Madras High Court
The United India Insurance Company Ltd vs A.Vimala on 5 September, 2024
C.M.A.(MD)No.838 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 05.09.2024
CORAM :
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A(MD)No.838 of 2019
and C.M.P(MD)No.11016 of 2019
The United India Insurance Company Ltd.,
Rep.by its Divisional Manager,
Nagercoil, Kanyakumari District ...Appellant/3rd Respondent
Vs.
1.A.Vimala
2.L.Jeba Jincy
3.L.Jeba Shelma ...Respondents 1 to 3/Petitioners
4.Francis
5.Palmani ...Respondents 4 & 5/Respondents 1 &2
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and award dated
20.07.2017 passed in M.C.O.P.No.09 of 2014 on the file of the Motor
Accident Claims Tribunal (Sub Court), Padmanabapuram.
For Appellant : Mr.S.Royce Immanuel
For R1 to R3 : Mr.G.Sridharan
For R4 : Mr.C.T.Perumal
For R5 : No appearance
https://www.mhc.tn.gov.in/judis
Page No.1 of 9
C.M.A.(MD)No.838 of 2019
JUDGMENT
The instant appeal has been filed challenging the finding on
negligence and the quantum of compensation awarded by the Tribunal.
2. The respondents 1 to 3/claimants filed a claim petition stating
that while the deceased was riding his motorcycle on 17.07.2013, a lorry
insured with the appellant came in a rash and negligent manner in the
opposite direction and caused a head-on collision, as a result of which,
the deceased sustained fatal injuries.
3. The owner of the lorry/the 5th respondent herein, remained
exparte before the Tribunal.
4. The appellant filed a counter stating that the accident took place
only due to the negligence of the deceased; that the deceased was aged
more than 55 years and hence the compensation claimed on the basis of
the age of the deceased at 50 years is excessive; and that prayed for
dismissal of the claim petition.
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5. Before the Tribunal, the claimants had examined P.W.1 to P.W.3
and marked Ex.P.1 to Ex.P.7. The appellant examined R.W.1 and R.W.2
and marked Ex.R.1.
6. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the accident took place only due to the
negligence of the offending insured vehicle and directed the appellant to
pay a total compensation of Rs.13,32,000/-.
7. The learned counsel for the appellant submitted that the
deceased had sustained head injuries as revealed from the post-mortem
certificate, hence, the Tribunal ought to have fixed contributory
negligence on the deceased for not wearing helmet; and that the Tribunal,
by erroneously adding 50% towards future prospects and by applying the
wrong multiplier, had awarded exorbitant compensation under the head
loss of income. He would further submit the compensation awarded
under the head loss of consortium and loss of love and affection to the
claimants at Rs.1 lakh each, is on higher side.
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8. The learned counsel for the respondents 1 to 3/claimants, per
contra, submitted that the award of the Tribunal is just and reasonable,
and in the absence of any evidence to show that the deceased did not
wear a helmet, contributory negligence cannot be fixed on the deceased,
and prayed for dismissal of the appeal.
9. I have given my anxious consideration to the submissions made
on either side and carefully perused the materials available on record.
10. The points for consideration in the instant appeal are as
follows:
a)Whether the finding on negligence by the
Tribunal is justified; and
b) Whether the quantum of compensation awarded
by the Tribunal is just and reasonable.
11.1 As regards the 1st point, it is seen that the claimants had
examined P.W.3, an eyewitness to the occurrence, besides marking Ex.P.
1, the FIR to corroborate his version. The claimants had also marked the
rough sketch, Ex.P.2, and observation mahazar, Ex.P.3, prepared by the
police during investigation in the criminal case registered against the
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driver of the offending vehicle. The Motor Vehicles Inspector's report
and the final report Ex.P.6 filed by the police before the Magistrate
corroborate the evidence of P.W.3. In the light of the above, the evidence
of R.W.1, who is the driver of the offending vehicle, an interested
witness, cannot be accepted. The Tribunal, therefore, was right in holding
that the accident took place only due to the rash and negligent driving of
the driver of the insured vehicle.
11.2 As regards the submission that the deceased did not wear any
helmet, it is seen that there is no evidence on the side of the appellant to
establish the said fact. Merely because the deceased died due to head
injuries, it cannot be presumed that the deceased did not wear a helmet.
The point No.1 is answered accordingly.
12. As regards the quantum of compensation, it is seen that the
claimants had established before the Tribunal that the deceased was
working as a Tailor. However, no documentary proof has been produced
either to prove the avocation or to prove the income of the deceased. In
such circumstances, fixation of the notional income by the Tribunal at
Rs.6,500/- cannot be faulted.
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12.1 However, the Tribunal had erroneously added 50% towards
future prospects. The evidence of R.W.2 would show that on enquiry he
found out the age of the deceased was '51' at the time of the accident. The
claimants had not adduced any evidence to prove the age of the deceased.
However, the licence of the deceased reveals that he was born on
22.05.1962, which shows the age of the deceased at '51' at the time of the
accident. The Tribunal, therefore, ought to have added 10% toward future
prospects and applied the correct multiplier '11'. The dependents are three
in number and therefore, 1/3 to be deducted towards personal expenses.
Thus, the award of the compensation under the head 'loss of income' has
to be (Rs.6500 + 10% = 7150 X 11 X 12 X 2/3) Rs.6,29,200/-.
12.2 The compensation under the head funeral expenses is
confirmed. The compensation under the head 'loss of consortium to the
1st respondent', who is the wife, and under the head 'loss of love and
affection to the respondents 2 and 3', who are the children of the
deceased, at Rs.1 lakh each is contrary to the guideline issued by the
Hon'ble Supreme Court of India. The claimants are only entitled to
Rs.40,000/- each under the heads 'loss of consortium' and 'loss of love
and affection'. The Tribunal had not awarded any compensation under the
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head 'transport charges' and this Court grants Rs.10,000/- under the said
head. The claimants are entitled to compensation under the head of 'loss
of estate' at Rs.15,000/- and the same is awarded by this Court. The
modified compensation is tabulated herein under:
Sl. Heads of Amount Amount Award
No. Compensation awarded by awarded by confirmed
Tribunal this Court or
(Rs.) (Rs.) enhanced
or granted
1. Loss of income 10,14,000.00 6,29,200.00 Reduced
2. Funeral expenses 18,000.00 18,000.00 Confirmed
3. Loss of consortium 1,000,00.00 40,000.00 Reduced
to the 1st petitioner
4. Loss of love & 2,00,000.00 80,000.00 Reduced
affection to P2 & P3
5. Transport Charges Nil 10,000.00 Granted
6. Loss of estate Nil 15,000.00 Granted
Total : 13,32,000.00 7,92,200.00 Reduced
13. The appellant shall deposit the compensation amount, after
deducting the amount already deposited, within a period of four weeks
from the date of receipt of a copy of this judgement. On such deposit, the
respondents 1 to 3/claimants are permitted to withdraw the amount, as
per the apportionment fixed by the Tribunal. If the appellant has
deposited any excess amount, it is open to them to file an application
seeking refund of the excess amount before the Tribunal.
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14. In fine, this appeal is partly allowed. No costs. Consequently,
the connected miscellaneous petition is closed.
05.09.2024
Index : Yes / No
Neutral Citation : Yes / No
CM
To
1. Motor Accident Claims Tribunal(Sub Court),
Padmanabapuram.
2. The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,Madurai.
https://www.mhc.tn.gov.in/judis
SUNDER MOHAN, J.
CM
Judgment made in
and C.M.P(MD)No.11016
of 2019
05.09.2024
https://www.mhc.tn.gov.in/judis
