Madras High Court

Ashok Kumar vs Kumarasamy on 3 January, 2024

                                                                                      C.M.A. No. 2276 of 2021


                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 03.01.2024

                                                            CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                    C.M.A. No. 2276 of 2021

                     1.           Ashok Kumar
                     2.           Sivakumar                       ... Appellants / Petitioners

                                                               Vs.
                     1.           Kumarasamy

                     2.           M/s.Reliance General Insurance Co. Ltd.,
                                  Ami Middown, 43 B, Sri Abirami Tower,
                                  Cowil Brown Road,
                                  R.S.Puram,
                                  Coimbatore- 641 002                 ... Respondents / Respondents


                                  Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
                     Act, 1988 against the Judgment and decree dated 30.01.2020 passed in
                     M.C.O.P. No.495 of 2017 on the file of the Motor Accident Claims Tribunal
                     (V Additional District Court), Coimbatore, in so far as against the disallowed
                     portion of the claim, by enhancing the compensation payable to the
                     appellants.


                                        For Appellants    : Mr.S.T.Bharath Gowtham
                                        For R1            : M/s.J.Jayan
                                        For R2            : M/s.C.Bhuvanasundarai
                                                           JUDGMENT

https://www.mhc.tn.gov.in/judis

This Civil Miscellaneous appeal has been filed by the claimants

challenging the deduction of 1/3rd made by the Tribunal as the compensation

quantified is awarded in M.C.O.P. No.495 of 2017, dated 30.01.2020 on the

file of the Motor Accident Claims Tribunal, V Additional District Court,

Coimbatore.

2. For the sake of convenience, the parties are referred to

hereunder according to their litigative status and ranking before the

Tribunal.

3. The claimants herein are the sons of the deceased. While the

deceased was travelling with her husband as a pillion rider in a two-wheeler

bearing Registration No.TN 38 BZ 2452 on 23.08.2016 at about 7.15 a.m.,

near Thamaraikuram Mariappan Wigh Bridge on Coimbatore to Pollachi

National Highways, the two wheeler met with an accident and she has

sustained grievous injuries on her head and face and succumbed to the

injuries. A criminal case was also registered against the rider of the two-

wheeler i.e., husband of the deceased in Crime No.332 of 2016 by the

Kinathikadavu Police Station.

https://www.mhc.tn.gov.in/judis

4. The Tribunal based on the evidences placed on record has

held that the first respondent who is the husband of the deceased and since

he is also entitled for 1/3rd of compensation as one of the legal heirs of the

deceased, the Tribunal has chosen to deduct 1/3rd of compensation amount

quantified and granted only 2/3rd to the claimants herein.

5. It is true that the first respondent who is the husband of the

deceased himself is a tortfeasor and he is not entitled to claim compensation

however that is not a ground to deduct his share from the compensation

quantified by the Tribunal. Since the claimants themselves are the

dependents and they are entitled to get entire compensation even in the

absence of husband of the deceased.

6. The learned counsel or the Insurance Company has submitted

that the deceased had died since she was not wearing a head gear to cover

herself from the injuries. If she had a head gear, she could not have died in

this case. The learned counsel further submitted that the income claimed by

the claimants is Rs.10,000/- per month whereas, the Tribunal has fixed the

notional income of the deceased as Rs.12,800/- by following the Division

https://www.mhc.tn.gov.in/judis

Bench Judgment of this Court in Andal and others vs. The New India

Insurance Company Limited [2019 (1)TN MAC 54 DB] for fixing the

notional income based on daily wages the table for fixing the wage based on

inflation index, as on the date of the accident, i.e., 2016, the income for the

year 2015-2016 [Rs.6500/- x 254 / 129 = Rs.12,798/-. @ Rs.12,800/- per

month.

7. The Tribunal while awarding compensation has to award “just

compensation” and even if the claimants are made lesser claim if they are

entitled for larger amount than the claim amount if the quantum quantified

falls within the definition of “Just Compensation” (Refer Judgment Laxman

vs. Divisional Manager, Oritl Insurance Company Ltd., and Others

[MANU/SC/1423/2011 and Nagappa vs. Gurudayal Singh and Others

[2003 (2) SCC 274] and Sidram vs. The Divisional Manager,United India

Insurance Company Ltd., and Others [2023 (3) SCC 439]). In this case by

adopting Division Bench Judgment of this Court, the Tribunal fixed the

notional income of the house wife, she is aged about 47 years and having

two children and she was a homemaker. Under the said circumstances, the

notional income fixed by the Tribunal is proper and the same is hereby

confirmed. The objection with regard to fixing the notional income for the

https://www.mhc.tn.gov.in/judis

deceased raised by the Insurance Company is hereby rejected.

8. However as stated by the learned counsel for the Insurance

Company that on scrutiny of the Medical Report and Post-mortem

Certificate and other connected records which shows that including the Post-

mortem Certificate - Ex.P8 and the injuries mentioned in the claim petition

shows that the deceased was suffered head injury and also on her face which

resulted in causing instantaneous death of the deceased. Under the said

circumstances, as held by this Court in The Branch Manager, Oriental

Insurance Company Ltd., vs. Indirani and 5 others [C.M.A(MD).Nos.987

& 988 of 2014, dated 13.02.2017] and R.Mallika and 2 others vs. A. Babu

and 4 others [C.M.A.No.3235 of 2014, dated 08.06.2015]. 20% of income

has to be deducted for non wearing of helmet, on the ground of contributory

negligence.

9. The Tribunal has rightly followed the dictum as laid down in

National Insurance Co. Ltd., vs. Pranay Sethi and other reported in

[2017(2) TN MAC 609 (SC): 2017 (16) SCC 680] and fixed 25% as future

prospectus and as per the Apex Court Judgment in Sarla Verma and others

Vs. Delhi Transport Corporation and others [2009 ACJ 1298 SC : 2009

(6) SCC 121], the multiplier is fixed as '13' by considering the age of the

https://www.mhc.tn.gov.in/judis

deceased at the time of the accident. Since the husband eventhough is not

entitled to claim compensation in this case, admittedly he is to be treated as

legal heir and dependants. I agree that tortfeasor is not entitled for

compensation, but the dependants and legal heirship of husband could not

be denied for calculating the compensation. The wife's income is always

been shared with her husband, and the deduction for her personal and living

expenses has to be calculated by including the dependancy of her husband.

Hence, deduction made herein for the personal and living expenses to be

extend of 1/3rd is valid. However, no spouses consortium could be awarded

in this case. Accordingly the loss of income calculated as follows: Loss of

income : [12800 + 3200 (25% of 12800) = 16000 and after deducting 1/3 rd

as personal and living expenses (16000-5333) = 10667 x 12 x 13 =

Rs.16,64,052/-. The Tribunal has awarded a sum of Rs.1,20,000/- for the

head loss of consortium including husband is not valid. Compensation of

Rs.80,000/- is award for loss of consortium. As far as the other conventional

heads such as funeral expenses and loss of estate are concerned, the same

are reasonable and the same are hereby confirmed. The compensation

quantified shall be shared between the claimants equally.

10. Accordingly, the Award passed by the Tribunal under various

https://www.mhc.tn.gov.in/judis

heads are hereby modified as follows:

                           S.           Description         Amount            Amount           Award
                           No                              awarded by       awarded by      confirmed or
                                                            Tribunal         this Court     enhanced or
                                                              (Rs)              (Rs)          reduced
                           1. Loss of dependency          Rs.16,64,000/- Rs.16,64,052/-       Enhanced
                           2. Loss of estate               Rs.15,000/-      Rs.15,000/-       Confirmed
                           3. Funeral expenses               Rs.15,000/-      Rs.15,000/-     Confirmed
                           4. Loss of consortium          Rs.1,20,000/-     Rs.80,000/-        Reduced
                                  Total Compensation     Rs.18,14,000/- Rs.17,74,052/ Reduced by
                                  quantified                                  -       Rs.3,35,800/-
                                  After deducting 20%                      Rs.14,19,242/
                                  for contributory                               -
                                  negligence

11. In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation awarded by the Tribunal at Rs.18,14,000/- is hereby

reduced to Rs.14,19,242/- [Rupees Fourteen Lakhs Nineteen Thousand Two

Hundred and Forty Two only] along with interest at the rate of 7.5% per

annum from the date of filing of Claim Petition till the date of deposit,

excluding the default period, if any. The second respondent - Insurance

Company is directed to deposit the amount awarded by this Court along

with interest and costs, less the amount already deposited, if any, within a

period of six weeks from the date of receipt of a copy of this judgment to the

credit of M.C.O.P.No.495 of 2017 on the file of the Motor Accidents Claims

https://www.mhc.tn.gov.in/judis

Tribunal, V Additional District Court, Coimbatore. On such deposit, the