Madras High Court

The Branch Manager vs Bagawathi on 9 August, 2024

                                                                             C.M.A.(MD)No.866 of 2024

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     Dated: 09.08.2024
                                                         CORAM:
                                    THE HON'BLE MR.JUSTICE SUNDER MOHAN
                                              C.M.A.(MD)No.866 of 2024
                                                        and
                                              C.M.P(MD) No.9352 of 2024


                    The Branch Manager
                    United India Insurance Company Ltd.,
                    D.No.1/45-B6, 2nd Floor, JPC Building,
                    Colachal Road
                    Thingal Sandhai,
                    Kanyakumair                                        ..Appellant/2nd Respondent

                                                        Vs.
                    1. Bagawathi
                    2. Raja Ananthapadmanathan
                    3. Bama
                    4. Anushiya                ..Respondents 1 to 4/claim petitioners
                    5. Navaneethakrishnan          ...5th Respondent/1st Respondent

                    Prayer : This Civil Miscellaneous Appeal filed under Section 173 of
                    the Motor Vehicles Act, 1988 to set aside the award dated
                    08.09.2023 passed in MCOP No.2169 of 2019 on the file of the
                    Motor         Accident   Claims    Tribunal/III   Additional   District   Judge,
                    Tirunelveli.


                                     For Appellant      : Mr.M.Arjun Varman
                                     For R1 to R4       : Mr.T.Lenin Kumar




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                                                                       C.M.A.(MD)No.866 of 2024

                                                   JUDGMENT

The insant appeal has been preferred challeing the finding on

negligence and the quantum of compensation awarded to the

respondents.

2. The respondents 1 to 4 had filed the claim petition stating

that on 26.06.2019, while the deceased was riding a two wheeler, in

which, P.W.2 travelled as a pillion rider, the car owned by the sixth

respondent, insured with the appellant herein, came in a rash and

negligent manner and caused the accident, as a result of which, the

deceased sustained fatal injuries.

3. The sixth respondent who is the owner of the car remained

exparte before the Tribunal.

4. The appellant who was shown as the second respondent

before the Tribunal, filed a counter stating that the driver of the car

insured with them did not have valid licence; that the accident took

place due to the negligence of the driver of the car and that the

deceased, in any case, is liable for contributory negligence for not

wearing helmet and therefore, sought for dismissal of the claim

petition.

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5. The claimants examined three witnesses on their side as

P.W.1 to P.W.3 and marked documents Exs.P.1 to 13. The appellant

examined R.W.1 and marked documents Exs.R.1 to R5.

6. The Tribunal, after taking into consideration the oral and

documentary evidence, held that the driver of the offending vehicle

was guilty of rash and negligent driving and therefore, the appellant

was liable to pay the compensation. The Tribunal also held that the

driver did not possess valid licence and hence, directed the

appellant to pay and recover the compensation from the fifth

respondent herein.

7. The learned counsel appearing for the appellant would

contend that the Tribunal had taken into consideration the pension

drawn by the deceased at the time of his death while computing the

loss of income without deducting the family pension received by the

first claimant; that the Tribunal erred in not fixing contributory

negligence on the deceased, as they had established before the

Tribunal that the claimants, namely respondents 3 and 4 are not

dependents and hence, the Tribunal ought to have deducted 1/3

income towards personal expenses instead of ¼ and hence, prayed

for modification of the award of the Tribunal.

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8. The learned counsel appearing for the respondents, per

contra submitted that though the appellant pleaded that the

deceased did not wear helmet, there is no evidence to substantiate

the same; that the income taken into account by the Tribunal namely

the pension drawn by the deceased is in accordance with law; and

that the Hon’ble Division Bench of this Court in CMA No.1713 of

2020 dated 15.03.2024 had held that the family pension should not

be deducted while computing income and therefore, the award of

the Tribunal is just and reasonable and no interference is called for.

9. This Court has carefully considered the rival submissions.

10. The points for determination in the instant appeal are as

follows:

i) Whether the Tribunal was right in fixing liability on the

driver of the offending vehicle and directing the appellant to pay and

recover the compensation amount ?

ii) Whether the compensation awarded by the Tribunal is just

and reasonable?

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11. As regards the first question, the main submission of the

learned counsel for the appellant is that though they have stated in

the counter that the deceased did not wear helmet and the nature of

injuries reflected in the post mortem certificate suggests that the

deceased sustained head injuries, the eye witnesses did not state

that the deceased wore a helmet at the time of the accident. It is a

fact that none of the witnesses on the side of the claimants have

specifically stated that the deceased was wearing a helmet at the

time of the accident. The post mortem certificate also suggests that

the deceased sustained head injuries. However, this Court finds that

the appellant had not examined any independent witnesses to

establish the fact asserted by them. Under such circumstances, on

the basis of available evidence, this Court cannot presume that the

deceased did not wear a helmet. The evidence of witnesses P.W.1 and

P.W.2 suggests that the accident took place due to the rash and

negligent driving of the driver of the offending vehicle and therefore,

this Court is of the view that the claimants have established the said

fact.

12. The appellant had marked Ex.R.4 to show that the driver of

the offending vehicle did not posses a valid licence. Therefore, the

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Tribunal based on the said document had held that the fifth

respondent had violated the policy condition and directed the

appellant to pay and recover the same from the fifth respondent

herein. This Court finds no infirmity in the said finding.Point No.1 is

answered accordingly.

13. As regards the quantum, this Court finds that the Tribunal

has taken into consideration the pension drawn by the deceased at

the time of his death to compute the compensation under head of

loss of income, even though the first claimant is receiving family

pension due to the death of the deceased. The Hon’ble Division

Bench of this Court in CMA(MD) No. 1713 of 2020 dated

15.03.2021 in the case of Bajal Allianz General Insurance Co

Ltd, Salem .vs. Venkatesh Ramanathan and others has held as

follows:

“9.The facts in the case on hand are completely different.

Here a pensioner had died. He was getting a pension of Rs.

27,413/- that was paid to him as a pensioner therefore, on his

death, the family losses that amount, which amounts to loss of

dependency. The Hon'ble Supreme Court has also pointed out

that the family pension drawn by the wife cannot be deducted

while computing the loss of dependency for the death of the

husband. This also justifies our conclusions that the pension

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drawn by the deceased can form the basis for determination of

compensation for loss of dependency “.

14. The above observation would make it clear that even if

family pension is received, it cannot be deducted and hence the

method adopted by the Tribunal for computing loss of income is in

accordance with law. The compensation under other heads namely

loss of estate, funeral expenses, transport expenses are in

accordance with law.

15. It is also seen that compensation under the head loss of

consortium was awarded at Rs.40,000/- for all the claimants put

together. The deceased was survived with wife and three children.

Each of them is entitled to Rs.40,000/- and hence, it is enhanced to

Rs.1,60,000/-. Though the deceased was survived by wife and three

children, the children were aged about 45 years and were not

dependents. Therefore, 1/3 of his income has to be deducted towards

his personal expenses instead of ¼ deducted by the Tribunal.

Therefore, the compensation under loss of income has to be

calculated as 3,80,988/- X 5 X 2/3=12,69,960/-

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16. In view of the same, the award passed by the Tribunal is

modified as follows:

                          S.No        Description        Amount      Amount      Award
                                                       awarded by awarded by confirmed
                                                       the Tribunal this Court     or
                                                           (Rs.)       (Rs.)   enhanced
                                                                               or granted
                             1    Loss of annual        14,28,705/- 12,69,960/-    Reduced
                                  income
                             2    Loss of Estate           10,000/-    10,000/- Confirmed


                             3    Funeral Expenses         15,000/-    15,000/- Confirmed
                             4    Transport Expenses       10,000/-    10,000/- Confirmed
                             5    Loss of consortium       40,000/-   1,60,000/- Enhanced
                                  Total                15,03,705/- 14,64,960/-     Reduced

17. The appellant is directed to deposit the aforesaid modified

amount of Rs.14,64,960/- together with interest at 7.5% per annum

from 30.10.2019 till the date of realization, less the amount already

deposited, if any, within a period of eight weeks from the date of

receipt of a copy of this order.

18. On such deposit, the respondents 1 to 4/claimants are

permitted to withdraw the compensation, interest and costs, in the

same proportion ordered by the Tribunal, less the amount already

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withdrawn, if any, by filing appropriate application before the

Tribunal.

19. In the result, this Civil Miscellaneous Appeal is partly