 15,000/- 15,000/- Confirmed
Total 63,60,000/- 58,60,000/- Reduced by
Rs.5,00,000/-
11.In view of the above, this appeal is partly allowed and the amount of
Rs.63,60,000/- is reduced to Rs.58,60,000/-. Out of the total award amount the 1st
claimant/wife of the deceased is entitled for a sum of Rs.20,00,000/- and two
minor children are entitled for a sum of Rs.15,00,000/- each and the 4 th
claimant/mother of the deceased is entitled for Rs.8,60,000/-. The rate of interest
is 7.5% per annum from the date of claim 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. On such deposit is
being made, the major claimants are permitted to withdraw their share of the
award amount along with proportionate interest and costs, less the amount already
withdrawn, if any. In so far as, share of the minor children, the Tribunal is
directed to deposit the same in any of the nationalized bank in a fixed deposit
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C.M.A.No.1630 of 2021
scheme, till the minors attain majority. Till such time, the interest accrued thereon
shall be withdrawn by the mother of the minor children/1st claimant, once in
three months, directly from the Bank.
12.In fine, this Civil Miscellaneous Appeal is partly allowed. No costs.
Consequently connected miscellaneous petition is closed.
[M.K.K.S.,J.] [V.S.G.,J.]
23.03.2022
Intex : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order
Jer
To
1.The Motor Accidents Claims Tribunal,
II Court of Small Causes, Chennai
2.V.R.Section,
Madras High Court,
Chennai
https://www.mhc.tn.gov.in/judis
C.M.A.No.1630 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
Jer
C.M.A.No.1630 of 2021
and
C.M.P.No.8623 of 2021
23.03.2022
https://www.mhc.tn.gov.in/judis
