Madras High Court
The Branch Manager vs Radha on 17 April, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
CMA(MD).No.608 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 03.04.2024
PRONOUNCED ON : 17.04.2024
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.608 of 2018
and
CMP(MD).No. 7076 of 2018
The Branch Manager
The Oriental Insurance Company Ltd.,
No.6, North Cotton Road
Thoothukudi 628 002 .....Appellant/2nd Respondent
Vs.
1.Radha
2.Minor V.Balakrishnan
3.Thiraviyakani
4.Chitraivel ...Respondents 1 to 4/Petitioners 1 to 4
5.Chitrai Ponsekar ...5th Respondent/1st Respondent .
(Minor 2nd respondent is represented
through his mother, guardian and
next friend, the first respondent herein)
.
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1/9
CMA(MD).No.608 of 2018
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988, to set aside the order of the Tribunal in MACT Cum I
Additional District Judge, Thoothukudi made in MCOP.No.59 of 2015 dated
02.02.2018 and allow the appeal with costs.
For Appellant : Mr.E.Chandrasekaran
For R1 to R4 : Mr.R.J.Karthick
For R5 : No appearance
JUDGMENT
The appeal has been filed by the Insurance Company challenging the
award passed by the Motor Accident Claims Tribunal, Thoothukudi in
MCOP.No.59 of 2015. The appeal has been filed challenging the liability,
negligence and quantum.
2.According to the claimants, when the deceased was travelling from
East-West, the offending tractor cum trailer coming from the opposite
direction, dashed against the two wheeler in which the deceased had
sustained grievous injuries and later passed away.
3.According to the Insurance Company, the tractor cum trailer was
travelling from East-West direction and it was parked on the southern most
side of the road. The deceased had driven the two wheeler in a rash and
negligent manner and dashed against the rear side of the trailer. The trailer
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has not been insured and therefore, they are not liable.
4.The respondents have marked the policy of the tractor cum trailer as
Exhibit R4. A perusal of the policy clearly indicates that both the tractor and
trailer have been insured. A sum of Rs.930/- has been paid as Trailer TP.
Therefore, the contention of the learned counsel for the appellant that the
trailer being not insured and they are not liable, is not legally sustainable and
the said argument has to be rejected.
5.The learned counsel for the appellant had further contended that the
two wheeler having dashed against the rear side of the parked tractor cum
trailer at about 7.30 a.m, the entire negligence should be attributed to the
rider of the two wheeler. When the deceased is the tort-feasor, the question of
payment of compensation by the Insurance Company of the trailer does not
arise. He relied upon Exhibit P7 rough sketch to contend that the accident has
taken place on the southern side of the road and the two wheeler which had
come from behind the tractor cum trailer had dashed against the rear side of
the trailer.
6.The learned counsel for the appellant had further relied upon the
Motor Vehicle Inspector's report of the tractor cum trailer and the two
wheeler which are marked as Exhibits P4 and P5 and contended that the rear
portion of the trailer alone has got dented and there is no damage to the front
portion of the tractor. Therefore, it is clear that the accident has taken place
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only due to the negligence on the part of the rider of the two wheeler.
7.A perusal of Exhibit P7 sketch indicates that though the trailer has
been parked on the southern side, it is not parked in the mud road but on the
road itself. It is not brought on record whether any parking lights were
blinking at the time of parking the vehicle. The tractor driver had parked the
said vehicle and gone to take a tea. Therefore, the entire negligence cannot be
attributed to the two wheeler rider.
8.The trial Court has not appreciated the said fact and has fixed the
entire liability upon the driver of the tractor. Therefore, the finding relating to
the negligence of the Tribunal is hereby set aside and the negligence is
apportioned as 50-50 between the tractor driver and the deceased two wheeler
rider.
9.The learned counsel appearing for the appellant had further
questioned the quantum of compensation on the ground that without any
proof, the trial Court has fixed the notional income at Rs.6500/-. He had
further contended that a sum of Rs.1,00,000/- ought not to have been awarded
for loss of love and affection. The Tribunal has further awarded a sum of Rs.
50,000/- towards loss of consortium to the wife of the deceased person.
Hence, the amount awarded under these heads have to be reduced.
10.Per contra, the learned counsel for the claimants have contended
that the Tribunal had fixed a sum of Rs.6500/- not only towards notional
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monthly income, but also towards the future prospects. However, the Court
has not correctly fixed the notional income. As per the judgement of the
Hon'ble Supreme Court reported in 2014 (2) SCC 735 (Syed Sadiq Etc vs
Divisional Manager,United India Insurance Companay Ltd.,), the Hon'ble
Supreme Court has fixed the notional income at Rs.6500/- p.m for an
accident that had taken place in the year 2008. Therefore, for an the accident
that was taken place in the year 2012, the Tribunal ought to have taken the
notional income at Rs.12000/- per month. He had further pointed out that
there is no error on the part of the Tribunal in awarding loss of love and
affection at Rs.25,000/- for each one of the claimants. He further pointed out
that for loss of estate, no amount has been awarded. For Transport Expenses
merely a sum of Rs.5000/- has been awarded. Hence, he sought to enhance
the compensation.
11.The Hon'ble Supreme Court in a judgement reported in 2014 (2)
SCC 735 (Syed Sadiq Etc vs Divisional Manager,United India Insurance
Companay Ltd.,) has fixed the notional monthly income at Rs.6500/- for an
accident that had taken place in the year 2000. Hence, this Court is of the
opinion that the notional monthly income for an accident that had taken place
in the year 2012 could be fixed at Rs.8000/-. Since there are four dependents,
1/4th could be deducted towards personal expenses. Therefore, the notional
monthly income would be at Rs.6000/-. As per the judgment of the Hon'ble
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Supreme Court in Pranay Sethi's case reported in 2017 (16) SCC 680
(National Insurance Co. Ltd vs Pranay Sethi), 40% could be added toward
future prospects for a self employed who is below the age of 40 years. If 40%
is added, the monthly income could be fixed at Rs.8400/-. The deceased
being aged 32 years, the correct multiplier is 16. Therefore, the loss of
income could be calculated as Rs.8400/-x12x16 is Rs.16,12,800/-. The loss of
consortium for each one of the claimants could be awarded at Rs.40,000/-.
12.In view of the above said deliberation, this Court is inclined to
modify the award of the Tribunal as follows:
Sl. Head Award of the Award of the
No. Tribunal
High Court
1. Loss of Income Rs. 9,36,000.00 Rs.16,12,800.00
2. Loss of love and Rs. 1,00,000.00 Rs. 1,60,000.00
affection
3. Loss of consortium Rs. 50,000.00 ---
4. Transport Charges Rs. 5,000.00 Rs. 10,000.00
5. Funeral Expenses Rs. 15,000.00 Rs. 15,000.00
6. Loss of estate --- Rs. 15,000.00
Total Rs.11,06,000.00 Rs. 18,12,800.00
After deducting 50% towards Contributory Negligence, the modified
award amount comes to Rs.9,06,400/-.
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13.In view of the above said discussion, the award of the Tribunal is
modified and reduced from Rs.11,06,000/- to Rs.9,06,400/-. The
appellant/Insurance Company is directed to deposit the modified award
amount with proportionate interest and costs, less the amount already
deposited, if any, to the credit of the claim petition, within a period of six
weeks from the date of receipt of a copy of this judgment.
14.On such deposit, the first claimant shall be entitled to Rs.4,00,000/-.
The second claimant shall be entitled to Rs.1,50,000/-. The share of the
second claimant/minor shall be deposited in a Nationalised Bank in Fixed
Deposit till he attains majority. The interest accruing on such deposit is
permitted to be withdrawn by the 1st respondent/mother of minor, once in
three months directly from the bank. After attaining majority, it is for the
minor claimant to withdraw his share by making necessary application before
the Tribunal discharging guardianship. The third and fourth claimants shall be
equally entitled to Rs.1,78,200/- each with interest at the rate of 7.5 % per
annum. The excess amount, if any, deposited by the appellant/Insurance
Company shall be refunded along with accrued interest. In other respects, the
award of the Tribunal stands confirmed.
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15.In the result, this Civil Miscellaneous Appeal is allowed to the
extent as stated above. No costs. Consequently, connected miscellaneous
petition is closed.
17.04.2024
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
mas
To
1. The Motor Accident Claims Tribunal
/I Additional District Judge, Thoothukudi
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgement made in
and
17.04.2024
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