Partly allowed

National Insurance Company Ltd. v. Suriya

Madras HC22 Apr 2021CMA/1771/2020

Case brief

AI extract

What is this about?

The High Court held the Insurance Company liable to pay compensation despite the driver lacking a valid license due to adverse inference. The Court recalculated the total award from Rs.36.45 Lakhs to Rs.29 Lakhs by adjusting income figures and reducing specific compensatory heads.

What did the court decide?

Compensation reduced from Rs.36,45,000 to Rs.29,00,000; Insurance directed to deposit amount and recover from vehicle owner; liability remains on insurer.

National Insurance Company Ltd. Vs Suriya — Motor Accident Claims | Madras HC (2021)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED : 22.04.2021

¶3

CORAM

¶4

THE HONOURABLE MR.JUSTICE R.SUBBIAH

¶5

AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL

¶6

C.M.A. NO.1771 OF 2020
AND
CMP.NOS.13037 OF 2020 & 7084 OF 2021

¶7

National Insurance Company Ltd.,
No.751, Anna Salai, 3rd Floor
Chennai 600 002

¶8

.. Appellant/2nd Respondent

¶9

Versus

¶10

1. B.Suriya

¶11

2. Minor B.Vasanth
 [Minor rep. By his mother B.Suriya]

¶12

3. V.Anusuya

¶13

4. D.Vadivelu

¶14

.. Respondents 1 to 4/Claimants 1 to 4

¶15

5. R.Selvi

¶16

.. 5th Respondent/1st Respondent

¶17

Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicles Act, 1988 against the judgment and decree dated
03.10.2019 made in MACTOP.No.5552 of 2013 on the file of the
Motor Accident Claims Tribunal/II Small Causes Court, Chennai.

¶18

For appellant: Mrs.N.B.Sureka

¶19

For respondents: Mr.K.Malaikkannu for RR1 to 4
 R5 was set ex-parte
 before the Tribunal

¶20

https://hcservices.ecourts.gov.in/hcservices/

¶21

JUDGMENT

¶22

(The Judgment of the Court was delivered by R.Subbiah, J)

¶23

The appeal is heard through video conferencing.

¶24

2. Challenging the quantum of compensation awarded by the
Motor Accident Claims Tribunal / II Small Causes Court, Chennai,
in MACTOP. No. 5552 of 2013 dated 03.10.2019, the present appeal
has been filed by the Insurance Company.

¶25

3. The respondents 1 to 4/claimants in this appeal are
the wife, minor son and the parents of the deceased Baskar. On
12.07.2013 at about 08.30 hours, while the deceased V.Bhaskar
was driving his motorcycle bearing Registration No.TN 03 K 8745
on K.H.Road from North to South, a Lorry bearing Registration
No.TN 69 Z 1272, owned by the fifth respondent and insured with
the appellant/Insurance Company, came in a rash and negligent
manner, being driven by it is driver, in the same direction, and
dashed against the motorcycle. Due to the impact, the deceased
sustained fatal injuries and died on the spot. It is the
further case of the claimants that at the time of the accident,
the deceased was working as a skilled worker in S.P.Steel
Company, Chennai and earning a sum of Rs.15,000/-. Due to the
sudden demise of the deceased, the claimants lost their
livelihood. Hence, the claimants have filed the claim petition
claiming a sum of Rs.36,00,000/- as compensation for the death
of the deceased.

¶26

4. Resisting the claim made by the respondents 1 to
4/claimants, the appellant/Insurance Company filed a counter
statement inter alia contending that the accident had not
occurred in the manner as projected by the claimants. They have
also denied the age, avocation and income of the deceased. Thus,
they sought for dismissal of the claim petition.

¶27

5. In order to prove the claim before the Tribunal, the
first respondent/wife of the deceased, examined herself as PW1,
besides examining, PW2, viz., Mr.S.Ramesh, an eyewitness to the
accident and PW3, Ravikumar. The claimants have also marked
Exs.P1 to P16 on their side. On the side of the Insurance
Company, one Rema Devi was examined as RW1 and Exs.R1 to R4 were
marked.

¶28

https://hcservices.ecourts.gov.in/hcservices/

¶29

6. The Tribunal, after analysing the entire evidence,
came to the conclusion that the accident had occurred due to the
rash and negligent driving of the driver of the Lorry bearing
Registration No.TN 69 Z 1272 and awarded a compensation of
Rs.36,45,000/-. Further, the Tribunal observed that the material
records are insufficient to come to the conclusion as to whether
the driver of the said Lorry is possessing valid driving licence
or not and directed the Insurance company to pay the above
compensation indemnifying the owner of the vehicle and to
recover it from the owner of the vehicle. The break-up details
of the amounts awarded by the Tribunal under various heads are
as follows:

¶30

`S.`	`Amounts awarded under the heads`	`Amount`
`No.`		`in Rs.`
`1.`	`Loss of Dependency`	`32,40,000`
`2.`	`Loss of Consortium`	`40,000`
`3.`	`Loss of Love and Affection`	`1,50,000`
`4.`	`Parental Consortium`	`1,00,000`
`5.`	`Filial Consortium`	`1,00,000`
`6.`	`Funeral Expenses`	`15,000`
	`Total`	`36,45,000`

¶31

7. Now, it is the contention of the learned counsel for
the appellant/ Insurance Company that at the time of the
accident, the driver of the Lorry did not possess a valid
driving licence and there is a violation of the policy
condition. He further submitted that the appellant/Insurance
Company issued a notice, Ex.R2 to the driver as well as the
owner of the said Lorry to produce the driving licence and the
said notices were received by both of them and acknowledgment
cards were marked as Exs.R3 & R4. However, they did not turn up
to produce the driving licence of the said Lorry driver. Hence,
adverse inference has to be made to the effect that at the time
of the accident, the driver of the said Lorry did not possess
valid licence. While so, the appellant Insurance Company ought
not to have been mulcted with the liability to pay compensation,
instead, the owner of the vehicle ought to have been directed to
pay the compensation amount to the claimants.

¶32

https://hcservices.ecourts.gov.in/hcservices/

¶33

8. With regard to the quantum of compensation, the
learned counsel for the appellant/Insurance Company submitted
that the Tribunal has fixed Rs.15,000/- as monthly income of the
deceased, which was extremely on the higher side. In support of
such contention, the learned counsel for the appellant relied
upon the deposition of PW3, Mr. Ravikumar, Proprietor of
S.P.Steel Company, Chennai. PW3 has specifically deposed that
he paid a salary of Rs.3,000/- per week to the deceased and if
so, the monthly income of the deceased would come to only
Rs.12,000/-. Therefore, the sum of Rs.15,000/- fixed as monthly
income of the deceased by the Tribunal is not correct. Hence, he
prayed that Rs.12,000/- may be fixed as monthly income of the
deceased by modifying the award of the Tribunal.

¶34

9. The learned counsel for the appellant/Insurance
Company also submitted that the Tribunal, while calculating the
amount towards future prospects, had added 50% of the salary of
the deceased, which is incorrect. The deceased was not a
permanent employee under PW3, therefore, he would contend that
only 40% has to be added towards future prospects. Hence, by
fixing the monthly income of the deceased at Rs.12,000/- and by
adding 40% towards future prospects, the amount awarded under
the head “Loss of Dependency” has to be reduced.

¶35

10. In reply, the learned counsel for the respondents 1
to 4/claimants submitted that it is incorrect to state that the
appellant was receiving Rs.12,000/- per month. Apart from the
weekly income of Rs.3,000/-, the deceased was receiving a bonus
of Rs.3,000/- every year and also special payment. Hence, the
sum of Rs.15,000/- fixed by the Tribunal cannot be said to be
exorbitant. Further, the learned counsel submitted that the
deceased was a permanent employee of S.P.Steel Company, Chennai,
and hence, 50% of the income added by the Tribunal towards
future prospects, is correct. Thus, he prayed to confirm the
order passed by the Tribunal.

¶36

11. This Court considered the rival submissions and
perused the materials available on record.

¶37

12. Insofar as the liability is concerned, we find that
the Insurance Company has issued notice calling upon the driver
as well as the owner of the Lorry to produce the driving licence
of the said Lorry driver, but they have not produced the same

¶38

https://hcservices.ecourts.gov.in/hcservices/

¶39

and hence, adverse inference has to be made to the effect that
the driver of the said Lorry did not have valid licence at the
time of accident. Therefore, this Court is of the view that the
Insurance Company shall pay the compensation amount to the
claimants at first instance and thereafter, they recover the
same from the owner of the said Lorry. The Tribunal has also
given liberty to the appellant to pay the compensation amount to
the claimants to recover it from the owner of the lorry. At the
same time, merely because the driver of the lorry did not
produce a valid licence, it will not deprive the claimants to
get the compensation from the appellant Insurance Company. In
such circumstance, the Tribunal has rightly given liberty to the
appellant to recover the amount, which does not call for any
interference by this Court.

¶40

13. So far as the quantum is concerned, it is the
contention of the learned counsel for the Insurance Company that
the deceased was receiving only a sum of Rs.3,000/- per week as
per the testimony of his employer, PW3. While so, the Tribunal
fixed a sum of Rs.15,000/- per month as income of the deceased,
which is not proper. On the other hand, it is the submission of
the learned counsel for the claimants that, apart from the sum
of Rs.12,000/-, the deceased was receiving bonus of Rs.3,000/-
every year and also special payments and in such circumstances,
the sum of Rs.15,000/- fixed by the Tribunal cannot be said to
be incorrect.

¶41

14. On a perusal of records, it is seen that PW3,
Proprietor of S.P.Steel Company, Chennai has deposed that the
deceased was working as a Skilled Worker in his company and
earning Rs.3,000/- per week with an yearly bonus of Rs.3,000/-.
Thus, if Rs.3,000/- is taken as weekly income of the deceased,
the annual income comes to Rs.1,56,000/- [3,000 x 52] and if the
bonus amount of Rs.3,000/- is added, the actual annual income
comes to Rs.1,59,000/-. Then, the monthly income works out to
Rs.13,250/-. Further, as the deceased was working in a Private
Company, it is appropriate to add 40% of his income towards
future prospects.

¶42

15. Thus, if a sum of Rs.13,250/- is taken as monthly
income of the deceased and 40% of the same is added towards
future prospects, it works out to Rs.18,550/- [13,250 + 5,300].
Since the total dependents of the deceased are 4, one forth of

¶43

https://hcservices.ecourts.gov.in/hcservices/

¶44

the amount should be deducted towards personal expenses from the
monthly income of the deceased and if so deducted, the amount
comes to Rs.13,913/- [18,550 – 4,637]. Considering the age of
the deceased being 32 years at the time of the accident, if
multiplier “16” is applied, the “Loss of Dependency” comes to
Rs.26,71,296/- [13,913 x 16 x 12]. Thus, the sum of
Rs.32,40,000/- awarded by the Tribunal under the head “Loss of
Dependency” is hereby reduced to Rs.26,71,296/-.

¶45

16. As per the oft-quoted judgment of National Insurance
Company Limited vs. Pranay Sethi and others [(2017) 16 SCC 680],
a sum of Rs.40,000/- has to be awarded to each of the legal
heirs of the deceased towards "Loss of Love and Affection".
However, in this case Rs.50,000/- was awarded by the Tribunal to
each of the claimants, which resulted in awarding an exorbitant
sum of Rs.1,50,000/- under the head "Loss of Love and
Affection". Hence, the sum of Rs.1,50,000/- awarded by the
Tribunal under the head “Loss of Love and Affection” is set
aside, instead a sum of Rs.1,20,000/- is awarded under such
head, by awarding a sum of Rs.40,000/- to each of the claimants
2 to 4.

¶46

17. Since a sum of Rs.1,20,000/- is awarded under the
head of “Loss of Love and Affection” to the claimants, there is
no need to award any amounts separately under the heads
“Parental Consortium” and “Filial Consortium”, Accordingly, the
sum of Rs.1,00,000/- awarded by the Tribunal under each of such
heads are set aside.

¶47

18. Since no amount is awarded under the head
“Transportation Expenses” a sum of Rs.15,000/- is awarded under
such head. Similarly, another sum of Rs.25,000/- is awarded
under the head “Loss of Estate”.

¶48

19. Thus, the total compensation payable to the claimants
are re-calculated and tabulated below:

¶49

`S.`	`Amounts awarded`	`Amounts awarded`	`Amounts awarded`
`No`	`under the heads`	`by the Tribunal`	`by this Court in`
`.`		`in Rs.`	`Rs.`
`1.`	`Loss of Dependency`	`32,40,000`	`26,71,296`
`2.`	`Loss of Consortium`	`40,000`	`40,000`

¶50

https://hcservices.ecourts.gov.in/hcservices/

¶51

`S.`	`Amounts awarded`	`Amounts awarded`	`Amounts awarded`
`No` `.`	`under the heads`	`by the Tribunal` `in Rs.`	`by this Court in` `Rs.`
`3.`	`Loss of Love and` `Affection`	`1,50,000`	`1,20,000`
`4.`	`Parental Consortium`	`1,00,000`	`-`
`5.`	`Filial Consortium`	`1,00,000`	`-`
`6.`	`Funeral Expenses`	`15,000`	`25,000`
`7.`	`Transportation` `Expenses`	`-`	`15,000`
`8.`	`Loss of Estate`	`-`	`25,000`
	`Total`	`36,45,000`	`28,96,296` `rounded of to` `29,00,000`

¶52

20. In effect, the total compensation of Rs.36,45,000/-
awarded by the Tribunal is hereby reduced to Rs.29,00,000/-,
which shall carry interest at 7.5% from the date of claim
petition till the date of payment. The Insurance Company is
directed to deposit the total compensation awarded by this Court
before the Tribunal, after adjusting the amount if any already
deposited, within a period of six weeks from the date of
receipt of a copy of this judgment. The apportionment of shares
fixed by the Tribunal to the claimants is hereby confirmed. On
such deposit, the claimants 1, 3 and 4 are permitted to withdraw
their respective shares. Insofar as the minor claimant 2 is
concerned, his share shall be deposited by the Tribunal in any
Fixed Deposit Scheme in any one of the Nationalised Bank and it
shall be renewed periodically till he attains majority and the
interest accrued thereon shall be withdrawn by the first
claimant/ his mother once in three months. It is made clear
that the appellant/Insurance company is permitted to pay the
compensation amount to the claimants and thereafter, recover it
from the owner of the Lorry bearing Registration No.TN 69 Z 1272
since there is a violation to the condition of the Insurance
Policy.

¶53

21. With the above observations and directions, the
Civil Miscellaneous Appeal is partly allowed. No costs.

¶54

https://hcservices.ecourts.gov.in/hcservices/

¶55

Consequently, connected miscellaneous petitions are closed.
Sd/-
Deputy Registrar(Accounts)
// True Copy //
Sub Assistant Registrar

¶56

pvs
To
1. The Motor Accident Claims Tribunal
 II Small Causes Court, Chennai
2. The Section Officer,
 V.R.Section, High Court, Madras.
+1cc to Mrs.N.B.Sureka, Advocate, S.R.No.24824
+1cc to Mr.K.Malaikkannu, Advocate, S.R.No.24619
C.M.A. No.1771 of 2020
RSV(CO)
RLP(25/10/2021)

¶57

https://hcservices.ecourts.gov.in/hcservices/

National Insurance Company Ltd. v. Suriya

Case brief

What is this about?

What did the court decide?

National Insurance Company Ltd. v. Suriya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Royal Sundaram Alliance Insurance Co. Ltd. Vs Sangeetha

V.Deepak Kumar Vs Murugesan

The Divisional Manager Vs G.Kala

The New India Assurance Co. Ltd. Vs R.Revathy

K.Arumugam Vs Karthiravan

P.Arulanantham Vs M/S.Unitted India Insurance Co. Ltd.