Madras High Court
The Branch Manager vs Selvi on 24 February, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
C.M.A(MD)No.199 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 12.02.2025
Pronounced on : 24.02.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A.(MD)No.199 of 2019
&
C.M.P.(MD)No.2628 of 2019
The Branch Manager
National Insurance Co. Ltd.,
No.4132, East Raja Veethi,
Pudukkottai. ... Appellant/ 2nd Respondent
Vs.
1.Selvi
2.Minor Gomathi
3.Minor Kaviya
4.Minor Sangeetha
(Minor respondents 2 to 4 are represented by their
grandfather and next friend 6th respondent herein.)
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
1/19
C.M.A(MD)No.199 of 2019
5.Minor Lalitha
(Minor 5th respondents is represented by her
mother and next friend 1st respondent herein)
6.Palaniappan
7.Indirani ...Respondents 1 to 7 / Petitioners
8.Thirugnanam ...8th Respondent / 1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the fair and decreetal order dated
31.08.2018 made in M.C.O.P.No.783 of 2013 on the file of Motor
Accident Claims Tribunal, Special District Court, Pudukkottai and allow
this Civil Miscellaneous Appeal.
For Appellant : Mr.S.Srinivasa Raghavan
For Respondents : Mr.K.C.Maniyarasu – for R1 to R7
Mr.R.Balakrishnan
for Mr.S.Poornachandran – for R8
JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
The appellant / 2nd respondent / Insurance Company has filed
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
this Civil Miscellaneous Appeal against the fair order and decreetal order
dated 31.08.2018 passed in M.C.O.P.No.783 of 2013 by the Motor
Accident Claims Tribunal, Special District Court, Pudukkottai.
2. Brief facts of the petition filed by the claimant before the
Tribunal are as follows:
(a) On 03.09.2013, first petitioner's husband, Arulmozhi,
took the vehicle Scorpio bearing Registration No.TN 55 S 3910
belonging to the first respondent on hire along with his friend Durai from
his native to Chennai. When the vehicle was coming near Mettupalayam
National Firm after Mathurandagam, at about 3.00 a.m., on 04.09.2013
the driver of the first respondent drove it in a rash and negligent manner
without observing the traffic rules dashed against the unknown vehicle,
caused the accident. The accident occurred due to the carelessness
driving of the first respondent's driver.
(b) The 1st petitioner's husband died by sustaining severe
injuries and his body was taken to Mathurandagam Government
Hospital. Due to the death of her husband, the 1st petitioner was put into
untold suffering. The first petitioner lost her love and affection, conjugal
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
relationship and she became young widow and living with difficulties.
The petitioners 2 to 5 are minor children also lost their father's love and
affection. If deceased Arulmozhi is alive, he gives good education and
create a good future, atmosphere to the minor children who are girl
children. The petitioner 6 and 7 are the parents of the deceased, who lost
their son during their old age and suffering a lot as nobody is there to
maintain them. The first petitioner's husband is the only earning member
of the family.
(c) The deceased Arulmozhi was an income tax assessee.
His Permanent Account Number (PAN) is AK0PA6219M. During the
year 2012–2013, his annual income was Rs.3,90,827/-, for which he paid
income tax. Since he passed away at his young age 50% of monthly
income should be added as future prospectus. At the time of death, he
was 34 years old, he was running a business called Rasi Electronics at
Ponnamaravathy. From and out of his business, he derived a sum of Rs.
40,000/- per month. All the petitioners are dependent of late Arulmozhi.
(d) The accident occurred due to the rash and negligence act
of the first respondent and the vehicle was insured with the second
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
respondent insurance Company. The petitioners are entitled to get
compensation from the respondents, they claimed a sum of
Rs.1,20,00,000/- (Rupees One Crore and Twenty Lakhs only) as
compensation.
3. Brief averments contained in the counter filed by the
second respondent are as follows :
(a) The 2nd respondent denied the averment contained in the
petition.
(b) The 2nd respondent denied the age, occupation, monthly
income of the deceased. The deceased was not at all employed and
earning the sum as mentioned in the petition. He was not an income tax
assessee or paid sales tax or professional tax assessee. The amount of
compensation under several heads are without foundation of facts and
probabilities, but are speculative. The 2nd respondent has a doubt
whether the petitioners are the real legal heirs and dependants of the
deceased.
(c) The manner of accident narrated in the application is not
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
correct. As per the FIR, the accident had happened on 04.09.2013 at
about 03.00 hours. In the main petition, it was stated that the accident
occurred on 03.09.2013. The allegations in the FIR is neither believable
nor acceptable. The petitioners have to put to strict proof of the same.
The 2nd respondent has to verify the entire police record, medical record
in order to ascertain the real cause and manner of accident. The Police
had not traced-out the unknown vehicle. The said Vehicle is also
responsible for the accident.
(d) The 2nd Respondent relied upon the judgment reported in
2010(2) TNMAC page 699 Madras High Court-in this case, Lorry
proceed ahead of Tempo traveller applying sudden brake and hitting
against the vehicle coming at back safe distance between two vehicles
not maintained - negligence apportioned at 50 : 50. The above case is
clearly applicable to the facts of this case.
(e) The 2nd respondent denied that the first respondent's
driver had a valid and effective driving license with necessary
endorsement to drive particular type of vehicle said to have been
involved in this accident, on the date of accident.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
(f) If the award is passed in favour of the petitioners, then
the award should carry only 6% interest per annum as per provisions of
Interest Act.
(g) The compensation claimed by the petitioners are high
and excessive. Hence, the petition is liable to be dismissed.
4. Brief averments contained in the additional counter filed
by the second respondent are as follows :
(a) It is stated in the FIR that an unknown vehicle from the
behind. It is the duty of the police to trace out the unknown vehicle. The
petitioners can seek remedy against insured and insurer of the unknown
vehicle.
(b) The claimants are directed to produce PAN details
otherwise TDS will be deducted as per Income Tax Act Rules.
(c) If the Court is come to the conclusion that the 2nd
respondent is liable to be pay any amount as compensation and in any
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
event of granting interest by the Court and if the accrued interest on the
compensation exceeds Rs.50,000/- the 2nd respondent is legally liable to
deduct TDS under Section 194(3) Income Tax Act.
4. During trial on the side of the petitioner, PW1 to P.W.4
was examined and Ex.P1 to Ex.P14 were marked. On the side of the 2 nd
respondents, RW1 was examined and no document was marked.
5. After hearing both side, the trial Judge awarded
compensation of Rs.70,73,610/- under the following heads :
Loss of Income Rs.70,03,609/-
Loss of consortium Rs.40,000/-
Loss of estate Rs.15,000/-
Funeral expenses Rs.15,000/-
Total Rs.70,73,610/-
The learned Judge directed the appellant/2nd respondent-Insurance
Company to pay the entire award amount within a period of one month.
6. Aggrieved by the said order, the present Civil
Miscellaneous Appeal has been filed by the Insurance Company who is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
the 2nd respondent before the lower Court against the negligence and
quantum with the following among other grounds :
(i) That the fair order and decreetal order of the Tribunal are
contrary to law, against the weight of oral as well as documentary
evidence adduced by both parties and are opposed to all the probabilities
of the matter in dispute,
(ii) In view of the verdict of the Larger Bench of the Hon'ble
Supreme Court of India delivered in United India Insurance Co. Ltd., v.
Shila Dhutta & Others reported in 2011 (2) TNMAC 481 SC, leave under
Section 170 of the Motor Vehicle Act is not required to be obtained by
the appellant/Insurance company.
(iii) The findings of the Tribunal that the appellant/2nd respondent
Insurance company has failed to identify their vehicle that was going
ahead of the insured vehicle is untenable, uncalled for and unacceptable
and the Tribunal has conveniently forgotten the burden of proof
regarding the material fact of manner of accident that lies on the
shoulders of the claimants.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
(iv) That the Tribunal ought to have found that the burden of proof
relating to involvement of the vehicle, manner of accident and negligence
aspect are purely on the shoulders of the claimants only and the
appellant/insurance company cannot be expected to prove such
particulars by adducing contra evidence.
(v) That the Tribunal ought to have seen that the material available
on record would be sufficient to hold that the vehicle owned by the 1 st
respondent in the claim petition was actually not involved in the accident
and the Tribunal ought to have found so by appreciating the evidence in
proper perspective.
(vi) That the Tribunal ought to have found that unless there is a
proof that the vehicle owned by the 1st respondent in the claim petition
was actually involved in the accident there could be no liability on the
part of the appellant/2nd respondent to indemnify the owner and to
compensate the claimants.
(vii) That the Tribunal has chosen to discard the evidential value of
the witnesses on the side of the respondents and the findings of the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
Tribunal relating to negligence and liability are incorrect and false.
(viii) The discrepancy between the time of accident mentioned in
the claim petition and the prosecution records ought to have been taken
stock by the Tribunal and the Tribunal is not justified in deciding the
liability and negligence in a mechanical manner.
(ix) The quantum of compensation fixed at Rs.70,73,609/- is itself
excessive and arbitrary and the same is liable to be set aside.
Hence, prayed to set aside the judgment of the trial Court and allow the
Civil Miscellaneous Appeal.
8. Heard the learned counsel on either side and perused the
material available on records.
9. Now, this court has to decide the following points for
consideration :
(1) whether the accident occurred due to the rash
and negligent act of the driver of the 8th respondent/1st
respondent ?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
(2) Whether the compensation awarded by the
Tribunal is on the higher side ?
10. Point No.1 :
Ex.P1 FIR registered in crime No.702/2013 against the
driver of the first respondent’s vehicle bearing Registration No.TN 55 S
3910, the complaint name has been mentioned as Palaniappan, father of
the deceased Arulmozhi. Ex.P12 is the Motor Vehicle Inspection report
issued by the Motor Vehicle Inspector, Madhuranthagam to the vehicle
bearing Registration No.TN 55 S 3910, in which the deceased was
travelling reveals that there were damages on the front side of the vehicle
Scorpio, belonging to the 1st respondent and also reveals that the vehicle
was insured with the 2nd respondent and was in force at the time of
accident. The Motor Vehicle Inspector opined that the accident was not
due to any mechanical defect. Ex.P13 is the Registration Certificate of
Scorpio bearing Registration No.TN 55 S 3910. Ex.P14 is the driving
license of Thiru.Pandiaraj, driver of the 1st respondent, valid on the date
of accident.
11. On the side of the appellant – Insurance Company, the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
Assistant Manager has been examined as RW1, during cross
examination, he admitted that a criminal case has been filed against the
driver of the first respondent vehicle. He also admitted that the first
respondent vehicle is taxi and the driver of the vehicle was having
driving license and the vehicle was insured with the second respondent
and was in force at the time of accident.
12. One Thiru.Kumar, has been examined as PW3, who is an
eye witness to the occurrence clearly stated that the driver of the first
respondent vehicle drove the vehicle in a rash and negligent manner and
dashed against unknown lorry and caused the accident. The FIR also
filed against the driver of the vehicle, therefore, it is proved that the
accident had occurred due to the rash and negligent act of the driver of
the 1st respondent vehicle.
13. The learned counsel for the appellant argued that the
unknown vehicle has to be added as a party and the owner and the
Insurance Company of the unknown vehicle is made liable for the
accident. P.W.3 clearly stated that the unknown vehicle did not stop but
left the place and could not be identified. The Police were unable to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
identify the unknown vehicle, for that the petitioners could not be held
responsible. Moreover the driver of the vehicle did not prefer any
complaint against the unknown vehicle. Instead a case was filed against
him in Crime No.702/2013 for rash and negligent driving. The Tribunal
held that the Insurance Company, with whom the first respondent vehicle
was insured is liable to pay compensation to the petitioners, which is
proper. We do not wish to interfere with the findings of the Tribunal.
The Point No.1 is answered accordingly.
14. Point No.2 :
Ex.P2 is the postmortem report issued by the Assistant
Surgeon, Government Hospital, Mathurandagam. Ex.P3 is the Death
certificate issued by the Tahsildar, Mathurandagam. Ex.P4 is the legal
heirship certificate issued by theTahsildar, Ponnamaravathy, shows that
the petitioners are the legal heirs of Late.Arulmozhi. Ex.P5 is the
Transfer Certificate of Arul Mozhi which shows that he was born on
05.07.1979. Ex.P6 is the PAN card of the deceased. Ex.P7 is the
acknowledgement issued by the Income Tax Authority which shows that
the total income of deceased Arulmozhi during the year 2012–2013 is
Rs.3,90,827/- and the net income is Rs.3,39,400/-, Income Tax return for
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
the year 2013–2014 shows that the net income of the deceased is
Rs.1,72,270/-. Ex.P9 is the certificate of Registration whichs shows that
the deceased was running a business in the name and style of Rasi
Electricals and Ex.P.10 is the sale tax receipt, which shows that he was
paying sales tax for his business. The Tribunal took the annual income
of the deceased at Rs.3,90,827/-.
15. As per judgement by the Apex Court in National
Insurance Company Ltd., Vs. Pranay Sethi and Others reported in AIR
2017 SC 5157, it was held that in case the deceased was self-employed
and aged below 40 years, future prospectus to be taken 40% in addition
to the actual income. The date of birth of the deceased as per the school
records is 05.07.1979. At the time of death, he was 34 years and the
Tribunal properly added 40% income in addition to his actual income for
the future prospectus and the multiplier was fixed at 16. The deceased
was married and the number of dependent family members if exceeds six
1/5th income to be deducted towards his expenses. The Tribunal,
therefore, fixed the loss of income at Rs.70,03,609/- (Rs.3,90,827 + 40%
(Rs.1,56,330/-) = Rs.5,47,157 - 1/5th income (Rs.1,09,431/-) =
Rs.4,37,725.60p x 16 = Rs.70,03,609/-) and loss of estate at Rs.15,000/-,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
loss of consortium Rs.40,000/- and Funeral expenses at Rs.15,000/-,
which is proper and reasonable.
16. The learned counsel for the appellant argued that there is
no loss to the family income and Ex.P8 would go to show that the
business of the deceased was continued by the members of the family,
even after the accident.
17. Ex.P8 is indeed Income Tax acknowledgement for the
year 2013-2014, but the date of the accident is on 04.09.2013. If the
Auditor report is filed, it would reveal whether Ex.P8 Income Tax return
was filed for the income earned before or after the accident. The Income
Tax returns are normally filed for the previous year. There is no proof to
show that the business of the deceased continues. Nonetheless, the
personal impact of the deceased on his business cannot be compensated,
even if the business continues. The petitioners 2 to 5 minor children of
tender age, the 1st petitioner must maintain and educate her children. The
petitioners 6 and 7 are elders and cannot be expected to manage the
business. Therefore, they cannot be expected to concentrate on the
business. Therefore, the argument advanced by the learned counsel for
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
the appellant is not sustainable. The point No.2 is answered accordingly.
18. There are no other serious lapses in the order passed by
the Tribunal, there is no strong reason found in the Civil Miscellaneous
Appeal to set aside the order of the Tribunal. Therefore, we do not find
any merit in the Civil Miscellaneous Appeal, and hence, the Civil
Miscellaneous Appeal is liable to be dismissed.
19. In the result, the Civil Miscellaneous Appeal is
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
(G.J., J.) & (R.P., J.)
24.02.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
To
1.The Special District Court,
Motor Accident Claims Tribunal,
Pudukkottai.
Copy to
1.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
RM
Judgment in
24.02.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 04:20:17 pm )
