Madras High Court
M/S.Cholamandalam Ms General vs G.Lakshmi on 26 April, 2021
Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 26.04.2021
Coram:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.582 of 2020
and
Cross Objection No.42 of 2020
and
C.M.P.No.3522 of 2020
C.M.A.No.582 of 2020:-
M/s.Cholamandalam MS General
Insurance Company Limited,
Reptd. by its Branch Manager,
2nd Floor, "Dare House",
No.2, N.S.C Boase Road,
Chennai. .. Appellant
Vs.
1. G.Lakshmi, W/o Late R.Govindaraj
2. R.Thalapathi, S/o Late R.Govindaraj
3. Mr.Rajasekara, S/o Late R.Govindaraj
4. S.Shanthi, W/o Singaram .. Respondents
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
Civil Miscellaneous Appeal (CMA) filed under Section 173 of the
Motor Vehicles Act, 1988, against the order and decree dated 02.11.2018 in
M.C.O.P.No.395 of 2017 on the file of the Motor Accidents Claims
Tribunal, Additional District Court, Hosur.
For appellant : Mr.M.B.Raghavan
For respondents: Mr.D.Ramesh Kumar for RR-1 to 3
R-4 set ex-parte before the Tribunal
Cross Objection No.42 of 2020:-
1. G.Lakshmi, W/o (late) R.Govindaraj
2. R.Thalapathi, S/o (late) R.Govindaraj
3. Rajasekar, S/o (late) R.Govindaraj .. Cross Objectors
Vs.
1. M/s.Cholamandalam MS General Ins. Co. Ltd.,
Rep. by its Branch Manager,
2nd Floor, Dare House,
No.2, NSC Bose Road,
Chennai.
2. S.Shanthi, W/o Singaram .. Respondents
Cross Objection filed under Order XLI Rule 22 of the Code of Civil
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
Procedure (CPC) against the order and decree dated 02.11.2018 made in
M.C.O.P.No.395 of 2017 on the file of the Motor Accidents Claims
Tribunal, Additional District Court, Hosur.
For cross objectors : Mr.D.Rameshkumar
For respondents : Mr.M.B.Raghavan for R-1
R-2 set ex-parte before the Tribunal
COMMON JUDGMENT
(The Common Judgment of the Court was delivered by R.Subbiah, J)
This C.M.A has been filed by the Insurance Company questioning the
quantum of compensation awarded by the Tribunal, in and by Award dated
02.11.2018 made in M.C.O.P.No.395 of 2017 on the file of the Motor
Accidents Claims Tribunal (Additional District Court), Hosur.
2. Not being satisfied with the quantum of compensation awarded by
the Tribunal, as against the very same Award, the Cross Objection is filed
by the claimants.
3. For the purpose of convenience, the parties are hereinafter referred
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
to as the claimants and Insurance Company.
4. The claimants are the wife and two sons of the deceased
/R.Govindaraj.
5. On 22.03.2017 at about 8.30 a.m., when the deceased was driving
two-wheeler Splender Pro, bearing No.KA-51-ET-4225 on the left side of
the Bangalore-Hosur Highway towards Zuzuwadi Police Check Post, a lorry
bearing Registration No.TN-28-BA-4042, belonging to the fourth
respondent and insured with the appellant-Insurance Company, came in a
rash and negligent manner and dashed against the said two-wheeler of the
deceased, and thus caused the accident, as a result of which, the claimant
had sustained grievous injuries. Immediately, he was taken to Hosur
Government Hospital, where he was declared 'brought dead'. The deceased
was 40 years at the time of accident and was working as Service Engineer in
Bharat Thermo Technics and earning a sum of Rs.30,000/- per month.
Hence, the claimants have filed claim petition before the Motor Accidents
Claims Tribunal, claiming a sum of Rs.80,00,000/- as compensation as
against the owner of the said lorry as well as its insurer, being the appellant
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
herein.
6. The Insurance Company resisted the claim of the claimants before
the Tribunal disputing the case of the claimants.
7. In order to prove the claim, on the side of the claimants, before the
Tribunal, the third claimant/Rajasekar, being one of the sons of the
deceased, was examined as P.W.1 and one Mani was examined as P.W.2,
who was an eye-witness to the occurrence and P.W.3 being the employer of
the deceased was also examined and 19 documents were marked as Exs.P-1
to P-19. On the side of the Insurance Company, no witness was examined
and the Motor Vehicle Inspector's Report was marked as Ex.R-1.
8. The Tribunal, after analysing the entire evidence available on
record, passed an Award for a total sum of Rs.31,09,925/- with interest @
7.5% per annum from the date of claim petition till the date of realisation,
against which, the present appeal is filed by the appellant.
9. The break-up details of the amounts awarded by the Tribunal are as
follows:
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
Sl.No. Heads under which the amounts Amount (in Rs).
were awarded by the Tribunal
1 Loss of dependency 23,99,940
2 Loss of love and affection 30,000
3 Transportation 10,000
4 Funeral expenses 15,000
5 Loss of Estate 15,000
6 Loss of consortium 40,000
7 Loss of future prospects 5,99,985
Total 31,09,925
10. The learned counsel appearing for the Insurance Company
submitted that the sum of Rs.23,99,940/- awarded by the Tribunal under the
head "Loss of Dependency", is highly excessive. He further submitted that
with regard to the income of the deceased, it is the case of the claimants that
he was working as Service Engineer in Bharat Thermo Technics at
Bengaluru and earning a sum of Rs.30,000/- per month. In order to prove
the income of the deceased, on the side of the claimants, P.W.3
Lakshminarayanan, the employer of the deceased was examined to speak
about the income earned by the deceased, through whom Ex.P-7 Salary
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
Certificate was marked. Except Ex.P-7, the claimants have not produced
any tangible evidence, such as pay slip, attendance register etc. But, the
Tribunal had fixed a sum of Rs.20,000/- as the monthly income of the
deceased and calculated the "Loss of Dependency". Hence, the learned
counsel appearing for the Insurance Company submitted that, in the absence
of any supporting document to prove the earning of the deceased, the sum of
Rs.20,000/- p.m. fixed by the Tribunal as the monthly income of the
deceased, was on the higher side. Thus, the learned counsel appearing for
the Insurance Company submitted that by fixing a notional sum of
Rs.10,000/-, the amount awarded by the Tribunal may be reduced.
11. Per contra, the learned counsel for the claimants contended that
the deceased was 40 years at the time of accident and in such circumstances,
the Tribunal ought to have added 25% of the amount towards future
prospects along with the monthly income. But the Tribunal has failed to add
the same towards future prospects. Hence, absolutely, there is no need for
reducing the amount awarded by the Tribunal and prayed for confirming the
award passed by the Tribunal.
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
12. Keeping the submissions made on either side, we have carefully
perused the entire materials available on record.
13. As contended by the learned counsel appearing for the Insurance
Company, except marking Ex.P-7 salary certificate through P.W.2, no other
supportive evidence had been produced to show that the deceased was
earning Rs.30,000/- p.m. In the absence of any tangible evidence, even
fixing a sum of Rs.20,000/- by the Tribunal appears to be slightly on the
higher side. Hence, it is just and proper to fix a sum of Rs.18,000/- as the
monthly income of the deceased. If Rs.18,000/- is fixed as the monthly
income of the deceased, then the annual income of the deceased works out
to Rs.2,16,000/- (18,000 x 12). As contended by the learned counsel for the
claimants, 25% is to be added towards future prospects, since the deceased
was 40 years old at the time of accident. If 25% is added towards future
prospects, the actual loss of income works out to Rs.2,70,000/- (2,16,000 +
25% of 2,16,000). If 1/3 is deducted towards personal expenses, the
resultant amount is Rs.1,80,000/- (2,70,000 - (1/3 of 2,70,000) ), which is
the actual annual loss of income. As the deceased was 40 years at the time
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
of accident, the multiplier to be adopted is 15. If the multiplier 15 is
adopted, the actual Loss of Dependency is Rs.27,00,000/- (1,80,000 x 15).
Hence, the sum of Rs.23,99,940/- awarded by the Tribunal under the head
"Loss of Dependency" is enhanced to Rs.27,00,000/-.
14. Further, we find that the Tribunal has awarded Rs.30,000/-
towards "Loss of Love and Affection" to the two sons being the claimants 2
and 3. As per the decision of the Supreme Court in the case of the National
Insurance Company Limited Vs. Pranay Sethi, reported in 2017 (16)
SCC 680, a sum of Rs.40,000/- each has to be awarded towards "Love and
Affection" to them. Accordingly, while setting aside the sum of Rs.30,000/-
awarded by the Tribunal to the two sons of the deceased, this Court awards
a sum of Rs.80,000/- under the head "Loss of Love and Affection" to them
at the rate of Rs.40,000/- each.
15. Further, we find that the Tribunal has separately awarded
Rs.5,99,985/- under the head "future prospects". After awarding
Rs.27,00,000/- under the head "loss of dependency", the question of
awarding the sum of Rs.5,99,985/- separately under the head "future
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
prospects", does not arise and hence, the same is hereby set aside.
16. The amounts awarded by the Tribunal under the other heads,
being a just and reasonable, are hereby confirmed.
17. Thus, the break-up details of the amounts awarded by the
Tribunal, in comparison with the amounts awarded by this Court, are as
follows:
Sl. Heads under Amounts Amounts awarded
No. which the amounts awarded by by this Court (in
were awarded Tribunal (in Rs.)
Rs.)
1 Loss of dependency 23,99,940 27,00,000
2 Loss of love and 30,000 80,000
affection
3 Transportation 10,000 10,000
4 Funeral expenses 15,000 15,000
5 Loss of Estate 15,000 15,000
6 Loss of consortium 40,000 40,000
7 Loss of future 5,99,985 -
prospects
Total 31,09,925 28,60,000
18. Thus, the total compensation of Rs.31,09,925/- as awarded by the
Tribunal, is hereby reduced to Rs.28,60,000/-, against which, 7.5% interest
per annum is awarded, from the date of claim petition till the date of
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
deposit. The appellant/Insurance Company is directed to deposit the said
sum of Rs.28,60,000/- (Rupees twenty eight lakhs and sixty thousand only)
along with interest @ 7.5.% p.a. as observed above, within a period of six
weeks from the date of receipt of a copy of this judgment, after adjusting the
amount(s) if any, already deposited. On such deposit, the claimants
(respondents 1 to 3 in this appeal) are permitted to withdraw the said
amount, along with accrued interest, and costs (as awarded by the Tribunal)
as per the ration adopted by the Tribunal. The excess amount, if any lying in
deposit thereafter, is permitted to be withdrawn by the Insurance Company.
19. With the above observations and directions, C.M.A.No.582 of
2020 is partly allowed. Consequently, Cross Objection in Cross.Obj.No.42
of 2020, filed by the claimants, is dismissed. There shall be no order as to
costs in the present appeal and Cross Objection. C.M.P is closed.
(R.P.S.J) (G.K.I.J)
26.04.2021
Index: Yes
Speaking Order: Yes
cs
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
To
1. The Motor Accidents Claims Tribunal,
Additional District Court, Hosur.
2. The Section Officer,
V.R. Section,
High Court, Madras.
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Judgment dated 26.04.2021
in C.M.A.No.582 of 2020 and
Cross.Obj.No.42 of 2020
R.SUBBIAH, J
and
G.K.ILANTHIRAIYAN, J
cs
C.M.A.No.582 of 2020
and Cross.Obj.42 of 2020
26.04.2021
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