Madras High Court
M/S.United India Insurance Co. ... vs Sree Eswari on 26 April, 2021
C.M.A. No.3907 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 26.04.2021
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
and
THE HONOURABLE MRS.JUSTICE G.K.ILANTHIRAIYAN
C.M.A. No.3907 of 2020
and
CMP.No.22250 of 2019
---
M/s.United India Insurance Co. Ltd.,
Rep. by its Divisional Office,
Muthaiha Complex, 1170,
Mettur Road, Erode 638 011. .. Appellant
Versus
1. Sree Eswari
2. S.R.M. Rajagopalan
3. S.R.M. Sree Prakash
4. Saraswathi
5. S.K.Ramasamy
6. K.Vinoth .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
Act, 1988 against the judgment and decree dated 19.12.2018 made in
MCOP.No.449 of 2017 on the file of the Motor Accident Claims Tribunal /
Special District Jude (FAC), Erode.
For appellant : Mr.S.Arunkumar
For respondents
for RR1 to 5 : Mr.K.Varadha Kamaraj
for R6 : Set ex-parte before the Tribunal
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C.M.A. No.3907 of 2020
JUDGMENT
(Judgment of the Court was delivered by R.Subbiah, J)
The appeal is heard through video conferencing.
2. Challenging the quantum of compensation awarded by the Motor
Accident Claims Tribunal / Special District Jude, Erode in MCOP. No. 449 of
2017 dated 19.12.2018, the present appeal has been filed by the Insurance
Company.
3. The respondents 1 to 5/claimants are the wife, sons and parents of the
deceased Mohanranjan. It is the case of the claimants before the Tribunal that
on 26.12.2016 at about 3.00 p.m., while the deceased Mohanranjan was riding
a motor cycle bearing Registration No.TN 34 H 2334 on Kandasamy Street,
near Style Walk in Erode, a Lorry bearing Reg.No.TN 41 Q 2226, belonging to
the sixth respondent and insured with the appellant/Insurance Company, came
from the opposite direction being driven by its driver in a rash and negligent
manner and dashed against the vehicle driven by the deceased. Due to the
impact, the deceased fell down and the Lorry ran over the hip of the deceased.
Immediately, the deceased was taken to the Government Hospital, Erode, but,
he was declared brought dead.
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C.M.A. No.3907 of 2020
4. It is the further case of the respondents 1 to 5/claimants before the
Tribunal that the deceased was running a Textile Business, doing agriculture
on his own land and also working as an operator in Cinema Theater and
earning a sum of Rs.50,000/- per month. Due to the sudden demise of the
deceased, the claimants not only lost the income of the deceased, but also his
love and affection and guidance. Hence, they made a claim for a sum of
Rs.60,00,000/- as compensation.
5. The claim petition was resisted by the appellant/Insurance Company
by filing a counter statement denying the manner of accident as projected by
the claimants in the claim petition. They also denied the avocation and income
mentioned in the claim petition. Thus, they sought for dismissal of the claim
petition.
6. In order to prove the claim, on the side of the claimants, the first
claimant/wife of the deceased examined herself as PW1, besides examining
Karthik Janardhanan, an eyewitness to the accident as PW2 and one
Rajagopalan as PW3 and exhibits Exs.P1 to P23 were marked. On the side of
the Insurance Company, neither any oral evidence was adduced nor document
was marked.
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C.M.A. No.3907 of 2020
7. The Tribunal, after analysing the entire evidence, came to the
conclusion that the accident had occurred due to the rash and negligent driving
of the Lorry bearing Reg.No.TN 41 Q 2226. By coming to such conclusion,
the Tribunal, passed an award for a sum of Rs.25,85,000/- as compensation
and directed the Insurance Company to pay the above compensation. The
break-up details of the amount awarded by the Tribunal under various heads
are as follows:
S.No. Heads under which amounts are Amounts in Rs.
awarded
1. Compensation fixed as Loss of 24,20,000
Income to the petitioners
2. Compensation towards loss of Love 1,00,000
and Affection for Petitioners 2 to 5
3. Compensation towards funeral 15,000
expenses
4. Compensation towards Consortium 40,000
5. Compensation towards 10,000
Transportation
Total Compensation 25,85,000
8. It is the contention of the learned counsel for the appellant/Insurance
Company that on a perusal of Exs.P22 & P23, it could be seen that along with
the deceased, his 2 sons/respondents 2 and 3 were employed as partners in the
Textile Business and the profit was shared between them in the ratio of 50% to
the deceased and the balance 50% to his sons. The profit earned by them for
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C.M.A. No.3907 of 2020
the financial years 2015-2016 and 2016-2017 are Rs.1,294.50 and Rs.3,471.50
respectively. In such circumstances, the Tribunal ought to have fixed the
notional income of the deceased at Rs.20,000/-. Instead of doing so, an
exorbitant sum of Rs.25,000/- was fixed as monthly income of the deceased,
which ultimately resulted in awarding an excessive sum of Rs.24,20,000/-
under the head "Loss of Income". Thus, he sought to fix Rs.10,000/- as the
notional income per month for the deceased and re-calculate the amount under
the head "Loss of Income".
9. Countering the submissions, the learned counsel appearing for the
claimants submitted that, apart from the Textile Business, the deceased was
also doing agriculture on his own land and earning income. He was also
working as an operator in Cinema Theater and receiving salary. Therefore, it is
not as if the deceased was earning income only from the Textile Business. In
such circumstances, the sum of Rs.25,000/- fixed by the Tribunal as monthly
monthly Income, cannot be found fault with. Thus, he sought to confirm the
order passed by the Tribunal.
10. This Court considered the submissions made on either side and
perused the materials available on record.
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C.M.A. No.3907 of 2020
11. Since the present appeal has been filed by the Insurance Company
questioning the quantum of compensation awarded by the Tribunal, we are not
traversing on the other aspects of the award passed by the Tribunal.
12. On a perusal of the records, it is seen that the claimants have not
produced any documents to prove that the deceased was working as an
Operator in Cinema Theatre. As contended by the learned counsel for the
appellant/Insurance Company, on a perusal of Exs.22 and 23, it is seen that the
profit from the Textile Business for the financial years 2015-16 and 2016-17
are only Rs.1,294.50 and Rs.3,471.50 respectively. When the profit was very
meagre from the Textile Business and that too, when the profit has to be
shared between the deceased and his sons at 50%, fixation of Rs.25,000/- as
monthly income of the deceased is not proper. However, we find that the
claimants have marked Ex.P9 (series), which would show that the deceased
was owning land and making income through agriculture. Hence, it is
appropriate to fix a sum of Rs.18,000/- as monthly income of the deceased,
which would be just and fair.
13. Thus, if a sum of Rs.18,000/- is fixed as monthly income of the
deceased and 10% of the same is added towards future prospects, monthly loss
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C.M.A. No.3907 of 2020
of income comes to Rs.19,800/- [18,000 + 1,800]. Considering the number of
dependents of the deceased is 5, 1/4 of the amount is to be deducted towards
personal expenses of the deceased. If so, it comes to Rs.14,850/- [19,800 -
4,950]. Resultantly, the annual loss of income comes to Rs.1,78,200/- [14,850
x 12]. Considering the age of deceased being 54 years at the time of the
accident, the correct multiplier to be applied is "11". If so applied, the amount
comes to Rs.19,60,200/- [1,78,200 x 12]. Thus, the sum of Rs.24,20,000/-
awarded by the Tribunal under the head "Loss of Income" is hereby reduced to
Rs.19,60,200/-.
14. Further, the Tribunal has awarded a total sum of Rs.1,00,000/-
towards "Loss of Love and Affection". However, as per the judgment of
National Insurance Company Limited vs. Pranay Sethi and others [(2017)
16 SCC 680], a sum of Rs.40,000/- has to be awarded to each of the legal heirs
of the deceased towards "Loss of Love and Affection". Therefore, even in the
absence of any appeal by the claimants, the sum of Rs.1,00,000/- awarded by
the Tribunal under the head "Loss of Love and Affection" is modified, instead
a sum of Rs.1,60,000/- is awarded under such head by awarding Rs.40,000/- to
each of the claimants.
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C.M.A. No.3907 of 2020
15. The amounts awarded by the Tribunal under all the other heads are
just and fair and hence, they are confirmed.
16. Thus, the total compensation payable to the respondents 1 to 5/
claimants is re-calculated and tabulated below:
S. Heads under which amounts are Amounts Amounts
No awarded awarded by the awarded by this
Tribunal in Rs. Court in Rs.
1. Compensation fixed as Loss of 24,20,000 19,60,200
Income to the petitioners
2. Compensation towards loss of 1,00,000 1,60,000
Love and Affection for
Petitioners 2 to 5
3. Compensation towards funeral 15,000 15,000
expenses
4. Compensation towards 40,000 40,000
Consortium
5. Compensation towards 10,000 10,000
Transportation
Total Compensation 25,85,000 21,85,200
17. In the result, the total compensation of Rs.25,85,000/- awarded by
the Tribunal is hereby reduced to Rs.21,85,200/-, which shall carry interest at
7.5% from the date of claim petition till the date of payment. The Insurance
Company is directed to deposit the total compensation awarded by this Court
before the Tribunal, after adjusting the amount if any already deposited, within
a period of six weeks from the date of receipt of a copy of this judgment. On
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C.M.A. No.3907 of 2020
such deposit, the claimants are permitted to withdraw their respective shares.
The apportionment of shares as fixed by the Tribunal to the claimants is
hereby confirmed.
18. With the above observations and directions, the Civil Miscellaneous
Petition is partly allowed. No costs. Consequently, connected miscellaneous
petition is closed.
[R.P.S., J] [G.K.I., J]
26.04.2021
Speaking Order : Yes / No
Index : Yes / No
pvs
To
1. The Motor Accident Claims Tribunal,
Special District Jude, Erode
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. No.3907 of 2020
R. SUBBIAH, J
and
G.K. ILANTHIRAIYAN, J
pvs
C.M.A. No.3907 of 2020
and
CMP.No.22250 of 2019
26.04.2021
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