M/S.United India Insurance v. Sunitha

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.01.2022

CORAM

THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM AND THE HONOURABLE MR.JUSTICE V.SIVAGNANAM C.M.A.NO.1243 OF 2017 AND CROSS.OBJ.NO.7 OF 2022 IN C.M.A.NO.1243 OF 2017 M/s.United India Insurance Company Limited, No.48, Arcot Road, Saligramam, Chennai - 600 093.

... Appellant/2nd Respondent .Vs.

1. Sunitha ... 1st Respondent/1st Claimant

2. Hasim ... 2nd Respondent/2nd Claimant

3. Anshik ... 3rd Respondent/3rd Claimant

4. Baskaran ... 4th Respondent/1st Respondent PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicle Act, 1988 against the decree and judgment dated 11.11.2016, passed in M.C.O.P.No.430 of 2014, by the Motor Accident Claims Tribunal/II Additional District Judge, Poonamallee.

For Appellant :

Mr.J.Michael Visuvasam For Respondents For RR1 to 3 : Mr.K.Varadha Kamaraj For R4 : Set Ex-parte before the Tribunal

IN CROSS OBJ.NO.7 OF 2022

1. Sunitha

2. Hasim

3. Anshik ... Appellants/Cross Objectors

Versus

1. M/s.United India Insurance Company Limited, No.48, Arcot Road, Saligramam, Chennai - 600 093.

2. Baskaran ... Respondents/Respondents PRAYER:- Cross Objection filed under Order 41, Rule 22 of the Code of Civil Procedure, against the judgment and decree dated 11.11.2016 made in M.C.O.P.No.430 of 2014, by the Motor Accident Claims Tribunal/II Additional District Judge, Poonamallee. For Appellant : Mr.K.Varadha Kamaraj For Respondents For R1 : Mr.J.Michael Visuvasam For R2 : Set Ex-parte before the Tribunal C O M M O N J U D G M E N T [Judgment of the Court was delivered by K.KALYANASUNDARAM, J] The appeals are heard through video conferencing.

2. Challenging the judgment and decree dated 11.11.2016 passed by the Motor Accident Claims Tribunal/II Additional District Judge, Poonamallee in MCOP.No.430 of 2014, the Insurance Company has preferred the appeal in C.M.A.Nos.1243 of 2021.

3. Being not satisfied with the quantum of compensation awarded in the very same judgment, the claimants have filed Cros.Obj.No.7 of 2022 seeking enhancement of compensation.

4. The brief facts of the case are that, on 10.05.2014 at about 04.30 a.m., the deceased Haisham was travelling in a Bolero Van bearing Registration No.TN-31-AQ-3686 on a National Highway. At that time, the driver of the Bolero Van drove the vehicle in a negligent manner and hit against the Lorry bearing Registration No.TM-21-AP-1999, due to which, the deceased sustained crush injuries and succumbed to the same. The mother and brothers of the deceased filed a claim petition No.MCOP.No.430 of 2014 claiming compensation of Rs.45,00,000/- and restricted the same to Rs.25,00,000/-.

5. The claim petition was contested by the Insurance Company on various grounds, and it is specifically stated that only 2 persons are permitted to travel in the Bolero Van, but at the relevant point of time, 3 persons travelled, which is in violation of the policy condition. That apart, they had disputed the other claims made in the claim petition.

6. The claimants in order to prove the negligence, examined PW2 and produced Ex.P1 FIR, Ex.P15 to P18, a Copy of Charge Sheet and Reports of the Motor Vehicle Inspector. Based on the above evidence, the Tribunal came to the conclusion that the accident had occurred only due to the negligence of the driver of the Bolero Van.

7. While assessing the quantum, the Tribunal held that the deceased was earning Rs.15,000/- per month, though the claimants had stated that the salary of the deceased was Rs.18,000/- and marked Ex.P13 salary certificate. Exs.P4 and P5, Educational Certificates of the deceased, show that he died at the age of

24. The Tribunal has held that the claimants are entitled to Rs.23,92,000/- as compensation. Questioning the award, the Insurance Company has filed the appeal and the claimants have filed cross-objection for enhancement of compensation.

8. It is the contention of the learned counsel for the Insurance Company that the deceased died as a bachelor, hence, the Tribunal ought to have deducted 50% towards personal expenses, whereas the Tribunal erroneously deducted 1/3. Further, at the time of the accident, 3 persons travelled in the vehicle, which is in violation of policy condition, hence, the

Insurance Company is not liable to pay compensation to the claimants.

9. Per Contra, the learned counsel appearing for the claimants submitted that the Tribunal, as per the rulings rendered in the judgment of the Supreme Court in Sarala Varma and others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121], while calculating Loss of Income, ought to have applied multiplier 18 and added 40% towards future prospects.

10. Heard learned counsel appearing for the parties and perused the materials available on record.

11. As regards the quantum is concerned, the age of the claimant has been proved through Educational Certificates Ex.P4 and P5. The salary has been rightly fixed as Rs.15,000/- based on Ex.P13 Salary Certificate. As rightly pointed out by the learned counsel for the claimants, the Tribunal has not made any addition towards future prospects and as per the decision of the Hon'ble Apex Court, 40% should be added towards future prospects. Since the deceased was a bachelor, the Tribunal ought to have deducted 50% towards personal expenses, but 1/3 was deducted. Therefore, by adding 40% towards future prospects and after deducting 50% for personal expenses, the contribution to the family comes to Rs.10,500/- [15,000 + 6,000 x 50%]. As per the decision of the Supreme Court in the case of Sarala Varma (referred supra), the proper multiplier to be applied in this case is 18, but the Tribunal had wrongly applied multiplier 17. So, by applying 18 multiplier, the amount of Loss of Income is arrived at Rs.22,68,000/- [10,500 x 12 x 18].

12. The amounts awarded by the Tribunal under the conventional heads, viz., Rs.50,000/- towards Funeral and Transport Charges, Rs.3,00,000/- towards Loss of Love and Affection and Rs.2,000/- towards Loss of Clothes are on the higher side. Hence, we hereby set aside the same and award Rs.1,20,000/- towards Loss of Filial Consortium; Rs.15,000/- towards Funeral and Transport Expenses; and Rs.15,000/- towards Loss of Estate. Further, the rate of interest fixed by the Tribunal at 9% also appears to be excessive and hence, the same is hereby reduced to 7.5%. Thus, the claimants are entitled to Rs.24,18,000/- along with interest at the rate of 7.5% per annum from the date of claim petition till the date of realization. The total compensation payable to the claimants is re-calculated and tabulated below:

Amounts awarded by the Tribunal in Rs.

Amounts awarded by this Court in Rs.

S.

No.

Heads under which amount is awarded 1.

Loss of Income 20,40,000 22,68,000 2.

Funeral Expenses and Transport Charges 50,000 15,000 3.

Loss of Love and Affection 3,00,000 - 4.

Loss of Filial Consortium - 1,20,000 5.

Loss of Clothes 2,000 6.

Loss of Estate - 15,000 Total 23,92,000 24,18,000

13. With regard to negligence, there is no contra evidence produced by the Insurance Company. PW2 deposed that the driver of the Bolero Van drove the vehicle in a rash and negligent manner and the same is supported by documentary evidence Ex.P1 and P15. So, we find no reason to interfere with the finding regarding negligence. However, Ex.P2 would reveal that the Bolero Van has a seating capacity of 2 persons, whereas RW1 deposed that at the time of accident, 3 persons travelled in the vehicle. So, it is a clear case of policy violation. Taking note of the facts that the deceased was a third party, the Insurance Company is directed to pay the above modified compensation to the claimants at the first instance and thereafter recover the same from the owner of the vehicle.

14 (i). In the result, the appeal preferred by the Insurance Company is dismissed and the cross-objection filed by the claimants is partly allowed. The Insurance Company is directed to deposit the above modified award amount with accrued interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the claimants are permitted to withdraw the award amount, less the amount already withdrawn, if any, together with proportionate interest and costs. The apportionment of shares as fixed by the Tribunal to the claimants remains unaltered. No costs.

(ii) The Insurance Company is permitted to recover the above compensation amount in accordance with law from the owner of the

Bolero Van bearing Registration No.TN-31-AQ-3686 after making payment to the claimants.

Sd/- Assistant Registrar(CS I) //True Copy// Sub Assistant Registrar pvs To 1.

The II Additional District Judge, The Motor Accident Claims Tribunal, Poonamallee.

2.

The Section Officer, V.R. Section, High Court, Madras.

+1cc to Mr.J.Michael Visuvasam, Advocate, S.R.No.1386 +1cc to Mr.K.Varadha Kamaraj, Advocate, S.R.No.1215 C.M.A.NOS.1243 OF 2017 AND CROSS.OBJ.NO.7 OF 2022 BS(CO) PBS/25/04/2022