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Madras High CourtCMA/2274/2017allowed

New India Assurance v. Kosalai

2019-04-05Honourable Mr Justice M.M.Sundresh,Honourable Mr Justice C. Saravanan5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.04.2019

CORAM:

THE HONOURABLE MR. JUSTICE M.M. SUNDRESH AND THE HONOURABLE MR. JUSTICE C.SARAVANAN C.M.A. No. 2274 of 2017 C.M.A. No. 878 of 2018 New India Assurance Co. Ltd, No.127A, Thiruvika Road, Villupuram ...Appellant in both C.M.A's/2nd Respondent Vs.

Kosalai ..1st respondent in both CMA's Kathiravan ..2nd respondent in CMA 2274/17 Karpakam ..3rd respondent in CMA 2274/17/Claimants 1 to 3 M/s. R.K.Auto Mobiles, No.1/5, Selvaraj Avenue, Sipcot, Chidambaram Road, Cuddalore Dt - 607 005.

..4th respondent in CMA 2274/17/1st Respondent and 2nd respondent in CMA 878/18 P.Karthikeyam ..5th respondent in CMA 2274/17 and 3rd respondent in CMA 878/18/3rd Respondent The National Insurance Co. Ltd., No.F45, Jawaharlal Nehru Road, Taluk - 25 Neyveli 3

Cuddalore Dt - 607 803.

..6th respondent in CMA 2274/17 and 4th respondent in CMA 878/18/4th Respondent Rajendran ..7th respondent in CMA 2274/17 and 5th respondent in CMA 878/18/5th Respondent ICICI Lambard Insurance Co. Ltd., Chennai ..8th respondent in CMA 2274/17 and 6th respondent in CMA 878/18/6th Respondent Prayer: Appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree in M.C.O.P. Nos.39 of 2008 and 100 of 2007 on the file of the Motor Accident Claims Tribunal (2nd Additional District, Sessions - Judge) at Chidambaram District, dated 20.07.2015 For appellants in both CMA's : Mr.J.Chandran For respondents 1 to 3 in CMA 2274/17 For 1st respondent in CMA 878/18 : Mr.Amar D. Pandiya For 8th respondent in CMA 2274/17 For 6th respondent in CMA 878/18 : Ms.R.Sree Vidhya For respondents 4,5,7 in CMA 2274/17 For respondents 2,3 & 5 in CMA 878/18 : No appearance For 6th respondent in CMA 2274/17 and 4th respondent in CMA 878/18 : Mr.S.Vadivel

COMMON JUDGMENT (Delivered by M.M.Sundresh,J.) As both the appeals arise out of the same accident they are taken up together and disposed of by a common judgment.

2. These two appeals challenge the liability and quantum fixed by the Tribunal. C.M.A. No. 2774 of 2017 is filed against the judgment and decree passed in M.C.O.P No. 39 of 2008, which was filed by the claimants of the deceased victim. C.M.A No. 878 of 2018 is filed against the judgment and decree passed in M.C.O.P. No. 100 of 2007, which was filed by the injured.

3. Learned counsel appearing for the appellant submits that the liability ought to have been fastened on the respondent Nos. 7 and 8 in CMA No.2274 of 2017 (who are respondents 5 and 6 in CMA.No.878 of 2018) who have been set ex-parte. Though the vehicle in question was insured with the appellant, there is a change of ownership subsequently in favour of the seventh respondent who in turn took a separate policy with the eight respondent and, therefore, the liability will have to be fastened on respondent Nos. 7 and 8. On the quantum, it is submitted that there is no loss of estate, since agricultural lands are still available.

4. Learned counsel for the contesting respondents/claimants submitted that the Tribunal took into consideration the fact that the deceased was an income tax assessee. The Tribunal has not adopted the correct multiplier of '7' instead it adopted '5'.

5. Insofar as the liability is concerned, it is submitted by the counsel appearing for the respondents/claimants that no material was produced by the appellant to show that the insurance with the appellant was cancelled and thereafter a fresh insurance policy was issued by the eight respondent.

6. On the legal issues sought to be raised, we do not find any merit. Even according to the appellant, during the relevant point of time, the policy was in currency from 8.02.2005 to 7.02.2006. The accident took place on 25.01.2006. However, it is the case of the appellant that there was a change in the ownership and so also the insurer. There is absolutely no material to substantiate the same. Therefore, the Tribunal has correctly fastened the liability on the appellant.

7. On the other issue, we find some force in the submission made by the counsel appearing for the appellant. Admittedly, no assessment order was produced except showing some evidence to the effect that the deceased was an assessee. Further, there is no loss of estate since the income was shown based upon the

agricultural lands. There is absolutely no material available on record to show that due deduction of agricultural income was made by the assessee in his returns. Thus, the Tribunal ought not have taken into consideration the income as given by the claimants. Thus, we deem it appropriate to fix income at Rs.15,000/- per month and adopt multiplier of '7'. If that is done, a sum of Rs.8,40,000/- (Rs.15000 x 2/3 x 7 x 12) would be arrived at. We are not disturbing the other conventional heads awarded by the Tribunal, including the expenses incurred for the medical treatment. Accordingly, we fix a sum of Rs.18,63,328/- as the compensation payable to the respondents/claimants and the interest awarded by the Tribunal at 7.5% per annum is confirmed. Out of the said amount, the first claimant is entitled to Rs.

8,63,328/- and the second and third claimants are entitled to Rs.5,00,000/- each. The amount is directed to be deposited, less the amount, if any, already deposited within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the respondents/claimants are permitted to withdraw their respective shares along with accrued interest.

8. Insofar as C.M.A. No. 878 of 2018 is concerned, we do not find any error in the award of the Tribunal. The Tribunal taking note of the injury awarded Rs.20,000/- which, in our considered view, is reasonable.

9. In the result, C.M.A. No. 2274 of 2017 is allowed to the extent indicated above and C.M.A. No. 878 of 2018 stands dismissed. No costs. Consequently, connected C.M.P. Nos. 12128 of 2017 and 7376 of 2018 are closed.

s/d- Assistant Registrar(CS-III) True Copy Sub-Assistant Registrar ssm To:- The II Additional District & Sessions Judge Motor Accident Claims Tribunal, Chidambaram District Copy to The Section officer VR Section, High Court, Madras 104.

+1 CC to Mr.J.Chandran, Advocate sr 33370.

+2 CCS to Mr.S.Vadivel, Advocate sr 33300 & 33301 +2 CCS to Mr.Amar D. Pandiya, Advocate sr 33786 & 33787 +1 CC to Mrs.R.Sreevidya, Advocate sr 33999.

C.M.A. No. 2274 of 2017 C.M.A. No. 878 of 2018 GJ(CO) SP(05/08/2019)