Madras High Court
The Branch Manager vs Mumtaj on 27 January, 2023
C.M.A.No.2877 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.2877 of 2021
and CMP.No.16532 of 2021
The Branch Manager,
M/s.United India Insurance Co. Ltd.,
No.22B, P.R.Sundaram Iyer Street,
Dharmapuri, Tamil Nadu 636 701.
C/o. The Divisional Manager,
United India Insurance Co. Ltd.,
Durga Bhavani Square,
Opposite Railway Station,
Denkanikottai Road, Hosur 635 109. ...appellant
Vs.
1. Mumtaj
2. S.Jayavel ...respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the award and decree dated 03.09.2019
made in MCOP.No.336 of 2018 on the file of the Motor Accidents Claims
Tribunal, Additional District Judge, Hosur.
For Appellant : Mr.S.Arunkumar
For Respondents
for R1 : Mr.P.A.Sudeshkumar
for R2 : Served - No Appearance
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C.M.A.No.2877 of 2021
JUDGMENT
[Judgment of the Court was delivered by R.SUBRAMANIAN, J]
The Insurance Company is on appeal questioning the award of the
Tribunal granting a sum of Rs.30,79,000/- for the death of one Mohammed
Sherif in a road accident that occurred on 08.01.2018.
2. The claimant, who is the mother of the deceased, sought for a
compensation contending that while her son was riding a motorcycle bearing
Registration No.KA-03-HE-6077 along with one Nadheem as a pillion rider
on the Hosur-Krishnagiri National Highway Road, the Lorry bearing
Registration No.TN-34-D-3732 owned by the second respondent and
insured with the appellant/Insurance Company, driven in a rash and
negligent manner, hit against the two wheeler. As a result of the impact, the
deceased fell down and was run over by the Lorry resulting in his
instantaneous death. Contending that the deceased was a very bright student
and was pursuing Bachelor of Computer Applications in MGR College,
Hosur, the claimant assessed the compensation at Rs.68,40,000/-, but
restricted the claim to Rs.50,00,000/-.
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C.M.A.No.2877 of 2021
3. The Insurance Company resisted the claim contending that the
Lorry was not responsible for the accident and the accident did not occur in
the manner suggested by the claimant. It was contended that the two
wheeler rider, viz., the deceased was responsible for the accident.
4. At trial, the claimant was examined as PW1 and one Nadheem,
who is the pillion rider, was examined as PW2 and exhibits P1 to P13 were
marked. On the side of the respondents, Final Report that was filed by the
Police against the deceased was marked as Ex.R1. The Tribunal however
concluded that the Lorry driver was responsible for the accident and
fastened the entire liability on the Insurance Company. It assessed the
compensation at Rs.30,79,000/-. The Tribunal adopting monthly notional
income of the deceased at Rs.20,000/-, deducting 50% for personal expenses
and applying multiplier at 18, arrived the Loss of Dependency at
Rs.21,60,000/-. It also granted a sum of Rs.10,000/- for Love and
Affection, Rs.20,000/- for Loss of Estate, Rs.10,000/- for Transportation and
Rs.15,000/- for Funeral Expenses. That apart, the Tribunal added Future
Prospects at Rs.8,64,000/- i.e., 40% of Rs.21,60,000/-.
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C.M.A.No.2877 of 2021
5. Mr.S.Arun Kumar, learned counsel appearing for the
appellant/Insurance Company would vehemently contend that though the
Final Report was marked as Ex.R1 before the Tribunal indicating the
deceased was responsible for the accident, the Tribunal has not considered
the same. Such non-consideration has resulted in the Tribunal misdirecting
itself and granting award in favour of the deceased.
6. Mr.P.A.Sudeshkumar, learned counsel appearing for the first
respondent would however submit that the Tribunal has referred to the Final
Report and also the contention of the Insurance Company and the failure to
consider the Final Report will not vitiate the award.
7. We have considered the rival submissions. We are unable to agree
with the submissions of the learned counsel appearing for the first
respondent/claimant. Once the final report is filed and marked before the
Tribunal, the Tribunal was duty bound to consider the effect of the same. We
have perused the Final Report and it clearly indicates that the deceased was
responsible for the accident. However the FIR has been lodged against the
Lorry driver. PW2, the eyewitness has spoken about the accident. The same
person had given a different version before the Police, which has resulted in
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C.M.A.No.2877 of 2021
the Final Report being filed against the deceased. We therefore deem it fit to
apportion the negligence 50% each on the driver of the Lorry and the
deceased.
8. We also find that the adoption of Rs.20,000/- as monthly income by
the Tribunal is on the higher side. The deceased was only a student and
considering the vagaries of employment, we fix the monthly notional income
of the deceased at Rs.15,000/- and add 40% towards future prospects.
Therefore, the Loss of Dependency works out to Rs.22,68,000/- [(15,000 +
6,000) x 1/2 x 12 x 18]. Further, if a sum of Rs.40,000/- is added towards
Love and Affection, Rs.10,000/- towards Transportation, Rs.15,000/-
towards Funeral Expenses and Rs.20,000/- towards Loss of Estate, the total
compensation comes to Rs.23,53,000/-. Since we have held that the
deceased contributed 50% to the accident, the claimant would be entitled to
50% of the aforesaid sum, i.e., Rs.11,76,500/-, which is rounded of to
Rs.12,00,000/-.
9. In fine, the appeal is partly allowed, the award of the Tribunal is
modified granting a sum of Rs.12,00,000/- as compensation. The said
compensation will carry interest at the rate of 6% from the date of petition
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C.M.A.No.2877 of 2021
till the date of payment. It is stated that 50% of the compensation as
awarded by the Tribunal has already been deposited. Therefore, the
Insurance Company is directed to deposit the remaining amount if any
within a period eight weeks. On such deposit, the Tribunal will pay out the
sum of Rs.12,00,000/- with 6% interest from the date of petition till the date
of payment to the claimant and the remaining, if any, shall be paid over to
the Insurance Company. No costs. Consequently, connected miscellaneous
petition is closed.
(R.S.M.J.,) (S.S.K.J.,)
27.01.2023
Index : No
Speaking order: Yes
pvs
To
1. The Additional District Judge, Hosur/
Motor Accidents Claims Tribunal,
2. The Section Officer,
VR Section High Court, Madras.
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C.M.A.No.2877 of 2021
R.SUBRAMANIAN, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
pvs
C.M.A.No.2877 of 2021
27.01.2023
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