M/S.National Insurance Co.Ltd vs Sharmila
2024 Latest Caselaw 15988 Mad

Citation : 2024 Latest Caselaw 15988 Mad
Judgement Date : 19 August, 2024

Madras High Court

M/S.National Insurance Co.Ltd vs Sharmila on 19 August, 2024

                                                                    C.M.A.(MD) No.595 of 2024

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 19.08.2024

                                                    CORAM

                                  THE HON'BLE MR.JUSTICE SUNDER MOHAN

                                           C.M.A.(MD) No.595 of 2024
                                                    and
                                           C.M.P(MD)No.7556 of 2024


                    M/s.National Insurance Co.Ltd
                    Through its Branch Manager.                           ... Appellant

                                                      Vs.

                    1.Sharmila,
                    2.Aashika,
                    3.Mari selvan,
                    4.The Zonal Officer,
                    Indian Bank,
                    1/17 GRR Building,
                    New Bus Stand,
                    STC Road,
                    Perumalpuram,
                    Tirunelveli.                                          ... Respondents


                    Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                    Vehicles Act, 1988 to set aside the judgment and decree dated 13.04.2023
                    passed in M.C.O.P.No.36 of 2021 on the file of MACT/Principal
                    Subordinate Court, Nagercoil.




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https://www.mhc.tn.gov.in/judis
                    Page No. 1 of 8
                                                                          C.M.A.(MD) No.595 of 2024

                                    For Appellant            : Ms.P.Malini

                                    For Respondents          : Mr.R.Ponkarthikeyan for R1 & R2
                                                               R3- Ex parte
                                                               Ms.C.Karthika for R4

                                                    JUDGMENT

The instant Civil Miscellaneous Appeal has been filed by the

Insurance Company against the award, dated 13.04.2023 passed in

M.C.O.P.No.36 of 2021, on the file of MACT/Principal Subordinate

Court, Nagercoil.

2. The respondents 1 and 2 filed a claim petition stating that when

the deceased was riding his two wheeler on 13.01.2020 at about 8.00 a.m,

a car insured with the appellant came in the opposite direction in a rash

and negligent manner and caused head on collision, as a result of which,

the deceased sustained fatal injuries. The owner of the vehicle/the third

respondent herein remained ex parte before the Tribunal.

3. The appellant filed a counter stating that the accident took place

only due to the negligence of the deceased; that he did not wear helmet

and that in any case, the compensation claimed was excessive.

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4. Before the Tribunal, the respondents 1 and 2/claimants examined

three witnesses as P.W.1 to P.W.3 and marked Exs.P1 to P13. The

appellant neither examined any witness nor marked any document.

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

documentary evidence, held that the accident took place only due to the

rash and negligent driving of the insured vehicle and determined the

compensation at Rs.20,46,000/-.

6. The learned counsel for the appellant submitted that the deceased

suffered head injuries, which reveals that the deceased did not wear

helmet at the time of accident. Therefore, the Tribunal ought to have fixed

the contributory negligence on the deceased and that in any case, the

notional income fixed by the Tribunal was excessive.

7. The learned counsel for the respondents 1 and 2/claimants, per

contra, submitted that the appellant did not examine any witness to prove

the negligence on the side of the deceased and that the notional income

fixed by the Tribunal is just and reasonable and prayed for dismissal of

the appeal.

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8. The points for consideration in the instant appeal are as follows:

‘a.Whether the deceased is liable for contributory negligence?

b.Whether the compensation awarded by the Tribunal is just and

reasonable?’

9. As regards the first question, it is seen that the appellant had not

examined any witnesses. Merely because there are head injuries, it cannot

be inferred that the deceased did not wear helmet and the contributory

negligence cannot be presumed. Further, it is seen from the evidence that

the claimants had examined P.W.2, who had witnessed the accident and

had marked Ex.P9-the Final Report filed by the Police, Ex.P3-Rough

Sketch, which would show that the accident took place only due to the

negligence of the driver of the insured vehicle. Therefore, the finding of

the Tribunal holding that the driver of the insured vehicle found guilty of

negligence cannot be faulted. The point No.1 is answered accordingly.

10. As regards the quantum of compensation, this Court finds that

though the claimants marked Ex.P8-Salary Certificate of the deceased and

the Tribunal disbelieved the same, since there are no other

contemporaneous records to show that the deceased was earning Rs.

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34,000/- per month at the relevant point of time. However, the Tribunal

had fixed the notional income at Rs.20,000/-. This Court finds that the

claimants had marked Ex.P10-Driving Licence of the deceased to show

that the deceased had a licence to drive heavy duty vehicles. The

claimants have also established that the deceased was employed as a

Driver and hence, the avocation has been proved by the claimants.

However, in the absence of any proof of income, this Court is of the view

that considering the age of the deceased, his avocation at the time of death

and the documents relied upon by the claimants, the notional income can

be fixed at Rs.18,000/-. The deceased was aged 54 years at the time of

death. Hence, 10% has to be added towards the future prospects. The

multiplier applicable is ‘11’. Since the deceased had two dependents, 1/3rd

of the monthly income has to be deducted towards personal expenses.

Therefore, the award of compensation under the head of loss of income

has to be Rs.19,800/- x 12 x 11 x 2/3 = Rs.17,42,400/-.

11. The award of compensation under other heads is just and

reasonable and hence, no interference is called for. Therefore, the award

of the Tribunal is modified as follows:

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Sl. Description Amount Amount Award No awarded by the awarded by confirmed, Tribunal this Court enhanced or granted 1 Loss of Dependency Rs.19,36,000/- Rs.17,42,400/- Reduced 2 Funeral Expenses Rs. 15,000/- Rs. 15,000/- Confirmed 3 Loss of Estate Rs. 15,000/- Rs. 15,000/- Confirmed 4 Loss of Consortium for Rs. 40,000/- Rs. 40,000/- Confirmed the first respondent herein 5 Loss of Love and Rs. 40,000/- Rs. 40,000/- Confirmed Affection for the second respondent herein Total Rs.20,46,000/- Rs.18,52,400/- Reduced by Rs.1,93,600/-

12. The appellant-Insurance Company shall deposit the modified

compensation amount of Rs.18,52,400/- (Rupees Eighteen Lakhs Fifty

Two Thousand and Four Hundred only) with the interest @ 7.5% p.a

from the date of the claim petition till the date of realization (excluding

the period of dismissal for default if any) and costs, less the amount

already deposited, if any, within a period of six (6) weeks from the date of

receipt of a copy of this order.

13. On such deposit, the respondents 1 and 2 /claimants are entitled

to withdraw the aforesaid amount together with proportionate interest and

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costs, less the amount already withdrawn, if any, as per the apportionment

made by the Tribunal, by filing appropriate application before the