Madras High Court
The Branch Manager vs Asokan on 13 October, 2022
C.M.A.No.3177 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.10.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A. No.3177 of 2021
and C.M.P.No.18012 of 2021
The Branch Manager,
Reliance General Insurance Co. Ltd.,
Vivyan Plaza, ground floor,
Door No.89, 100 feet road,
Mudaliarpet, Pondhicherry. ..
Appellant
Vs.
1. Asokan
2. Uma Rani
3.Rajesh Babu
.. Respondents
(R3 was set exparte before the Tribunal.
Hence, notice is dispensed with.)
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C.M.A.No.3177 of 2021
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 04.02.2019, made
in M.C.O.P. No.127 of 2016, on the file of the Sub Court, (Motor Accident
Claims Tribunal), Tiruvarur.
For Appellant : M/s. C.Bhuvanasundari
For RR1 & 2 : Mr.R.Baskar
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
This Civil Miscellaneous Appeal has been filed by the appellant-
Insurance Company to set aside the judgment and decree dated 04.02.2019,
made in M.C.O.P. No.127 of 2016, on the file of the Sub Court, (Motor
Accident Claims Tribunal), Tiruvarur.
2.The appellant is the 2nd respondent in M.C.O.P. No.127 of 2016, on
the file of the Sub Court, (Motor Accident Claims Tribunal), Tiruvarur.
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C.M.A.No.3177 of 2021
The respondents 1 & 2/claimants filed the said claim petition, claiming a sum
of Rs.20,00,000/- as compensation for the death of one Jeevarathnakumar who
died in the accident that took place on 08.07.2015.
3.According to the respondents 1 & 2, on the date of accident, when the
deceased Jeevarathnakumar was riding in a Hero Honda Splendor Plus bearing
Registration No.TN 68 P 1797 on the Kollumangudi - Kumbakonnam main
road, opposite to Ponniyamman kovil, the driver of the Lorry bearing
Registration No.TN 30 U 7669 owned by the third respondent, drove the same
from opposite direction in a rash and negligent manner, lost control and dashed
against the motorcycle rode by the deceased and caused the accident. In the
accident, the said Jeevarathnakumar sustained fatal injuries and died on the
spot. The accident occurred only due to rash and negligent driving by the driver
of the Lorry owned by the 3rd respondent and hence, the respondents 1
& 2 filed the said claim petition claiming compensation against the
3rd respondent and the appellant-Insurance Company as owner and insurer of
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C.M.A.No.3177 of 2021
the Lorry respectively.
4.The 3rd respondent, owner of the Lorry, remained exparte before the
Tribunal.
5.The appellant, insurer of the Lorry, filed counter statement and denied
all the averments made by the respondents 1 & 2 in the claim petition.
According to the appellant-Insurance Company, on the date of accident, the
driver of the Lorry was driving the vehicle slowly and cautiously following the
traffic rules. The deceased Jeevarathnakumar rode the Hero Honda Splendor
Plus bearing Registration No.TN 68 P 1797 in a rash and negligent manner and
invited the accident. The accident occurred only due to the negligent riding of
the motorcycle by the deceased Jeevarathnakumar. Hence, the appellant, the
insurer of the Lorry is not liable to indemnify the 3 rd respondent,
owner of the Lorry. At the time of accident, the deceased Jeevarathnakumar did
not possess valid driving license and rode the vehicle without wearing helmet.
In any event, the respondents 1 & 2 have to prove the age, avocation and
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C.M.A.No.3177 of 2021
income of the deceased Jeevarathnakumar to claim compensation and prayed
for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1 and
marked 11 documents as Exs.P1 to P11. On the side of the appellant,
no one was examined and no document was marked.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent driving
by the driver of the Lorry owned by the 3rd respondent and directed the
appellant as insurer of the said vehicle to pay a sum of Rs.39,20,000/- as
compensation to the respondents 1 & 2.
8.Against the said award of the Tribunal dated 04.02.2019, made in
M.C.O.P. No.127 of 2016, the appellant - Insurance Company has come out
with the present appeal.
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C.M.A.No.3177 of 2021
9.The learned counsel appearing for the appellant-Insurance Company
contended that the accident occurred only due to rash and negligent riding of
the motorcycle by the deceased Jeevarathnakumar. However, the Tribunal
erroneously held that the accident occurred due to negligent driving of the
driver of the Lorry. The deceased Jeevarathnakumar was not possessing valid
driving license and he plied the vehicle without wearing helmet at the time of
accident. The Tribunal, considering the same, ought to have fixed 20%
contributory negligence on the part of the deceased as per the judgment of this
Court reported in 2018 (2) TNMAC 168 DB [National Insurance Co. Ltd.,
Vs. Thangadurai and others]. At the time of accident, the deceased was a
Diploma AC Mechanic and was not having any permanent employment. The
Tribunal erred in fixing the notional income of the deceased at Rs.15,000/-.
The total compensation awarded by the Tribunal under different heads are
excessive and prayed for setting aside the award of the Tribunal.
10. The learned counsel appearing for the respondents 1 & 2 made
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C.M.A.No.3177 of 2021
submissions in support of the award and the Tribunal considering the oral and
documentary evidence adduced by the respondents 1 & 2, awarded the total
compensation of Rs.39,20,000/-, which is just and reasonable and prayed for
dismissal of the appeal.
11.Heard the learned counsel appearing on both sides and perused the
entire materials available on record.
12.From the materials available on record, it is seen that it is the case of
the respondents 1 & 2 that on the date of accident, when the deceased
Jeevarathnakumar was riding Hero Honda Splendor Plus bearing Registration
No.TN 68 P 1797 on the Kollumangudi - Kumbakonnam main road, opposite
to Ponniyamman kovil, the driver of the Lorry bearing Registration No.TN 30
U 7669 owned by the third respondent drove the same from opposite direction
in a rash and negligent manner, lost control and dashed against the motorcycle
rode by the deceased and caused the accident. To substantiate their case, the 1st
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C.M.A.No.3177 of 2021
respondent examined himself as P.W.1 and marked the FIR as Ex.P1. On the
other hand, it is the case of the appellant-Insurance Company that the accident
occurred only due to the negligent act of the deceased Jeevarathnakumar who
rode the motorcycle in a rash and negligent manner and invited the accident.
However, they have not examined the driver of the Lorry or any other eye-
witness to disprove the evidence of P.W.1 and EX.P1 – FIR registered against
the driver of the lorry. In the absence of any evidence on the side of the
appellant insurance company, the Tribunal considering the evidence of P.W.1
and Ex.P1 – FIR held that the accident occurred only due to rash and negligent
driving by the driver of the Lorry owned by the 3rd respondent. Hence, there is
no error in the said finding of the Tribunal warranting interference by this
Court.
13.As far as quantum of compensation awarded by the Tribunal, it is
seen from the records that it is the case of the respondents 1 & 2 that on the
date of accident, the deceased Jeevarathnakumar was aged 28 years and was
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C.M.A.No.3177 of 2021
earning a sum of Rs.25,000/- per month by working as AC Mechanic. The
respondents 1 & 2 did not file any document to prove the avocation and
income of the deceased. In the absence of any documentary evidence, the
Tribunal relying on the judgment of the Hon'ble Apex Court in National
Insurance Co. Ltd. v. Pranay Sethi and others reported in (2017) 16 SCC
680, fixed a sum of Rs.15,000/- per month as notional income of the deceased.
The notional income fixed by the Tribunal is excessive. The accident is of the
year 2015. Considering the age and nature of work done by the deceased, the
notional income fixed by the Tribunal is modified and fixed at Rs.11,000/- per
month. As per Ex.P2, Postmortem Certificate, the deceased Jeevarathnakumar
was aged 28 years at the time of accident. The Tribunal has granted only 25%
towards future prospects. 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 & 2 are entitled to 40%
enhancement towards future prospects. The Tribunal rightly adopted the
multiplier '17', following the judgment of the Hon'ble Apex Court reported in
2009 (2) TNMAC 1 (SC) [Sarla Verma & others vs. Delhi Transport
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C.M.A.No.3177 of 2021
Corporation & another]. However, the Tribunal has not deducted any amount
towards personal expenses of the deceased since the deceased was a bachelor
at the time of accident. Hence, this court is inclined to deduct 50% of the
income towards personal expenses of the deceased. Thus, by fixing
Rs.11,000/- as notional monthly income, granting 40% enhancement towards
future prospects, applying multiplier 17 and deducting 50% towards personal
expenses of the deceased, the compensation awarded by the Tribunal towards
loss of income is modified to Rs.15,70,800/- (Rs.11,000/- + 4400 (40% of
Rs.11000) x 12 x 17 x 1/2 ). Further, the sum of Rs.50,000/- awarded towards
loss of love and affection is enhanced to Rs.80,000/- (Rs.40,000/- each) as the
amount awarded by the Tribunal is meagre. 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
Court (Rs) enhanced or
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C.M.A.No.3177 of 2021
(Rs) granted
1. Loss of income 38,25,000/- 15,70,800/- Reduced
2. Loss of love and 50,000/- 80,000/- Enhanced
affection
3. Funeral expenses 15,000/- 15,000/- Confirmed
4. Transportation 15,000/- 15,000/- Confirmed
5. Pain and suffering 15,000/- 15,000/- Confirmed
Total 39,20,000/- 16,95,800/- Reduced by
Rs.22,24,200/-
16. In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.39,20,000/- is modified and
reduced to Rs.16,95,800/- 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 eight weeks from the
date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.127 of
2016. On such deposit, the respondents 1 and 2 are permitted to withdraw their
respective share of the award amount now determined by this Court, along with
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C.M.A.No.3177 of 2021
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 credit of M.C.O.P.
No.127 of 2016, if the entire award amount has already been deposited by
them. It is made clear that if the respondents 1 and 2 have already withdrawn
the entire award amount, the appellant-Insurance Company is not entitled to
recover the same from the respondents 1 and 2. Consequently, connected
Miscellaneous Petition is closed. No costs.
(V.M.V., J) (S.M., J)
13.10.2022
Index : Yes/No
Speaking Order : Yes/No
av
To
1.The Subordinate Judge,
(Motor Accident Claims Tribunal),
Tiruvarur.
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C.M.A.No.3177 of 2021
2.The Section Officer,
V.R Section,
High Court, Madras.
V.M.VELUMANI, J.
and
SUNDER MOHAN, J.
av
C.M.A. No.3177 of 2021
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C.M.A.No.3177 of 2021
and
C.M.P.No.18012 of 2021
13.10.2022
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