Madras High Court
National Insurance Company ... vs Berkmans Johnson on 12 June, 2023
C.M.A.(MD).No.200 of 2021
and
Cross Objection No.5 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.06.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD).No.200 of 2021
and
Cross Objection (MD).No.5 of 2022
and
C.M.P.(MD).No.1695 of 2021
C.M.A.(MD).No.200 of 2021
National Insurance Company Limited,
represented by its Divisional Manager,
with its Divisional Office at
Anguvilas Buildings,
North Car Street, Nagercoil,
Kanyakumari District. ... Appellant
Vs.
1.Berkmans Johnson
2.Mary Thamarai Selvi
3.Anusindia
4.P.Manoharan
5.National Insurance Company Limited,
represented by its Branch Manager with its
Branch Office at II Floor,
K.K.Buildings, Aristo Junction,
Thampanoor, PB No.407,
Thiruvananthapuram 695 014. ... Respondents
PRAYER: Civil Miscellaneous Appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988, against the fair and decreetal order dated 22.10.2018
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.200 of 2021
and
Cross Objection No.5 of 2022
made in M.C.O.P.No.12 of 2015 on the file of the Motor Accident Claims
Tribunal, Principal Sub Judge, Nagercoil.
For Appellant : Mr.S.Srinivasa Raghavan
For R1 to R3 : Mr.I.Robery Chandrakumar
Cross. Objection (MD).No.5 of 2022
1.Berkmans Johnson
2.Mary Thamarai Selvi
3.Anusindia ... Appellants
Vs.
1.National Insurance Company Limited,
represented by its Divisional Manager,
with its Divisional Office at
Anguvilas Buildings,
North Car Street, Nagercoil,
Kanyakumari District.
2.P.Manoharan
3.National Insurance Company Limited,
represented by its Branch Manager with its
Branch Office at II Floor,
K.K.Buildings, Aristo Junction,
Thampanoor, PB No.407,
Thiruvananthapuram 695 014. ... Respondents
PRAYER: The Cross Objection has been filed under Order 41 Rule 22 of
C.P.C., r/w. Section 173 of the Motor Vehicles Act, 1988, against the judgment
and decree dated 22.10.2018 made in M.C.O.P.No.12 of 2015 on the file of the
Motor Accident Claims Tribunal, Principal Sub Judge, Nagercoil.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.200 of 2021
and
Cross Objection No.5 of 2022
For Appellant : Mr.I.Robert Chandra Kumar
COMMON JUDGMENT
This appeal has been filed challenging the award passed by the Motor
Accident Claims Tribunal, Principal Sub Judge, Nagercoil in M.C.O.P.No.12 of
2015, dated 22.10.2018.
2. The main ground urged before this court is that the deceased is a
bachelor, at the time of accident and the Tribunal ought not to have followed
the formula applicable to married persons in the case on hand. The Cross
Objection has been filed by the claimants for enhancement of compensation.
3. The deceased is a bachelor, aged about 27 years and the claimants are
his father, mother and sister. The deceased has completed his Polytechnic
course and learnt Printing Technology in a printing press at Sivakasi for a
period of one year. Thereafter, he went to Abudhabi and worked in Abudhabi
Printing and Publishing Company from 10.11.2008 and earned 1400 dirhams
equivalent to Rs.23,800/- per month. He came to his native place on
18.11.2013, for celebrating Christmas and New Year. On 22.12.2013 at about
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C.M.A.(MD).No.200 of 2021
and
Cross Objection No.5 of 2022
20.45 hours, when the deceased was riding his motorcycle bearing Registration
No.TN 75 7020, Anjugramam – Vazhukkamparai Main Road, near Murugan
Petrol Bunk at Mylaudy Puthoor, the rider of the motor bike bearing
Registration No.TN 74 AD 6078 in a rash and negligent manner overtook the
motor bike of the deceased. As a result, the deceased lost his control and dashed
against the front wheel of the first respondent bike and fell down and sustained
injuries and succumbed to injuries on 24.12.2013. Hence, the petitioners have
filed the claim petition before the Tribunal seeking compensation. The
contention of the Insurance Company is that the accident was caused due to
negligent riding of the deceased and the income of the deceased also denied.
The third respondent / Insurance Company also took the same stand.
4. On the side of the petitioners, P.Ws.1 and 2 examined and Exs.P1 to
P18 were marked and on the side of the respondents, R.Ws.1 and 2 were
examined and Ex.R1 was marked.
5. The Tribunal, after considering the evidence of the witnesses and the
final report also filed against the first respondent, has come to the conclusion
that the first respondent rode the motorcycle in a rash and negligent manner,
which resulted in accident. The negligence aspect was not challenged in the
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.200 of 2021
and
Cross Objection No.5 of 2022
appeal and only the method of formula adopted by the Tribunal is challenged in
this appeal by the Insurance Company. Therefore, once the finding recorded on
the basis of the appreciation of evidence, it has not been challenged and the
same reached finality.
6. In such a view of the matter, now it has to be seen the other aspect. The
Cross Objection has been filed for enhancement of the compensation. The
Tribunal has fixed the notional income of the deceased at Rs.6,500/- per month.
The Tribunal has disbelieved Ex.P5/salary certificate and Ex.P16/receipt of
transfer of money, on the ground that no one has been examined to substantiate
those documents.
7. Heard the learned counsel for the appellant and the learned counsel
appearing for the respondents 1 to 3 and perused the materials available on
record.
8. In the light of the above submissions, now the point for consideration
in this appeal is whether the award amount passed by the Tribunal is just and
reasonable?
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C.M.A.(MD).No.200 of 2021
and
Cross Objection No.5 of 2022
9. Admittedly, the deceased was aged about 27 years. He was also
working in Abudhabi for some time is also not disputed. To establish the fact
that he has travelled to Abudhabi, Ex.P7/passport also filed. Though
Ex.P5/salary certificate filed to show that the deceased was paid the monthly
income of 1400 dirhams equivalent to Rs.23,800/- per month, the fact whether
the said salary has been regularly credited to his bank account, there is no
evidence available on record except Ex.P5/salary certificate.
10. Such being the position, the claimants take a specific stand as to the
nature of the income derived by the deceased and they have also filed such
documents to substantiate their claim. However, Ex.P16/receipt of transfer of
money, appears to be relating to 16.11.2013, which is one year prior to the
accident and except that, no other document has been filed. Therefore, in the
absence of proof to indicate the salary and the income, Exs.P5 and P16 alone
are not sufficient to come to the definite conclusion that the deceased was
earning a sum of Rs.23,800/- per month. However, the fact remains that the
deceased was aged about 27 years and he has also completed Polytechnic
course and Ex.P9/Polytechnic Mark Sheet also filed in this regard.
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C.M.A.(MD).No.200 of 2021
and
Cross Objection No.5 of 2022
11. Such being the position, even de hors the salary certificate,
considering the age and his education, he doing any other work, he would have
earned more than Rs.12,000/-. Hence, this Court has fixed the notional income
of the deceased at Rs.12,000/- per month. The deceased was aged about 27
years and the proper multiplier is '17' and added 40% towards future prospects
(Rs.12,000/- + Rs.4,800/- = Rs.16,800/-) and after deducting ½ share towards
personal expenses, the total monthly income comes to Rs.8,400/- (Rs.16,800/- -
Rs.8,400/-). Accordingly, the loss of dependency comes around Rs.17,13,600/-
(Rs.8,400/- x 17 x 12). That apart, the Tribunal has granted only Rs.40,000/-
towards loss of love and affection and the same is enhanced to Rs.1,20,000/-
for all the claimants and the amount awarded by the Tribunal under the other
heads is confirmed. Thus, the total compensation comes around Rs.18,63,600/-
in the following manner:
S. Description Modified Award Amount
No
1. For loss of dependency Rs.17,13,600/-
2. For loss of love and affection Rs.1,20,000/-
3. For loss of estate Rs.15,000/-
4. For funeral expenses Rs.15,000/-
Total Rs.18,63,600/-
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C.M.A.(MD).No.200 of 2021
and
Cross Objection No.5 of 2022
12. The above amount shall carry interest at the rate of 7.5% from the
date of petition till the date of realisation. The appellant/Insurance Company is
directed to deposit the entire award amount within a period of eight weeks from
the date of receipt of a copy of this order. On such deposit, the second
claimant/mother is entitled to a sum of Rs.10,00,000/- and the claimants 1 and
3/the father and sister are equally entitled to a sum of Rs.4,31,800/-.
13. In the result, the Civil Miscellaneous Appeal filed by the Insurance
Company is dismissed and the Cross Objection filed by the claimants is
allowed. No cots. Consequently, the connected Miscellaneous Petition is
closed.
12.06.2023
akv
To
1.The Motor Accident Claims Tribunal,
Principal Sub Judge,
Nagercoil.
2.The Record Keeper,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.200 of 2021
and
Cross Objection No.5 of 2022
N.SATHISH KUMAR,J.
akv
C.M.A.(MD).No.200 of 2021
and
Cross Objection (MD).No.5 of 2022
12.06.2023
https://www.mhc.tn.gov.in/judis
