Madras High Court

United India Insurance Company Ltd vs Thenmozhi on 4 April, 2025

                                                                   CMA.No.291 of 2023 and 1561 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   Dated :04.04.2025

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                      CMA.No.291 of 2023 and 1561 of 2022 and
                                             C.M.P.No.2243 of 2023

                        In CMA.No.291 of 2023

                       United India Insurance Company Ltd.
                       Saraswathi Garden,
                       1/53-1E, Dharmapuri Main Road,
                       Kaveripattinam,
                       Krishnagiri – 635112                                            ...Appellant

                                                              Vs.
                       1. Thenmozhi
                       2.P.Monisha
                       3.P.Sathish
                       4.C.Pattu
                       5.M.Anbukkarasan                                       ... Respondents



                       Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor
                       Vehicle Act, to set aside the Decree and Judgment dated 07.01.2022
                       made in MCOP.315 of 2018 on the file of Motor Accident Claims
                       Tribunal, Subordinate Judge, Omalur.




                       Page 1 of 12




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                                                                       CMA.No.291 of 2023 and 1561 of 2022




                                  For Appellant    : Mr.C.Paranthaman
                                  For Respondent s : Mr.R.Jayaprakash for R1 to R3
                                                    R4 & R5-No appearance

                        In CMA.No.1561 of 2022

                       1. Thenmozhi
                       2.P.Monisha
                       3.P.Sathish                                                         ...Appellants

                                                                  Vs.
                       1. C.Pattu
                       2.M.Anbukkarasan
                       3. United India Insurance Company Ltd.
                       Saraswathi Garden,
                       1/53-1E, Dharmapuri Main Road,
                       Kaveripattinam,
                       Krishnagiri – 635112                                      ... Respondents

                       Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor
                       Vehicle Act,to enhance the compensation awarded in the Order dated
                       07-01-2022 made in MCOP No.315 of 2018 on the file of the MACT /
                       Subordinate Judge at Omalur.
                                  For Appellant    : Mr.R. Jayaprakash
                                  For Respondent s : Mr..S.Sheik Ismail for R1
                                                    Mr.C.Paranthaman fro R3
                                                    R2-No appearance




                       Page 2 of 12




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                                                                        CMA.No.291 of 2023 and 1561 of 2022


                                               COMMON JUDGMENT

These two appeals are filed by the insurer of the offending

vehicle and the claimants.

2. Since both the appeals are arising out of the same accident,

they are taken up for hearing together.

3. CMA.No. 291 of 2023 is filed by the insurer of the offending

vehicle challenging the fixation of negligence on the part of the driver

of the vehicle insured with the appellant. CMA.No.1561 of 2022 is

filed by the claimants seeking enhancement of the compensation.

4. For the sake of convenience, the parties are referred to as per

their ranking before the tribunal.

5. It is the case of the claimants that the husband of the first

claimant, father of the claimants 2 and 3 namely Palanisamy died in a

road accident that had occurred on 22-08-2017 involving scooter

bearing registration number TN-24-Q-0804 belonged to the second

respondent insured with the third respondent and driven by the first

respondent. It is the case that the deceased was riding his bike bearing

registration number TN-30-AX-8959 with a pillion rider to purchase

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vegetables. The first respondent had driven the vehicle belonged to the

second respondent in a rash and negligent manner and dashed against

the two-wheeler of the deceased. As a result of the accident, the

deceased sustained severe head injuries and later, died in the hospital

after three days. Therefore, the claim petition was filed seeking

compensation of Rs.38,00,000/-

6. The respondents filed a counter and resisted the claim petition

on the ground that the accident had occurred only due to the rash and

negligent driving of the deceased. According to them, the deceased had

driven his bike in a rash and negligent manner and dashed against the

scooter driven by the first respondent from backside.As a result of the

accident, the first respondent also sustained injuries. Therefore, the

respondents sought for dismissal of the claim petition on the ground

that the deceased himself was a tortfeasor.

7. The Tribunal, based on the evidence available on record, came

to the conclusion that the accident had occurred due to the negligence

on the part of the first respondent and consequently held that the owner

and insurer of the vehicle driven by the first respondent namely

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respondents 2 and 3 were liable to pay the compensation. The amount

payable to the claimants was quantified at Rs. 14,99,000/-. Aggrieved

by the fixation of negligence on the part of the first respondent, the

insurer of the offending vehicle filed CMA.No.291 of 2023. Not

satisfied with the quantum of compensation, the claimants filed

CMA.No. 1561 of 2022 seeking enhancement of theco mpensation.

8. The learned counsel for the 3rd Respondent/ Insurance

Company submitted that immediately after accident based on the

information given by 1st Respondent, FIR was filed against the

deceased and the same was marked as Ex.R4. He further submitted that

the case filed against the deceased was closed as abated on his death.

The Tribunal, without taking into consideration the filing of FIR

against the deceased, committed an error in fixing entire negligence on

the part of 1st Respondent.

9. The learned counsel for the claimants submitted that the first

respondent was working as trainee Sub-Inspector at that point of time.

Taking advantage of her official position, based on false information

furnished by the first respondent, FIR was filed against the deceased.

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According to the learned counsel that the deceased died after three

days. Thereafter, based on information furnished by the first claimant,

an another FIR was filed against the first respondent and the same was

marked as Exhibit P1. The learned counsel further submitted that the

tribunal rightly appreciated the evidence of eyewitness and fixed

negligence on the part of the first respondent. He also submitted that

the deceased was working as Master at hotel at the relevant point of

time and hence, amount of Rs. 12,000/- fixed as notional income by the

tribunal is very meager amount.

10. In order to prove the negligence, the claimants examined one

eyewitness as PW2. A perusal of the evidence of PW2 would indicate

that he clearly deposed that the accident had occurred only due to the

negligence on the part of the first respondent. He also withstood the

cross examination by the respondents. On behalf of the respondents,

the first respondent was examined as RW1. She deposed that the

deceased dashed against the vehicle from behind and hence, according

to her, entire negligence was on the part of the deceased. The Motor

Vehicle Inspection report of scooter driven by first respondent was

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marked as Exhibit P4. A perusal of the same would suggest that the

front right side show panel of the scooter driven by first respondent got

damaged. The front right side body also got scratched. If the bike of the

deceased dashed against the scooter driven by the first respondent from

backside, certainly there is no chance for damage in the front right side

of the scooter.

11. The learned counsel for the 3rd respondent/Insurance

Company submitted that the criminal case filed against the deceased

was closed as abated.

12. The case records relating to FIR filed against the deceased

was marked as Exhibit R5. The Inspector of Police, who was examined

as RW2, in his evidence clearly admitted that before filing final report,

RCS notice was not given to the first claimant. Therefore, the final

report cannot be pressed into service against the claimants in the

absence of RCS notice to challenge the same. Therefore, the Tribunal

was justified in relying on unshattered evidence of PW2 in fixing entire

negligence on the part of the first respondent. The finding of the

Tribunal is affirmed with regard to negligence.

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13. In the claim petition, it was stated by the claimants that the

deceased was working as Master in a hotel and was earning a sum of

Rs. 20,000/- per month. However, the claimants have not produced any

documentary evidence to prove the avocation and income of the

deceased. The accident had occurred in the year 2017. Taking into

consideration the date of accident and the prevailing cost of living, this

court is inclined to fix Rs.15,000/- as notional income for the deceased.

The tribunal fixed the age of the deceased at 44 years based on Exhibit

P-2, Post Mortem Certificate and Exhibit P3, Legal Heir Certificate.

Therefore, the claimants are entitled to 25% enhancement towards

future prospects. The applicable multiplier is 14. Since there are three

dependents, one-third of the amount shall be deducted towards

personal expenses. In that case, the loss of dependency is fixed at Rs.

21,00,000/-

15,000 x 1.25 x 12 x 14 x 2 /3 =Rs. 21,00,000/-

14. The amount awarded by the Tribunal under the conventional

damages like loss of consortium, loss of estate and funeral expenses are

in accordance with the law laid down by the Hon'ble Apex Court in

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Pranay Sethi case. Therefore, they are affirmed. The amount of

Rs.5000/- awarded under the head transportation expenses is set aside.

In all, the claimants are entitled to Rs.22,50,000/-.

15. In view of the discussions made earlier, the award passed by

the Tribunal is modified as follows:-

                              Sl Description                Amount               Amount      Award
                              .                             awarded            awarded by confirmed or
                              N                                by               this Court enhanced or
                              o                             Tribunal               (Rs)      granted
                                                              (Rs)
                              1. Loss of                   13,44,000/- 21,00,000/-           Enhanced
                                 dependency
                              2. Loss of Estate               15,000/-            15,000/-   Confirmed
                              3. Funeral Expenses             15,000/-            15,000/-   Confirmed
                              4. Loss of                    1,20,000/-          1,20,000/-   Confirmed
                                 Consortium
                                          Total       14,99,000/- 22,50,000/- Enhanced by
                                                                                   Rs.7,51,000/-

16. With the above modifications, the civil miscellaneous appeal

in CMA.No.1561 of 2022 filed by the claimants is partly allowed and

the compensation awarded by the Tribunal at Rs.14,99,000/- is hereby

enhanced to Rs.22,50,000/-.The appellants/claimants are entitled to

interest at the rate of 7.5% per annum from the date of filing of the

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claim petition till the date of realization. The 3rd respondent /Insurance

company is directed to deposit the enhanced award amount before the

Tribunal along with interest and costs, less the amount already

deposited, if any, within a period of six weeks from the date of receipt

of copy of this Judgment. The claimants are permitted to withdraw the

same along with interests and costs, less the amount if any, already