Madras High Court
National Insurance Company Limited vs S.Pazhaniammal on 21 January, 2020
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.M.A.No.3468 of 2009 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.01.2020 CORAM THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN C.M.A.No.3468 of 2009 National Insurance Company Limited, Branch Manager, 81-C, Chetty Street, Tiruchengode, Namakkal. ... Appellant Vs.
1. S.Pazhaniammal
2. Minor S.Lenadevi
3. Pappathi
4. K.Subramani
5. P.Saravanan ... Respondents Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act 1988, to set aside the award passed in M.A.C.T.O.P.No.299 of 2006 dated 16.09.2008 on the file of the Motor Accident Claims Tribunal, Additional District Court, Dharmapuri.
For Appellant : M/s.N.B.Surekha
For Respondents : Mr.R.Selvakumar
Judgment
This Civil Miscellaneous Appeal has been filed against the Judgment and Decree dated 16.09.2008 made in M.A.C.T.O.P.No.299 of 2006 on the file of the Additional District Court (Motor Accident Claims Tribunal), Dharmapuri.
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2. The case of the appellant is that on 14.10.2004 at 7.00 p.m., one Suresh (deceased) was traveling as pillion rider in Hero Honda bearing Registration No.TN-29E-2334 driven by one Dhanapal and at that time, a Tractor bearing Registration No.TN-29C-0500 belonged to the fifth respondent and driven by its driver in a rash and negligent manner, dashed against the Hero Honda. Due to the impact, the Suresh fell down from the Hero Honda and sustained internal head injuries and injuries on vital organs. Immediately he was taken to the St.John's Medical College Hospital, Bangalore and admitted as inpatient, there he had taken treatment till 29.10.2004 and in spite of which, he died on 29.10.2004. He was aged about only 30 years at the time of accident, and before the accident, he was a goods vehicle driver and was earning more than Rs.90,000/- per month. Due to his sudden death, the respondents 1 to 4 who are the legal heirs of the deceased suffered from loss of income, hence filed a petition before the Additional District Court (Motor Accident Claims Tribunal), Dharmapuri, claiming Rs.15,00,000/- as compensation under various heads.
3. Denying the allegations, the appellant insurance company filed a counter affidavit before the Tribunal stating that the accident had occurred only due to the rash and negligent driving of the rider of the Hero Honda and there was no fault on the part of the fifth respondent's driver. Further, it has been stated that the driver of the fifth respondent had not valid driving licence at the time of accident, hence they are not liable to pay any compensation to http://www.judis.nic.in 2/9 C.M.A.No.3468 of 2009 the claimant. Moreover, it has been stated that the alleged age, income and occupation of the deceased are not true and the amount of compensation claimed is very high.
4. During the trial before the Tribunal, on the side of the claimants, the first respondent herself was examined as PW1 and marked certain documents as Exs.P1 to P8 and one Kandasami was examined as PW2. On the side of the appellant and the fifth respondent, no one was examined and no document was marked.
5. The Learned Additional District Judge (Motor Accident Claims Tribunal), Dharmapuri, after considering the pleadings, oral and documentary evidence, allowed the petition in favour of the claimant and awarded Rs.9,26,852/- as compensation as follows :
S.No. Description Amount
1. Loss of Income 6,80,000
2. Medical Expenses 1,51,852
3. Loss of Consortium 50,000
4. Pain and Sufferings 30,000
5. Funeral Expenses 5,000
6. Expenses incurred at the time of 10,000
moving the deceased's body to his
native place
Total 9,26,852/-
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C.M.A.No.3468 of 2009
6. Aggrieved by the award, the appellant insurance company has filed this appeal before this Court submitting that the Tribunal has erred in awarding the said sum.
7. Heard the learned counsel for the appellant and the learned counsel for the respondent, and perused the materials available on record.
8. On perusal of the award dated 16.09.2008 passed by the Learned Additional District Judge (Motor Accident Claims Tribunal), Dharmapuri, it is observed that the respondents 1 to 4/claimants in order to prove that the accident had occurred only due to the rash and negligent driving of the fifth respondent's driver marked FIR copy as Ex.P1 which was against the fifth respondent, but the appellant and the fifth respondent neither marked any document nor examined any witness to disprove the same, and therefore, the Tribunal has come to the conclusion that the fifth respondent's driver was the cause for the alleged accident. Further, it is observed that the respondents 1 to 4/claimants have not marked any document to prove the income of the deceased, but on perusal of the driving licence marked as Ex.P7, the Tribunal has found that the deceased was driving the goods vehicle before the accident and thereby he would have earned minimum Rs.5,000/- per month. Hence, the Tribunal has fixed the monthly income of the deceased as Rs.5,000/-, which comes to Rs.60,000/- per year. If the deceased was alive, http://www.judis.nic.in 4/9 C.M.A.No.3468 of 2009 definitely he would have taken 1/3 of his income for his personal expenses and only considering the same, the Tribunal has deducted 1/3 of the annual income i.e. Rs.20,000/- for the personal expenses of the deceased from the total annual income of Rs.60,000/-.
9. It is also observed that the age of the deceased at the time of accident has been found as 35 in the Postmortem Certificate marked as Ex.P3 and therefore, the Tribunal has fixed the same as the age of the deceased. As per the case reported in 2009 ACJ 1298 [Sarla Verma and Others vs Delhi Transport Corporation and Another], the multiplier to be adopted for a person aged between 30 to 35 years is 16, but the Tribunal has wrongly taken the 17 multiplier and awarded Rs.6,80,000/- towards Loss of income and this Court is inclined to modify the same. Moreover, it is observed that the respondents 1 to 4/claimants have marked the medical bills of the deceased as Ex.P8 to prove the expenses made for the treatment and only after considering the same, the Tribunal has awarded Rs.1,51,852/- towards Medical Expenses and the same is hereby confirmed. The sum awarded under all other heads i.e. Rs.50,000/- for Loss of Consortium, Rs.30,000/- for Pain & Sufferings, Rs.5,000/- for Funeral Expenses and Rs.10,000/- for the expenses made for moving the deceased's body to his native place, is reasonable awarded by the Tribunal, hence, the same is also hereby confirmed.
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10. In view of the above observations made by this Court, the compensation awarded by the Tribunal is modified as follows :
Monthly Income 5,000
Annual Income (5000 x 12) 60,000
Deductions of 1/3 for personal expenses
of the deceased (60,000 – 20,000 X 16) 6,40,000
Medical Expenses 1,51,852
Loss of Consortium 50,000
Pain & Sufferings 30,000
Funeral Expenses 5,000
Expenses incurred at the time of moving
the deceased's body to his native place 10,000
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Total 8,86,852
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11. Accordingly, the appellant insurance company and the fifth respondent are directed to deposit the said amount of Rs.8,86,852/- jointly or severally with interest at the rate of 7.5% per annum from the date of petition till the date of realization, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the respondents 1 to 4/claimants are permitted to withdraw the same by filing a formal petition before the concerned Court, less the amount if any, already withdrawn.
12. In the result, this Civil Miscellaneous Appeal is partly allowed. No costs.
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1. The Additional District Court (Motor Accident Claims Tribunal), Dharmapuri.
2. The Section Officer, VR Section, High Court, Madras. http://www.judis.nic.in 7/9 C.M.A.No.3468 of 2009 V.BHAVANI SUBBAROYAN.J., raja C.M.A.No.3468 of 2009 http://www.judis.nic.in 8/9 C.M.A.No.3468 of 2009 21.01.2020 http://www.judis.nic.in 9/9