Madras High Court
The Oriental Insurance Company Limited vs S.Amsavalli on 26 April, 2013
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 24.02.2021
Date of Judgment 08.06.2021
CORAM
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
C.M.A(MD)No.1223 of 2014
and
Cross Objection(MD)No.14 of 2019
and
MP(MD)No.2 of 2014
(1)CMA(MD)No.1223 of 2013:-
The Oriental Insurance Company Limited,
through its Divisional Manager,
North Veli Street,
Madurai. : Appellant/2nd Respondent
Vs.
1.S.Amsavalli
2.S.Anbarasan : R1 and R2/Petitioners
3.S.Kaja Mohaideen : R3/1st Respondent
PRAYER:- Civil Miscellaneous Appeal has been filed under
Section 173 of the Motor Vehicles Act, 1988 against the award
passed by the Motor Accident Claims Tribunal (Additional District
and Sessions Judge/Communal Clashes Court) Madurai, in MCOP
No.1868 of 2009, dated 26.04.2013.
https://www.mhc.tn.gov.in/judis/
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For Appellant : Mr.C.Ramachandran
For R1 and R2 : Mr.K.Kumaravel
For 3rd Respondent : No appearance
(2)Cross Objection(MD)No.14 of 2019:-
1.S.Amsavalli
2.S.Anbarasan : Appellants/Petitioners
Vs.
1.The Oriental Insurance Company Limited,
through its Divisional Manager,
North Veli Street,
Madurai. : 1st Respondent/2nd Respondent
2.S.Kaja Mohaideen : 2nd Respondent/1st Respondent
PRAYER:- Cross Objection has been filed under Order 41
Rule 22 of the Civil Procedure Code against the award passed by
the Motor Accident Claims Tribunal (Special District and Sessions
Court), Madurai, in MCOP No.1868 of 2009, dated 26.04.2013.
For Cross Objectors : Mr.K.Kumaravel
For 1st Respondent : Mr.C.Ramachandran
For 3rd Respondent : No appearance
https://www.mhc.tn.gov.in/judis/
3
COMMON JUDGMENT
The Civil Miscellaneous Appeal has been filed by the Oriental Insurance Company challenging the award passed by the Motor Accident Claims Tribunal (Special District and Sessions Court), Madurai, in MCOP No.1868 of 2009, dated 26.04.2013, whereas the Cross Objection is filed by the claimants for enhancement of compensation.
2.The short facts of the case is that on 08.08.2009 at about noon 12.15, the deceased S.Selvakumar was riding the motor cycle TN-47-T-5072 in Madurai Bye Pass Road and when he was coming in front of Lakshmi Hospital, at that time, the Private Passenger Bus TN-59-AJ-0996 came in a rash and negligent manner and hit against the motor cycle. In that process, the deceased fell down and the left back wheel of the bus, ran over the body of the deceased and due to it, he died on the spot. The legal heirs of the deceased filed a claim petition seeking compensation of Rs. 15,00,000/- on the ground that the offending vehicle caused the accident.
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3.The claimants have stated that the deceased was 19 years at the time of accident and he was working as Part Time Accountant at PWD, Highways Contractor, thereby he was earning Rs.4,000/- per month. It is alleged that at the time of accident, the said S.Selvakumar was studying B.E, 2nd Year (Mechanical Engineering) and he died only due to the negligence on the part of the driver of the private passenger bus.
4.In the counter filed by the Insurance Company, they disputed the manner of accident and their liability to pay compensation.
5.Before the tribunal, on the side of the claimants, 4 witnesses were examined and marked 17 documents. On the side of the Insurance Company, 1 witness was examined and 2 document were marked as Exs.C1 and C2.
6.The Tribunal, on consideration of oral and documentary evidence adduced by the parties, came to the conclusion that the driver of the Private Passenger Bus has caused the accident and awarded compensation of Rs.6,78,000/- together with interest @ 7.5% p.a. https://www.mhc.tn.gov.in/judis/ 5
7.Heard both sides and perused the materials available on record.
8.In this case, the dispute is in respect of negligence and quantum. The learned counsel appearing for the Insurance Company submitted that the deceased was run over by the left side rear wheel of the bus and FIR and the evidence of PW1 can be relied on for the nature of the accident and there was contributory negligence on the part of the deceased and fastening of the entire negligence on the part of the driver of the private bus is not correct.
9.On the other hand, the learned counsel appearing for the claimants argued that only due to the negligent driving of the driver of the private passenger bus, the accident took place and there is no contributory negligence on the part of the deceased and hence, the tribunal has rightly fastened the entire negligence on the part of the driver of the private passenger bus.
10.In this case, the FIR was marked as Ex.P1. To prove the nature of the accident, the eye witness was examined as PW2. PW2 https://www.mhc.tn.gov.in/judis/ 6 stated during his evidence that on 08.08.2009 at 12.15 pm, the deceased was riding the motor cycle TN-47-T-5072 in Madurai Bye Pass road from south to north and he came in the two wheeler of the deceased and when the deceased reached Lakshmi Hospital, at the time, the driver of the private passenger bus, drove it in a rash and negligent manner and dashed against the deceased and the deceased fell down and the left side of the wheel claimed over the head of the deceased and he died on the spot. The above fact was stated in Ex.P1 (FIR) also. Further, in respect of the accident, a criminal case was registered only as against the driver of the private passenger bus. It is to be noted here that the driver of the private passenger bus has not given any complaint to the police stating that only due to the negligence on the part of the deceased, the accident occurred. Further, he has not sent any petition to the superior police officials, objecting registration of the FIR against him. No contra evidence was let in on the side of the respondents. Hence, on perusal of Ex.P1 and the evidence of PW3, it reveals that there was no contributory negligence on the part of the deceased. Therefore, the argument put forth on the side of the Insurance Company stating that there was contributory negligence on the part of the deceased is not at all acceptable.
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11.The next contention raised on the side of the Insurance Company is that the monthly income arrived at by the tribunal is on the higher side and the claimants are not entitled to the quantum as ordered by the tribunal.
12.On the other hand, the learned counsel appearing for the claimants argued that at the time of accident, the deceased was studying II year B.E and also working as Part Time Accountant under PW3 and earned Rs.4,000/- per month and his father also died due to heart attack and his brother also studying and further, the loss of income arrived by the tribunal is on the lower side and hence, the compensation awarded by the tribunal has to be enhanced.
13.It is stated on the side of the claimants that at the time of accident, the deceased was studying BE II year. The official of the Engineering College, in which the deceased was studying, was examined as PW4. From the evidence of PW4, it reveals that at the time of accident, the deceased was studying BE II Year. To prove that he was working as Part Time Accountant under the PWD Contractor, the Contractor was examined as PW3. PW3 stated that https://www.mhc.tn.gov.in/judis/ 8 the deceased was working as Part Time Accountant under him and he gave Rs.4,000/- as salary. To prove it, no relevant records were produced by PW3. Hence, the evidence of PW3 was not acceptable. From the evidence of PW4, it reveals that the deceased was studying B.E II Year and after completing BE, the deceased will get better job.
14.It is to be noted that the deceased died as bachelor. Hence, 50% has to be deducted towards his personal and living expenses. The learned counsel appearing for the claimants argued that the Division Bench of this court held that national income of an Engineering Student can be fixed at Rs.10,000/- pm. In support of his contention, he relied upon the decision reported in 2012(2)TN MAC 838 (DB) (Salini Vs. Meiyarasu). Considering the educational qualification this court finds that the deceased will definitely earn Rs.10,000/- per month. It is seen that at the time of accident, the deceased is aged about 19 years. Further, on perusal of the award passed by the tribunal, no future prospects was added. Hence, this court is of the considered view that 40% has to be added towards future prospects to calculate the income of the deceased, as per the decision of the Hon'ble Supreme Court reported in 2017(6) https://www.mhc.tn.gov.in/judis/ 9 CTC 493 (National Insurance Company Limited vs. Pranay Sethi and others). By doing so, the monthly loss of income of the deceased is calculated at Rs.14,000/- (10,000/- + 4,000/-). Since the deceased is a batcholer, 50% has to be deducted towards his personal and living expenses and thereby the monthly income is arrived at Rs.7,000/- (Rs.14,000/- x 1/2). By applying proper multipler 18, this court awards Rs.15,12,000/- (Rs.7,000/- x 12 x
18) towards loss of income. In addition to that, under the conventional heads, as per the decisions in Pranay Sethi's case and Magma General Insurance's case, this Court awards Rs. 40,000/- towards filial consortium to the 1st claimant; Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. In total, the claimant would be entitled for Rs.15,82,000/- together with interest @ 7.5% p.a.
15.In the result, both the Civil Miscellaneous Appeal and the Cross Objection are disposed of. The award is enhanced to Rs. 15,82,000/- from Rs.6,78,000/-. The Appellant Insurance Company is directed to deposit the modified award amount together with interest @ 7.5% p.a. from the date of petition till the date of deposit, less the amount already deposited, within a period of six https://www.mhc.tn.gov.in/judis/ 10 weeks from the date of receipt of a copy of this judgment. On such compliance, the 1st claimant is entitled to withdraw Rs.15,00,000/- and the 2nd claimant is entitled to withdraw Rs.82,000/- together with accrued interest and costs, without filing any petition. The claimants shall pay the additional court fee for the enhanced amount. No costs. Consequently, connected Miscellaneous Petition is closed.
Index:Yes/No 08.06.2021
Internet:Yes/No
er
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
11
T.KRISHNAVALLI,J
er
To,
1.The Motor Accident Claims Tribunal/
Special District and Sessions Judge,
Madurai.
2.The Record Keeper,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
C.M.A(MD)No.1223 of 2014
and
Cross Objection(MD)No.14 of 2019
08.06.2021
https://www.mhc.tn.gov.in/judis/