M/S.National Insurance Company ... vs Jeya
2023 Latest Caselaw 5512 Mad

    2023/MHC/2549




                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                           DATED: 06.06.2023

                                                  CORAM:

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                       C.M.A(MD)No.1240 of 2022
                                                 and
                                  C.M.P(MD)Nos.4197 and 12701 of 2022

                     M/s.National Insurance Company Limited,
                     through its Branch Manager Office,
                     19/B, S.R.Complex,
                     Rajamani Thottam,
                     Salem Bhavani Road,
                     Shankari                           :Appellant/Respondent No.2

                                           /vs/


                     1.Jeya

                     2.Minor Elakkiya

                     3.Minor Selvarani

                     (minor respondents 2 and 3 are represented by their mother and
                     guardian, the first respondent herein Jeya)

                     S.Esakkimuthu(died)

                     4.E.Mariammal

                     5.E.Arumugavadivu

                     6.E.Selvi

                     7.E.Santhakumari

                     8.E.Karuppasamy       :Respondents 1 to 8/Petitioners

                     9.V.Shanmugavalli     :Respondent No.9/Respondent No.1

                     1/11
https://www.mhc.tn.gov.in/judis
                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act against the Judgment and decree made in
                     M.C.O.P.No.298 of 2018, dated 18.08.2022, on the file of the Motor
                     Accidents Claims Tribunal/Special Sub Court, Tirunelveli.


                                       For Appellant         :Mrs.P.Malini

                                       For Respondents       :Mr.T.Selvakumaran
                                            1 to 8

                                       For Respondent-9      :Insufficient Address

                                                   JUDGMENT

*************

This Civil Miscellaneous Appeal has been filed challenging

the award passed by the Tribunal on the ground of liability and also

on quantum.

2.The parties are referred to herein as per their ranking

before the Tribunal.

3.The Tribunal has awarded the following compensation:

                     1.Loss of Dependency          -Rs.28,35,000/-
                     2.Loss of consortium to the wife
                                                  -Rs.44,000/-
                     3.Loss of Estate             -Rs.16,500/-
                     4.Funeral expenses            -Rs.16,500/-
                                                  --------------------
                                       total      -Rs.29,12,000/-
                                                  --------------------



https://www.mhc.tn.gov.in/judis

4.The brief facts leading to the filing of this appeal is as

follows:

The deceased Balasubramanian, aged about 41 years, on

23.08.2017 at about 23.45 hours, driving his Tata Ace vehicle

bearing Registration No. TN 52 F 4666 in Sathur NH 7 Eastern

side service Road, 200 metre south to Sathur Chek Post infront of

Raj Complex from north to south and at that time, a lorry bearing

Registration No. TN 72 AL 8329 belonging to the first respondent,

insured with the second respondent, driven by its driver ahead of

TATA Ace Vehicle in a rash and negligent manner in a high speed

and without observing the traffic rules of the road, suddenly turned

the lorry on the right side track. On seeing the same, the deceased

Balasubramanian applied the brake in order to avoid the accident

but the TATA Ace Vehcile dashed on the left rear side of the lorry.

As a result, the deceased Balasubramanian sustained grievious

injuries. Immediately he was taken to Government Hosptial, Sattur

for treatment and then to Tirunelveli Medical College Hospital for

further treatment and succumbed to injuries. He was earning a

sum of Rs.30,000/-. A crime was registered against the driver of

the offending vehicle.

5.It is the case of the second respondent Insurance Company

https://www.mhc.tn.gov.in/judis that only the deceased has allowed four persons to travel in the

goods vehicle and the entire accident is due to the negligent aspect

of the deceased Balasubramanian.

6.On the side of the Petitioners, P.W.1 and P.W.2 were

examined and Ex.P1 to ExP10 were marked.On the side of the

respondent, R.W.1 was examined and Ex.R1 and Ex.R2 were

marked.

7.On appreciation of both oral and documentary evidence,

the Tribunal found that only the driver of the offending lorry was

negligent in driving the lorry in the highway and awarded the

compensation as stated supra fixing the notional income of the

deceased at Rs.15,000/-p.m and by applying multiplier of 15.

Challenging the same the present appeal has been filed by the

Insurance Company.

8.The learned counsel for the appellant Insurance Company

mainly contended that the lorry was proceeding infront of the

TATA Ace vehicle, however, only the deceased Balasubramanian

drew the TATA Ace vehicle in a rash and negligent manner and

without observiing the traffic rules hit the left rear side of the

https://www.mhc.tn.gov.in/judis lorry. Therefore negligence cannot be attributed against the lorry

driver alone and according to her, the deceased suddenly came

from the left side to the service road and hit the rear side of the

lorry. That apart, without any income proof, the Tribunal has fixed

Rs.15,000/- as notional income of the deceased.Further contention

is that on the date of accident, the deceased had completed the age

of 40 years, as evident from Ex.P5-driving licence. Therefore the

Tribunal ought not to have added 40% towards furture prospects

and applied 15 multiplier. Hence prayed for dismissal of the claim

petition.

9.The learned counsel for the respondents submitted that the

lorry while going in the left side of the highway, suddenly come to

the left side of the road which was established on record.Therefore

the Tribunal finding that the driver of the lorry was the cause for

the accident cannot be countenanced.

10.As far as the age of the deceased is concerned, the

learned counsel for the respondents dees not dispute the same. As

per Ex.P5, he had completed the age of 40 years at the time of

accident. As far as the income fixed by the Tribunal is concerned,

the deceased is the owner cum driver of the Tata Ace vehicle and

https://www.mhc.tn.gov.in/judis fixing of Rs.15,000/- as notional income cannot be fould fault with.

He would further submit that the tribunal has not awarded any

amount towards loss of love and affection to the minor children

and mother of the deceased.

11.In the light of the above facts, the points that arose for

consideration in this appeal is as follows:

1.Whether the Tribunal is right in fixing the liability on the

driver of the offending vehicle?

2.Whether the quantum fixed by the Tribunal is reasonable

or it needs any modification?

12.The contention of the learned counsel for the appellant

Insurance Compnay is that the deceased only drove the vehicle in

a rash and negligent manner and suddenly turned to the left side

of the service road cannot be countenanced. The evidence of P.W.1

and P.W.2 clearly indicates that the driver of the offending vehicle

proceeding in a high speed in the left track, suddenly came to the

right side without any signal and without watching that any other

vehicle is coming or not and dashed against the vehicle of the

deceased. This fact was spoken to by P.W.2 and evidence disclose

https://www.mhc.tn.gov.in/judis the same and in the absence of any other evidence, the contention

that only the deceased drove his vehicle in a rash and negligent

manner and his vehicle come in the wrong side, cannot be

countenanced.

13.As far the point of income is concerned, the deceased

Balasubramaninan is the owner cum driver of the TATA Ace vehicle

and due to his death, the entire family collapsed and a person

owning a commercial vehicle and driving the same on his own, can

easily earn income of Rs.15,000/- p.m. In such view of the matter,

this Court is of the view that the tribunal fixing the notional

income at Rs.15,000/-p.m does not require any interference by this

Court.However, the age of the deceased on the date of accident is

more than 40 years which has been established as per Ex.P5

Driving licence. In such view of the matter , the Tribunal adding

40% towards future prospects is not in accordance with law and

the Tribunal ought to have added only 25% towards future

prospects and applied multiplier 14 instead of 15. Accordingly, if

Rs.15,000/- is taken as notional income and if 25% is added

towards future prospects it comes to Rs.15,000/-+Rs.3750/- =Rs.

18750/- if if one fourth of the monthly income is deducted towards

the personal expenditure of the deceased, the monthly income

https://www.mhc.tn.gov.in/judis comes to Rs.18750/- - Rs.4687 = Rs.14063/-p.m. Thus the total loss

of dependency comes to Rs.14063 x 14 x 12 =23,62,584/- rounded

of to Rs.23,63,000/-.The Tribunal has awarded a sum of Rs.44,000/-

towards loss of consortium to the first Petitioner/wife and no

amount is awarded to the 2 minor children and mother of the

deceased towards loss of love and affection and hence, this Court

awards a sum of Rs.40,000/- each to the two minor children and

mother of the deceased, totalling to Rs.1,20,000/-. Further the loss

of estate at Rs.16,500/- and for funeral expenses at Rs.16,500/-, as

ordered by the Tribunal, stands confirmed. and thus the total

compensation is arrived at as follows:

S.No Name of the Awarded by Awarded by Remarks heads the Tribunal this Court 1 For loss of Rs. Rs. enhanced dependency 28,35,000/- 23,63,000/-

2 Spousal Rs.44,000/- Rs.44,000/- same consortium to the first Petitioner/wife 3 For loss of estate Rs.16,500/- Rs.16,500/- same 4 For funeral Rs.16,500/- Rs.16,500/- same expenses

5. For loss of love ---- Rs. Newly and affection to 1,20,000/- awarded the two minor (Rs.40,000/-

                                  children     and                 each)
                                  mother of the
                                  deceased



https://www.mhc.tn.gov.in/judis
                      6             Total             Rs.           Rs.           Reduced
                                                      29,12,000/-   25,60,000/-

Thus the total compensation payable to the Petitioners is Rs.

25,60,000/- with interest at the rate of 7.5%p.a from the date of

claim petition till the date of realization.

14.In the result,the Civil Miscellaneous Appeal is allowed

reducing the compensation from Rs.29,12,000/- to Rs.25,60,000/-

with interest at the rate of 7.5%p.a., from the date of claim petition

till the date of realization. The appellant Insurance Company is

directed to deposit the above said modified award amount with

accrued interest and costs, less the award amount already

deposited,if any, to the credit of claim petition before the Tribunal,

within a period of eight weeks from the date of receipt of a copy of

this judgment. On such deposit being made, the first petitioner/wife

and second and third Petitioners/minor claimants are each entitled

to a sum of Rs.7 lakhs and the Petitioners 4 to 8 are each entitled

to equal share in the balance award amount, with proportionate

accrued interest and costs, less the award amount, if any already

withdrawn. The Petitioners 1 and 4 to 8 are permitted to withdraw

their share in the award amount as stated supra, by filing

necessary application before the Tribunal. The share of the minor

https://www.mhc.tn.gov.in/judis claimants/petitioners 2 and 3 are directed to be deposited in any

one of the nationalized Bank, in interest bearing fixed deposits,

initially for a period of three years, renewable thereafter, till the

minor attains majority. The first Petitioner/mother is permitted to

withdraw interest from the said deposits directly from the bank,

once in three months and utilize the same for the welfare of the

children. The Petitioners/claimants are directed to pay the excess

Court fee, if any, towards the excess award amount to the credit of

Registry. Only on such payment being made, Registry is directed to

draft the decree in the appeal. No costs. Consequently, connected

Miscellaneous Petitions are closed.

09.06.2023

Index:Yes/No Internet:Yes/No NCC:Yes/No vsn

To

1.The Motor Accidents Claims Tribunal, (Special Sub-Judge), Tiruneveli.

2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis N.SATHISH KUMAR.,J.

vsn

JUDGMENT MADE IN C.M.A(MD)No.1240 of 2022 and C.M.P(MD)Nos.4197 and 12701 of 2022

09.06.2023

https://www.mhc.tn.gov.in/judis