Partly allowed

The Branch Manager v. Tamilarasi

Madras HC3 Dec 2024CMA/2703/2023

Case brief

AI extract

What is this about?

Insurance appeal against a death compensation award arising from a lorry-motorcycle collision, with cross objection seeking enhancement. The court fixed 10% contributory negligence on the deceased for non-wearing of helmet, raised notional income, applied 50% personal deduction for a bachelor, awarded filial consortium to parents and loss of love and affection to sisters per Pranay Sethi and Magma

What did the court decide?

Award modified to Rs.23,74,400 with interest at 7.5% p.a., payable by insurer who may recover it from the first respondent owner; CMA partly allowed, cross objection dismissed.

The Branch Manager Vs Tamilarasi — Insurance | Madras HC (2024)

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CMA NO.2703 OF 2032 & CROS.OBJ.78 OF 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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JUDGMENT RESERVED ON : 13 / 11 / 2024

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JUDGMENT PRONOUNCED ON : 03 / 12 / 2024

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CORAM:

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THE HONOURABLE MRS. JUSTICE J.NISHA BANU AND THE HONOURABLE MR. JUSTICE R.SAKTHIVEL

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CMA NO.2703 OF 2023

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AND CMP NO.24996 IN CMA NO.2703 OF 2023 AND CROS.OBJ.NO.78 OF 2024

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CMA NO.2703 OF 2023

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The Branch Manager Reliance General Ins. Co. Ltd., Office No.10/4/4, 2^nd Floor, Thaha Plaza, South By Pass Road, Vannarapettai, Tirunelveli – 627 003.

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Tirunelveli – 627 003. ... Appellant / 2^nd Respondent Vs. 1.Tamilarasi ... 1^st Respondent / 1^st Petitioner 2.Paramasivam ... 2^nd Respondent / 2^nd Petitioner 3.Parameshwari ... 3^rd Respondent / 3^rd Petitioner 4.Minor Manjula ... 4^th Respondent / D/o.Paramasivam 4^th Petitioner Rep. by mother and next friend Tamilarasi

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Page No.1 of 25

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CMA NO.2703 OF 2032 & CROS.OBJ.78 OF 2024

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5.Patchamuthu

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... 5^th Respondent / 1^st Respondent

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PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, praying to set aside the Award dated October 14, 2022 passed in M.C.O.P.No.56 of 2021 by the Motor Accident Claims Tribunal, Additional District Court at Ariyalur.

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For Appellant : Ms.C.Bhuvanasundari For Respondents : Mr.Parthi Kannan 1 to 4

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CROS.OBJ.NO.78 OF 2024

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1.Tamilarasi

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2.Paramasivam

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3.Parameshwari

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4.Minor Manjula D/o.Paramasivam Rep. by mother and next friend Tamilarasi

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... Cross Objectors / Respondents 1 to 4 / Petitioners

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Vs.

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1.The Branch Manager Reliance General Insurance Co. Ltd., Office No.10/4/4, 2^nd Floor, Thaha Plaza, South By Pass Road, Vannarapettai, Tirunelveli – 627 003. ... 1^st Respondent / Appellant / 2^nd Respondent

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2.Patchamuthu ... 2^nd Respondent / 5^th Respondent 1^st Respondent PRAYER: Cross Objection filed under Order XLI Rule 22 of Code of

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Page No.2 of 25

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CMA NO.2703 OF 2032 & CROS.OBJ.78 OF 2024

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Civil Procedure, 1908 for enhancement of compensation awarded vide Award dated October 14, 2022 passed in M.C.O.P.No.56 of 2021 by the Motor Accident Claims Tribunal, Additional District Court at Ariyalur.

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For Cross Objectors : Mr.S.Parthi Kannan For Respondent-1 : Ms.C.Bhuvanasundari

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COMMON JUDGMENTR.S

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R.SAKTHIVEL, J.

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Feeling aggrieved by the Award dated October 14, 2022 passed by the 'Motor Accident Claims Tribunal, Additional District Judge, Ariyalur' ['Tribunal' for short] in M.C.O.P.No.56 of 2021, the second respondent therein - Insurance Company has preferred C.M.A.No.2703 of 2023 praying to set aside the Award, while the petitioners therein have preferred Cross Objection No.78 of 2024 praying to enhance the compensation. This Common Judgment will now decide both, the Civil Miscellaneous Appeal and the Cross Objection.

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2. For the sake of convenience, hereinafter, the parties will be

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referred to as per their array before the Tribunal in the Motor Claims Original Petition.

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Petitioners' case:

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CMA NO.2703 OF 2032 & CROS.OBJ.78 OF 2024

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3. The 1^st petitioner is the mother of the deceased –

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Ajithkumar. 2^nd petitioner is his father while 3^rd and 4^th petitioners are his sisters. On the fateful day viz., March 22, 2021, at about 09.30 p.m., the deceased–Ajithkumar was riding a Pulsar motorcycle bearing Registration No.TN-61-R-6059 with one Arvind on the pillion, on Sendurai to Jayankondam Main Road. While so, the 1^st respondent's Lorry viz., Ashok Leyland Dhosth bearing Registration No.TN-23-CY-5836 came from the opposite direction in a rash and negligent manner and dashed against the motorcycle, knocking the deceased off the motorcycle. The deceased sustained injuries on his head and consequently, passed away on the spot. Then postmortem was conducted at Government Hospital, Ariyalur.

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3.1. At the time of accident, the deceased was aged about 21

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years old, had completed Diploma in I.T.I. and was earning a sum of Rs.30,000/- as an A.C. Mechanic. He was earning a sum of Rs.2,00,000/per annum by way of cultivating his own land as well.

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3.2. The 1^st petitioner lodged a complaint before Sendurai

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Police station against the driver of the 1^st respondent’s Lorry. According to the petitioners, the accident occurred only due to the rash and negligent

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driving of the driver of the 1^st respondent’s Lorry; the first respondent's vehicle has been insured with the second respondent – Insurance Company; and hence, both the respondents are liable to pay compensation to the petitioners. Accordingly, the petitioners filed the Claim Petition before the Tribunal seeking compensation of Rs.60,00,000/- (Rupees Sixty Lakhs only) along with interest and costs.

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1 st Respondent's case

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4. The 1^st respondent filed counter denying the Claim Petition averments and also contending that the petitioners are put to strict proof of the same. According to him, while his driver was driving carefully, it is the deceased, who in an inebriated mood, rode his motorcycle rashly and negligently, crossed the median, lost balance, fell down and sustained injuries, due to which he passed away on the spot. However, a false case

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was registered against the 1^st respondent. Further, at any rate the 1^st respondent is not liable to pay compensation as his vehicle was insured

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with the 2^nd respondent. Accordingly, he sought the Claim Petition to be dismissed with costs.

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remained absent before Tribunal and therefore, set ex-parte on June 22,

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nd 2 Respondent's case

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5. The 2^nd respondent – Insurance Company filed Counter,

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whereby they deny the allegations levelled by the petitioners in the Claim Petition and contend that the petitioners are put to strict proof of the same.

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According to them, while 1^st respondent’s driver was driving in a slow and cautious manner, the deceased was a riding two-wheeler along with a pillion rider in a zig zag manner. Though the 1^st respondent’s driver cautioned the deceased by blowing horn and flashing headlights and stopped his vehicle as well, the deceased continued riding in the same fashion, fell down, sustained head injuries and consequently, passed away on the spot. The accident happened only due to negligence of the

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deceased. The Police have registered First Information Report (FIR) against the 1^st respondent’s Driver without proper investigation. Further,

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the 1^st respondent’s driver lacked a valid driving licence, which the 1^st respondent knowingly ignored, violating policy conditions. The petitioners also failed to implead the owner and insurer of the motorcycle bearing Registration No. TN-61-R-6059, making the petition bad for nonjoinder of necessary parties. The deceased – Ajithkumar lacked a valid licence and also violated Section 129 of the Motor Vehicles Act, 1988 by

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not wearing a helmet. According to the 2^nd respondent, they are not liable to pay any compensation to the petitioners and the petition is liable to be dismissed with costs.

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6. At trial, on the side of the petitioners, the 1^st petitioner was examined as P.W.1, one Aravind was examined as P.W.2 and Ex-P.1 to ExP.10 were marked. On the side of the respondents, one Mr.Gopalakrishnan, Junior Assistant at Regional Transport Office, Ariyalur was examined as R.W.1 and Ex-R.1 to Ex-R.3 were marked through him, and one

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Mr.Thanvanth, Legal Advisor of the 2^nd respondent / Insurance Company

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was examined as R.W.2 and Ex-R.4 to R.8 were marked through him.

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7. The Tribunal, after analysing the oral and documentary

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evidence adduced before it, partly allowed the Claim Petition and

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accordingly, awarded compensation as hereunder:

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Sl.No.	Head	Amount
1	Loss of Dependency	Rs.25,70,400.00
2	Loss of Estate	Rs.20,000.00
3	Loss of Consortium	Rs.45,000.00
4	Transport Expenses	Rs.10,000.00
5	Funeral Expenses	Rs.20,000.00
	Total	Rs.26,65,400.00

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7.1. Further, the Tribunal held that since the first respondent's

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driver did not possess a valid license to drive the Lorry, the second respondent shall pay the Award amount to the petitioners and thereafter, recover the same from the first respondent.

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8. Feeling aggrieved by the said Award, the second

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respondent – Insurance Company has preferred the Civil Miscellaneous Appeal.

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9. Dissatisfied with the Award amount, the petitioners have

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preferred the Cross Objection praying to enhance the Award amount.

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Arguments

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10. The learned Counsel for the appellant / 2^nd respondent -

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Insurance Company argued that the Tribunal awarded a sum of Rs.25,70,400/- under the head 'loss of dependency', which is excessive and incorrect. The petitioners have not produced any document to show that the deceased earned a sum of Rs.30,000/- per month and Rs.2,00,000/- per annum from and out of the agriculture. Further, it was the deceased who rode the two-wheeler without valid driving licence and insurance, that too without wearing helmet. Further, Motor Vehicle Inspection Report [M.V.I. Report] of the deceased’s vehicle was not produced during trial. P.W.2 is a relative of the deceased and hence, he cannot be treated as an independent witness. The Tribunal failed to consider these aspects and erroneously fixed 85% liability on the 1^st respondent's Driver. Further, the Award amount is excessive and not justifiable. Accordingly, he prayed to allow the Civil Miscellaneous Appeal.

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11. Per contra, learned Counsel for the Cross Objectors / petitioners submitted that the total compensation awarded viz., Rs.26,65,400/- is on the lower side. The Tribunal failed to consider the age of the deceased and fixed the notional income at Rs.15,000/- per month, which is too low and against various reported judgments that laid down the guidelines for fixing notional income. The Tribunal failed to note that the deceased was a hale and healthy I.T.I. graduate at the time of accident and would have definitely earned a better sum in order to maintain himself and his family. Accordingly, he prayed to allow the Cross Objection and enhance the compensation.

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Discussion

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12. This Court has considered both sides’ submissions and perused the materials available on record.

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13. The accident is admitted. The case of the petitioners is

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that the accident occurred due to the negligence of the 1^st respondent’s driver whereas case of the respondents is that the accident occurred due to the negligence of the deceased, who was riding in an inebriated mood.

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14. Ex-P.1 - FIR was registered by the Sendurai Police Station

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in Crime No.156 of 2021 under Sections 279, 337 and 304(A) of the Indian Penal Code, 1860 against the 1^st respondent's Driver. Ex-P.2 – Final Report charged against 1^st respondent's Driver under the above Sections. Ex-P.3 – Post-mortem Report indicates that the deceased succumbed to the injuries caused to the vital organs including the brain. Ex-P.9 and Ex-R.3 are M.V.I. Reports showing the factum of damage to the front right side of the 1^st respondent vehicle. P.W.2, who was the pillion rider, is a competent person to depose about the manner of accident. He has deposed to the effect that the accident occurred due to the rash and negligence of the 1^st respondent’s driver. There is no contra evidence. The second respondent

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neither examined the 1^st respondent nor the driver of the Lorry to substantiate their defence that the deceased was riding negligently in a zigzag manner in an inebriated mood. Ex-P.3 – Post-mortem Report does not suggest that the deceased was under the influence of alcohol. There is no

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medical evidence in support of the 2^nd respondent’s defence. Hence, this Court is of the considered view that the petitioners have proved that the

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accident primarily occurred due to the rash and negligent driving of the driver of the first respondent's Lorry.

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15. Admittedly and as evident from Ex-R.4 – Insurance Policy, the first respondent's vehicle bearing Registration No.TN-23-CY5836 was insured with the second respondent under Policy No.705222023340000520 and the policy was in force on the date of the accident. Hence, the second respondent, as an insurer, is liable to pay compensation to the petitioner.

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16. The Tribunal erred in fixing 15% contributory negligence on the part of the deceased. During cross examination, P.W.2 denied the suggestion made by the 2^nd respondent's Counsel that the deceased was not wearing Helmet at the time of accident. At the same time, there is no other evidence to suggest that the deceased was wearing helmet at the time of accident. Ex-P.3 shows serious head injury. In these circumstances, it can be inferred that the deceased was probably not wearing helmet at the time of accident and this Court deems it fit to fix 10% contributory negligence on the part of the deceased.

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17. Regarding the quantum of compensation, the petitioners

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have not adduced any evidence to establish the alleged occupation and monthly income of the deceased. Hence, the Tribunal has notionally fixed Rs.15,000/- as his monthly income. Bearing in mind that the accident occurred in 2021 and that the deceased was an I.T.I Graduate at the time of accident, this Court is of the view that he would have naturally earned at least a sum of Rs.16,000/- per month. Hence, the Tribunal is not correct in notionally fixing the monthly income of the deceased at Rs.15,000/-. Further, at the time of the accident, the age of the deceased was 21 years. The Tribunal has rightly applied the multiplier of ‘18’ and granted 40% towards future prospects, in accordance with the Judgments of the Hon'ble Supreme Court in Sarla Verma and Pranay Sethi (cited infra ).

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18. As regards personal deductions, the Tribunal has computed and deducted 1/3 share as personal expenses of the deceased from his monthly income. The deceased was a bachelor, and the claimants are his parents and sisters. The Tribunal has failed to take note of the fact

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that the father (2^nd petitioner) and the sisters (3^rd and 4^th petitioners) would not be financially dependent on the deceased. The 2^nd petitioner

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being the father, aged 51 years, would have had his own income and the

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sisters would have been primarily dependent on their father / 2^nd petitioner for money. To be noted, the 3^rd petitioner is married. Further, it is assumed that a bachelor would prioritize his own expenditures and tend to spend more on himself. Hence, the Tribunal ought to have fixed 50% deduction towards personal and living expenses of the deceased. In the absence of evidence to the contrary, father and sisters cannot be considered as financial dependants. Hence, this Court is inclined to deduct ½ share as personal expenses of the deceased from his monthly income. In this regard, it is apposite to cite the Judgment of the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation , reported in (2009) 6 SCC 121 . Relevant extract is hereunder:

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“31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the

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mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.

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32.Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.”

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19. As regards the three conventional heads, no doubt that the

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parents are entitled to filial consortium as laid down by Hon'ble Supreme Court in Magma General Insurance Co -vs- Nanu Ram , reported in

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(2018) 18 SCC 130 .

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19.1. As far as the sisters are concerned, in Indian society,

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siblings, especially when they are young, share a strong bond of love and affection. When a child passed away, parents are given compensation for the loss of love and affection (filial consortium), but young siblings are

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overlooked. The young siblings also miss the companionship, care, solace and emotional connection they had with their deceased sibling. In short, they are equally deprived of love and affection as their parents. Hence, in the facts and circumstances of this case, this Court is of the view that, it is only fair that young sisters who lost their brother receive compensation under the head of ‘loss of love and affection’. It is clarified that this is not a rigid, one-size-fits-all rule. Its application must be decided on the facts and circumstances of the case.

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19.2. One may argue that the 3^rd petitioner is married and hence, she would not be entitled to compensation under this head. In this case, considering the 3^rd petitioner’s age viz., 21 years, it can be inferred

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that the 3^rd petitioner got married only a few years before the accident. Hence, though she would have not been monetarily dependant on the deceased, she would have been dependent on him for love, affection, care, protection, guidance etc. Given the Indian cultural standards where familial bonds are strong and siblings share deep emotional connections, the deceased would have been naturally concerned about his recently married sister’s well-being and would have been of some assistance such

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as accompanying her to hospital, emotional support, etc, at least during the

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initial years of her marriage . Hence, in the facts and circumstances of this

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case, this Court is of the view that the 3^rd petitioner is entitled to compensation under the head of loss of love and affection along with her minor sister / 4^th petitioner.

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19.3. To be noted, personal deductions are different from loss

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of consortium. As far as personal deductions are concerned, those who are monetarily dependent on the deceased are alone to be taken into account. But when it comes to loss of consortium, married sister can also be taken into consideration, if it could inferred from the facts and circumstances that she was dependent on the deceased to a considerable extent, provided

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the absence of evidence to the contrary. Hence, though the 3^rd petitioner is not a dependent for the purpose of personal deductions, she shall be considered a dependent for the purpose of compensation under the head of loss of love and affection, in view of the facts and circumstances of this case .

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19.4. The Tribunal has awarded only a sum of Rs.45,000/-

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totally under this head which is not in tune with the guidelines laid down

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by the Hon’ble Supreme Court in National Insurance Company Limited

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v. Pranay Sethi & Others , reported in (2017) 16 SCC 680 . Further, the compensation awarded by the Tribunal under the heads of loss of estate, and funeral expenses are also not in accordance with Pranay Sethi . On the strength of Pranay Sethi , this Court is of the view that the petitioners are entitled to Rs.16,500/- towards loss of estate, Rs.44,000/- each towards loss of filial consortium as regards parents and loss of love and affection as regards sisters, and Rs.16,500/- as funeral expenses.

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20. Further, the Tribunal has awarded Rs.10,000/- towards transportation charges and this Court does not find any infirmity with the same.

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21. As already discussed in paragraph No.16, this Court deems it fit to fix 10% contributory negligence on the part of the deceased.

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22. Accordingly, the petitioners are entitled to a sum of Rs.23,74,400.00 (Rupees Twenty Three Lakhs Seventy Four Thousand Four Hundred Only) as compensation from the second respondent as tabulated hereunder:

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*S.No.*	*Head*	*Amount Awarded by the*	*Amount awarded by this*
		*Tribunal*	*Court*
1	Loss of Dependency	Rs.25,70,400.00	**Rs.24,19,200.00
2	Loss of filial Consortium (Parents)	Rs.45,000.00	Rs.1,76,000.00
	& Loss of Love and Affection (Sisters)
3	Loss of Estate	Rs.20,000.00	Rs.16,500.00
4	Transport Expenses	Rs.10,000.00	Rs.10,000.00
5	Funeral Expenses	Rs.20,000.00	Rs.16,500.00
	Total	Rs.26,65,400.00	Rs.26,38,200.00
	Contributory negligence @ 10%		(-) Rs.2,63,820.00
	Grand Total		Rs.23,74,380.00
	Rounded off		Rs.23,74,400.00

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**** {Rs.16,000/- (Notional Income) + Rs.6,400/- (40% Future Prospects)– Rs.22,400/(1/2 Personal Deduction) X 12 (month) X 18 (Multiplier)}**

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23. Further, the 2^nd respondent contends that the driver of the

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1^st respondent did not possess a valid driving licence amounting to violation of terms of the Insurance Policy and hence, they are not liable to compensate the petitioners at any rate. The 2^nd respondent had sent Ex-R.5 and Ex-R.7-Legal Notices to the 1^st respondent and his driver respectively calling upon them to produce the driver’s driving licence and depose before the Tribunal. While the legal Notice to the driver was served, the legal Notice to the 1^st respondent was returned as no such address. To be noted, the 1^st respondent initially appeared before the Trial Court, filed Counter and he was later set ex-parte . It is also to be noted that Ex-R.5

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was sent to the petition mentioned address. Hence, as per General Clauses

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Act, 1897, this Court deems Ex-R.5 to be served duly. The 2^nd respondent has made efforts to examine the 1^st respondent and his driver, but despite due Notice, neither the 1^st respondent nor his driver has produced the driver’s licence and deposed before the Court. Further, Ex-R.3 - M.V.I. Report also shows that the driving licence of the 1^st respondent’s driver has not been produced at the time of vehicle inspection. In these circumstances, this Court is of the view that the 2^nd respondent is entitled to pay and recover. Accordingly, the second respondent is directed to pay the Award amount to the petitioners and thereafter, 2^nd respondent is entitled to recover the Award amount from the petitioners.

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Conclusion

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24. In view of the foregoing narrative, the appellant / Insurance company is directed to deposit the modified Award amount of

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Rs.23,74,400.00 (Rupees Twenty Three Lakhs Seventy Four Thousand

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Four Hundred Only) along with interest at the rate of 7.5% per annum from the date of Claim Petition till the date of deposit as well as

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proportionate costs and Advocate fees the petitioner are entitled to as per Rules, to the credit of MCOP No.56 of 2021 on the file of Motor Accident

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Claims Tribunal, Additional District Judge, Ariyalur, less the amount if any already deposited, within a period of two months from the date of receipt of a copy of this Judgment. Upon such deposit, the 2^nd respondent – Insurance Company is entitled to recover the Award amount from the 1^st respondent as if a Decree is passed in favour of the second respondent and against the first respondent in this regard. The modified Award amount shall be apportioned among the petitioners in a manner proportionate to the apportionment made by Tribunal. In the aforesaid terms, a modified Award is passed in favour of the petitioners.

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25. In the result, the Civil Miscellaneous Appeal is partly allowed, and the Cross Objection is dismissed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.

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[J.N.B., J.] [R.S.V., J.] 03 / 12 / 2024 Index : Yes Neutral Citation : Yes Speaking Order : Yes TK

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J.NISHA BANU, J. AND R.SAKTHIVEL, J. TK

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The Motor Accident Claims Tribunal Additional District Court Ariyalur.

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PRE-DELIVERY COMMON JUDGMENT MADE IN CMA NO.2703 OF 2023 AND CROS.OBJ.NO.78 OF 2024

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03 / 12 / 2024

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CMA NO.2703 OF 2032 & CROS.OBJ.78 OF 2024

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C.M.A.No.2703 of 2023 and

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Cross.Obj.No.78 of 2024

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J. NISHA BANU, J. and R.SAKTHIVEL, J.

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(Order of the Court was made by J.NISHA BANU, J.)

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This writ petition is listed today under the caption 'for being mentioned'.

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2.The learned counsel for the petitioner submits that in the order dated 03.12.2024, in last lines of para Nos.23 and 24, it has been erroneously mentioned as 'petitioners' instead of 'first respondent' and 'appellant/2^nd respondent' respectively and the same may be corrected.

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3.In view of the above, the last lines of Para Nos.23 and 24 shall be read as follows:

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“23...... Accordingly, the second respondent is directed to pay the award amount to the petitioners and thereafter, 2^nd respondent is entitled to recover the award amount from the first respondent.”

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Page No.23 of 25

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

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CMA NO.2703 OF 2032 & CROS.OBJ.78 OF 2024

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“24......In the aforesaid terms, a modified award is

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passed in favour of the appellant/2^nd respondent.”

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4.The Registry is directed to carry out necessary amendment and