Madras High Court
Reliance Gen. Ins. Co. Ltd vs K.Magali on 15 September, 2022
C.M.A.No.2010 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A. No.2010 of 2022
and C.M.P.No.15364 of 2022
Reliance Gen. Ins. Co. Ltd.,
Dhanums Tower, 1st Floor, No.1, Binny Road,
Park Road Street, Tiruppur 641 601. .. Appellant
Vs.
1.K.Magali
2.M.Thirumal
3.K.Veerammal
4.Minor K.Prasanth
(rep. By next friend & mother, 3rd respondent)
5.G.Thirunavukkarasu .. Respondents
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C.M.A.No.2010 of 2022
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 26.08.2021, made
in M.C.O.P. No.1647 of 2018, on the file of the District Court, (Motor
Accident Claims Tribunal), Tiruppur.
For Appellant : Mrs.C.Bhuvanasundari
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
This Civil Miscellaneous Appeal has been filed by the appellant-
Insurance Company against the judgment and decree dated 26.08.2021, made
in M.C.O.P. No.1647 of 2018, on the file of the District Court, (Motor
Accident Claims Tribunal), Tiruppur.
2.The appellant is the 2nd respondent in M.C.O.P. No.1647 of 2018, on
the file of the District Court, (Motor Accident Claims Tribunal), Tiruppur.
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C.M.A.No.2010 of 2022
The respondents 1 to 4/claimants filed the said claim petition, claiming a sum
of Rs.40,00,000/- as compensation for the death of one M.Kittan who died in
the accident that took place on 23.07.2018.
3.According to the respondents 1 to 4, on the date of accident, at about
9.00 p.m., when the deceased M.Kittan was walking at Kamanaickenpalayam
to Karadivavi road, near Pulliyampatti Pirivu, from South to North direction
observing all the traffic rules and regulations, the 5th respondent rode the
Pulsar Motorcycle bearing Registration No.TN-37-CJ-7223 in the said road
in the same direction in a rash and negligent manner and dashed behind the
deceased M.Kittan and caused the accident. In the accident, the said M.Kittan
sustained fatal injuries and died on the way to Hospital. The accident
occurred only due to rash and negligent riding by the 5th respondent/rider of
the Pulsar Motorcycle and hence, the respondents 1 to 4 filed the said claim
petition claiming compensation against the 5th respondent and appellant-
Insurance Company as rider-cum-owner and insurer of the Pulsar Motorcycle
respectively.
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C.M.A.No.2010 of 2022
4.The 5th respondent, rider-cum-owner of the Pulsar Motorcycle,
remained exparte before the Tribunal.
5.The appellant, insurer of the Pulsar Motorcycle, filed counter
statement and denied all the averments made by the respondents 1 to 4 in the
claim petition, including involvement of Pulsar Motorcycle and occurrence of
alleged accident. According to the appellant-Insurance Company, the accident
occurred only due to the negligence on the part of the deceased M.Kittan. The
5th respondent violated policy conditions by riding the vehicle which was
only temporarily registered, without possessing vaild driving license. For
such violation of policy conditions, the appellant is not liable to indemnify
the 5th respondent. In any event, the respondents 1 to 4 have to prove the age,
avocation and income of the deceased M.Kittan to claim compensation and
prayed for dismissal of the claim petition.
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C.M.A.No.2010 of 2022
6.Before the Tribunal, the 3rd respondent examined herself as P.W.1 and
marked 10 documents as Exs.P1 to P10. The appellant did not let in any oral
and documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent riding by
5th respondent/rider of the Pulsar Motorcycle and directed the appellant as
insurer of the said vehicle to pay a sum of Rs.25,27,000/- as compensation to
the respondents 1 to 4.
8.Against the said award of the Tribunal dated 26.08.2021, made in
M.C.O.P. No.1647 of 2018, the appellant - Insurance Company has come out
with the present appeal.
9.Though the appellant-Insurance Company raised various grounds
with regard to negligence, at the time of arguments, the learned counsel
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C.M.A.No.2010 of 2022
appearing for the appellant restricted her arguments only with regard to
multiplier applied and 40% enhancement granted towards future prospects.
The learned counsel appearing for the appellant-Insurance Company
contended that the Tribunal having rightly held that the deceased M.Kittan
has completed 40 years at the time of accident, erroneously applied the
multiplier '15' instead of correct multiplier '14' and erroneously granted 40%
enhancement towards future prospects instead of granting only 25%, in
awarding compensation towards loss of income and hence, prayed for
reducing the compensation awarded by the Tribunal to the respondents 1 to 4.
10.Heard the learned counsel appearing for the appellant-Insurance
Company and perused the entire materials available on record.
11.From the materials on record, it is seen that it is the case of the
respondents 1 to 4 that at the time of accident the deceased M.Kittan was
aged 40 years. To substantiate the same, they have marked Ex.P10 – Aadhar
card of the deceased. The Tribunal considering Ex.P10 wherein it has been
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C.M.A.No.2010 of 2022
mentioned that the deceased M.Kittan was born in the year 1978 and the
accident of the year 2018, held that the deceased has completed 40 years at
the time of accident. The Tribunal taking into consideration the completed
age of the deceased as 40 years, rightly applied the correct multiplier '15', but
erroneously granted 40% enhancement 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], for the age
group between 40 – 50 years, 25% enhancement is granted towards future
prospects in respect of person self-employed or on fixed salary. It is the case
of the respondents 1 to 4 that the decaesed M.Kittan was working in a Power
Loom and was earning a sum of Rs.20,000/- per month. P.W.1, wife of the
deceased deposed to that effect. Except the evidence of P.W.1, the
respondents 1 to 4 did not file any document to prove the same. In the
absence of any documentary evidence to prove the avocation and income of
the deceased, the Tribunal considering the nature of work done by him, fixed
a sum of Rs.13,000/- per month as notional income of the deceased. The
accident is of the year 2018. The monthly income fixed by the Tribunal is
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C.M.A.No.2010 of 2022
meagre. In view of the meagre amount fixed by the Tribunal, the 40%
enhancement granted by the Tribunal towards future prospects, instead of
granting 25% is not interfered with. The amounts awarded by the Tribunal
under other heads are not excessive. There is no error in the said award of the
Tribunal warranting interference by this Court.
12.In the result, the appeal is dismissed and the amount awarded by the
Tribunal at Rs.25,27,000/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit is confirmed. The
appellant-Insurance Company is directed to deposit the award amount
together with interest and costs, less the amount already deposited, if any,
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.1647 of 2018. On such deposit, the
respondents 1 to 3 are permitted to withdraw their share of the award amount,
along with proportionate interest and costs, as per the apportionment fixed by
the Tribunal, after adjusting the amount, if any, already withdrawn, by filing
necessary applications before the Tribunal. The share of the minor 4th
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C.M.A.No.2010 of 2022
respondent is directed to be deposited in any one of the Nationalized Bank,
till the minor attains majority. The 3rd respondent, mother of the minor 4th
respondent is permitted to withdraw the accrued interest, once in three
months for the welfare of the minor 4th respondent. Consequently, connected
Miscellaneous Petition is closed. No costs.
(V.M.V., J) (V.S.G., J)
15.09.2022
Index : Yes/No
Speaking Order : Yes/No
gsa
To
1.The Principal Judge,
District Court,
(Motor Accident Claims Tribunal),
Tiruppur.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.No.2010 of 2022
V.M.VELUMANI, J.
and
V.SIVAGNANAM, J.
(gsa)
C.M.A. No.2010 of 2022
15.09.2022
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