Madras High Court
M/S.National Insurance Company ... vs Periyammal on 10 March, 2023
C.M.A. (MD)No.632 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD)No.632 of 2021
and
C.M.P.(MD) No.6108 of 2021
M/s.National Insurance Company Ltd.,
rep., by its Divisional Manger,
Having Office at 120, Aruvi Block,
1st Floor, St., Paul's Complex,
Bharathiyar Salai, Cantonment,
Trichy 620 001. ...Appellant/ 2nd Respondent
Vs.
1.Periyammal
2.Malaikannau
3.Bose ... Respondents 1 to 3/Petitioners 1 to 3
4.P.Kannappan ... 4th Respondent/1st Respondent
PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the judgment and decree dated 08.06.2020
made in M.C.O.P.No.1314 of 2014 on the file of the Motor Accident Claims
Tribunal, Special District Judge to deal with MCOP cases, Trichirappallai.
For Appellant : Mr. A.S.Mathialagan
For Respondents : Mr.N.Sudhagar Nagaraj
(for R1 to R3)
No appearance (for R4)
1/9
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C.M.A. (MD)No.632 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been filed seeking to set aside the
award and decree made in M.C.O.P.No.1314 of 2014 on the file of the learned
Motor Accident Claims Tribunal, Special District Judge to deal with MCOP cases,
Trichirappallai.
2.For the sake of convenience, the parties are referred to herein, as per
their rank before the Trial Court.
3.The brief facts, leading to the filing of this Civil Miscellaneous
Appeal, are as follows:-
(i) The first petitioner is the wife of the deceased. The second and third
petitioners are his sons.
(ii) On 25.09.2013, at about 7.30 pm., the deceased Muthu Goundar was
traveling as a pillion rider in a Motor Cycle bearing Registration No.TN 55 Q
1158, which was rode by P.W.2 in very cautious manner from South-North
direction in Madurai-Trichy National Highways road. When they nearing
Karuppu Kovil in Valanadu Kaikatti, a JCB Earth Moving Equipment (MMV)
vehicle bearing Registration No.TN 45 AZ 0408 belonged to the first respondent
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C.M.A. (MD)No.632 of 2021
and insured with the second respondent came from the opposite direction on the
wrong lane in a rash and negligent manner and dashed against the two wheeler. As
a result of which, the deceased/pillion rider thrown out from the motor cycle and
sustained multiple injuries and he was admitted in a Government Hospital, Trichy,
immediately. Thereafter, he admitted in Atlas Hospital, Trichy, on the same day
and discharged on 07.10.2013. During his treatment, his left leg was operated,
again, he was admitted on 11.10.2013 and discharged on 14.10.2013. After his
discharge from the hospital, he died on 21.10.2013. The deceased was earning a
sum of Rs.10,000/- per month. Hence, the legal representatives/claimants filed
MCOP petition.
4. The second respondent/insurer before the tribunal has took a stand that
there was no fault on the part of the driver of the first respondent and only the
rider of the Motor Cycle loss his control towards his right side and dashed against
the JCB. Hence, he disputed the liability.
5. To substantiate the case before the tribunal on the side of the
petitioners/claimants, P.W.1 to P.W.3 were examined and Ex.P.1 to Ex.P.13 were
marked. On the side of the respondents, R.W.1 to R.W.3 were examined and
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C.M.A. (MD)No.632 of 2021
Ex.R1 and Ex.R2 were marked. Ex.X.1 to Ex.X.5 were marked on the side of the
third party.
6. After analysing the evidence available on record and based on the
submission of R.W.2/driver of the JCB, in which, he himself admitted that the
driver of the motor cycle came in a right direction and a crime has also been
registered against him, the tribunal found that originally the driver of the JCB
came in a wrong side and drove the vehicle in a rash and negligent manner and
fixed the following compensation with interest at the rate of 7.5% per annum.
Head Amount
Loss of Dependency Rs.5,04,000/-
Consortium to the 1st petitioner, the 40,000/-
wife of the deceased
Parental Consortium to the 80,000/-
petitioners 2 and 3, the sons of the
deceased Rs.40,000/- each
(40,000 x 2)
Medical expenses 96,632/-
Pain and suffering 25,000/-
Love and Affection 1,00,000/-
Loss of Estate 15,000/-
Funeral expenses 15,000/-
Transportation expenses 6,000/-
Total Rs.8,81,632/-
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C.M.A. (MD)No.632 of 2021
7. Against the compensation amount awarded by the tribunal, the
appellant/insurance company filed this appeal. He also averred that there is a
contributory negligent on the part of the rider of the two wheeler.
8. Heard the submissions made on either side and now, the point that
arises for consideration is, whether the tribunal was erred in fixing the negligence
on the part of the driver of the JCB.
9. A perusal of the evidence particularly P.W.2, who was the rider of the
motor cycle, and the evidence of the driver of the JCB, who himself admitted that
motor cycle came in right direction and infact motor cycle has hit on the right side
of the JCB, that itself clearly shows that the JCB came in a wrong side. Therefore,
the contention of the appellant that there was a contributory negligence also on the
part of the rider of the motor cycle cannot be countenanced, unless the insurance
company established the same.
10. The trial Court taking note of the fact that the deceased was an
agriculturist at the relevant point of time and aged about 63 years, awarded a sum
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C.M.A. (MD)No.632 of 2021
of Rs.9,000/- as income as per the judgment of this Court in Muniyammal and 5
other Vs., B.Suresh and another reported in 2015 (1) TN MAC 547 (DB),
wherein this Court has fixed the notional value as Rs.10,000/- per month for the
deceased having aged about 53 years. In view of the decision of the Hon'ble
Supreme Court in the case of National Insurance Company Limited Vs.,
Pranay Sethi and others reported in 2017 (2) TN MAC 609(SC), the tribunal has
not added any future prospects. In view of the principle laid down by the Hon'ble
Supreme Court in the case of Smt.Sarla Verma and Others Vs., Delhi Transport
Corporation and another reported in 2009(2) TN MAC 1 (SC), the tribunal
deducted 1/3 and applied 7 multiplier applicable to the age of 63. Accordingly, the
loss of dependency arrived at Rs.5,04,000/- and also awarded the first
petitioner Rs.40,000/- for consortium and parental consortium to the second and
third petitioners Rs.40,000/- each. Besides, the medical expenses and pain and
suffering also awarded.
11. This Court is of the view that admittedly the deceased was dead and
therefore, the question of awarding compensation under the head of pain and
suffering does not arise at all. However, taking note of the fact that the deceased
died on 21.10.2013 and he has been continuously under the treatment from the
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C.M.A. (MD)No.632 of 2021
date of accident except for the last one week before his death. In such view of the
matter, instead of awarding compensation under the head of pain and suffering, the
deceased was awarded a sum of Rs.25,000/- under the head of attended charges.
The tribunal has awarded a sum of Rs.1,00,000/- towards love and affection, with
regard to this, this Court is of the view that such amount cannot be awarded, since
the consortium has already been awarded to the petitioners. This Court do not find
any infirmity in the award passed by the tribunal in respect of other heads.
Accordingly, the award passed by the tribunal is confirmed less the amount of
Rs.1,00,000/- awarded under the head of love and affection and totally a sum of
Rs.7,81,632/- is the compensation, for which the petitioners are entitled with
accrued interest and costs from the date of petition. Out of the said amount, the
first petitioner/claimant is entitled to Rs.3,50,000/- together with proportionate
interest. The claimants 2 and 3 are entitled to Rs.2,15,816/- together with interest.
12. Accordingly, the award of the tribunal is modified from Rs.8,81,632/-
to Rs.7,81,632/- and the Civil Miscellaneous Appeal is allowed.
13.The appellant is directed to deposit the modified award amount of
Rs.7,81,632/- (Rupees Seven Lakhs Eighty One Thousand Six Hundred and Thirty
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C.M.A. (MD)No.632 of 2021
Two Only) as modified by this Court with accrued interest and costs at the first
instance to the credit of M.C.O.P.No.1314 of 2014, on the file of the Motor
Accident Claims Tribunal / Special District Judge to deal with MCOP cases,
Tiruchirappalli, within a period of one month from the date of receipt of copy of
this judgment, less the amount, if any already deposited. On such deposit, the first
petitioner/claimant is entitled to Rs.3,50,000/- together with proportionate interest.
The petitioners 2 and 3/claimants are entitled to Rs.2,15,816/- together with
interest, less the amount, if any already withdrawn, by making necessary
application before the Tribunal. No costs. Consequently, connected
miscellaneous petition is closed.
10.03.2023
Index : Yes/No
Internet : Yes/No
Rmk
To
1.The Motor Accident Claims Tribunal,
Special District Judge to deal with MCOP cases, Trichirappallai.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.632 of 2021
N.SATHISH KUMAR, J.
Rmk
C.M.A.(MD)No.632 of 2021
10.03.2023
https://www.mhc.tn.gov.in/judis
