National Insurance Co.Ltd., v. Latha,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.09.2024 CORAM: THE HONOURABLE MR.JUSTICE P.VELMURUGAN AND THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN and C.M.P(MD)Nos.12593 to 12595 of 2019 C.M.A.(MD).No.935 of 2019 National Insurance Company Ltd., Divisional Office, Promenade Road, Cantonment, Trichy.

... Appellant Vs.

1.Latha

2.Karthikeyan

3.Narmatha Devi Sivakumar (died)

4.Anubama

5.Balaj Alliance General Insurance Company Ltd., Tamil Nadu Sarvodaya Sangh, Kahdi Gramodaya Bhavan, 108, Second Floor, T.P.K.Road, Madurai-625 001.

6.Vadivel

7.Bharathidhasan ...Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act 1988 to set aside the judgment and decree dated 29.04.2019 in M.C.O.P.No.514 of 2013, on the file of the Motor Accident Claims Tribunal, Special District Court, Tiruchirappalli. For Appellant :Mr.J.S.Murali For Respondents :Mr.K.Benjamin for R1 to R3 :R4 to R7 dispensed with ***** C.M.A.(MD).No.936 of 2019 National Insurance Company Ltd., Divisional Office, Promenade Road, Cantonment, Trichy

... Appellant Vs.

1.Jayanthi

2.Minor Jishnu

3.Minor Karunya Sivakumar (died)

4.Anubama

5.Balaj Alliance General Insurance Company Ltd., Tamil Nadu Sarvodaya Sangh, Kahdi Gramodaya Bhavan, 108, Second Floor, T.P.K.Road, Madurai-625 001.

6.Vadivel ...Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act 1988 to set aside the judgment and decree dated 29.04.2019 in M.C.O.P.No.515 of 2013, on the file of the Motor Accident Claims Tribunal, Special District Court, Tiruchirappalli. For Appellant :Mr.J.S.Murali For Respondents :Mr.K.Benjamin for R1 to R3 :R4 to R7 dispensed with ***** C.M.A.(MD).No.937 of 2019 National Insurance Company Ltd., Divisional Office, Promenade Road, Cantonment, Trichy

... Appellant Vs.

1.Sundar Sivakumar (Died)

2.Anubama

3.Balaj Alliance General Insurance Company Ltd., Tamil Nadu Sarvodaya Sangh, Kahdi Gramodaya Bhavan, 108, Second Floor, T.P.K.Road, Madurai-625 001.

4.Vadivel ...Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act 1988 to set aside the judgment and decree dated 29.04.2019 in M.C.O.P.No.875 of 2013, on the file of the Motor Accident Claims Tribunal, Special District Court, Tiruchirappalli. For Appellant :Mr.J.S.Murali For Respondents :Mr.K.Benjamin for R1 to R3 :R4 to R7 dispensed with ***** COMMON JUDGMENT (Judgment of the Court was delivered by K.K.RAMAKRISHNAN,J.) Being aggrieved over the awards passed by the Motor Accident Claim Tribunal/Special District Court Trichirappalli in M.C.O.P.Nos.514, 515 and 875 of 2013, dated 29.04.2019 the appellant incurance company has filed the present appeals.

¶2Since the insurance company has not challenged the contributory negligence fixed by the leanred Tribunal Judge in the ratio of 70 : 30, this Court is not inclined to go into the issue of the negligence aspects, eventhough, the insurance company raised appeal.

¶3Facts of the case: On 20.09.2010 at about 09.15.am., on Kathikaranpatti road in Trichy-Dindigul Main Road, one Dhamodara Kannan, Veeramani, Sundar and Ravindran were travelling in the car bearing registration No.TN 45 AR 0769, and proceeding towards Dindigul to Trichy driven by the owner of the said car. When the car reached the Kathikaranpatti, the appellant insured vehicle/Passenger bus bearing registrtion No.TN 45 AD 6675 dashed against the above said car, which was also driven by its driver in a rash and negligent manner in high speed. Due to the said accident, the driver of the car, Dhamodarakannan and Veeramani died on the spot and sundar sustained injury. All were working in the postal department. The legal heirs of the Dhamodarakannan and Veeramani have filed a petition in M.C.O.P.Nos.514 and 515 of 2013 claiming the compensation of Rs.5,00,000/- in each case. The injured claimant, namely, Sundar also filed M.C.O.P.No.875 of 2013claiming compensation of Rs.5,00,000/-.

¶4The appellant insurance company filed the counter statement and denied all the averments made in the claim petition and contended that the accident did not occur due to the rash and negligent driving of the driver of the appellant insured vehicle/passenger bus. The driver of the car was solely responsible for the accident and prayed for dismissal of the claim petitions.

¶5Before the Tribunal, on the side of the claimants P.W.1 to P.W.9 were examined and marked 16 documents as Ex.P1 to Ex.P16. On the side of the appellant R.W.1 to R.W.5 were exmined and marked 6 documents as Ex.R1 to Ex.R6 and on the side of the injured witness, list of documents were marked as Ex.X1 to Ex.X9 and also marked Ex.C.1 as Court documents.

¶6Finding of the Tribunal The learned Tribunal Judge considering the pleadings, oral and documentary evidence and arguments of the learned counsel for the appellant and the claimants and applied the theory of contributory negligence and fixed the negligence on the part of the appellant insured vehicle as 70% and the claimant as 30% and awarded the following compensation on the basis of the salary certificate issued by the department and other medical documents:

6.1.C.M.A.(MD).No.935 of 2019 Sl.No. Head Amount in Rupees Monthly Income 35,932/-Future Prospects since the deceased is aged 58 years 15% to be added 35,932 X 15% = 5389.80 rounded of Rs.5390 35932 + 5390 = 41,322/-Deduction for personal expenses deceased with four dependents 41322 X ¼ = 10330 41322 – 10330 = 30992/-Loss of Income 30992 X 12 X 9 = 33,47,136/-Loss of consortium 40,000/-Loss of Funeral Expenses 15,000/-Loss of Estate 15,000/-Total 34,17,136/-

6.2.C.M.A.(MD).No.936 of 2019 Sl.No. Head Amount in Rupees Monthly Income 28,232/-Future Prospects since the deceased is aged 43 years 30% to be added 28,232 X 30% = 8469.60 rounded off = 8470 28,232 + 8470 = 36,702/-Deduction for personal expenses deceased with four dependents 36,702 X 1/3 =12,234/-36,702 – 12234 = 24,468/-Loss of Income 24,268 X 12 X 14 = 41,10,624/-Loss of consortium 40,000/-Loss of Funeral Expenses 15,000/-Loss of Estate 15,000/-Total 41,80,624/-

6.3.C.M.A.(MD).No.937 of 2019 Sl.No. Head Amount in Rupees Disability – 3500 X 49 1,71,500/-Pain and Sufferings 2,00,000/-Extra Nourishment 50,000/-Transportation 50,000/-Attendant Charges 50,000/-Total 5,21,500/-

¶7Submissions of the learned counsel for the appellant: Even though, the insurance company raised the appeal on the negligence, they confined their submission relating to the quantum. The learned counsel for the insurance company submitted that in C.M.A.(MD).No.935 of 2019, the learned Tribunal Judge without considering the dependents are 3, wrongly applied ¼ deduction for the personal expenditure. Therefore, he seeks to apply the correct deduction and reduce the amount.

¶8Submission of the learned counsel for the respondents/claimant: The learned counsel for the respondents/claimants submitted that it is true that the learned Tribunal Judge applied ¼ by wrongly assuming four dependents and he further submitted that no amount was awarded under the head of love and affection to the remaining dependents and hence, he seeks to award Rs.80,000/- as per the "Pranay Sethi Case".

¶9We have heard the learned counsel appearing for the appellant insurance company and the learned counsel appearing for the respondents/claimants and also perused all the materials available on record.

10.The following points arise for consideration of this appeal:

10.1.Whether the learned Tribunal Judge has correctly applied the contributory negligence?

10.2.Whether the compesnation granted is in accordance with law?

11.Discussion on the negligence: It is clear from the records and evidence of P.W.2 and R.W.2 that at the time of the accident, there was a maintenance work near the accident place. Therefore, it is pertinent to note that the bus was driven in the opposite direction of the car by taking diversion and this Court is of the view the driver of the bus should have driven the bus carefully and cautiously and the injured petitioner who was P.W.2 has also admitted the fact that while he was travelling in the car, his car also was driven by its driver in a rash and negligent manner. From the overall analysis of the evidence and documents, the learned Tribunal Judge has correctly awarded the contributory negligence as 70 : 30 and directed the appellant insurance company to pay 70% of the award amount. Therefore, there is no need to interefere with the finding of the learned tribunal Judge.

12.Discussion of quantum in C.M.A.(MD).No.935 of 2019: The deceased was working as the Assistant Superintendent of Postal Department and he is aged about 58 years and his salaryand his service register was marked as Ex.X5. His salary is Rs.35,932/- and no contra evidence was let in to disbelieve the above monthly income. Considering his age 58 and he being the Central Government Employee, as per the Pranay Sethi Case 15% of Future Prospect was added and his income was calculcated as Rs.41,332/-. In this case, only three dependents, are there but, the learned Tribunal Judge deducted the ¼ for his personal expenses and adopted multiplier of 9 and granted compensation as Rs.34,17,136/-. This Court does not agree with the finding of the leanred Trial Judge in applying the ¼ for the personal deduction as per the Sarala Verma and other Vs. Delhi Transport Corporation and another judgment in 2009 2 TNMAC 1(SC) 1/3 alone is to be deducted for the personal expenditure of the deceased. Therefore, this Court redetermined the compensation. The age of the deceased is 58 years and since there are three dependents, 1/3rd is deducted for personal expenses and applying the multiplier of "9" the amount comes around as follows: 41,322 X 2/3 X 12 X 9 = Rs.29,75,184/- The non pecuniary damages as per the Pranay Sethi Case is calculated as follows: Loss of consortium for the wife of the deceased is calculated as Rs.40,000/- Loss of Love and Affection =Rs.40,000/- X 2 = Rs.80,000/- Funeral Expenses =Rs.15,000/- Loss of Estate =Rs.15,000/- S. No. Heads Amount awarded by the Tribunal (in Rupees) Re-quantified amount by this Court (in Rupees) Status Loss of income 33,47,136/- 29,75,184/- Reduced Loss of consortium 40,000/- 40,000/- Confirmed Loss of love and affection ---- (40,000 X 2) 80,000/- Awarded Funeral Expenses 15,000/- 15,000/- Confirmed Loss of Estate 15,000/- 15,000/- Confirmed Total 34,17,136/- 31,25,184/- Reduced

12.1. Accordingly, this Civil Miscellaneous Appeal in C.M.A.(MD).No.935 of 2019 is partly allowed. The compensation awarded in M.C.O.P.No.514 of 2013 on the file of the Motor Vehicle Accidents Claims Tribunal/Special District Court, Tiruchirappalli, dated 29.04.2019 is hereby reduced from Rs.34,17,136/- to Rs. 31,25,184/-. Considering the submission of the learned counsel for the appellant, that the entire award amount was already deposited, if there is any excessive, they are permitted to withdraw. The respondents/claimants are entitled to withdraw their award amount as per order and apportionment made by the Tribunal by filing necessary application before the tribunal

13.Discussion of quantum in C.M.A.(MD).No.936 of 2019:

13.1.The deceased/Veeramani also worked in the postal department and his salary certificate was marked as Ex.X2 and service register also marked and one witness P.W.4 was also examined and the learned Tribunal Judge fixed his monthly salary as Rs.28,232/-. His age was 43 years and hence, as per the Pranay Sethi case 30% of the Future Prospect was taken and the leanred Tribunal Judge has awarded the compensation as follows and this Court finds no mertis in the contention of the learned counsel for the insurance company that the award was highly excessive. This Court finds no infirmity in the amount arrived by the Tribunal. S. No. Heads Amount awarded by the Tribunal (in Rupees) Re-quantified amount by this Court (in Rupees) Status Loss of income 41,10,624/- 41,10,624/- Confirmed Loss of consortium 40,000/- 40,000/- Confirmed Funeral Expenses 15,000/- 15,000/- Confirmed Loss of Estate 15,000/- 15,000/- Confirmed Total 41,80,624/- 41,80,624/- Confirmed

13.2.Accordingly, this Civil Miscellaneous Appeal in C.M.A.(MD).No.936 of 2019 is dismissed and the judgment and award passed by the Motor Accidents Claims Tribunal/Special District Judge, Tiruchirappalli in M.C.O.P.No.515 of 2013, dated 29.04.2019 is hereby confirmed.

14.Discussion of quantum in C.M.A.(MD).No.937 of 2019:

14.1.According to the injured claimant/sundar, he sustained the injuries in the Bicolumn Acetagulam Frature right side, Distal Radiun Fracture righ side and admitted in the Ganga Hospital and have taken the treatment for more that 15 days and also has undergone surgeries and suffering unbearable pain in view of the operation done in the hip. The learned Tribunal Judge, considering the above facts, granted compensation as Rs,5,21,500/- under the following heads and this Cour finds no infirmity in the above said judgment and hence, the award of compensation as Rs.5,21,500/- is hereby confirmed. S. No. Heads Amount awarded by the Tribunal (in Rupees) Re-quantified amount by this Court (in Rupees) Status Loss of Disability - 3,500 X 49 1,71,500/- 1,71,500/- Confirmed Pain and Sufferings 2,00,000/- 2,00,000/- Confirmed Extra Nourishment 50,000/- 50,000/- Confirmed Transportation 50,000/- 50,000/- Confirmed Total 5,21,500/- 5,21,500/- Confirmed

14.2.Accordingly, this Civil Miscellaneous Appeal in C.M.A.(MD).No.937 of 2019, is dismissed and the judgment and award passed by the Motor Accidents Claims Tribunal/Special District Court, Tiruchirappalli, in M.C.O.P.No.875 of 2013 dated 29.04.2019 is hereby confirmed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. [P.V.,J.] [K.K.R.K.,J.]

25.09.2024 NCC : Yes/No Index : Yes / No Internet : Yes sbn To

1.The Motor Accident Claims Tribunal/Special District Court, Tiruchirappalli.

2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai. C.M.ArMi)Nos.9a5otoo9a7oofo2019 P.VELMURUGAN,oJ. AND K.K.RAMAKRISHNAN,oJ. oo sbn C.M.A(MD)Nos.935otoo937oofo2019 and C.M.P(MD)Nos.12593otoo12595oofo2019

25.09.2024