The Branch Manager vs Uma Parameswari on 18 March, 2022

Madras High Court

The Branch Manager vs Uma Parameswari on 18 March, 2022
C.M.A(MD)No.2

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 18.03.2022

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A(MD)No.232 of 2021
and
C.M.P.(MD) Nos.1919 & 8150 of 2021

The Branch Manager,

The Oriental Insurance Co. Ltd.,
1st Floor, Layola Building,
Salai Road,
Dindigul Town,
Dindigul District. ...Appellant / 2nd Respondent

Vs.

1.Uma Parameswari

2.Minor Soundarya

3.Minor Varshini

(Minors 2 & 3 respondents are rep. through their mother

and next friend the 1st respondent Uma Parameswari)

4.Alagammal ... Respondents 1 to 4 / Petit

5.Kuppamuthu ... 5th Respondent/ 1st Respon

1/14
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.2

PRAYER : Civil Miscellaneous Appeal filed under Section 173(1) of

the Motor Vehicles Act praying this Court to set aside the fair and
decretal order made in M.C.O.P.No.194 of 2017, dated 28.09.2018, on
the file of the Principal District Court-cum-Motor Accidents Claims
Tribunal, Dindigul.

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 The Branch Manager vs Uma Parameswari on 18 March, 2022

For Appellant : Mr.E.Chandrasekaran

For Respondents : Mr.S.Loganathan - RR1 to 4
: No Appearance - RR5

JUDGMENT

R.SUBRAMANIAN, J.

and N.SATHISH KUMAR, J.

The challenge in this Civil Miscellaneous Appeal by the Insurance Company is to the award of a sum
of Rs.35,48,293/- (Rupees Thirty Five Lakhs Forty Eight Thousand Two Hundred and Ninety Three
only) for the death of one Dhanabal in road accident that had occurred on 15.01.2017 at about 5.30
p.m.

2. It is the case of the claimants that said Dhanabal along with his brother-in-law Saravanan was
returning home after visiting his relatives at Mandhanaickenpatti on the Natham - Dindigul road in
a two https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232 of 2021 wheeler that was driven by the
said Dhanapal with Saravanan as a pillion rider bearing Registration No.TN-57-P-1260, a
two-wheeler bearing Registration No.TN-57-AE-9490 driven by its driver in a rash and negligent
manner, came in the opposite direction and hit against said Dhanapal. As a result of the impact, said
Dhanapal was thrown out of his vehicle and suffered head injuries, he died on the way to the
hospital. Contending that it was the negligence on the part of the driver of the two wheeler bearing
Registration No.TN-57-AE-9490 that was the cause for the accident and the consequent death, the
claimants sought for a compensation of Rs.50,00,000/- (Rupees Fifty Lakhs only).

3.The first respondent owner of the two wheeler bearing Registration No.TN-57-AE-9490 resisted
the claim contending that the accident did not occur in the manner suggested by the claimants. He
would claim that it is the negligence on the part of the deceased, which had caused the accident. He
would also claim that the vehicle had a valid insurance and therefore, it is the second respondent
insurance company which is liable to pay the claim amount, if at all, it is awarded.
https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232 of 2021

4. The second respondent - insurance company claimed that the deceased did not have the valid
driving license. He was not wearing a helmet and the accident had occurred due to the negligence on
the part of the deceased, because he was riding the vehicle on the middle of the road.

5. Though very serious contentions were raised by the insurance company as well as the first
respondent regarding the manner in which the accident had occurred, both of them did not let in
any evidence in support of their contentions. The Tribunal relying upon the FIR and the evidence of
P.W.2 the eyewitness, concluded that the accident had occurred due to the rash and negligent
driving of the rider of the two wheeler bearing Registration No.TN-57-AE-9490 namely, the fifth
respondent herein.

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 The Branch Manager vs Uma Parameswari on 18 March, 2022

6. Upon the said conclusion, the Tribunal held that the appellant - insurance company being the
insurer of the said two wheeler, is liable to pay the compensation. On the quantum, the tribunal took
into account the salary of the deceased, who was working as a Cook in the
https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232 of 2021 Government Boys Hostel run by the
Tamil Nadu Aadhi Dravidar Welfare Department and drawing a salary of Rs.16,472/- (Rupees
Sixteen Thousand Four Hundred and Seventy Two only). The Tribunal also relied upon the revision
of pay, which had been effected with retrospective effect on the recommendation of the 7th pay
commission and fixed the gross salary of the deceased at Rs.21,235/- (Rupees Twenty One
Thousand Two Hundred and Thirty Five only).

7. The deceased was aged about 43 years and the Tribunal added 30% towards future prospects as
per the judgment of the Hon'ble Supreme Court in National Insurance Company Ltd., Vs. Pranay
Sethi and others, reported in 2017 ACJ – 2700. Deducting 1/4th for personal expenses of the
deceased and applying multiplier of 14, the Tribunal arrived at the total loss of dependency as
Rs.34,78,293/- (Rupees Thirty Four Lakhs Seventy Eight Thousand Two Hundred and Ninety Three
only). The Tribunal also awarded a sum of Rs.40,000/- (Rupees Forty Thousand only) towards loss
of consortium and Rs.15,000/- (Rupees Fifteen Thousand only) each towards loss of estate and
funeral expenses. Thus the total compensation was arrived at Rs.35,48,293/- (Rupees Thirty Five
Lakhs Forty Eight Thousand Two https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232 of 2021
Hundred and Ninety Three only). Aggrieved, the insurance company is on appeal.

8. We have heard Mr.E.Chandrasekaran, learned counsel appearing for the appellant-insurance

company and Mr.S.Loganathan, learned counsel appearing for the respondents 1 to 4/claimants and
the fifth respondent has not been served. In view of the fact that the insurance company is not
denying its liability to pay the compensation, notice to the fifth respondent is deemed unnecessary.

9. Mr.E.Chandrasekaran, learned counsel for the appellant- insurance company would vehemently
contend that the Tribunal had erred in concluding that the accident occurred due to the rash and
negligent driving of the two wheeler owned by the fifth respondent.

10. He would point out that the deceased was not wearing a helmet and there was no evidence to
show that he had a licence to drive a two wheeler.

https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232 of 2021

11. On the quantum, the learned counsel would contend that the Tribunal erred in applying the
enhanced salary, which was not received by the deceased on the date of his death. According to the
learned counsel, the Tribunal erred in taking into account the subsequent increase in pay to fix the
compensation.

12. In support of his submission, he would also rely upon the judgment of the Hon’ble Supreme
Court in Oriental Insurance Company Ltd., Vs. Jashuben and others reported in 2008-ACJ- 1097.

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 The Branch Manager vs Uma Parameswari on 18 March, 2022

13. Contending contra, Mr.Loganathan, learned counsel appearing for the respondents 1 to
4/claimants would submit that the appellant-insurance company cannot raise the question of
negligence, since it had failed to lead evidence before the Tribunal. No one was examined to prove
that the accident did not happen in the manner as suggested by the claimants.

14. On the other hand, the fact that the FIR was registered against the fifth respondent, coupled with
the fact that there was no evidence on the side of either the fifth respondent or the appellant
https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232 of 2021 insurance company, the learned
counsel would submit that the Tribunal was justified in relying upon the FIR and evidence of P.W.2
to come to the conclusion that the accident had occurred due to the negligence of the fifth
respondent, who was riding the two wheeler.

15. On the quantum, the learned counsel would submit that the reliance placed upon the judgment
of the Hon’ble Supreme Court is misconceived. The accident occurred on 15.01.2017 and the revision
of salary was w.e.f. 01.06.2016 with retrospective effect. Therefore, immaterial of the death the
deceased would have drawn a salary of Rs.21,235/- (Rupees Twenty One Thousand Two Hundred
and Thirty Five only) on the date of his death.

16. According to the learned counsel, in view of the revision of salary with retrospective effect, the
judgment of the Hon’ble Supreme Court cannot be applied to the facts of this case and the Tribunal
was justified in adopting the increased pay.

17. We have considered the rival submissions. https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232

of 2021

18. We are unable to accept the submissions of the learned counsel for the appellant-insurance
company on the question on negligence more so in the absence of any evidence on the side of the
insurance company. The Hon’ble Supreme Court and this Court have repeatedly pointed out that if
the insurance company wants to avoid its liability on the ground of contributory negligence, it is
incumbent on the insurance company to lead evidence to establish the same. Contributory
negligence is not a matter of presumption and it has been proved like any other fact. In the absence
of evidence and more particularly, when the FIR has been registered against the owner of the vehicle
insured with the insurance company, the insurance company cannot be allowed to raise the question
of contributory negligence either before the Tribunal or before the Appellate Court. We therefore,
sustain the finding of the Tribunal regarding negligence. However, it is on record that the deceased
was not wearing a helmet and the death occurred due to a head injury. Therefore, a certain portion
of negligence has to be assigned, on the established facts, to the deceased. In fact, P.W.2 has
admitted that the deceased was not wearing helmet. Therefore, we find that the Tribunal ought to
have reduced certain percentage of the compensation for non- https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.232 of 2021 wearing of helmet which had contributed to the death of the deceased.
Since he died of a head injury, we fix the percentage at 15%.

19. Adverting to the quantum of compensation, the only contention of the learned counsel is that the
subsequent revision in salary should not be taken into account. The Hon’ble Supreme Court in

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 The Branch Manager vs Uma Parameswari on 18 March, 2022

Oriental Insurance Company Ltd., Vs. Jashuben and others reported in 2008-ACJ- 1097 had held
that a future raise in salary, which comes into effect after the death of the deceased without
retrospective effect, cannot be taken into account. In paragraph 12 of the judgment the Hon’ble
Supreme Court has pointed out that the revision of salary in that case was not with retrospective
effect. The accident had occurred on 26.03.1994, and the revision of salary took effect in August
2002, without retrospective effect. Therefore, the Hon’ble Supreme Court held that such a
prospective revision, that too, after the date of the accident cannot be taken into account and the
salary that prevailed on the date of accident should be taken into account.

20. In the case on hand, the accident occurred on 15.01.2017. There was a revision of pay with
retrospective effect from https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232 of 2021 01.01.2016.
Therefore, for all the practical purposes, the salary that would have been drawn by the deceased on
the date of his death is the revised salary and not the old salary. Hence, we do not think that the
judgment of the Hon’ble Supreme Court should be applied to this case to deny the benefit to the
claimants.

21. On the other aspects namely, adoption of future prospects, deduction for personal expenses and
application of multiplier, the Tribunal has followed the judgment of the Hon’ble Supreme Court in
Pranay Sethi's Case (2017 ACJ – 2700) and Sharala Varma's case (2009 ACJ 1298). We therefore,
do not see any reason to interfere with the quantum.

22. In fine, the Civil Miscellaneous Appeal is partly allowed, while affirming the findings of the
Tribunal with reference to negligence as well as the quantum, we only deduct a sum of 15% of the
compensation towards contributory negligence (for non-wearing of helmet). In all other aspects, the
award of the Tribunal is confirmed. The award amount is fixed at Rs.30,16,049/- rounded of to
Rs.30,16,000/- (Rupees Thirty Lakhs and Sixteen Thousand only). The compensation is
https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232 of 2021 apportioned as follows :

The 1st petitioner / wife would be entitled to Rs.13,00,000/- (Rupees Thirteen Lakhs
only). Minor children / 2 and 3 claimants are each entitled to Rs.6,50,000/- (Rupees
Six Lakhs and Fifty Thousand only) and the remaining amount of Rs.4,16,000/-
(Rupees Four Lakhs and Sixteen Thousand only) shall be taken by the fourth
claimant, who is the mother of the deceased.

As far as the minor claimants are concerned, the share of their award amount is directed to be kept
in deposit in anyone of the nationalized banks for a period of one year with auto renewal clause. The
minor claimants are at liberty to withdraw their share of award amount with accrued interest on
proof of attaining majority. The insurance company is directed to deposit the remaining award
amount within a period of eight weeks from today. There shall be no order as to costs. Consequently,
connected miscellaneous petitions are closed.

[R.S.M.,J.] [N.S.K.,J.]
18.03.2022
Index:Yes/No
Internet:Yes/No

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 The Branch Manager vs Uma Parameswari on 18 March, 2022

rm

https://www.mhc.tn.gov.in/judis
C.M.A(MD)No

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.

To

1.The Principal District Court cum Motor Accidents Claims Tribunal, Dindigul.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis C.M.A(MD)No.232 of 2021 R.SUBRAMANIAN,J.

AND N.SATHISH KUMAR,J.

rm JUDGMENT DELIVERED IN C.M.A(MD)No.232 of 2021 18.03.2022

https://www.mhc.tn.gov.in/judis

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