Partly allowed

The Branch Manager v. Palaniammal

Madras HC24 Apr 2024CMA(MD)/172/2019

Case brief

AI extract

What is this about?

Insurance company appealed a motor accident death award. The court recomputed notional income with future prospects and enhanced compensation from Rs.23,74,000 to Rs.26,25,200 with consortium for wife, child and parents.

What did the court decide?

Compensation enhanced from Rs.23,74,000 to Rs.26,25,200 with 7.5% interest and costs; insurer directed to deposit within six weeks; shares apportioned among claimants.

The Branch Manager Vs Palaniammal — Motor Accident Claims | Madras HC (2024)

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C.M.A(MD)No.172 of 2019

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 24.04.2024

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CORAM

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JUSTICE N.SESHASAYEE AND JUSTICE P.VADAMALAI

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C.M.A(MD)No.172 of 2019 and C.M.P(MD)No.2267 of 2019

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The Branch Manager, New India Assurance Company Limited, 594, T.B.Road, Obli Towers, R.S.Puram, Coimbatore. ... Appellant/2^nd Respondent Vs.

1.Palaniammal

2.Minor Deepika

3.Pavalakodi

4.Subramaniam 5.Suganthi 6.Sathiya ... Respondents 1 to 6/Petitioners 7.N.Senthilkumar ... 7^th Respondent/2^nd Respondent

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(Minor 2^nd respondent represented by Court Guardian Mrs.K.R.Shivasankari, Advocate)

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PRAYER

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C.M.A(MD)No.172 of 2019

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PRAYER :- Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to call for the records relating to the fair order and decreetal order dated 10.10.2018 passed in M.C.O.P.No.98 of 2017 by the Motor Accident Claims Tribunal (Additional District Judge), Palani and set aside the same with costs.

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For Appellant : Mr.D.Malaichamy For R1 : Died For R2 : Mrs.K.R.Shivasankari (Court Guardian for minor R2) For R3 - R6 : Mr.M.P.Senthil For R7 : No Appearance

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JUDGMENT

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(Judgment of the Court was delivered by P.VADAMALAI, J.)

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This Civil Miscellaneous Appeal is preferred against the Award dated 10.10.2018 passed in M.C.O.P.No.98 of 2017 by the Motor Accident Claims Tribunal/Additional District Judge, Palani.

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The 2^nd respondent in M.C.O.P.No.98 of 2017 is the appellant

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herein.

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C.M.A(MD)No.172 of 2019

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The respondents 1 to 6 herein are petitioners/claimants 1 to 6,

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who filed the claim petition in M.C.O.P.No.98 of 2017. The 7^th respondent

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herein is the 1^st respondent in the claim petition.

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For the sake of convenience, the parties are arrayed in M.C.O.P.No.98 of 2017 is adopted hereunder.

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5. The brief facts of the case:

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The deceased Durairajkumar was riding his two wheeler bearing registration number TN 57 Y 9700 along the Ramanathanagar bypass road in Palani - Udumalpet road from south to north on 21.02.2015 morning.

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At that time, the 1^st respondent’s bus bearing registration number TN 41 S 5675 driven by its driver in a rash and negligent manner from east to west and dashed against the deceased. Due to impact, the deceased sustained multiple injuries all over the body and died on the spot. At the time of accident, the deceased was working as a driver and was earning Rs.15,000/- p.m. The petitioners being the wife, minor son, parents and sisters of the deceased are depending solely on his income. F.I.R. was

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C.M.A(MD)No.172 of 2019

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registered against the driver of the 1^st respondent’s bus. The offending vehicle was insured with the 2^nd respondent. Hence, the petitioners, who are dependants of the deceased Durairajkumar, filed the claim petition seeking compensation of Rs.20,00,000/-.

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The 2^nd respondent/Insurance Company objected that the accident occurred due to rash and negligent driving of the deceased, who suddenly crossed the road. The deceased was not holding a valid driving license. So, the 1^st respondent’s bus driver was not responsible for the accident and hence, the 2nd respondent/Insurance Company is not liable to pay any compensation. Moreover, the petitioners have not produced any material to prove the income of the deceased and the petitioners/claimants 5 and 6 are sisters who are married and living separately and they are not dependents of the deceased.

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Before the Tribunal both side adduced oral and documentary evidence. On the side of the petitioners, two witnesses were examined as P.W.1 and P.W.2 and marked 10 documents as Ex.P.1 to Ex.P.10. On the

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C.M.A(MD)No.172 of 2019

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side of the respondents, no witness was examined and no exhibit was marked. After hearing both and after considering the evidences, the Tribunal has held that the accident happened due to negligence on the part of the driver of 1^st respondent and awarded Rs.23,74,000/- to the petitioners/claimants with interest and cost and directed the 2^nd respondent to pay the award amount.

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Aggrieved by the said award, the 2^nd respondent has preferred this Civil Miscellaneous Appeal.

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Heard both sides and perused the records in this Civil Miscellaneous Appeal.

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It is the main contention of the counsel for the appellant/ 2^nd respondent Insurance Company that the accident occurred due to rash and negligent riding of the deceased, who was not holding a driving licence and without wearing helmet. Hence, the 2^nd respondent is not liable to pay any compensation. Further, the Tribunal has awarded more than the claim

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C.M.A(MD)No.172 of 2019

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amount and also has not fixed any contributory negligence on the part of the deceased.

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Per contra, the learned counsel for the petitioners/claimants has submitted that the 1^st respondent’s bus driver drove the bus in a rash and negligent manner and dashed against the deceased. F.I.R. was registered against the driver of the bus and charge sheet was also laid against him. The negligence was proved. Hence, the Tribunal correctly appreciated the evidence and awarded compensation as per settled proposition of law.

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On perusal of records, it is clear that the accident had taken place in a national highway and it is clear that the case was registered against the driver of the 1st respondent’s bus and the charge sheet was also laid against him by the police concerned after investigation as seen from Ex.P.1 – F.I.R. and Ex.P.4. There is no contra material produced by the respondents. The 1st respondent’s driver has not lodged any police complaint against the deceased as if he rode the two wheeler in a rash and negligent manner. The 1^st respondent did not contest the claim petition and remained ex-parte.

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C.M.A(MD)No.172 of 2019 Therefore, the negligence on the part of the driver of the offending bus is evident and proved by the petitioners/claimants. Hence, the Tribunal correctly held that the accident occurred due to rash and negligent driving of the 1^st respondent’s driver.

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The next contention raised by the appellant/2^nd respondent Insurance Company that the Tribunal has fixed the income of the deceased as Rs.15,000/- on the basis of Ex.P.10 in the absence of examination of the author of the Ex.P.10. It is further contended that the petitioners 3 to 6 being parents and sisters are living separately, so they are not entitled for consortium.

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It is submitted by the petitioners/claimants' side that the Tribunal has failed to fix future prospects and also the petitioners 3 to 6 are entitled for consortium.

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On perusal of records, the Tribunal fixed the income of the deceased on the basis of Ex.P.10. Ex.P.10 is said to have been issued by one

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C.M.A(MD)No.172 of 2019

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Dr.G.Radhakrishnan as if the deceased was working as a driver to him from 02.05.2012 to 21.02.2015, but he was not examined by the petitioners to prove the authenticity of the Ex.P.10 as rightly contended by the appellant/2^nd respondent. However, as per the settled proposition of law in Sarala Verma case and also the Division Bench of this Court held in 2019 (1) TNMAC 54 that the notional income of the deceased has to be fixed after applying the inflation index, this Court fixed the notional income of the deceased at Rs.12,000/- p.m. there would be no prejudice on both sides. In view of the settled proposition of law in Pranay Sethi case reported in 2017 (2) TNMAC 609 (SC) , 40% has to be added towards future prospects of the deceased person who has self income or fixed income and who was below 40 years. In this case, the deceased was aged 32 years and there is no dispute in it. So, towards future prospects 40% has to be added on the income of the deceased and the income of the deceased is arrived at Rs.12,000/- + 40% of Rs.12,000/- = Rs.16,800/-. The multiplier '16' is adopted by the Tribunal is correct one considering the age of the deceased. So, the loss of income of the dependents is Rs.16,800/x 12 x 16 = Rs.32,25,600/-. Considering the dependency and age of the

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C.M.A(MD)No.172 of 2019

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deceased, 1/4 has to be deducted towards personal expenses and hence, 1/4 of Rs.32,25,600/-, Rs.8,06,400/- has to be deducted towards personal expenses.

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On perusal of the award, the Tribunal awarded Rs.15,000/towards loss of estate and Rs.15,000/- towards funeral expenses. There is no dispute on both sides. But, the Tribunal has awarded Rs.40,000/towards consortium to the 1^st petitioner alone. Though the appellant/2^nd respondent raised an objection for awarding consortium to petitioners 3 to 6, the petitioners 5 and 6 being sisters of the deceased are not entitled. However, it is a settled proposition that consortium has to be awarded under the heads of spousal consortium, parental consortium and filial consortium. Further, the Tribunal has failed to consider the settled principle as laid down in Pranay Sethi case of the Hon’ble Supreme Court reported in TN 2017 (2) TNMAC 609 (SC) . It is settled that Rs.40,000/- has to be awarded towards loss of parental consortium, spousal consortium and filial consortium and also there should be an enhancement of 10% on consortium once in every three years. The accident occurred in 2015 and till now i.e.,

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C.M.A(MD)No.172 of 2019

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2024 the litigation is challenged. Hence, 10% should be added in awarding compensation towards love and affection. Thereby, the petitioners 1 to 4 are entitled to Rs.44,000/- each towards consortium and love and affection.

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The next contention raised by the appellant/2^nd respondent Insurance Company that the petitioners/claimants claimed compensation of Rs.20,00,000/-, but the Tribunal erred in awarding compensation at Rs.23,74,000/- more than the compensation claimed by them. As per the decision of the Hon’ble Supreme Court in the case of Nagappan /v/ Gurudayal Singh and others reported in 2004(2) TNMAC 398 (SC) the Tribunal can award just compensation under section 168 of the Motor Vehicles Act more than the claim amount. This Court has also in various cases held that just compensation can be awarded more than the claim amount as the Motor Vehicles Act is a beneficial and welfare legislation, relying on the recent decision of the Hon’ble Supreme Court in Ramla & Ors. /v/ National Insurance Company Limited & Ors. reported in (2019) 2 SCC 192 . The argument of the appellant/2^nd respondent Insurance Company in this regard is not acceptable one and the same is rejected.

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C.M.A(MD)No.172 of 2019

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Thus, this Court holds that the total compensation payable to the

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appellants/petitioners/claimants in M.C.O.P.No.98 of 2017 as follows:

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Sl. No.	Description	Amount awarded by this Court
1.	Loss of Income (Rs.16,800/- x 12 x 16) = Rs.32,25,600/- less Rs.8,06,400/- towards personal expenses of deceased	Rs.24,19,200/-
2.	Funeral expenses	Rs. 15,000/-
3.	Loss of Estate	Rs. 15,000/-
4.	Loss of Consortium to the petitioners 1 to 4 being wife, child and parents of the deceased (Rs.44,000/- x 4 )	Rs. 1,76,000/-
	Gross Total	Rs.26,25,200/-

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Therefore, the petitioners 1 to 6/claimants in M.C.O.P.NO.98 of

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2017 are entitled to Rs.26,25,200/-. Therefore, to that extent, the compensation awarded by the Tribunal is modified and fixed as Rs.26,25,200/- with interest at 7.5% p.a. and costs.

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In the result,

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(i) The Civil Miscellaneous Appeal is partly allowed. No Costs.

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(ii) The quantum of compensation awarded by the Tribunal is

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C.M.A(MD)No.172 of 2019

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enhanced from Rs.23,74,000/- to Rs.26,25,200/- (Rupees Twenty six lakhs twenty five thousand and two hundred only)

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(iii)The first respondent herein, 1st claimant/wife of the deceased,

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reported died, the 2^nd minor petitioner/claimant is entitled to receive a sum of Rs.18,25,200/- and the petitioners 3 and 4 /claimants 3 and 4 being parents of the deceased are entitled to receive a sum of Rs.2,50,000/- each with proportionate interests and costs and the petitioners 5 and 6/claimants 5 and 6 being sisters of the deceased are entitled to Rs.1,50,000/- each with proportionate interest and cost.

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(iv) The appellant/2^nd respondent is directed to deposit the entire compensation amount if already not deposited, less the amount already deposited, together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit to the credit of M.C.O.P.No.98 of 2017 on the file of the Motor Accident Claims Tribunal/Additional District Court, Palani within a period of six weeks from the date of receipt of a copy of this order.

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(v) On such deposit being made by the appellant/2^nd respondent, the claimants/respondents 3 to 6 herein are permitted to withdraw their

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C.M.A(MD)No.172 of 2019

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entire share amount as apportioned by this Court with proportionate interest

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and cost by filing appropriate application before the Tribunal, less the amount already withdrawn if any. The share amount of minor petitioner/ 2^nd Respondent herein shall be deposited in any one of the Nationalized Bank till she attains majority. Consequently, connected Miscellaneous Petition is closed.

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(N.S.S.,J.) (P.V.M.,J.)

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24.04.2024

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NCC : Yes / No Internet : Yes / No Index : Yes / No VSD

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1.The Motor Accident Claims Tribunal (Additional District Judge), Palani

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2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

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C.M.A(MD)No.172 of 2019

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N.SESHASAYEE, J. AND P.VADAMALAI. J.

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VSD

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Judgment made in C.M.A(MD)No.172 of 2019

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24.04.2024

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

The Branch Manager v. Palaniammal

Case brief

What is this about?

What did the court decide?

The Branch Manager v. Palaniammal

Case brief

What is this about?

What did the court decide?

What the court decided

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