Madras High Court

Icici Lombard General Insurance ... vs Jeyapratha on 6 April, 2023

                                                                            C.M.A.(MD)No.1230 of 2022


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 06.04.2023

                                                    CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                            C.M.A.(MD)No.1230 of 2022
                                                       and
                                            C.M.P.(MD)No.12728 of 2022


                ICICI Lombard General Insurance Company Limited.,
                Zenith House, Keshacarao Kahde Marg,
                Mahalakshmi, Mumbai-400 034,
                Rep. by its Branch Manager.                   ...Appellant/2nd Respondent

                                                      Vs.
                1.Jeyapratha
                2.Minor Kiruthika
                3.Minor Kisharth
                (Minor 2 and 3 respondents represented by their mother and natural guardian the
                1st respondent)
                4.Saraswathi                                           ... Respondents 1-4 /
                                                                       Petitioners (Claimants)
                5.S.Rajesh                                      ...5 Respondent/1st Respondent
                                                                    th




                PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
                Motor Vehicles Act, 1988, to call for the records pertaining to the Fair and
                Decreetal ordr passed by the Motor Accident Claims Tribunal, learned Additional
                District Judge, Theni in M.C.O.P.No.53 of 2015, dated 24.04.2019 and set aside
                the same by allowing the appeal.


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https://www.mhc.tn.gov.in/judis
                                                                                        C.M.A.(MD)No.1230 of 2022


                                           For Appellant     : Mr.P.Pethu Rajesh
                                           For Respondents : No Appearance


                                                           JUDGMENT

Challenging the quantum of compensation awarded by the Motor

Accident Claims Tribunal / Additional District Court, Theni in M.C.O.P.No.53 of

2015, dated 24.04.2019, the present Civil Miscellaneous Appeal has been filed by

the Insurance Company.

2.For the sake of convenience, the parties are referred to herein, as per

their rank before the Trial Court.

3.The brief facts, leading to the filing of this Civil Miscellaneous

Appeal, are as follows:-

(i)the deceased was travelling as a cleaner in a TATA ACE LMV vehicle

bearing Registration No.TN-60-T-9218 belonging to the first respondent. The

driver of the said vehicle drove the same in a rash and negligent manner and

dashed against the TNSTC bus bearing Registration No.TN-58-N-1235, which

was halted at the bus stop, from the behind. As a result, the deceased died at the

spot itself.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1230 of 2022

(ii)the first claimant is the wife of the deceased, the second and third

claimants are the children of the deceased and the fourth claimant is the mother of

the deceased. At the time of accident, the deceased was aged about 28 years and

earning a sum of Rs.15,000/- (Rupees Fifteen Thousand Only) per month.

Therefore, claiming a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) as

compensation, the claimants had filed the petition.

4.It is the case of the second respondent / Insurance Company before the

Tribunal that the driver of TNSTC bus stopped the bus without giving any signal

to the vehicles, which were coming back side of it. Further, the deceased was

travelling as an unauthorized passenger. Therefore, the 2nd respondent is not liable

to pay any compensation to the claimants. The 1st respondent and TNSTC Bus

Management are all liable to pay compensation to the claimants.

5. Before the Tribunal, on the side of the claimants, P.W.1 and P.W.2

were examined and Ex.P1 to Ex.P7 were marked. On the side of the respondents,

R.W.1 to R.W.3 were examined and Ex.R1 to Ex.R2 were marked.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1230 of 2022

6.The Tribunal, considering the evidence of P.W.1 and P.W.2, found that

the driver of the TATA Ace Vehicle had driven the vehicle in a rash and negligent

manner and caused the accident and awarded the compensation as follows:

                        S.No.           Description                       Amount
                        1.              Transportation for taking the Rs.        5,000/-
                                        body
                        2.              Funeral Expenses                  Rs.   15,000/-
                        3.              Loss of consortium of first Rs.         40,000/-
                                        petitioner

4. Loss of love and affection to Rs. 1,00,000/-

minors P2 and P3 each Rs.50,000/-

5. Loss of love and affection Rs. 25,000/-

6. Maintenance of Minors P2 & Rs. 2,00,000/-

P3 till they attains majority each Rs.1,00,000/-

                        7.              Loss of estate                    Rs.   15,000/-
                        8.              Loss of Dependency                Rs.25,70,400/-
                                                                     Total Rs.29,70,400/-

7.Challenging the same, the present Civil Miscellaneous Appeal has

been filed by the Insurance Company.

8.I have heard the learned counsel appearing on either side and also

perused the materials available on record.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1230 of 2022

9.The learned counsel appearing for the appellant submitted that the

Tribunal ought not to have fixed the income of the deceased at R.12,000/- (Rupees

Twelve Thousand Only) per month without any basis. The accident was occurred

only in the year 2013. Therefore, the notional income ought to have been fixed at

only Rs.9,000/- (Rupees Nine Thousand Only).

10.Despite service of notice, none appeared on behalf of the respondents.

11.In view of the above submission, now, the points that arises for

consideration in this appeal are:

(1) Whether the Tribunal is right in fixing the notional income of the

deceased at Rs.12,000/-? and

(2)Whether the quantum arrived by the Tribunal is just and

reasonable?

12.Admittedly, the accident and the negligence is not disputed. Only the

quantum of compensation is challenged in this appeal. The deceased was aged

about 28 years at the time of accident. Though there is no evidence to prove the

income of the deceased at the relevant point of time, the Tribunal came to a

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1230 of 2022

conclusion that the deceased, being 28 years old, would have easily earned a sum

of Rs.12,000/- per month by applying the minimum wages. He was working as a

cleaner. Apart from the monthly salary, the persons, who are working as Driver

and Cleaner will get regular batta also and the same could not be ignored

altogether. Hence, fixation of a sum of Rs.12,000/- as income of the deceased

does not appears to be an excessive. The Tribunal had rightly applied 40% future

prospects by taking note of the age of the deceased and deducted 1/4 of his income

towards his personal expenses and finally, awarded a sum of Rs.29,70,400/-

(Rupees Twenty Nine Lakhs Seventy Thousand and Four Hundred Only) as

compensation. These aspects do not require any interference by this Court.

13.As far as the conventional damages is concerned, the Tribunal

awarded compensation under the heads of loss of consortium and loss of love and

affection to the minors and also to the fourth respondent. That apart, a sum of

Rs.2,00,000/- (Rupees Two Lakhs Only) was awarded towards maintenance of

minor children, till they attain majority.

14.This Court is of the view that though a sum of Rs.1,25,000/- (Rupees

One Lakh and Twenty Five Thousand Only) was awarded to the minor children

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1230 of 2022

and the mother of the deceased / claimants 2 to 4 under the head 'Loss of Love and

Affection', a sum of Rs.2,00,000/- was awarded once again towards maintenance

of claimants 2 and 3 and hence, the same is required to be set aside. Accordingly,

the amount awarded under the head 'Maintenance of Minor children' is set aside

and the compensation awarded by the Tribunal is modified as follows:-

                        S.No.          Description                   Amount
                        1.             Transportation for taking the Rs.    5,000/-
                                       body
                        2.             Funeral Expenses              Rs.   15,000/-
                        3.             Loss of consortium of first Rs.     40,000/-
                                       petitioner

4. Loss of love and affection to Rs. 1,20,000/-

minors P2, P3 & P4 each Rs.40,000/-

                        5.             Loss of estate                Rs.   15,000/-
                        6.             Loss of Dependency            Rs.25,70,400/-
                                                               Total Rs.27,65,400/-

15.The appellant Insurance Company is directed to deposit the

compensation amount i.e., Rs.27,65,400/- (Rupees Twenty Seven Lakhs Sixty Five

Thousand and Four Hundred only) as modified by this Court with interest at the

rate of 7.5% per annum from the date of petition till the date of realization to the

credit of M.C.O.P.No.53 of 2015, on the file of the Motor Accident Claims

Tribunal / Additional District Court, Theni within a period of one month from the

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1230 of 2022

date of receipt of a copy of this judgment, less the amount, if any already

deposited. On such deposit, the first claimant is entitled to a sum of

Rs.13,00,000/- (Rupees Thirteen Lakhs only), the second and third claimants are

entitled to a sum of Rs.6,50,000/-, each (Rupees Six Lakhs and Sixty Five

Thousand only) and the fourth petitioner is entitled to a sum of Rs.1,65,400/-