Madras High Court
United India Insurance Company Limited vs Amutha on 10 August, 2018
Author: R. Tharani
Bench: R. Tharani
C.M.A.(MD)No.448 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 27.02.2023
Delivered On : 28.02.2023
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.M.A.(MD)No.448 of 2019
United India Insurance Company Limited,
Rep. By its Manager,
No.22B,
P.R.Sundaram Ayyar Street,
Dharmapuri. .. Appellants
Vs.
1.Amutha
2.Balammal
3.Minor Satheesh
Represented by his natural guardian, next friend
and mother Amutha/1st respondent
4.Minor Boopathy
Represented by his natural guardian, next friend
and mother Balammal/2nd respondent
5.Minor Mahalakshmi
Represented by his natural guardian, next friend
and mother Balammal/2nd respondent
6.Sarasayee
7.Muthan
8.C.Madheswaran .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the judgment and decree dated 10.08.2018 made in
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https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.448 of 2019
M.C.O.P.No.220 of 2017 on the file of the Motor Accidents Claims
Tribunal/Principal District Judge, Karur.
For Appellants : Mr.I.Suthakaran
For Respondents 1 to 7 : Mr.B.Sekar
For 8th Respondent : No Appearance
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award passed in M.C.O.P.No.220 of 2017 dated 10.08.2018, on the file of the Motor Accident Claims Tribunal, Principal District Judge, Karur.
2.The appellant herein is the second respondent, the respondents 1 to 7 herein are the petitioners and the 8th respondent herein is the 1st respondent in the claim petition. The respondents 1 to 7 herein have filed a claim petition in M.C.O.P.No.220 of 2017, claiming compensation for the death of one Murugesan, in an accident that took place on 15.10.2016. The Tribunal has awarded a sum of Rs. 27,50,480/- (Rupees Twenty Seven Lakhs Fifty Thousand Four Hundred and Eighty only) as compensation. Against which, the appellant has preferred this appeal.
3.Brief substance of the claim petition in M.C.O.P.No.220 of 2017 is as follows:
On 15.10.2016 at about 02.15 p.m., when the deceased Murugesan was 2 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.448 of 2019 riding a bicycle along the Karur-Salem byepass road, near Semmadai keeping the left side of the road, a lorry bearing registration No.TN-29-AS-5433 came in a rash and negligent manner and dashed against the bicycle. The deceased died on the spot. The deceased was aged about 33 years and he was employed as Scavenger in Attur Panchayat and he worked in a textile company and he was earning Rs.15,000/- (Rupees Fifteen Thousand only) per month. The petitioners are his dependants and they claim a sum of Rs.25,00,000/- (Rupees Twenty Lakhs only) as compensation.
4.Brief substance of the counter filed by the second respondent therein is as follows:
The averments relating to the manner of the accident is false. The first respondent vehicle came from the opposite direction and the driver stopped the vehicle. But it was cyclist who lost his control and fell on the road and he sustained injuries. If the deceased has noticed the upcoming vehicle, the accident could have been avoided. The averments of the deceased that the deceased was working in Attur Panchayat on temporary basis and that he also worked in a textiles company was not true. The averment that the deceased was earning Rs.15,000/- (Rupees Fifteen Thousand only) is false. When the first petitioner who is the legally wedded wife of the deceased is alive, the marriage of the deceased with the second petitioner is invalid and that the second petitioner is not entitled to compensation. The age of the 3 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.448 of 2019 petitioner according to the postmortem report, is 37 years and the claim is excessive.
5.The first respondent remained set exparte. On the side of the petitioners, two witnesses were examined and 12 documents were marked. On the side of the respondents therein, no witness was examined and no document was marked. After trial, the Tribunal has awarded a sum of Rs.27,50,480/- (Rupees Twenty Seven Lakhs Fifty Thousand Four Hundred and Eighty only) as compensation to be paid by the second respondent. Against which, the appellant has preferred this Civil Miscellaneous Appeal on the following grounds:-
The award is excessive. The Tribunal is wrong in fixing the notional income as Rs.12,000/- (Rupees Twelve Thousand only). There is no proof of income. Only considering the number of dependants, the Tribunal has fixed the monthly income. The number of dependants cannot be taken into consideration for fixing the income. The Tribunal is wrong in fixing the age of the deceased as 35 years instead of 37 years and that the award is to be reduced.
6.On the side of the appellant, it is stated that there is no proof for fixing the income but the Tribunal has wrongly fixed the monthly income as Rs.12,000/- (Rupees Twelve Thousand only), which is excessive. The claimants 1 and 2 are the wives of the deceased, the respondents 3 to 5 are minor children and that the 4 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.448 of 2019 claimants 6 and 7 are parents of the deceased. The Tribunal fixed the income based on the number of dependants, which is wrong.
7.P.W.2 was examined as an eye witness. The copy of FIR was marked as Ex.P1. In the evidence of P.W.2 and in Ex.P1, it is stated that the lorry driver was rash and negligent. There is no rebuttal evidence on the side of insurance company. Hence, it is decided that the lorry driver is responsible for the accident.
8.On the side of the respondents, it is stated that the total number of claimants are seven and the deceased was working as Scavenger in the Attur Panchayat and that he was doing cleaning work in a hotel and the deceased was earning Rs.15,000/- (Rupees Fifteen Thousand only) per month. Unless he was having the above said income, he could not have maintained the large family. The large family itself is a proof that Rs.15,000/- (Rupees Fifteen Thousand only) ought to have been the income and that the Tribunal has rightly fixed the monthly income.
9.No document was filed on the side of the claimants to prove the income. If a person was engaged as a part time employee in a Panchayat, documents to that effect ought to have been available. But the claimants failed to mark any such document. The claimants failed to mark any document to prove that the deceased 5 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.448 of 2019 worked in a hotel. The accident had happened in the year 2016. Fixing the income on the basis of the dependency is not fair. Considering the date of accident, notional income of Rs.12,000/- (Rupees Twelve Thousand only) per month is fixed.
10.The age of deceased is mentioned as 33 years in the claim petition. In Ex.P2, postmortem certificate, the age of the deceased was mentioned as 37 years. On the side of the appellant, it is stated that 35 years is to be taken as the age of deceased. There is no proof for fixing the age. P.W.1 was not an expert. P.W.1 was not the mother of the deceased. P.W.1 was the wife of the deceased. The oral evidence of P.W.1 cannot be taken into consideration as accurate. In Ex.P2, the age was mentioned as 37 years and it is also an approximate age. Hence, it is decided that the age of the deceased is above 35 years and below 37 years. For the age of 35 years, multiplier '15' is applicable.
11.Considering the number of dependency, ¼ of the income is to be deducted for the own expenses of the deceased. After deducting ¼th, the deceased might have contributed Rs.9,000/- (Rupees Nine Thousand only) for his family. After including 40% towards future prospects, the monthly income is calculated as Rs.12,600/- (Rupees Twelve Thousand and Six Hundred only). After applying multiplier '15', the loss of income is calculated as Rs.22,68,000/- (Rupees Twenty 6 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.448 of 2019 Two Lakhs and Sixty Eight Thousand only).
12.The Tribunal has awarded Rs.15,000/- (Rupees Fifteen Thousand only) towards loss of estate, Rs.40,000/- (Rupees Forty Thousand only) towards loss of consortium, Rs.50,000/- (Rupees Fifty Thousand only) towards funeral expenses, Rs. 1,00,000/- (Rupees One Lakh only) towards loss of love and affection. On the side of the appellant, it is stated that the claimants are to be awarded Rs.40,000/- (Rupees Forty Thousand only) each towards loss of love and affection and the compensation awarded under other heads are to be enhanced.
13.Considering the dictum of Hon'ble Supreme Court in Praney Sethi case, it is decided that a sum of Rs.70,000/- (Rupees Seventy Thousand only) is to be awarded towards conventional charges. In total, a sum of Rs.23,38,000/- (Rupees Twenty Three Lakhs and Thirty Eight Thousand only) is awarded as compensation.
14.On the side of the appellant, it is stated that the second respondent/second claimant being second wife of the deceased is not entitled for compensation. The legality of marriage is not a criteria for allotment of a share in the compensation. Though the marriage was not legal, the second respondent/second claimant was a dependant of the deceased and in that category, she is entitled to 7 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.448 of 2019 claim a share in the compensation.
15.In the result, this Civil Miscellenaous Appeal is partly allowed. The compensation is reduced from Rs.27,50,480/- to Rs.23,38,000/-.
(i)The respondents 1 to 7 are entitled to a sum of Rs.23,38,000/- (Rupees Twenty Three Lakhs and Thirty Eight Thousand only) as compensation with interest at the rate of 7.5% from the date of the claim petition till the date of deposit. The appellant is directed to deposit Rs.23,38,000/- (Rupees Twenty Three Lakhs and Thirty Eight Thousand only) with 7.5% interest from date of the claim petition till the date of deposit and the amount if not deposited earlier, has to be deposited within a period of 8 weeks from the date of receipt of copy of this order.
(ii)The respondents 1 and 2/ wives of the deceased are entitled to Rs. 3,50,000/- (Rupees Three Lakhs and Fifty Thousand only) each with propotionate interest and costs. The 6th respondent/ mother of the deceased is entitled to Rs. 2,88,000/- (Rupees Two Lakhs and Eighty Eight Thousand only) with propotionate interest. The 7th respondent/ father of the deceased is entitled to Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) with propotionate interest. On deposit, the respondents 1, 2, 6 and 7/major claimants are permitted to withdraw their respective shares, after deducting any amount received by them earlier.
(iii)The respondents 3 to 5/minor claimants are entitled to Rs.4,00,000/- 8 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.448 of 2019 (Rupees Four Lakhs only) each with propotionate interest. The Tribunal is directed to deposit the share of the respondents 3 to 5 /minor claimants in any one of the Nationalised Banks, in a Fixed Deposit scheme, till they attain majority. The respondents 1 and 2, who are the mother and guardian of the minor claimants, is permitted to withdraw the accrued interest once in three months directly from the bank, only for the welfare of minors. The claimants are not entitled for interest for the default period, if there is any. Excess amount if any shall be refunded to the appellant. No Costs.
28.02.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
MRN
To
1.The Motor Accidents Claims Tribunal, Principal District Judge, Karur District.
2.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
9 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.448 of 2019 R. THARANI, J.
MRN C.M.A.(MD)No.448 of 2019 28.02.2023 10 / 10 https://www.mhc.tn.gov.in/judis