Madras High Court
Iffco Tokio vs A.Mahitha on 26 April, 2021
Judgment dated 26.04.2021
in C.M.A.No.1857 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.1857 of 2020
and
C.M.P.No.13754 of 2020
IFFCO TOKIO
General Insurance Company Limited,
No.128, Habibullah Road,
IV Floor, T.Nagar, Chennai-600 017. .. Appellant
Vs.
1. A.Mahitha, W/o Late M.Rajesh
2. Minor R.Aadhya, D/o Late M.Rajesh
(Minor represented by her mother
and next friend A.Mahitha)
3. Vatchalamma, W/o M.Sriramulu Naidu
4.M.Sriramulu Naidu, S/o Late KrishnamaNaidu
5. Murugesan A.S., S/o Sivasamy .. Respondents
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the order and decree dated 22.08.2019 made in
M.C.O.P.No.2231 of 2016 on the file of the Motor Accidents Claims
Tribunal, Special Subordinate Court-II, Small Causes Court, Chennai.
For appellant : Mr.M.B.Raghavan
For respondents : M/s.C.Prabhakaran and M.Sivakumar for RR-1 to 4
R-5 set ex-parte before the Tribunal
JUDGMENT
(The Judgment of the Court was delivered by R.Subbiah, J)
This Civil Miscellaneous Appeal (CMA) is filed by the Insurance
Company as against the Award dated 22.08.2019 made in M.C.O.P.No.2231
of 2016 on the file of the Motor Accidents Claims Tribunal, Special
Subordinate Court-II, Court of Small Causes, Chennai.
2. The respondents 1 to 4 herein are the claimants before the
Tribunal. The first respondent herein is the wife, the second respondent
herein is the minor daughter and the third and fourth respondents are the
parents, of the deceased-M.Rajesh.
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
3. It is the case of the respondents 1 to 4/claimants that, on
01.02.2016 at about 7 a.m., when the deceased was travelling in a car
bearing Registration No.TN-07-BY-9757on the Chennai-Vijayawada High
Road, near Kalikivai Village, a container Lorry bearing Registration
No.TN-47-AD-6224, owned by the fifth respondent herein and insured with
the appellant/Insurance Company, came in a rash and negligent manner and
dashed against the said car and thus, caused the accident. In the said
impact, the deceased had sustained multiple grievous injuries and died on
the spot itself.
4. It is the further case of the claimants that the deceased was
working as Senior Executive (Administration) in Alstom Transport India
Limited, Chittor District and earning a sum of Rs.66,000/- per month.
Hence, the respondents 1 to 4/claimants have filed the claim petition before
the Tribunal, seeking compensation of Rs.3,00,03,000/-.
5. In order to prove the claim, on the side of the claimants, the
wife of the deceased was examined as P.W.1, an eye-witness to the accident
was examined as P.W.2 and the Manager of the Company where the
deceased worked, was examined as P.W.3. 22 documents were marked as
Exs.P-1 to P-22 on the side of the claimants.
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
6. On the side of the Insurance Company, neither any oral
evidence was adduced, nor any document was marked.
7. The Tribunal, on an analysis of the evidence available on
record, came to the conclusion that the accident is the result of rash and
negligent driving of the driver of the said container Lorry. By coming to
such conclusion, the Tribunal passed an Award for a total sum of
Rs.1,15,27,600/- with interest @ 7.5% per annum from the date of claim
petition till the date of payment. The break-up details of the amounts
awarded by the Tribunal are tabulated hereunder:
Sl. Heads under which the amounts Amounts
No. are awarded by the Tribunal awarded
(in Rs.)
1 Loss of dependency 1,12,37,520
2 Loss of consortium 40,000
3 Loss of estate 15,000
4 Funeral expenses 15,000
5 Loss of love and affection 1,00,000
6 Parental and filial consortium 1,20,000
1,15,27,520
Total rounded off to
Rs.1,15,27,600
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
8. Now, the present appeal is filed by the Insurance Company
contending that the Tribunal, while calculating compensation under the
head "loss of dependency", had taken a sum of Rs.64,750/- as the monthly
income based on Form-16 marked as Ex.P-19, coupled with Ex.P-10 salary
slip. P.W.3 being the employer of the deceased, deposed in his cross-
examination stating that the deceased was earning a sum of Rs.7,77,000/-
per annum and after deducting income tax, the salary of the deceased was
Rs.54,347/- per month. Despite the evidence of P.W.3, the Tribunal has
fixed the monthly income of the deceased at Rs.64,750/-. Hence, according
to the learned counsel appearing for the appellant-Insurance Company, the
monthly income so fixed by the Tribunal at Rs.64,750/- is on the higher
side, and therefore, the amount awarded by the Tribunal under the head
"loss of dependency" had to be reduced by way of re-calculation.
9. Per contra, the learned counsel appearing for the claimants
made his submissions supporting the award passed by the Tribunal.
10. Keeping in mind the submissions made on either side, we
have carefully perused the entire materials available on record.
11. We find that the salary of the appellant is Rs.59,169/- as per
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
Ex.P-11 Service Register, whereas the Tribunal had taken the monthly
salary at Rs.64,750/- and arrived at the loss of dependency. Therefore, we
are of the opinion that, as contended by the learned counsel for the
appellant/Insurance Company, the amount awarded by the Tribunal under
the head "loss of dependency" needs modification. If Rs.59,169/- is taken
into consideration, and if 40% is added towards future prospects, the actual
loss of monthly income works out to Rs.82,837/- (59,169 + 40% of 59,169).
Then, the annual income works out to Rs.9,94,044/- (82,837 x 12). The
actual income tax deduction based on the assessment year 2016-2017 is at
Rs.1,11,309/- and if the income tax of Rs.1,11,309/- is deducted from
Rs.9,94,044/-, the income works out to Rs.8,82,735/-. If 1/4 is deducted
towards personal expenses, the resultant amount is Rs.6,62,051/-
{ 8,82,735 - (8,82,735 x 1/4) }. The actual multiplier that has to be adopted
in this case is 16. If so applied, the loss of dependency is arrived at
Rs.1,05,92,816/-. (6,62,051 x 16). Thus the amount of Rs.1,12,37,520/-
awarded by the Tribunal is hereby reduced to Rs.1,05,92,816/-.
12. Further, we find that the Tribunal had awarded only
Rs.1,00,000/- totally towards the loss of love and affection to the claimants.
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
As per the decision of the Supreme Court in the case of National Insurance
Company Limited Vs. Pranay Sethi, reported in 2017 (16) SCC 680, the
claimants 2 to 4, who are the respondents 2 to 4 herein, are each entitled to
Rs.40,000/-. Thus, while setting aside the sum of Rs.1,00,000/- awarded by
the Tribunal under the head "Loss of love and affection", this Court awards
a sum of Rs.1,20,000/- under the said head (40,000 x 3).
13. Since this Court had awarded the above said sum of
Rs.1,20,000/- towards "Loss of love and affection", the amount of
Rs.1,20,000/- awarded by the Tribunal under the head "parental and filial
consortium" is set aside.
14. The amounts awarded by the Tribunal under the others heads
being just and reasonable, the same are hereby confirmed, i.e. sum of
Rs.40,000/- under the head "loss of consortium", Rs.15,000/- under the head
funeral expenses and Rs.15,000/- towards "Loss of estate" are confirmed.
15. Thus, the amounts awarded by this Court in comparison with
the amounts awarded by the Tribunal, is tabulated hereunder:
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
Sl. Heads under which the Amount(s) Amount(s)
No. amounts are awarded awarded by the awarded by
Tribunal (in this Court
Rs.) (in Rs.)
1 Loss of dependency 1,12,37,520 1,05,92,816
2 Loss of consortium 40,000 40,000
3 Funeral expenses 15,000 15,000
4 Loss of Estate 15,000 15,000
5 Love and affection 1,00,000 1,20,000
Total 1,15,27,600 1,07,82,816
(rounded off to
1,07,82,900)
16. In the result, the present appeal filed by the Insurance
Company is partly allowed, reducing the compensation amount of
Rs.1,15,27,600/- awarded by the Tribunal, to Rs.1,07,82,900/- (Rupees one
crore seven lakhs eighty two thousand and nine hundred only), which shall
carry interest 7.5.% per annum from the date of claim petition till the date of
deposit. The appellant/Insurance Company is directed to deposit the said
amount of Rs.1,07,82,900/- before the Tribunal, within a period of four
weeks from the date of receipt of a copy of this order, after adjusting the
amounts if any already deposited. Out of the said amount of
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
Rs.1,07,82,900/-, the parents being the claimants 3 and 4 (respondents 3 and
4 in this appeal) are each permitted to withdraw Rs.15,00,000/- each. The
first claimant being the first respondent herein is permitted to withdraw
Rs.40,00,000/-. The claimants 1, 3 and 4 are entitled to withdraw their
respective shares as apportioned now, with accrued/proportionate interest
thereon, including the costs as awarded by the Tribunal, after adjusting the
amounts, if any already withdrawn by them. As far as the share of the minor
claimant, i.e. second respondent herein, is concerned, i.e. Rs.37,82,900/-,
the Tribunal is directed to deposit the same in any Nationalised Bank in any
interest bearing Fixed Deposit scheme, until the minor claimant attains
majority and the interest accrued on such Fixed Deposit, is permitted to be
withdrawn by the mother, namely, the first respondent herein (claimant
No.1) until the minor claimant attains majority. There shall be no order as
to costs in the present appeal. C.M.P. is closed.
(R.P.S.J) (G.K.I.J)
26.04.2021
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
Index: Yes/no
Speaking Order: Yes
cs
To
1. The Motor Accidents Claims Tribunal,
Special Subordinate Court No.II,
Court of Small Causes, Chennai.
2. The Section Officer,
V.R. Section, High Court, Madras.
R.SUBBIAH, J
and
G.K.ILANTHIRAIYAN, J
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Judgment dated 26.04.2021
in C.M.A.No.1857 of 2020
cs
C.M.A.No.1857 of 2020
26.04.2021
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