Madras High Court

United India Insurance Co. Ltd vs Kandamani on 11 January, 2023

                                                                                C.M.A.No.1521 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 11.01.2023
                                                         CORAM
                                  THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
                                                C.M.A.No.1521 of 2018
                                                        and
                                                C.M.P No.12097 of 2018

                     United India Insurance Co. Ltd.,
                     Divisional Office – II (HUB)
                     104-A, Peramanur Main Road
                     Salem-7.                                                  ... Appellant

                                                            ..Vs..

                     1.Kandamani
                     2.T.Chandrasekaran                                        ... Respondents


                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, 1988, against the judgment and decree in MCOP No.428 of
                     2017, dated 07.12.2017 on the file of the Motor Accident Claims Tribunal / II
                     Additional District Judge, Salem.

                                    For Appellant           : Mr. I.Malar

                                    For Respondents         : No Appearance




                     1/9


https://www.mhc.tn.gov.in/judis
                                                                                     C.M.A.No.1521 of 2018



                                                          JUDGMENT

The appeal on hand is filed against the judgment and decree dated

07.12.2017 passed in MCOP No.428 of 2017, on the file of the Motor

Accident Claims Tribunal/II Additional District Judge, Salem.

2. The United India Insurance Company Limited is the appellant, who

filed this appeal questioning the quantum of compensation.

3. The learned counsel appearing on behalf of the appellant/Insurance

Company mainly contended that the quantum of compensation granted by the

Tribunal is exorbitant and the principles settled in the case of National

Insurance Company Ltd., v. Pranay Sethi & others reported in 2017(2)

TN MAC 609 (SC) by the Apex Court has not been followed by the

Tribunal. The compensation granted under various heads are on the higher

side and based on that, the appellant/Insurance Company has chosen to file

the present appeal. This apart, the age of the deceased at the time of the

death is 21 years. The monthly income of the deceased fixed by the Tribunal

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at Rs.15,000/- is improper. The claimant has not submitted any proof to

establish the income of the deceased. In the absence of any such acceptable

document, the Tribunal ought not to have fixed the monthly income of the

deceased as Rs.15,000/-. The Tribunal has awarded a sum of Rs.1,00,000/-

towards love and affection instead of Rs.40,000/-. As per the Pranay Sethy

case, the loss of love and affection of the dependent awarded by the Tribunal

is unsustainable. The Tribunal ought to have fixed 50% contributory

negligence on the part of the deceased, who had invited the accident on his

own fault. For the aforesaid reasons, the award is liable to be reduced.

4. Though notice was served on the 1st respondent/claimant, she has

not entered appearance before this Court.

5. The accident occurred on 12.11.2016 at 7.40 p.m., at Veppadai to

Komarapalayam Main Road, Ranganoor. The Pallipalayam Police Station

registered a case in Crime No.691 of 2016 under Sections 279 and 304(A) of

IPC. The deceased Tamilarasan @ Tamilarasu was proceeding in his two

wheeler bearing Registration No.TN 34 D 1488 at Veppadai to

https://www.mhc.tn.gov.in/judis C.M.A.No.1521 of 2018

Komarapalayam Main Road towards east to west direction. Due to the

accident, he sustained fatal injuries all over the body and died on the spot.

Thereafter, the claim petition was filed by the mother of the deceased. The

Tribunal adjudicated the issues with reference to the documents as well as the

evidences produced by the respective parties.

6. As far as the negligence is concerned, eventhough the learned

counsel for the appellant/Insurance company contended that the deceased

alone came in the wrong side and invited the accident, no oral and

documentary evidence was adduced on their side. However, as seen from the

records, at the time of accident, the deceased did not wear helmet. Therefore,

this Court is of the considered opinion that the Tribunal has rightly fixed the

contributory negligence on the part of the appellant/insurance company at

85% and 15% negligence on the part of the deceased. As far as the future

prospects is concerned, as per the Pranay Sethi case, the Tribunal is right in

granting 40% future prospects.

7. The learned counsel appearing on behalf of the appellant/Insurance

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Company relying on the document, viz., Ex.P2 postmortem certificate could

able to establish that the age of the deceased at the time of the accident was

21 years. Thus, the Tribunal has fixed the age of the deceased as 21 years at

the time of the accident. In the claim petition, it was stated that the deceased

was working as a Mason. However, there is no document to show that the

occupation and income of the deceased. But, the Tribunal has fixed the

monthly income as Rs.15,000/- as per the decision of the Hon'ble Supreme

Court. The accident is of the year 2016. Hence this Court is inclined to fix

Rs.14,000/- as monthly income which would be reasonable. The

compensation granted under the head of love and affection is not in

consonance with the principles laid down by the principal Apex Court of

India in the case of Pranay Sethi. In view of the fact that the Tribunal has

erroneously awarded the compensation under the head of love and affection,

the award of compensation is to be modified. The Tribunal has erroneously

failed to award any compensation towards loss of estate which the claimant is

legally entitled to as per the settled practice. Accordingly, a sum of

Rs.15,000/- is awarded as compensation to the claimant towards loss of

estate.

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8. Insofar as the other heads of the compensation are concerned, the

assessment of the compensation under the said heads by the Tribunal is a just

compensation and it does not call for any interference by this Court.

9. For the forgoing reasons, the compensation awarded by the Tribunal

under the impugned award is modified from Rs.20,34,050/- to

Rs.18,67,280/- in the following manner:

                                            Heads              Amount awarded     Award Amount
                                                                by the Tribunal   by this Court
                                                                                      (Rs.)
                                  Loss of Dependency           Rs.15,000/- +         Rs.14,000/- +
                                                               6,000x12x18x1/2             5,600 x
                                                               = 22,68,000/-          12x18x1/2=
                                                                                    Rs.21,16,800/-
                                  Loss of Love and Affection      1,00,000/-              40,000/-
                                  Funeral Expenses                  15,000/-              15,000/-
                                  Loss of Estate                   ...                    15,000/-
                                  Transport charges                 10,000/-              10,000/-
                                  Total                         23,93,000/-            21,96,800/-
                                  15% deduction                   3,58,950/-            3,29,520/-
                                  Total (After deducting       20,34,050/-             18,67,280/-
                                  15%)



                     Conclusion:




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                                                                           C.M.A.No.1521 of 2018

10. In the result, this appeal is partly allowed. The

appellant/Insurance Company is directed to deposit the modified

amount i.e, Rs.18,67,280/- along with interest at the rate of 7.5 % per

annum and costs, after deducting the amount already deposited, if any,

to the credit of MCOP.No.428 of 2017 within a period of four weeks

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

being made, the Tribunal is directed to transfer the award amount

along with accrued interest as per the order of this Court to the 1st

respondent/claimant through RTGS within a period of two weeks

thereafter. No costs. Consequently, connected Miscellaneous Petition

is closed.

11.01.2023