Madras High Court
The Branch Manager vs Ayyappan on 26 February, 2025
C.M.A.(MD) No.1043 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.02.2025
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.(MD)No.1043 of 2024
and Cross Objection No.48 of 2024
and C.M.P(MD) No.10905 of 2024
C.M.A.No.1043 of 2024
The Branch Manager,
United India Insurance Company Limited,
Nagarcoil,
Agastheeswaram Taluk,
Kanyakumari District. ...Appellant / 2nd Respondent
vs.
1. Ayyappan
2. Siva Anandh
3. Muthu Meena ... Respondents / Claimants
4. Afreen ...Respondent / 1st Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 to set aside the judgment and decree dated
27.11.2023 passed in M.C.O.P.No.121 of 2021 on the file of the Motor
Accident Claims Tribunal / Principal Sub Court, Nagarcoil.
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Page No. 1 of 10
C.M.A.(MD) No.1043 of 2024
For Appellant : Mr.I.Robert Chandra Kumar
For R1 to R3 : Mr.S.Ramesh
For R4 : Mr.M.Selva Kumar
CROS OBJECTION (MD) No.48 of 2024
1. Ayyappan
2. Siva Anandh
3. Muthu Meena … Cross Objectors
vs.
1. United India Insurance Company Limited,
Represented by its Branch Manager,
Nagarcoil,
Agastheeswaram Taluk,
Kanyakumari District.
2.Afreen … Respondents
PRAYER: This Cross Objection is filed under Order 41 Rule 21 of CPC
to enhance the compensation.
For Cross Objectors : Mr.S.Ramesh
For 1st Respondent : Mr.I.Robert Chandra Kumar
For 2nd Respondent : Mr.M.Selva Kumar
JUDGMENT
This Civil Miscellaneous Appeal has been preferred by the
insurance company / second respondent against the award dated
27.11.2023 passed in M.C.O.P.No.121 of 2021 by the Motor Accident
Claims Tribunal / Principal Sub Court, Nagarcoil on the issue of
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negligence and liability.
2. Cross Objection (MD) No.48 of 2024 has been filed by the
claimants herein for enhancement of compensation.
3. Heard the the learned counsel for the appellant, the learned
counsel for the respondents no.1 to 3 / claimants and the learned
counsel for the 4th respondent. Perused the relevant records.
4. Claim petition was filed by the claimants herein who are the
dependants of the deceased Sundaram under Section 166 of the Motor
Vehicles Act, 1988, claiming compensation of Rs.41,00,000/- for the
death of Sundaram on account of the accident that occurred on
17.07.2019.
5. At trial, to substantiate the claim details, two witnesses were
examined and 15 documents were marked. On the side of the
respondents, neither any oral evidence let in nor document is marked.
6. Upon consideration, the Tribunal passed an award for sum of
Rs.15,85,158/-. The compensation granted by the Tribunal under
various heads are given hereunder:
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Sl. Description Amount awarded
No. by Tribunal
1 For loss of dependency Rs.1,20,000/-
2 For funeral expenses Rs.15,000/-
3 For loss of estate Rs.15,000/-
4 For loss of consortium Rs.1,20,000/-
5 For Medical Bills Rs.13,15,158/-
Total Rs.15,85,158/-
7. In this case, P.W2 is the only ocular witness. It has come on
record through the evidence of P.W2 - Sivaramakrishnan that on
17.07.2019 at about 9.45 a.m., while he was standing in front of photo
studio of Sivasakthi and talking with the said Sivasakthi, he saw
Tmt.Sundaram Ayyappan of Kulalar Street was coming by walk along the
northern side of the road. At that point of time, one Afreen came in a two
wheeler in a rash and negligent manner and hit upon the said
Tmt.Sundaram from behind. Due to the said impact, Tmt.Sundaram was
thrown out and fell on the opposite side and thereafter, he along with said
Sivasakthi rushed to the spot and she was sent to the hospital in an
ambulance. He came to know that she was in coma stage and she was
undergoing treatment and after a year, she succumbed to the injuries.
From the cross-examination of P.W2, it is pellucid that the road is not a
straight road and it is a east – west road. It is also made clear that while
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she was attempting to cross the road from north to southern direction in
the centre of the road the accident occurred.
8. The aforesaid details have been averred in the counter of the 2nd
respondent. When a person tries to cross the road, he or she is
expected to check both sides and thereafter, one has to cross the road
slowly. Of course, the deceased was above 60 years, the Tribunal has
observed that while the deceased was crossing road the accident
occurred and the 1st respondent could have easily averted the accident.
Whether she had a fair chances to avert the accident is not elicited
through the cross examination of P.W2. In such a view of the matter, the
entire negligence fastened on the 1st respondent is not acceptable. Since
because no witness was examined by the respondent side in order to
prove the negligence of the deceased Sundaram, the Tribunal concluded
that it is because of the 1st respondent rash and negligent driving the
accident occurred is also not correct. In the given circumstance, relying
upon the evidence of P.W2, contributory negligence at the ratio of 20:80
is fixed upon the deceased Sundaram and the 1st respondent
respectively.
9. Whereas in Cross Objection (MD) No.48 of 2024, the claimant
herein have filed for enhancement of compensation.
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10. It is the evidence of P.W.1 – Ayyappan that the deceased was
an income tax assessee, was hale and healthy, and she was a home
maker. It is the evidence of P.W.1 that she was a home maker aged
about 66 years and earning a sum of Rs.7,000/- per month, but no details
have been given in the claim petition. In this regard, during the cross-
examination of P.W1, he would state that she was selling earthen pots.
Her income tax return for the year 2017-2018 is Ex.P8 and the annual
income is shown as Rs.35,680/-. As regards the income from other
sources, namely through rent, no doubt, even after the demise of
Smt.Sundaram, the legal heirs would continue to receive the same. As
per the details mentioned in Ex.P8, the annual income was fixed at Rs.
36,000/- by the Tribunal cannot be found fault with it. The claimants are
three in number. As per the law laid down by the Apex Court in Sarla
Varma and others Vs. Delhi Transport Corporation and others reported in
2009 (2) TN MAC 1 (SC), if the claimants are three in number, then 1/3rd
has to be deducted for personal and living expenses. As per the medical
records, the age of the deceased is fixed as 66 years and as per the
above said judgment, the relevant multiplier to be adopted is '5'. For
computing loss of dependency, the following formula emerges:
Loss of dependency = (Rs.36,000/- – 1/3rd of Rs.36,000) x 5
= Rs.1,20,000/-
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11. On conventional heads, for loss of estate, loss of consortium
and loss of future expenses, the amounts awarded by the Tribunal
appears to be reasonable and hence, it needs no interference.
Therefore, the compensation awarded by the Tribunal is reworked
as tabulated below:
Sl. Description Amount Amount awarded Award
No. awarded by by this Court confirmed or
Tribunal enhanced or
granted or
reduced
1 For loss of Rs.1,20,000/- Rs.1,20,000/- Confirmed
dependency
2 For funeral Rs.15,000/- Rs.15,000/- Confirmed
expenses
3 For loss of estate Rs.15,000/- Rs.15,000/- Confirmed
4 For loss of Rs.1,20,000/- Rs.1,20,000/- Confirmed
consortium
5 For Medical Bills Rs.13,15,158/- Rs.13,15,158/- Confirmed
Total Rs.15,85,158/- Rs.15,85,158/- Confirmed
Rs.15,85,158/-
– Rs. 3,17,031/-
Less 20% towards --------------------
contributory negligence (Rs.3,17,031/-) = Rs.12,68,127/- Reduced
-------------------
Rounded off to
Rs,12,68,000/-
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12 . Thus, the compensation awarded by the Tribunal is reduced
from Rs.15,85,158/- to Rs.12,68,000/- which would carry interest at the
rate of 7.5% per annum.
13. In the result,
(i) In the result, this Civil Miscellaneous Appeal No.1043 of 2024
preferred by the Insurance Company stands partly allowed and Cross-
Objection No.48 of 2024 filed by the claimants stands dismissed. There
is no order as to costs.
(ii) The Compensation awarded by the Tribunal is reduced from
Rs.15,85,158/- to Rs,12,68,00/-.
(iii) The Appellant / Insurance Company is directed to deposit the
modified compensation amount i.e.Rs.12,68,130/- (less the amount
already deposited if any) together with interest at the rate of 7.5% per
annum from the date of filing of petition till the date of realisation to the
credit of M.C.O.P.No.121 of 2021 on the file of the Motor Accident Claims
Tribunal, Principal Sub Court, Nagarcoil, within a period of eight weeks
from the date of receipt of a copy of this Judgment.
(iv) On such deposit being made, the respondents no.1 to 3 /
claimants are at liberty to withdraw the same as apportioned by the
Tribunal, along with interest and costs, after adjusting the amount, if any
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already withdrawn by filing necessary application before the Tribunal.
Consequently, connected civil miscellaneous petition is closed.
26.02.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
mac
To
1. The Motor Accident Claims Tribunal,
The Principal Sub Court, Nagarcoil.
2. The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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R.KALAIMATHI,J.,
mac
and Cross Objection No.48 of 2024
and C.M.P(MD) No.10905 of 2024
26.02.2025
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