Madras High Court
The New India Assurance Ltd vs Nazibunnisa on 26 April, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
CMA.Nos.1906 & 1907 of 2020
& 1287 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.04.2024
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Civil Miscellaneous Appeal Nos.1906 & 1907 of 2020 & 1287 of 2022
& CMP Nos.14100 & 14103 of 2020 and 9323 of 2022
The New India Assurance Ltd.,
Represented by its Branch Manager,
Juman Centre, 43A/2, Promenade Road,
Cantonment Tiruchirappalli ...Appellant in all
CMAs
Vs.
1.Nazibunnisa
2.Shafic Ahammed
3.Imran Hussain
4.Mohammed Iqbal
5.M.Senthil kumar ...Respondents in
CMA.No.1906 of
2020
1.Akbar Ali
2.Samsath Begum
3.Sahina Banu
4.Zulaika Nachiya
5.M.Senthil Kumar ...Respondents in
CMA No.1907 of
2020
1.Amrulla
2.M.Senthil Kumar ...Respondents in
CMA No.1287 of
2022
1/17
https://www.mhc.tn.gov.in/judis
CMA.Nos.1906 & 1907 of 2020
& 1287 of 2022
Appeals under Section 173 of the Motor Vehicles Act, 1988
praying to set aside the common award and decrees dated 24.1.2020
made in M.C.O.P.Nos.1128 & 1239 of 2016 on the file of the Sessions
Court (Motor Accident Claims Tribunal), Perambalur and the award
dated 23.11.2021 made in M.C.O.P.No.67 of 2017 on the file of the Chief
Judicial Magistrate (Motor Accident Claims Tribunal), Perambalur.
For Appellant : Mr.M.Krishnamoorthy
For R1 to R4 in both CMA.
Nos.1906 & 1907 of 2020
& For R1 in CMA.No.
No.1287 of 2022 : Mr.T.Gobinath
*****
COMMON JUDGMENT
These appeals have been filed by the Insurance company questioning (i) the common award and decrees dated 24.1.2020 made in M.C.O.P.Nos.1128 & 1239 of 2016 on the file of the Sessions Court (Motor Accident Claims Tribunal), Perambalur and (ii) the award dated 23.11.2021 made in M.C.O.P.No.67 of 2017 on the file of the Chief Judicial Magistrate (Motor Accident Claims Tribunal), Perambalur. both on the grounds of negligence as well as the quantum of compensation 2/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 fixed by the Tribunal. Since all these cases arise out of the same accident, these appeals are taken up together, heard and disposed of through this common judgement.
2. The claimants in MCOP.No.1128 of 2016 - respondents 1 to 4 in CMA No.1906 of 2020 are the mother and the elder brothers of the deceased - Mr.Mohammed Halith. The claimants in MCOP.No.1239 of 2016 - respondents 1 to 4 in CMA No.1907 of 2020 are the parents and the sisters of the deceased - Mr.Jainul Abideen. The claimant in MCOP. No.67 of 2017 - first respondent in CMA No.1287 of 2022 is the injured.
3. The case of the claimants is as follows :
(i) Mr.Mohammed Halith, Mr.Jainul Abideen and Mr.Amrulla were traveling in a two wheeler on 31.7.2016 at Trichy-Chennai NH 45 and when the vehicle was approaching Ranjankudi name board, the offending vehicle owned by Mr.M.Senthil Kumar and insured with the appellant - Insurance Company, was driven in a rash and negligent manner and it hit the two wheeler, as a result of which, all the three 3/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 occupants of the two wheeler were thrown out of the vehicle.
(ii) Two of the occupants viz. Mr.Mohammed Halith and Mr.Jainul Abideen died due to the grievous injuries sustained by them. The injured -
Amrulla namely the 1st respondent in CMA.No.1287 of 2022 sustained the following injuries :
“1. Crush injury right foot (Gross contamination with compound communited fracture of 2nd, 3rd, 4th metatarsal with partial bone loss)
2. Multiple abrasion with soft tissue injury all over body
3. Deep laceration scalp exposing bone and right 4th web space exposing tendon
4. Anterior wedge compression fracture of L1 and L2.”
4. The Insurance company took a very specific stand that both the deceased as well as the injured had gone triples in the two wheeler and none of them were wearing helmet and therefore, attributed negligence on their part.
5. The Tribunal, on considering the facts and circumstances of 4/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 the case and on appreciation of oral and documentary evidence, came to the conclusion that the accident had taken place only due to the rash and negligent driving on the part of the offending vehicle viz., the lorry owned by Mr.M.Senthil Kumar/1st respondent before the Tribunal. This finding was based on the evidence of the eye witness namely PW3. Having rendered such a finding, the Tribunal went on to fix the compensation under various heads. In so far as CMA No.1906 of 2020, which has been filed as against the award passed in MCOP.No.1128 of 2016, the total compensation was fixed at Rs.24,49,200/-, under various heads which is as follows :
Sl. Compensation awarded Amount
No. under the head (in Rs.)
1. Annual Income = Rs.12,000 (+4800/- future
prospects) x 12 = 2,01,600/-
2. Deductions – 1/3rd [2,01,600-Rs.67,200]=
1,34,400/-
3. Applying multiplier 18 [Rs.1,34,400 x 18]
24,19,200/-
4. Consortium Nil
5. Loss of Estate 15,000/-
6. Funeral Expenses 15,000/-
Total 24,49,200/-
The Tribunal directed the above compensation to be paid with interest at 5/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 the rate of 7.5% p.a.
6. In so far as CMA No.1907 of 2020, which has been filed as against the award passed in MCOP.No.1239 of 2016, the total compensation was fixed at Rs.22,98,200/-, under various heads which is as follows :
Sl. Compensation awarded Amount
No. under the head (in Rs.)
1. Annual Income =Rs.15,000 (+6,000/- future
prospects ) x 12=2,52,000/-
2. Deductions – 1/2 [2,52,000-Rs.1,26,000]=
1,26,000/-
3. Applying multiplier 18 [Rs.1,26,000 x 18] 22,68,000/-
4. Consortium Nil
5. Loss of Estate 15,000/-
6. Funeral Expenses 15,000/-
Total 22,98,000/-
The Tribunal directed the above compensation to be paid with interest at the rate of 7.5% p.a.
7. In so far as CMA No.1287 of 2022, which has been filed as against the award passed in MCOP.No.67 of 2017, the total compensation was fixed at Rs.2,58,709/-, which was rounded off to Rs.2,58,700/-, in the following manner :- 6/17
https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 Sl.N Compensation awarded Amount o. under the head (in Rs.)
1. For Partial Permanent Rs.1,35,000/-
Disability (Rs.5,000/- x 27)
2. Transport to Hospital Rs.2,300/-
3. Medical bills Rs.34,409/-
4. For Extra Nourishment Rs.10,000/-
5. Attender's Charge Rs.3,000/-
6. For pain and sufferings, Rs.30,000/-
mental agony
7. Loss of amenities Rs.15,000/-
8. Temporary loss of income Rs.28,000/-
9. Damage to cloth Rs.1,000/-
Total 2,58,709/-
Rounded of to 2,58,700/-
The Tribunal directed the above compensation to be paid with interest at the rate of 7.5% p.a.
8. The Insurance company has filed three appeals questioning the awards both on the ground of negligence as well as the quantum of compensation fixed by the Tribunal.
9. Heard Mr.M.Krishnamoorthy, learned counsel for appellant/ Insurance company and Mr.T.Gobinath, learned counsel appearing for the claimants.
7/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022
10. This Court carefully considered the submissions made on either side and perused the materials available on record.
11. This Court also carefully went through the awards passed by the Tribunal.
12. In so far as the 1st issue regarding negligence is concerned, on carefully reading the evidence of PW3, who is the eye witness in this case, it is seen that Mr.Mohammed Halith, Mr.Jainul Abideen and the injured were traveling triples in a two wheeler in the National Highways. The eye witness had stated that he was traveling in a van during the relevant point of time, which was coming behind the two wheeler. At that point of time, the lorry was driven in a rash and negligent manner and it over took the van and thereafter, hit the two wheeler which was going on the left hand side of the road. This evidence of PW3 has not been discredited in any manner and the tribunal has rightly taken into consideration the evidence of PW3 while deciding the question of 8/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 negligence.
13. The next issue is as to whether contributory negligence can be attributed against both the deceased as well as the injured for traveling triples in the two wheeler and for not wearing the headgear.
14. It is seen from the post mortem certificates, which have been marked as Ex.P2 and Ex.P10 pertaining to Mr.Mohammed Halith and Mr.Jainul Abideen respectively that both of them had died due to shock and hemorrhage caused due to the injury to the vital organs like brain. Therefore, if the deceased had worn helmet, it could have certainly prevented the fatality and they could have escaped with injuries like what happened to the other claimant in CMA No.1287 of 2022. That apart, traveling triples in the motor cycle has certainly contributed to the accident. Therefore, this Court is of the view that 15% contributory negligence must be attributed against the deceased.
15. The next issue is with regard to quantum of compensation that 9/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 has been fixed by the Tribunal.
16. In so far as MCOP.No.1128 of 2016, as against which, CMA No.1906 of 2020 is concerned, the Tribunal has deducted 1/3rd towards the personal expenses of the deceased. In this case, the claimants are the mother and the elder brothers. Therefore, ½ must be deducted towards personal expenses.
17. The Tribunal has not granted any compensation under the head of loss of love and affection. In view of the same, under the head 'loss of love and affection, a sum of Rs.40,000/- is granted to the 1st claimant - mother and a sum of Rs.20,000/- each is granted to each of claimants 2 to 4 and in total, a sum of Rs.1,00,000/- is granted.
18. In the light of the above discussion, in so far as CMA No. 1906 of 2020 (filed as against the award in MCOP No.1128 of 2016) is concerned, this Court modifies the total compensation in the following manner :-
10/17
https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 Sl.N Compensation Amount awarded Amount o. awarded under by the Tribunal awarded by this Court the head
1. Annual Income =Rs.12,000 (+ =Rs.12,000 (+ 4800/-
4800/- future future prospects ) x 12 prospects ) x 12 = 2,01,600/-
= 2,01,600/-
2. Deductions [2,01,600- [2,01,600-
Rs.67,200]= Rs.1,00,800/-]=
1,34,400/- 1,00,800/-
3. Applying [Rs.1,34,400 x [Rs.1,00,800 x 18]
multiplier 18 18] 24,19,200/- 18,14,400/-
4. Loss of love and Nil 1,00,000/-
affection
1st claimant =
Rs.40,000/-
2nd to 4th
claimants
Rs.20,000/- each
x 3 = 60,000/-
5. Loss of Estate 15,000/- 15,000/-
6. Funeral 15,000/- 15,000/-
Expenses
Total 24,49,200/- 19,44,400/-
Less 15% 2,91,660/-
Contributory
negligence
Total 24,49,200/- 16,52,740/-
The above compensation shall paid with interest at the rate of 7.5% p.a.
19. In so far as CMA No.1907 of 2020 (filed as against the award in MCOP No.1239 of 2016) is concerned, the Tribunal has fixed the 11/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 monthly income of the deceased at Rs.15,000/- per month. It is seen from Ex.P13 that the deceased Mr.Jainul Abideen had a Diploma in Mechanical Engineering from a private college. However, there was no material to show that he was working and earning income. Therefore, this Court is inclined to fix the notional monthly income of the deceased at Rs.13,500/- per month. In view of the same, the loss of income works out to a sum of Rs.20,41,200/- [Rs.13,500/- + 40% future prospects x 12 – 1/2 x 18 multiplier].
20. In so far as compensation under the head of 'loss of love and affection' is concerned, the Tribunal has not granted any amount. Therefore, this Court is inclined to grant a sum of Rs.40,000/- each to the father and the mother of the deceased and a sum of Rs.20,000/- each to the sisters under the head 'loss of love and affection'. The compensation given under the other heads does not require the interference of this Court.
21. In the light of the above discussion, in CMA.No.1907 of 2020, 12/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 this Court modifies the total compensation as follows :-
Sl.N Compensation Amount awarded Amount o. awarded under the by the Tribunal awarded by this head Court
1. Annual Income =Rs.15,000 =Rs.13,500 (+6,000/- future (+5,400/- future prospects ) x prospects ) x 12 = 12=2,52,000/- 2,26,800/-
2. Deductions – 1/2 [2,52,000- [2,26,800-
Rs.1,26,000]= Rs.1,13,400]=
1,26,000/- 1,13,400/-
3. Applying multiplier 18 [Rs.1,26,000 x [Rs.1,13,400 x
18] 22,68,000/- 18] =
20,41,200/-
4. Loss of Love & Nil Rs.80,000/-
affection to 1 and 2nd
claimants
Rs.40,000/- each
5. Loss of Love and Nil Rs.40,000/-
affection to 3rd &
4th claimants
Rs.20,000/- each
6. Loss of Estate 15,000/- 15,000/-
7. Funeral Expenses 15,000/- 15,000/-
Total Rs. 21,91,200/-
Less : 15% Rs.3,28,680/-
contributory
negligence
Total 22,98,000/- 18,62,520/-
The above compensation shall paid with interest at the rate of 7.5% p.a.
22. In so far as CMA No.1287 of 2022 is concerned, the Tribunal 13/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 has fixed a sum of Rs.28,000/- towards loss of income. In the instant case, admittedly, the injured was only a student studying in a college. There is no material to show that he was earning any income in this case. Therefore, there is no question of granting any compensation under the head of loss of income. Hence, the compensation given under this head is set-aside. Considering the fact that the injured in this case sustained serious injuries, which have already been extracted supra and had undergone treatment as an in-patient for more than 12 days and had also undergone surgery and his disability being assessed at 27%, this Court is inclined to enhance the compensation under the head of Extra Nourishment to Rs.15,000/-. Similarly, the compensation granted under the head 'attender charges' is also enhanced to Rs.10,000/-.
23. In view of the above, in CMA.No.1287 of 2022, the total compensation granted by the Tribunal is modified as follows :-
Sl.N Compensation Amount Amount
o. awarded under awarded by awarded by this Court
the head the Tribunal
1. Partial Permanent Rs.1,35,000/- Rs.1,35,000/-
Disability
(Rs.5,000/- x 27)
14/17
https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 Sl.N Compensation Amount Amount o. awarded under awarded by awarded by this Court the head the Tribunal
2. Transport to Rs.2,300/- Rs.2,300/-
Hospital
3. Medical bills Rs.34,409/ Rs.34,409/-
-
4. Extra Nourishment Rs.10,000/- Rs.15,000/-
5. Attender's Charge Rs.3,000/- Rs.10,000/-
6. Pain & sufferings, Rs.30,000/- Rs.30,000/-
mental agony
7. Loss of amenities Rs.15,000/- Rs.15,000/-
8. Temporary loss of Rs.28,000/- Nil income
9. Damage to cloth Rs.1,000/- Rs.1,000/-
Total Rs. 2,58,709/- Rs. 2,42,709/-
The above compensation shall paid with interest at the rate of 7.5% p.a.
24. The total compensation amounts awarded by the Tribunal in so far as CMA Nos.1906 & 1907 of 2020 and 1287 of 2022 at Rs.24,49,200/-, Rs.22,98,000/- and Rs.2,58,700/- are reduced to Rs.16,52,740/-, Rs.18,62,520/- and Rs.2,42,709/- respectively. It is seen that the Tribunal already directed the appellant - Insurance Company to deposit the entire compensation awarded together with interest at 7.5% p.a. from the date of claim petition till the date of realization. If the 15/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 amount awarded by the Tribunal has already been deposited, the appellant insurance company is permitted to withdraw the excess amount deposited. The other directions issued by the Tribunal with regard to the mode of payment of compensation remain unaltered.
25. In the result, these Civil Miscellaneous Appeals are disposed of in the above terms. No costs. Consequently, the connected miscellaneous petitions are closed.
26.04.2024 Index :Yes/No Neutral citation: Yes/No Speaking Judgment : Yes/No To
1.The Motor Accident Claims Tribunal (Sessions Judge), Perambalur.
2.The Motor Accident Claims Tribunal (Chief Judicial Magistrate), Perambalur.
16/17 https://www.mhc.tn.gov.in/judis CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 N.ANAND VENKATESH,J rka CMA.Nos.1906 & 1907 of 2020 & 1287 of 2022 & CMP Nos.14100 & 14103 of 2020 & 9323 of 2022 26.4.2024 17/17 https://www.mhc.tn.gov.in/judis