Disposed

M/S.United India Insurance Company Limited v. S.Margret Rose

Madras HC6 Sept 2022CMA(MD)/443/2022

Case brief

AI extract

What is this about?

The High Court disposed of two Civil Miscellaneous Appeals and Cross Objections regarding compensation for a fatal motor accident involving two deceased persons. The Court fixed the final compensation amounts after addressing arguments on family pension deductions, own expenses for a bachelor, and contributory negligence due to helmet non-wearing.

What did the court decide?

Insurance Company directed to deposit Rs.25,82,748/- and Rs.19,05,977/- with interest at 7.5% p.a. and costs within eight weeks.

M/S.United India Insurance Company Limited Vs S.Margret… — Motor Accident Claims | Madras HC (2022)

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 & 22 of 2022

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S. SRIMATHY, J

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These matters are posted today before this Court under the caption ' For Clarification' at the instance of the learned counsel appearing for the petitioner.

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2. This Court while considering the C.M.A(MD)Nos.443 & 444

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of 2022 which is filed against the order, dated 24.02.2020 passed by the Learned Additional District Judge [Motor Accident Claims Tribunal], Virudhunagar at Srivilliputhur, in M.C.O.P.No.23 of 2018 has held that the major claimants are permitted to withdraw their respective shares as per ratio fixed by the Tribunal with the proportionate interest and costs. However, while drafting the decree, the major claimants are permitted to withdraw their respective shares as per ratio fixed by the Tribunal. But the Tribunal as granted only to the claimant S.Margret Rose, the other claimants, namely; T.Prema Selvi, T.Ashok Kumar and M.Venkatesan are not entitled to.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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4. Therefore, Registry is directed to draft the decree by taking

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the award passed by the Tribunal and the relevant portion is extracted hereunder:

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¶13

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5. Accordingly, these matters are clarified as stated above. Registry

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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is directed to carry out the necessary corrections in the decree, dated 06.09.2022 in C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 & 22 of 2022, and issue order copy afresh.

10.01.2024

ksa

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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S.SRIMATHY, J.

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ksa

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 & 22 of 2022

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10.01.2024

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Reserved On : 02.08.2022

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Delivered On : 06.09.2022

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CORAM

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THE HONOURABLE MRS. JUSTICE R. THARANI

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C.M.A.(MD)Nos.443 and 444 of 2022 and CMP(MD)Nos.5639 & 5642 of 2022 and Cross Objection (MD)No.21 and 23 of 2022

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C.M.A.(MD)No.443 of 2022

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M/s. United India Insurance Company Limited,

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Through it's Branch Manager,

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Sivagangai – 630 561. .. Appellant / 2^nd Respondent

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Vs.

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S.Margret Rose 2. T.Prema Selvi 3.T.Ashok Kumar .. Respondents 1 to 3/Petitioners 4. M.Venkatesan ... 4^th Respondent / 1^st Respondent

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Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree, dated 24.02.2020, made in M.C.O.P.No.23 of 2018, on the file of the Motor 5/25

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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Accident Claims Tribunal (Additional District Court), Virudhunagar, at Srivilliputhur.

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For Appellant : Mr.I.Sudhakaran For Respondents : Mr.M.Gnanagurunathan for R1 to R3 : No appearance for R4

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Cross Objection.(MD)No.21 of 2022

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S.Margret Rose

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T.Prema Selvi 3.T.Ashok Kumar .. Petitioners / Respondents 1 to 3 / Petitioners

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Vs.

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M/s. United India Insurance Company Limited, Through it's Branch Manager,

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Sivagangai – 630 561. ... 1^st Respondent/ Appellant / 2^nd Respondent 4. M.Venkatesan ... 2^nd Respondent / 4^th Respondent /1^st Respondent

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Prayer: This Cross Objection is filed under Order – 41, Rule 22 of the Code of Civil Procedure, to call for the records and set aside the judgment and decree, passed by the file of the Motor Accident Claims Tribunal (Additional District Court), Srivilliputhur, in M.C.O.P.No.23 of 2018, dated 24.02.2020 and to enhance the compensation by allowing this cross objection.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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For Petitioners : Mr.M.Gnanagurunathan For Respondents : Mr.I.Sudhakaran for R1 : No appearance for R2

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C.M.A.(MD)No.444 of 2022

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M/s. United India Insurance Company Limited, Through it's Branch Manager, Sivagangai – 630 561. .. Appellant / 2^nd Respondent Vs. 1. S.Margret Rose 2. T.Prema Selvi 3.T.Ashok Kumar .. Respondents 1 to 3/Petitioners 4. M.Venkatesan ... 4^th Respondent / 1^st Respondent

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Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree, dated 24.02.2020, made in M.C.O.P.No.21 of 2018, on the file of the Motor Accident Claims Tribunal (Additional District Court), Virudhunagar, at Srivilliputhur.

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For Appellant : Mr.I.Sudhakaran For Respondents : Mr.M.Gnanagurunathan for R1 to R3 : No appearance for R4

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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Cross Objection.(MD)No.22 of 2022

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S.Margret Rose 2. T.Prema Selvi 3.T.Ashok Kumar .. Petitioners / Respondents 1 to 3 / Petitioners

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Vs.

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M/s. United India Insurance Company Limited, Through it's Branch Manager,

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Sivagangai – 630 561. ... 1^st Respondent/ Appellant / 2^nd Respondent 4. M.Venkatesan ... 2^nd Respondent / 4^th Respondent /1^st Respondent

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Prayer: This Cross Objection is filed under Order – 41, Rule 22 of the Code of Civil Procedure, to call for the records and set aside the judgment and decree, passed by the file of the Motor Accident Claims Tribunal (Additional District Court), Srivilliputhur, in M.C.O.P.No.21 of 2018, dated 24.02.2020 and to enhance the compensation by allowing this cross objection.

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For petitioners : Mr.M.Gnanagurunathan For Respondents : Mr.I.Sudhakaran for R1 : No appearance for R2

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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COMMON JUDGMENT

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CMA(MD)No.443 of 2022 has been filed against the award, against the judgment and decree, dated 24.02.2020, made in M.C.O.P.No.23 of 2018, on the file of the Motor Accident Claims Tribunal (Additional District Court), Virudhunagar at Srivilliputhur. The appellant herein is the second respondent, the respondents 1 to 3 herein are the claimants and the fourth respondent herein is the second respondent in the original M.C.O.P. Petition. The Respondents 1 to 3/ claimants filed cross objection in Cross Objection (MD) No.21 of 2022, for enhancement of compensation.

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CMA(MD)No.444 of 2022 has been filed against the award, against the judgment and decree, dated 24.02.2020, made in M.C.O.P.No.21 of 2018, on the file of the Motor Accident Claims Tribunal (Additional District Court), Virudhunagar at Srivilliputhur. The appellant herein is the respondent, the respondents herein are the claimants in the original M.C.O.P. Petition. The Respondents 1 to 3 / claimants filed cross objection in Cross Objection (MD) No.22 of 2022 for enhancement of compensation.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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Brief substance of the claim petition in M.C.O.P.No. 23 of 2018, is as follows:

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On 20.06.2015, at about 6.15 am., when the deceased -Thangasamy was riding a two wheeler bearing Registration No.TN-67-AV-9407 along with a pillion rider – Ravi, along the Rajapalayam -Thenkasi Road, near Muthuramalingathevar Marriage Hall, at that time, a lorry bearing Registration No.TN-21-Z-6202, was driven by its driver in a rash and negligent manner, dashed against the two wheeler from behind. The rider - Thangasamy and pillion rider - Ravi sustained injuries and they succumbed to the injuries. The deceased-Thangasamy was aged about 61 years, he was working as the Divisional Engineer in BSNL Corporation and was earning Rs.44,440/- as pension. He was doing agricultural work and was earning Rs.2,40,000/- per year. The claimants are his dependents and they claimed a sum of Rs.45,00,000/- as compensation.

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Brief substance of the claim petition in M.C.O.P.No. 21 of 2018, is as follows:

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In the same accident, the pillion rider-Ravi sustained injuries and

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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succumbed to the injuries. The deceased – Ravi completed M.Tech and he was working as Database Administrator in an Institution, by name, Experis IT, he was earning Rs.14,337/- as salary. The claimants are his dependents and they claimed a sum of Rs.40,00,000/- as compensation.

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Brief substance of the counter filed by the second respondent in both the petitions, in M.C.O.P.Nos.23 and 21 of 2018, is as follows:

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Both the injured persons were not wearing helmet. In both the M.C.O.P., the first petitioner is a retired school teacher, the second petitioner is working as a teacher and the third petitioner is working as an Engineer. The claimants are not the dependents of the deceased. The owner of the vehicle failed to intimate the accident. The first respondent was not having R.C., fitness certificate, driving licence. The manner of accident is denied.

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A joint Trial was conducted in both the M.C.O.P.Nos.23 and 21 of 2018. On the side of the claimants, 2 witnesses were examined and 23 documents were marked. On the side of the respondents, no witness was

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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examined and no document was marked. A common judgment was pronounced by the Tribunal. After considering both sides, the Tribunal awarded a sum of Rs.24,64,762/- in M.C.O.P. No.23 of 2018 as compensation and Rs.23,79,800/- in M.C.O.P.No.21 of 2018 as compensation.

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Against the award in M.C.O.P.No.23 of 2018, the Insurance Company has filed the appeal in C.M.A.(MD)No.443 of 2022. The claimants have filed a cross objection in Cross Objection (MD)No. 21 of 2022.

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Against the award in M.C.O.P.No.21 of 2018, the Insurance

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Company has filed the appeal in C.M.A.(MD)No.444 of 2022. The claimants have filed a cross objection in Cross Objection (MD)No. 22 of 2022.

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Brief substance of the grounds of appeal in C.M.A.(MD)No.443 of

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2022, is as follows:-

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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The Tribunal failed to appreciate the facts and circumstance of the case. The deceased-Thangasamy was only a pensioner and the Tribunal ought to have deducted 50%, since the first claimant will be receiving family pension.

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Brief substance of the grounds of appeal in C.M.A.(MD)No.444

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of 2022, is as follows:-.

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The deceased – Ravi was a Bachelor and 50% ought to have been deducted for his own expenses. But, the Tribunal has deducted only 1/3^rd income, which is wrong.

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Brief substance of the cross objection in Cros.Obj(MD)No.21 of

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2022, in C.M.A.(MD)No.443 of 2022, is as follows:-.

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The claimants claimed Rs.45,00,000/- as compensation. The Tribunal has awarded only Rs.24,64,762/-, which is very low and inadequate. The Tribunal has awarded only Rs.45,000/- towards loss of love and affection. Each of the dependents is entitled to Rs.40,000/- towards loss of love and affection and the award is to be enhanced.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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The Tribunal has erred in deducting 15% towards contributory negligence, for non-wearing of helmet. The Tribunal has awarded a sum of Rs.40,000/- to the wife of the deceased and failed to award a sum of Rs. 40,000/- to the other claimants. The Tribunal ought to have awarded a sum of Rs.25,000/- for funeral expenses and Rs.25,000/-for litigation expenses. The Tribunal failed to award any amount for litigation expenses.

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Brief substance of the cross objection in Cros.Obj(MD)No.22 of

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2022 in CMA(MD)No.444 of 2022, is as follows:-.

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The Tribunal has failed to consider that each of the dependents are entitled to Rs.40,000/-towards loss of love and affection. The Tribunal is wrong in awarding only Rs.15,000/- towards loss of love and affection. The Tribunal has failed to consider that the deceased had a permanent job as he was below 40 years and that additional 40% to be added towards future prospects. The Tribunal has erred in deducting 15% towards contributory negligence for not wearing the helmet.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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CMA(MD)No.443 of 2022 :

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On the side of the appellant / Insurance Company, it is stated that the entire income need not be taken into consideration in fixing the loss of income, since the first claimant will be getting 50% of the amount towards family pension and prayed the calculation to be made, after deducting the amount received towards family pension.

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On the side of the respondents 1to 3 / claimants, it is stated that there is no necessity to deduct the family pension. A judgment of the Hon'ble Supreme Court Hon'ble Supreme Court reported in 2018-SCConline-1924 [Sebastiani Lakra V. National Insurance Company Limited] , and another judgment of the Hon'ble Supreme Court reported in 2007-8SCC-31 [ Lel Devi and others V. Himachal Road Transport], are cited.

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It is seen that as per the dictum of the Hon'ble Supreme Court, there is no necessity to deduct the family pension received by the first respondent/claimant from the award amount and the loss of income(ie.Rs. 27,99,720/-) fixed by the Tribunal is reasonable.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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The Tribunal has awarded Rs.40,000/- as loss of consortium for each of the claimants, based on the judgment reported in 2018-2-

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TNMAC-452 (SC) (Magma General Insurance Co.Ltd., V. Nanu Ram

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alias Chuhru Ram and others ). On the side of the appellant, it is stated that this citation is not applicable, since the accident took place in the year 2015. Considering that the accident took place in the year 2015, the judgment quoted by the Tribunal is not applicable to the facts of the present case.

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As per the dictum of the Hon'ble Supreme Court in Pranay Sethi's case, the claimants are entitled to Rs.70,000/- towards conventional charges.

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The compensation is calculated as follows:-

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Loss of income :Rs.27,99,720/-

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Conventional charges :Rs. 70,000/-

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Total compensation : ............................. Rs.28,69,720/-

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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On the side of the claimants, it is stated that the Tribunal has deducted 15% towards contributory negligence for non-wearing of helmet, which is excessive.

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On the side of the claimants, a judgment of the Hon'ble Supreme Court, reported in 2020-1-TNMAC-161 (SC) [Mohammed Siddique and another V. National Insurance Company Limited and others] is cited.

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Another judgment of the Hon'ble Division Bench of this Court made in C.M.A.(MD)No.434 of 2020 (Iffco Tokio General Insurance Company Limited V. S.Pitchaimary and others), dated 17.02.2021 is cited, wherein, it is stated as follows:-

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“ 9. Even though in the First Information Report also, it is mentioned that the deceased was not wearing a helmet, unless it is proved that the death was caused due to the non~wearing of the helmet, it cannot be said that the deceased contributed to his own death. There is no reason given as to why the Van was driven to the extreme right of the

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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road and hit the right side handle bar of the two wheeler causing imbalance to the rider, which resulted in the fatal accident. Therefore, as rightly held by the Tribunal, contributory negligence cannot be applied mechanically without sufficient evidence and the same has to be proved beyond doubt. Admittedly, the driver of the Van has not been examined on the side of the appellant and the fifth respondent. Hence, the argument of the learned counsel for the appellant that the deceased had contributed to the negligence and the compensation awarded has to be reduced to a certain percentage does not find merit.”

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In this judgment, the Hon'ble Supreme Court has made an observation that contributory negligent on the part of a person, who was not wearing helmet, has to be decided on the facts and circumstances of each case. Admittedly, both the rider and the pillion rider were not wearing helmet. As per the judgment of the Hon'ble Supreme Court reported in 2020-1-TNMAC-161 [Mohammed Siddique and another V. National Insurance Company Limited and others] , both the rider and the pillion rider are liable for contributory negligence and the negligence is fixed at 10%. After deducting 10% towards contributory negligent, the claimants 18/25

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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are entitled to Rs.25,82,748/- (Rs.28,69,720/- (-) Rs.2,86,972/- = Rs. 25,82,748/-) as compensation.

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In view of the above discussion, both the CMA(MD)No.443 of 2022 and Cross Objection (MD)No. 21 of 2022 are disposed of as stated above, by fixing the award amount as Rs.25,82,748/-.

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C.M.A.(MD)No.444 of 2022 :

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On the side of the appellant /Insurance Company, it is stated that the deceased was a Bachelor, but, the Tribunal has deducted only 1/3^rd towards own expenses and the same to be rectified.

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A perusal of the records reveals that the Tribunal has deducted only 1/3^rd of the income towards own expenses of the deceased. The deceased was a Bachelor and hence, 50% deduction to be made.

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On the side of the appellant / Insurance Company, it is stated that the deceased was not doing any permanent job, he was doing only private

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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job and the Tribunal is wrong in awarding 40% towards future prospects, which is unwarranted.

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On the side of the respondents 1 to 3 / claimants, it is stated that there is no necessity to distinguish between a Government job and a private job. The Tribunal is correct in adding 40% towards future prospects. In view of the dictum of the Hon'ble Supreme Court in Pranay Sethi's case, it is decided that the percentage of future prospects fixed by the Tribunal is reasonable.

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On the side of the respondents 1 to 3 / claimants, it is stated that the Tribunal is wrong in deducting 15% towards contributory negligence for non wearing of helmet and that the accident was only due to the rash and negligent driving of the lorry, who hit the two wheeler from behind and there is no contributory negligence on the part of the rider and pillion rider of the motorcycle.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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Admittedly, both the rider and the pillion rider were not wearing helmets. As per the judgment of the Hon'ble Supreme Court reported in

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2020-1-TNMAC-161 [Mohammed Siddique and another V.National Insurance

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Company Limited and others] , both the rider and the pillion rider are liable for contributory negligence and the negligence is fixed at 10%. The monthly salary of the deceased is Rs.14,337/- and the same is rounded off to Rs. 14,340/-. After deducting 50% for his own expenses, the monthly income is calculated as Rs.7,170/-. After adding 40% towards future expenses,the same is calculated as Rs.10,038/-.The age of the deceased was 29 years at the time of accident and multiplier '17' is applicable and the loss of income is calculated as Rs.20,47,752/- (Rs.10,038/- X 12 X 17 = Rs.20,47,752/-).

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As per the dictum of the Hon'ble Supreme Court in Pranay Sethi's case, the claimants are entitled to Rs.70,000/- towards conventional

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charges. The compensation is calculated as follows:-

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Loss of income : Rs.20,47,752/Conventional charges : Rs. 70,000/Total compensation : .......................... Rs.21,17,752/-

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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After deducting 10% towards contributory negligent, the claimants are entitled to Rs.19,05,977/ - (Rs.21,17,752/- (-) Rs.2,11,775/- = Rs.19,05,977/-) as compensation.

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In view of the above discussion, both the C.M.A.(MD)No.444 of 2022 and Cross Objection (MD)No. 22 of 2022 are disposed of as stated above, by fixing the award amount as Rs.19,05,977/-.

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In the result, both the Civil Miscellaneous Appeals and the Cross Objections are disposed of. No costs. Consequently, connected Civil Miscellaneous Petitions are closed.

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(i) The appellant - Insurance Company, is directed to deposit the entire compensation of Rs.25,82,748/- (if not already deposited) in C.M.A. (MD)No.443 of 2022 and Rs.19,05,977/- (if not already deposited) in CMA(MD)No.444 of 2022, together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit and with costs, within a period of eight weeks from the date of receipt of a copy of this order.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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(ii) On such deposit being made by the Insurance Company, the major claimants are permitted to withdraw their respective shares as per the ratio fixed by the Tribunal with proportionate interest and costs, on filing of proper petition before the Tribunal, less any amount, if already withdrawn

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by them. Excess amount, if any, shall be refunded to the appellant / Insurance Company in both the appeals .

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(iii) The claimants are not entitled for interest for the default period, if there is any.

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06.09.2022

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Index : Yes/No Internet : Yes/No Ls

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Note : In view of the present lock down owing to COVID – 19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)Nos.443 & 444 of 2022 and Cross Objection(MD)Nos.21 &22 of 2022

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