Madras High Court

United India Insurance Co.Ltd vs Gnanasoundari on 17 August, 2023

                                                                                     CMA No. 1010 / 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 17.08.2023

                                                         CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                         Civil Miscellaneous Appeal No. 1010 of 2022
                                                             and
                                                   C.M.P. No. 7478 of 2022

                     United India Insurance Co.Ltd.,
                     42, Mutt Street, First Floor,
                     Kumbakonam.                                            ... Appellant
                                                           Versus
                     1.Gnanasoundari
                     2.Karpagavalli
                     3.Minor Annalakshmi
                     4.Minor Kanimozhi
                     (Minors are rep. by their mother
                     Gnanasoundari)

                     5.Ravichandran                                    ... Respondents

                     PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against the Judgment and Decree dated
                     18.12.2017 made in M.C.O.P. No. 114 of 2017 on the file of the Motor
                     Accident Claims Tribunal (Sub-Court) at Jayamkondam (M.C.O.P. No.
                     54 of 2011 – Sub Court, Ariyalur).

                                  For Appellant      : Ms. I. Malar.

                                  For Respondents     : Mr. P. Parthikannan for R1 to R4.
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                                                                                    CMA No. 1010 / 2022



                                                 R5 - died.

                                              JUDGMENT

The appeal has been filed by the appellant challenging the award

passed by the Tribunal in M.C.O.P. No. 114 of 2017 dated 18.12.2017.

2.The respondents 1 to 4 had filed a claim petition before the

Tribunal stating that on 06.02.2011, while the deceased was standing in

the Gangai konda Sozhapuram bus stand, a two wheeler bearing

Registration No. TN 68 A 6261 driven by its rider in a rash and

negligent manner hit the deceased, as a result of which the appellant

sustained severe injuries and was admitted in the hospital and was taking

treatment till 10.02.2011. However, he died on 16.02.2011. Thus, the

respondents 1 to 4 filed claim petition seeking compensation.

3.The appellant filed counter denying all the averments made in the

claim petition stating that the accident occurred due to the negligence of

the deceased; that the deceased did not die due to the accident; that in any

case, the compensation claimed was excessive and prayed for dismissal of

the claim petition.

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CMA No. 1010 / 2022

4.The fifth respondent remained exparte before the Tribunal.

5.The respondents 1 to 4 examined three witnesses as PW1 to

PW3 on their side and marked Ex.P.1 to Ex.P.7. On the side of the

second respondent, RW1 has been examined and Ex.R.1 has been

marked.

6.The Tribunal after considering the oral and documentary

evidence found that the accident occurred due to the negligence of the

rider of the two wheeler and directed the appellant to pay a sum of

Rs.12,10,200/- as compensation to the respondents 1 to 4. Aggrieved by

the said award, the appellant has preferred the instant appeal.

7.The learned counsel for the appellant submitted that the deceased

was originally admitted in the hospital on 06.02.2011 and discharged on

10.02.2011. He died on 16.02.2011, six days after he was discharged

from the hospital. The deceased was aged 58 years at the time of

accident and in the absence of post mortem certificate or other evidence to

prove the nexus between the accident and the death, the Tribunal https://www.mhc.tn.gov.in/judis

CMA No. 1010 / 2022

erroneously held that the deceased died due to the accident. The learned

counsel therefore submitted that the compensation awarded by the

Tribunal on the premise that the deceased died due to the accident has to

be set aside. The learned counsel further submitted that in any event, the

compensation awarded is excessive. Though the Tribunal found that the

deceased was aged 58 years, the Tribunal erroneously applied the

multiplier 11. Further, the Tribunal awarded Rs.50,000/- each to the

respondents 1 to 4 towards loss of love and affection which is on the

higher side and prayed for setting aside the award of the Tribunal.

8. The learned counsel for the respondents 1 to 4, per contra,

submitted that the death of the deceased was within five days from the

date of discharge. The deceased suffered multiple injuries and also

underwent a surgery. There is no evidence to suggest that the deceased

suffered from any other ailment prior to the accident. Therefore, the

Tribunal was right in holding that the deceased died due to the injuries

suffered in the accident. The learned counsel further submitted that the

notional income fixed by the Tribunal is meagre. The respondents 1 to 4

have established that the deceased was aged 52 years at the time of

accident by marking Ex.P.6, ration card. However, the Tribunal https://www.mhc.tn.gov.in/judis

CMA No. 1010 / 2022

considered the age found in discharge summary, legal heirship certificate

and post mortem certificate to hold that the deceased was aged 58 years

which is incorrect. The learned counsel therefore submitted that no

ground has been made for interfering with the award of the Tribunal and

prayed for dismissal of the appeal.

9.Pending appeal, the fifth respondent died. Since the fifth

respondent remained ex-parte before the Tribunal, no notice is necessary

to the legal heirs of the fifth respondent.

10.The questions involved in the instant appeal are;

(i)Whether the deceased died due to the injuries suffered in the accident?

(ii)Whether the compensation awarded by the Tribunal is just and

reasonable?

11.The admitted facts are that the deceased was admitted

immediately in the hospital after the accident on 06.02.2011 and he was

discharged on 10.02.2011. The discharge summary issued by the

hospital reveals that the surgery was done for the fracture suffered by the

deceased. The nature of surgery as mentioned in the discharge summary https://www.mhc.tn.gov.in/judis

CMA No. 1010 / 2022

is as follows;

“Under SA with TQ control By a midline incision patella tendon split.

Entry point made with bone avil. Guide wire inserted after reducing toe fracture. A 30 cm x 8 mm SSEPL nail hammered in through the guide wire. Distal and proximal locking done. Wound washed with saline and closed in layers.” The deceased died five days later i.e., on 16.02.2011. PW1 in her

evidence would state that the deceased died due to the injuries suffered in

the accident; that the deceased complained of continuous head ache after

the accident; that he underwent surgery; that on the date of his death, he

complained of discomfort and he was taken to the hospital. The evidence

of PW1 and the discharge summary states that the deceased had the

following injuries at the time of admission.

“A 58 years male patient admitted with alleged H/O RTA No H/O LOC / vomiting H/O nasal bleeding (+) no H/O ear and throat bleeding H/O and injury are noted as per AR copy made at Jayamkondam GH

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CMA No. 1010 / 2022

H/O chest pain and no H/O breathing difficulty K/C/O CAD and HT since for 3 years”

Considering the nature of injuries, the evidence of PW1 and the time

between the accident and the death, this Court is of the view that the

death occurred due to the injuries suffered in the accident. Therefore, the

Tribunal was right in awarding compensation on that basis.

12.As regards the quantum of compensation, this Court finds that

though the Tribunal found that the deceased was aged 58 years, had

erroneously applied the multiplier 11. The learned counsel for the

respondents 1 to 4 submitted that the deceased was aged 52 years.

However, the documents produced on behalf of the respondents 1 to 4

such as post mortem certificate, death certificate and discharge summary

shows that the deceased was aged 58 years. The age mentioned in the

ration card cannot be the basis to determine the age as it is not clear as to

when the ration card was issued. Therefore, the age fixed by the Tribunal

as 58 years is correct and hence, the multiplier applicable is 9.

Considering the age, avocation and the year of the accident, this Court is

of the view that it would be reasonable to fix Rs.9,000 per month as

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CMA No. 1010 / 2022

notional income of the deceased. The appellants are entitled to 10%

future prospects. Since there are four dependents, ¼th has to be deducted

towards personal expenses. Thus, the loss of income would be Rs.9000 +

Rs.900 = Rs.9,900 (10% of Rs.9,000) X 12 X 9 X ¾ = Rs.8,01,900/-.

The award of Rs.2,00,000/- under the head loss of love and affection is

on the higher side and the same is reduced to Rs.1,60,000/-. Further,

Rs.25,000/- awarded towards funeral expenses is on the higher side and

the same is reduced to Rs.15,000/-. Rs. 5,000/- awarded towards loss of

estate is meagre and the same is enhanced to Rs.15,000/-. The award of

Rs.10,000/- towards transport expenses is just and the same is confirmed.

Thus, the award of the Tribunal is modified as follows;

                        S.                Description           Amount      Amount      Award
                        No                                     awarded by awarded by confirmed or
                                                                Tribunal   this Court enhanced or
                                                                  (Rs)        (Rs)      granted
                         1.       Loss of income                  9,70,200   8,01,900      Reduced
                        2.        Transport Expenses               10,000      10,000     Confirmed
                         3.       Funeral Expenses                 25,000      15,000      Reduced
                         4.       Loss of love and affection      2,00,000    1,60,000     Reduced
                         5.       Loss of estate                    5,000      15,000     Enhanced
                                  Total                          12,10,200   10,01,900    Reduced by
                                                                                         Rs.2,08,300/-

13. With the above modification, this Civil Miscellaneous https://www.mhc.tn.gov.in/judis

CMA No. 1010 / 2022

Appeal is partly allowed and the compensation awarded by the Tribunal

at Rs.12,10,200/- is hereby reduced to Rs.10,01,900/- together with

interest at 7.5% per annum (excluding the default period if any) from the

date of petition till the date of deposit. The appellant is directed to deposit

the award amount now determined by this Court along with interest and

costs, less the amount already deposited, if any, within a period of six (6)

weeks from the date of a receipt of copy of this Judgment. On such

deposit, the respondents 1 and 2 are permitted to withdraw their

respective shares of the award amount as per the apportionment made by

the Tribunal along with proportionate interest and costs, less the amount