Madras High Court
National Insurance Company Ltd vs D.Rajendiran on 11 August, 2023
C.M.A.No.1971 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2023
CORAM :
THE HON'BLE MR. JUSTICE P.VELMURUGAN
C.M.A.No.1971 of 2018
and
C.M.P.No.15308 of 2018
National Insurance Company Ltd.,
No.593, Cuddalore Main Road,
Attur Taluk, Salem District. ... Appellant
Vs.
1.D.Rajendiran
2.Girija
3.C.Poomalai ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 to set aside the judgment and decree passed in
M.A.C.T.O.P.No.146 of 2015 on the file of the Motor Accident Claims
Tribunal, 3rd Additional District Court, Kallakurichi, dated 12.10.2017.
For Appellant : Ms.N.B.Surekha
For Respondents : Ms.P.T.Saleem Fathima
for R1 and R2
R3 – Notice Dispensed with
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C.M.A.No.1971 of 2018
JUDGMENT
This appeal is directed against the Award dated 12.10.2017
passed in M.A.C.T.O.P.No.146 of 2015 on the file of the Motor Accident
Claims Tribunal, III Additional District Court, Kallakurichi.
2. For the purpose of convenience, the parties are referred to
hereunder according to their litigative status before the Tribunal.
3. The brief facts of the case are as follows:
(i) On 04.06.1992 at 5.30 hours, when the deceased, who was
aged about 2 ½ years, was standing on the side of the road, the first
respondent's driver who had driven the lorry bearing Registration No.MDB
6802 in a rash and negligent manner, dashed against the deceased and as a
result of which, the deceased had sustained grievous injuries and died on the
spot.
(ii) Seeking compensation against the owner of the lorry and its
insurer M/s.National Insurance Company Ltd., the parents of the deceased
have filed M.C.O.P.No.146 of 2015 claiming compensation of
Rs.7,00,000/-.
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C.M.A.No.1971 of 2018
4. The first respondent, who is the owner of the lorry bearing
Registration No. MDB 6802, remained ex-parte before the Tribunal.
5. The said claim petition was resisted by the Insurance
Company by filing a counter statement denying the manner of accident as
projected by the claimants in the claim petition. Thus, they sought for
dismissal of the claim petition.
6. To substantiate the case on the side of the claimants, the
first claimant examined himself as P.W.1 and marked documents Ex.P1 to
Ex.P9. On the side of the respondents, no oral or documentary evidence was
adduced.
7. The Tribunal, after analysing the entire evidence, came to the
conclusion that the accident had occurred due to the rash and negligent
driving of the Lorry bearing Registration No.MDB 6802 and thus, passed
an Award for a sum of Rs.5,80,200/- (Rupees five lakhs eighty thousand
and two hundred only) along with interest at 7.5% per annum from the date
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C.M.A.No.1971 of 2018
of claim petition till the date of deposit to the claimants and directed the
second respondent/Insurance Company to pay the above amount.
Challenging the same, the present appeal is preferred by the Insurance
Company.
8. The learned counsel for the appellant/Insurance Company
submitted that the alleged accident took place in the year 1992, whereas the
claim petition was filed in the year 2015. At the time of accident, the
deceased was 2 ½ years child. The Tribunal erroneously fixed notional
income of the deceased at Rs.3,300/- per month for non-earning member
and by deducting 1/3rd towards personal expenses, arrived at a sum of
Rs.2,200/-. Resultantly, the annual income was arrived at Rs.26,400/-
[2,200x12]. Further, by applying multiplier ''18'' the Loss of Income was
arrived at Rs.4,75,200/-, Thereafter, the Tribunal by awarding amounts
under various heads, granted a total compensation of Rs.5,80,200/-.
9. Such compensation awarded by the Tribunal is against the
principles of law and the same does not reflect ''just and fair'' compensation
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C.M.A.No.1971 of 2018
during the relevant period. The learned counsel for the appellant further
submitted that during the relevant period of time, for school going children
Rs.50,000/- may be fixed as compensation, however, the Tribunal failed to
consider the date of accident and prevailing prospects, and awarded
compensation of Rs.5,80,200/- and directed the Insurance Company to pay
the same to the claimants, which needs interference of this Court.
10. The learned counsel for the respondents 1 and 2 (claimants)
submitted that in respect of the accident that took place in the year 1992, as
per the Apex Court Ruling in Kishan Gopal and another Vs. Lala and
others reported in 2013 (2) TN MAC 358 (SC), the notional income of the
deceased can be fixed at Rs.30,000/- per annum. Hence, the learned counsel
pleads to fix the notional income of the deceased at Rs.30,000/- per annum.
11. Heard the learned counsel for the appellant and the learned
counsel for the respondents 1 and 2 and perused the records.
12. On a perusal of the records, it is seen that the deceased was
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C.M.A.No.1971 of 2018
2-½ years old child at the time accident, which took place in the year 1992.
During the relevant period, children are not entitled for notional income.
The deceased was only 2-½ years old at the time of accident and notional
income cannot be fixed and the object of ordering compensation is to
compensate the life of a person in terms of money, and it is only a solatium
and therefore, the notional income cannot be fixed in respect of the child,
who was only aged about 2-½ years at the time of accident. Under these
circumstances, the citations referred to by the learned counsel for both sides,
i.e. by the respondent in 2018 (2) TN MAC 238 (G.Sumathy Vs.
K.Anbazhagan), and of the appellants in CDJ 2001 SC 471 (Lata Wadhwa
Vs. State of Bihar) and also of the appellant in R.K.Malik and another Vs.
Kiran Pal and others, in Civil Appeal No.3608 of 2009 (arising out of SLP
(C).No.17525 of 2006, dated 15.05.2009, are not applicable to the facts of
the present case on hand.
13. Considering the plight of the claimants, this Court feels that
Rs.2,50,000/- shall be awarded as 'just' compensation being consolidated
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C.M.A.No.1971 of 2018
amount for the deceased aged about 2-1/2 years, considering the parents of
the deceased who have lost their child.
14. This Civil Miscellaneous Appeal is partly allowed in the
above terms. There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
15. The appellant/Insurance Company is directed to deposit the
modified award amount of Rs.2,50,000/- along with 9% interest from the
date of claim petition till the date of realisation 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. On such deposit, the Tribunal is directed
to credit the compensation to the Bank Account of the claimants in line with
the judgment of a Division Bench of this Court in C.M.A.No.428 of 2016,
dated 11.03.2016, reported in 2016 (2) LW 561 (The Divisional Manager,
The Oriental Insurance Company Limited, Kannur Vs. Rajesh and others).
On such deposit, the claimants are permitted to withdraw their respective
shares, less the amount already withdrawn, if any, together with accrued
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C.M.A.No.1971 of 2018
interest and costs. The apportionment of shares fixed by the Tribunal to the
claimants is hereby confirmed. The Insurance Company is permitted to
withdraw the excess amount, if any already deposited by them before the
Tribunal.
11.08.2023
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ms
To
1. The Motor Accidents Claims Tribunal,
III Additional District Court,
Kallakurichi.
2.The Section Officer,
V.R.Section,
High Court, Madras.
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C.M.A.No.1971 of 2018
P.VELMURUGAN, J.
ms
C.M.A.No.1971 of 2018
and
C.M.P.No.15308 of 2018
11.08.2023
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