Madras High Court
The New India Assurance Co. Ltd vs Rekha on 3 January, 2024
C.M.A. No. 1724 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. 1724 of 2021
and C.M.P. No.1724 of 2021
The New India Assurance Co. Ltd.,
Bombay Mutual Building, 6th Floor,
No.232, N.S.C. Bose Road,
Chennai 600 001. ... Appellant / 2nd Respondent
Vs.
1. Rekha
2. P. Elumalai ... Respondents / Petitioners
3. S. Tamilarasi ... Respondents / 1st Respondent
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and decree dated 20.09.2020
passed in M.C.O.P. No. 550 of 2019 on the file of the III Judge (F.A.C),
Motor Accident Claims Tribunal, III Court of Small Causes, Chennai.
For Appellant : M/s. K. Vinod
For RR 1 & 2 : Mr. L.K. Manjunath
(M/s. Sri Manjunath Law Associates)
For R3 : No Appearance
1/10
https://www.mhc.tn.gov.in/judis
C.M.A. No. 1724 of 2021
JUDGMENT
This Civil Miscellaneous appeal has been filed by the insurance
company seeking reduction of compensation awarded in M.C.O.P. No. 550
of 2019, dated 20.09.2020 on the file of the III Judge (F.A.C), Motor
Accident Claims Tribunal, III Court of Small Causes, Chennai.
2. For the sake of convenience, the parties are referred herein
according to their litigative status and rank before the Tribunal.
3. On 25.09.2018, at about 17:30 hours, the deceased
Manikandan, who was aged about 6 years at the time of occurrence, was
walking at left side of the Polur - Chetpet Road, near Devikapuram
Muthalamman Nagar, Tiruvannamalai District, at that time, a lorry bearing
Registration No.TN-11-AD-9571 driven by its driver in a rash and negligent
manner, hit on the deceased causing grievous injuries. The deceased was
admitted in various hospitals for treatment and succumbed to injuries at
Rajiv Gandhi Government General Hospital, Chennai on 22.11.2018. A
criminal case was registered against the driver of the lorry in
Cr.No.359/2018 under section 279, 337 of IPC on the file of Inspector of
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Police, Chetpet Police Station, Tiruvannamalai District. For the loss of
deceased Manikandan, the claimants, who are the parents of the deceased
has filed claim petition seeking compensation for a sum of Rs.30,00,000/-
under Section 166 of the Motor Vehicles Act, 1988.
4. The first respondent is the owner of the offending lorry has not
contested the claim and remained ex-parte. The second respondent -
insurance company, who is the insurer of the offending lorry has filed a
counter and contended that the driver of the first respondent's lorry has no
valid driving licence at the time of accident. The insurance company has
further contended that the accident was taken place only due to the
negligence on the part of the deceased and the compensation claimed under
various heads are on the higher side.
5. Before the Tribunal, on the side of the claimant, P.W.1 and
P.W.2 were examined and Exs.P.1 to P.12 were marked. On the side of the
respondent, no witnesses were examined and no exhibits were marked.
6. Based on the evidence placed on record, the Tribunal in point
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no.1, has held that the rash and negligence on the part of the driver of the
first respondent's lorry is responsible for the accident. In point no.2, the
Tribunal has quantified and granted compensation for a sum of
Rs.17,80,607/- along with interest @ 7.5% per annum from the date of filing
of petition till the date of realization and fixed the liability on the part of the
insurance company to indemnify the first respondent and to pay
compensation to the claimants.
9. Aggrieved over the quantum of compensation awarded, the
insurance company has filed this appeal seeking reduction of compensation.
10. The learned counsel appearing for the insurance company
submits that the Tribunal without any basis fixed the notional income of
Rs.10,000/- per month and also awarded 50% future prospectus, while
awarding compensation adopted multiplier as '18', which is against the
settled principle laid down in Hon'ble Apex Court judgements in Meena
Devi vs. Nunu Chand Mahto @ Nemchand Mahto and others [2022
LiveLaw (SC) 841], hence prays to modify the award.
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11. The learned counsel appearing for the claimants submits that
the deceased was aged about 6 years, at the time of accident and also he is
an intelligent child of the claimants and based on the evidences placed on
record, the Tribunal has rightly fixed the notional income and awarded a just
compensation, hence there is no need for any interference in the award of the
Tribunal.
12. I have heard the submissions made on both sides and perused
the materials available on record.
13. Recently, the Apex Court judgment in Meena Devi vs. Nunu
Chand Mahto @ Nemchand Mahto and others cited supra based on the
judgement of Kishan Gopal and another vs. Lala and others [2014 1 SCC
244], has fixed notional income of Rs.30,000/- per annum, awarded
Rs.5,00,000/- including Rs.50,000/- under other conventional heads. In this
case, the Tribunal has not followed the previous judgements of the Apex
Court, which prescribes fixing of notional income and II schedule of the
Motor Vehicles Act for adopting multiplier, but the Tribunal has deviated
from the same and fixed the notional income of Rs.10,000/- per month on
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the deceased minor child and granted 40% future prospectus, which is not in
accordance with the principle laid down in the Apex Court judgements cited
supra.
14. The learned counsel for the claimant relied on this Court
judgment in K. Kalaiselvi and another vs. The Managing Director, TNSTC
in C.M.A. No.2845 of 2015, dated 08.12.2016, wherein the judgement of
Apex Court in Kishan Gopal and another vs. Lala and others cited supra,
has not been considered and for the loss of 12 years boy therein, this Court
has fixed the notional income of the deceased at Rs.60,000/- per annum and
adopted the multiplier as per the age of the deceased mother and quantified
Rs.9,60,000/- (Rs.60,000/- X 16) as compensation and also followed the
Hon'ble Apex Court judgment in Kanhsing and another vs. Tukaram and
others [Civil Apeeal No.347 of 2015 arising out of SLP (C) No.976 of
2014], awarded Rs.1,00,000/- towards loss of love and affection.
15. This Court in Stalin and another vs. S. Baskaran and another
in C.M.A. No.4422 of 2019, dated 17.03.2021, wherein for the loss of 14
years boy, this Court has fixed the notional income of Rs.45,000/- per annum
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and as per II Schedule of the Motor Vehicles Act, fixed the multiplier as ''15''
and awarded compensation towards pecuniary loss.
16. In Divya vs. The National Insurance Co. Ltd. and Another
[2022 LiveLaw (SC) 892], the Apex Court has fixed the multiplier of "15"
for the victim upto the age group of 15 years as per the previous Three
Judges Bench judgment in Reshma Kumari and Others Vs. Madan Mohan
and Another [(2013) 9 SCC 65].
17. This Court in Iffco Tokio Gen. Ins. Co. Ltd. Vs. B. Anithadevi
and Others [2022 (2) TNMAC 731], for the deceased minor aged about 7
years, fixed a sum of Rs.3,000/- per month and deducted one-third of his
income towards his personal and living expenses and by adopting multiplier
of "15" and awarded a compensation for a sum of Rs.3,60,000/- under the
head loss of dependency.
18. Based on all the above previous observations of Apex Court and
considering the date of accident, this Court is of the view that fixing
Rs.40,000/- per annum as the notional income of the minor deceased herein
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would be proper and by adopting the multiplier as ''15'', this Court is inclined
to award Rs.6,00,000/- (Rs.40,000/- X 15) under the head pecuniary loss and
Rs.50,000/- under the conventional head. Based on Ex.P.3- medical bills,
this Court is also inclined to award Rs.1,48,607/- under the head medical
expenses to the claimant. Accordingly, total compensation of Rs.7,98,607/-
(Rs.6,00,000/- + Rs.50,000/- + Rs.1,48,607/-) is awarded to the claimants.
19. In the result, this Civil Miscellaneous Appeal is allowed and the
compensation awarded by the Tribunal at Rs.17,80,607/- is hereby reduced
to Rs.7,98,607/- [Rupees Seven Lakh Ninety Eight Thousand Six
Hundred and Seven only] together 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.550 of 2019 on the file of the III Judge, Motor Accidents
Claims Tribunal, III Court of Small Causes, Chennai. On such deposit, the
claimants are permitted to withdraw the award amount now determined by
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this Court along with interest and costs, less the amount if any, already
withdrawn, as per the apportionment fixed by the Tribunal. The Tribunal
shall disburse the amount now awarded by this Court by directly giving
credit to the Savings Bank Account of the claimants. Consequently,
connected civil miscellaneous petition stands closed. There shall be no order
as to costs in the present appeal.
03.01.2024
stn
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
To:
1. The III Judge,
Motor Accident Claims Tribunal,
III Court of Small Causes, Chennai.
2. The Section Officer,
V.R.Section,
High Court, Chennai.
K. RAJASEKAR, J.
stn
https://www.mhc.tn.gov.in/judis
03.01.2024
https://www.mhc.tn.gov.in/judis
