Madras High Court
The Branch Manager vs R.Raja on 28 October, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.M.A(MD)No.81 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 28.10.2024
CORAM:
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
and
THE HON'BLE MR JUSTICE K.K. RAMAKRISHNAN
C.M.A(MD)No.81 of 2024
The Branch Manager
Reliance General Insurance Company Ltd.,
141/3, 1st Floor, New Bye Pass Road,
M.P Sarathi Nagar,Chennai,
Branch Office,
No.178,2nd Floor, 10th Cross,
Thillainagar East, Trichy 6200 18. ... Appellant
Vs.
1.R.Raja
2.R.Sureshiya
3.R.Abishekraj
4.Minor.Rajashree
(4th minor respondent represented through her father /guardian 1st
respondent Raja)
5.M.Jeyakumar ... Respondents
1/13
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.81 of 2024
PRAYER: Civil Miscellaneous Appeal has been filed under Section 173
of Motor Vehicles Act, 1988 to set aside the judgment and decree dated
09.10.2023 passed in M.C.O.P.No.327 of 2021, on the file of the Motor
Accident Claims Tribunal/Principal District Judge, Pudukottai.
For Appellant : Mr.V.Sakthivel
For Respondents : Mr.R.Karthik
JUDGMENT
[Judgment of the Court was made by K.K.RAMAKRISHNAN.J.]
The Insurance company filed this appeal challenging the quantum
of the award passed in M.C.O.P.No.327 of 2021, dated 09.10.2023, by the
Motor Accident Claims Tribunal Judge/ Principal District Court,
Pudukottai.
2.Facts of the case:
The deceased Rajaman was the son of the first and the second
respondents in the above C.M.A., and the third and the fourth respondents
are his brother and sister. On 09.09.2020, at 11.30 a.m, he was returning
to his home in the two wheeler bearing registration No.TN 48 Z 8122
from west to East direction and turned towards the south direction in
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Pattukottai Aranthangi road on the left side and at that time, the appellant
insured “Goods carrier Ashok Leyland Dost” bearing registration No.TN
49 CJ 2629 was driven by its driver, namely, the first respondent in a rash
and negligent manner and dashed against the two wheeler and hence, he
was thrown off and fell down and sustained grievous injuries on his head
and he was admitted in the Keeramangalam Government Hospital and
then referred to Aranthangi Government Hospital and he died at 12.00
noon. Therefore, a Criminal Case was registered against the driver of the
said goods carrier. The respondent Nos.1 to 4 in the above C.M.A., have
filed the claim petition in M.C.O.P.No.327 of 2021, on the file of the
Motor Vehicle Accident Claims Tribunal/Principal District Court,
Pudukkottai and claimed compensation of Rs.50,00,000/-. In the claim
petition, it is stated that the deceased was aged about 18 years and he had
applied for B.E., Civil Engineering Course after completion of his 12th
standard examination.
2.1.The appellant insurance company filed a counter denying the
manner of the accident stated in the claim petition and they specifically
denied the liability and they also raised the ground non-joinder of
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necessary party, namely, the insurer of the two wheeler and they also
raised the plea that the rider of the two wheeler, namely the deceased rode
the two wheeler without license and without wearing helmet and he solely
is responsible for the accident.
2.2.The first respondent owner of the lorry filed the counter
denying the manner of the accident and also pleaded the same ground of
non-joinder of the party and claimed that the claim of the compensation is
very high and he is not responsible to pay compensation.
2.3.The claimants to prove their claim examined P.W.1 to P.W.3 and
marked Ex.P1 to Ex.P11. On the side of the respondent, R.W.1 officer
attached with the appellant insurance company was examined and marked
Ex.R1 to Ex.R7. Ex.C1 was marked as Court document.
3.Finding of the Tribunal
The learned Tribunal Judge after considering the entire evidence on
record, fixed the negligence on the driver of the “Goods carrier Ashok
Leyland Dost” and fixed the monthly income of the deceased as Rs.
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14,562/-, on the basis of the judgment of the Division Bench of this Court
reported in 2019 (1) TNMAC 54 and also fixed the age of the deceased
on the basis of the post mortem report. Since he had applied for the
course of B.E.Civil Engineering, he applied the future prospect as per the
Pranay Sethi Case, and calculated the compensation as follows by
passing the impugned order:
Sl.No Under the Head Calculation Amount
.
1 Monthly Income Rs.14,562/- Rs.14,562/-
2 Add to Future Prospects Rs.14,562/- (+) Rs.20,387/-
40% 5,825/-
3 Deduction of 1/3 for his Rs.20,387/- (-) Rs.13,591/-
personal expenses 6,796/-
4 Annual Income Rs.13,591/- X 12 Rs.1,63,092/-
5 Loss of Income after Rs.1,63,092/- X Rs.29,35,656/-
applying multiplier 18 18
6 Funeral Expenses Rs.15,000/- Rs.15,000/-
7 For Loss of Estate Rs.15,000/- Rs.15,000/-
8 Loss of Consortium Rs.40,000/- Rs.40,000/-
9 Amount Entitled to the Rs.29,35,656/- Rs.30,05,656/-
petitioners after deducting (+) 15,000/- (-)
20% fir the negligence of (+) 15,000/- (+) Rs.6,01,131/- (=)
the deceased 40,000/- Rs.24,04,525/-
Aggrieved over the same, the appellant insurance company filed
this appeal, challenging the quantum and negligence.
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4. The learned counsel for the appellant insurance company
submitted that the claimant's document itself proved that the accident
happened due to the negligence of the deceased and hence, the learned
Tribunal Judge committed error in fixing the negligence on the part of the
driver of the insured goods vehicle. The learned counsel further submitted
that the learned Tribunal Judge without any evidence fixed the notional
monthly income of the deceased as Rs.14,562/- and instead of deducting
½ for his personal expenses, deducted 1/3 by treating all the claimants as
the dependants of the deceased. Therefore, he seeks to set aside the award
passed by the learned Tribunal Judge.
5. The learned counsel appearing for the claimants submitted that to
prove the negligence, P.W.2 independent witness has been examined and
no contra evidence was adduced on the side of the appellant insurance
company and the policy was in force and therefore, the appellant
insurance company is liable to pay compensation for the accident caused
by the first respondent insured vehicle bearing registration No.TN 49 CY
2629. The learned Tribunal Judge considering his completion of 12th
standard and his application made for B.E.Civil Engineering Course and
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on the basis of the judgment of this Court reported in 2019 1 TNMAC 54
(DB), correctly took the monthly income of the deceased as Rs.14,562/-
and considering the number of the claimants, even though the deceased
was bachelor, he applied 1/3 deduction and applied the multiplier of 18
and arrived the loss of income of Rs.29,35,656/-. Hence, he seeks for
dismissal of this appeal.
6.This Court considered the rival submissions made by the learend
counsel appearing on either side and perused the materials available on
record and the impugned award.
7.The following points arise for consideration of this appeal:
7.1.Whether the negligence is correctly fixed on the driver of the
vehicle insured with the appellant and the deceased?
7.2.Whether the learned Tribunal Judge correctly fixed the liability
upon the insurance company?
8.Discussion on negligence:
P.W.1, deposed that the accident happened only due to the rash and
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negligent driving of the “Goods carrier Ashok Leyland Dost”. He also
reaffirmed the same in the course of cross examination. There was no
contra evidence adduced on the side of the insurance company. Though
R.W.1 manager of the company was examined and he was not the
eyewitness to the occurrence and he deposed that due to the negligent
driving of the deceased the accident happened and the deceased drove his
vehicle without license and without wearing helmet. But he admitted that
they insured the vehicle and the policy was in force and also admitted that
FIR was registered against the appellant insured lorry driver and final
report also filed against him. Therefore, without any contra evidence,
considering that the evidence of P.W.1 to P.W.3 are cogent and
trustworthy and filing of the final report against the driver of the lorry,
this Court is not inclined to accept the argument of the learned counsel
for the appellant Insurance Company that the accident happened due to
the negligence of the deceased. Hence, this Court concurs with the
finding of the learned Tribunal Judge that the accident happened only due
to the driver of the negligence of the “Goods carrier Ashok Leyland
Dost” insured with the appellant.
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9.Discussion on quantum:
The deceased had completed his 12th standard and applied for the
course of B.E.Civil Engineering. Therefore, the tribunal fixed the
monthly income of the deceased upon consideration of the cost of
inflation index and followed the fixation of the monthly income in the
Division Bench of this Court in the case of Andal Vs. Avinav Kannan
reported in 2019 (1) TNMAC 54 (DB), fixed the notional income of Rs.
14,562/-. The Tribunal also applied 40% of future prospects considering
the evidence that he had applied for B.E.Civil Engineering course.
10. In this case, deceased was a student and hence, the learned
Tribunal Judge ought to have deducted ½ for his personal expenditure.
But the learned Tribunal Judge erroneously deducted the personal
expenditure as 1/3. Therefore, this Court decides to deduct ½ for his
personal expenditure and calculates the loss of income as Rs.22,01,796/-
11.The learned Tribunal has not awarded any compensation under
the head of Love and Affection to the claimants. The deceased was son of
the first and second respondent and the third respondent is his brother and
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fourth respondent is his sister. He died at the age of 18 years and hence,
all are deprived of his love and affection. Therefore, each of them is
entitled to Rs.40,000/-.
12. In view of the above, the amount awarded by the Tribunal is
reduced as follows:
Amount Re-quantified
Heads awarded by Amount by this Status
the Tribunal Court
Monthly Income 14,562/- 14,562/- Confirmed
Add to Future Prospects 20,387/- 20,387/- Confirmed
(40%)
Deduction for his personal 6,796/- 10,193.5/- Reduced
expenses (Deduction of ½
for his personal
expenses)
Annual Income 1,63,092/- 1,22,322/- Reduced
Loss of income after 29,35,656/- 22,01,796/- Reduced
applying multiplier 18
Funeral Expenses 15,000/- 15,000/- Confirmed
For Loss of Estate 15,000/- 15,000/- Confirmed
Loss of Consortium 40,000/- 1,60,000/- Enhanced
(40,000 X 4)
Amount entitled to the 24,04,525/- 23,91,796/- Reduced
petitioners after deducting (-) 20%
20% for the negligence of 19,13,436/-
the deceased
Total 24,04,525/- 19,13,436/- Reduced
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13. In fine, the Civil Miscellaneous Appeal is allowed in part,
reducing the award of the Tribunal from Rs.24,04,525/- to a sum of
Rs.19,13,436/- along with 7.5% interest from the date of petition till the
date of realization. The appellant is directed to deposit the award amount,
less any amount if already deposited, within a period of eight weeks from
the date of receipt of a copy of this order.
14.The learned Tribunal Judge's finding relating to the fixing 20%
of contributory negligence on the part of the deceased and the pay and
recovery is hereby confirmed for the reason that there was no cross
appeal. The claimants are entitled to withdraw the following
apportionment:
Claimants Amount in Rs.
Father of the deceased 7,65,374/-
Mother of the deceased 7,65,374/-
Brother of the deceased 1,33,941/-
Sister of the deceased 2,48,747/-
The insurance company is permitted to withdraw the remaining
amount if it had deposited the entire amount. The appellant/Insurance
Company is directed to deposit the entire award amount with accrued
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interests and costs within a period of eight weeks from the date of receipt
of a copy of this order, if not already deposited.
(V.B.S.J.,) (K.K.R.K.J.,)
28.10.2024
Index :Yes/No
Internet :Yes/No
sbn
To
1.The Special Sub Court,
Motor Accidents Claims Tribunal,
Pudukottai.
2. The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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V.BHAVANI SUBBAROYAN.J.,
and
K.K. RAMAKRISHNAN.J.,
sbn
28.10.2024
https://www.mhc.tn.gov.in/judis
