Madras High Court
The Oriental Insurance Company ... vs Kala on 7 November, 2023
C.M.A(MD)No.1099 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE P.B.BALAJI
C.M.A(MD)No.1099 of 2023
and
C.M.P(MD)No.15012 of 2023
The Oriental Insurance Company Ltd.,
Represented by its Branch Manager,
Near Canara Bank,
No.94-E,South Kaliayamman Kovil Street,
Pattukkottai Nagar,
Thanjavur District. ...Appellant/2nd Respondent
.vs.
1.Kala
2.Vellaithurai
3.Pavya
4.Divya ...Respondents 1 to 4/
Petitioners 1 to 4
5.Periyasamy ...5 Respondent /1st Respondent
th
6.A.Syed Alam ...6th Respondent/ 3rd Respondent
7.The Branch Manager,
IFFCO Tokiyo General
Insurance Company Ltd.,
No.82, Preetham Plaza 1st Floor,
Chandrakandhi Nagar,
Ponmeni, Madurai Nagar,
Madurai District. ...7th Respondent
(Cause title is amended by including R7
as per the order of this Court dated 18.10.2023)
1/9
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C.M.A(MD)No.1099 of 2023
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicles Act, 1988 against the award dated 15.12.2022 made in
M.C.O.P.No.264 of 2017 on the file of the learned Principal District
Judge, Sivagangai.
For Appellant :Mr.A.Ilango
For R1 to R3 :Mr.S.Muthumalai Raja
JUDGMENT
************
[Judgment of the Court was made by RMT.TEEKAA RAMAN.,J.]
This Civil Miscellaneous Appeal is directed againt the judgement
and award made in M.C.O.P.No.264 of 2017, dated 15.12.2022, on the
file of the Principal District Judge, Sivagangai.
2. Heard Mr.A.Ilango, learned counsel appearing for the appellant
and Mr.S.Muthumalai Raja, learned counsel appearing for the
respondents 1 to 3.
3. By consent of both sides, this Civil Miscellaneous Appeal itself
is taken up for final disposal.
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C.M.A(MD)No.1099 of 2023
4. The Insurance Company is the appellant herein. The appeal has
been preferred by the appellant challenging the negligence, liability and
quantum.
5. The respondents 1 to 4 are the legal representatives of the
deceased Saravanakumar, who was the bachelor and studying BCA
second year at the time of accident. The college has arranged for
educational tour and they were travelled in a NNL bus from Karaikudi to
Thanjavur. In the meantime, based on certain issues in the bus, the batch
of students were transferred from the NNL bus to two Maxi Cap vehicles.
The deceased Saravanakumar and other students were travelling in a
Maxi cap car bearing registration No.TN-49-AA-9204. The driver of the
Maxi cap car has driven the vehicle in a rash and negligent manner and
dashed behind the lorry bearing registration No.TN-28-AW-9091 parked
in the left side of the road. The Maxi-cap car was insured with the
appellant Insurance Company and the lorry was insured with the 7th
respondent herein.
6. Before the Tribunal, the appellant insurance compnay, who is
the insurer of the Maxicap car in which the deceased has travelled, has
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C.M.A(MD)No.1099 of 2023
taken a stand that due to sudden brake applied by the driver of the lorry
insured with the 7th respondent herein, the accident has taken place.
7. Per contra, the 7th respondent herein has filed a counter stating
that the lorry was parked on the left side of the road and the driver of the
Maxicap car has not observed the principles of road discipline and
dashed behind the parked lorry.
8. During trial, on behalf of the claimants, the father of the
deceased was examined as P.W.1 and the occurrence witness was
examined as P.W.2 and Ex.P1 to Ex.P25 were marked. On behalf of the
respondent, namely, IFCO Tokiya Insurance, one Lakshmanan was
examined as R.W.1 and the insurance policy of the lorry was marked as
Ex.R1. The appellant insurance company has not getting any oral and
documentary evidence.
9. On consideration of both oral and documentary evidence, the
tribunal has come to the conclusion that the very accident has taken place
due to the rash and negligent driving on the part of the driver of the
Maxicap car, in which the deceased was travelled and accordingly, held
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C.M.A(MD)No.1099 of 2023
that the owner of the vehicle and the insurance company are jointly and
severally liable to pay the compensation and awarded a compensation of
Rs.28,71,600/-.
10. The tribunal has fixed the notional of the deceased at
Rs.18,000/- per month. Aggrieved against the same, the insruance
company has preferred this appeal.
11. After perusing the evidence of P.W.2 and also the discussion
rendered by the Tribunal on the point of negligence on the part of the
driver of the Maxicap car, this Court finds that there is no irregularity or
illegality warranting interference in the findings of the tribunal.
12. With regard to the liability, it is seen from the documentary
evidence of Ex.P8 and Ex.P10 wherein we find that the driver of the
Maxicap vehicle is having a valid driving licence and the policy was
covered only 12 + 1, whereas, in the instant case, 15 persons were
travelled as per Ex.P1-FIR. It is seen from Ex.P3 Motor Vehicle
Inspector Report and also Ex.P6-charge-sheet, the permitted persons in
the Maxicap car is only 12+1. In the instant case, as evident from Ex.P1
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C.M.A(MD)No.1099 of 2023
totally 15 persons were travelled and hence, we find that only 2 persons
were injured and died and for the said two persons are duly covered
under Ex.P8 policy and hence, on the point of liability, we do not find
any error on the face of record, which cause for any interference.
13. On the point of quantum of compensation, we find that as per
age of the deceased, education qualification the tribunal has rightly
applied the multiplier as per the judgment in 2009(2) TN MAC 1
(SC) (Smt. Sarla Verma and Others Vs. Delhi Transport
corporation and another) and future prospects is also fixed as per
the judgment in 2017(2) TNMAC 609 (SC) [National Insurance
Co. Ltd., v. Pranay Sethi]. However, taking note of the fact that the
deceased is studying BCA second year and the accident is of the year
2017, we find that the notional income fixed by the tribunal is higher side
and therefore, this court is inclined to interfere with the same.
Accordingly, notional income is fixed at Rs.15,000/- as the deceased is
studying BCA second year.
Rs.15,000/- x 40% furture prospects = 6,000/-
Rs.15,000+6,000= 21,000 / 2 = 10,500/-
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C.M.A(MD)No.1099 of 2023
Rs.10,500 x 12= 1,26,000/- x 18 multiplier =22,68,000/-
The compensation awarded in all other heads are just and reasonable and
the same were confirmed. Accordingly, the Civil Miscellaneous Appeal
is partly allowed.
14.The award of the Tribunal is modified as follows:
S. Description Amount Amount Award
No. awarded by awarded by this confirmed or
Tribunal Court modified or
enhanced or
granted
1. Loss of income Rs.27,21,600 Rs.22,68,000 Reduced
2. Loss of funeral Rs.20,000 Rs.20,000 confirmed
expenses
3. Loss of parental Rs.80,000 Rs.80,000 confirmed
consortium
4. Loss of love Rs.40,000 Rs.40,000 confirmed
and affection
5. For Cloths Rs.5,000 Rs.5,000 confirmed
6. For Rs.5,000 Rs.5,000 confirmed
Transportation
Total Rs.28,71,600 Rs.24,18,000 reduced by
Rs.4,53,600
15.The Civil Miscellaneous Appeal is partly allowed reducing the
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C.M.A(MD)No.1099 of 2023
compensation from Rs.28,71,600/-to Rs.24,18,000/- 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 reduced
award amount, less the amount already deposited, if any, within a period
of four weeks from the date of receipt of a copy of this order. The
claimants are entitled to withdraw the reduced award amount along with
proportionate accrued interest and cost, less the amount already
withdrawn, if any, as per the apportionment made by the tribunal, by
filing necessary application before the tribunal. The Tribunal is directed
to refund the excess amount, if any, to the appellant / Insurance company
along with proportionate interest. No costs. Consequently, connected
miscellaneous petition is closed.
Index:Yes/No [T.K.R.,J.] [P.B.B.,J.]
Internet:Yes/No 07.11.2023
NCC:Yes/No
am
To
The Motor Accident Claims Tribunal,
Principal District Judge,
Sivagangai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.1099 of 2023
RMT.TEEKAA RAMAN,J.
AND
P.B.BALAJI,J.
am
JUDGMENT MADE IN
C.M.A(MD)No.1099 of 2023
07.11.2023
https://www.mhc.tn.gov.in/judis
