Madras High Court
United India Insurance Co. Ltd vs Jayalatha on 27 April, 2021
Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27.04.2021
Coram:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.No.1051 of 2019
and
C.M.P.Nos.3684 and 27927 of 2019
and
Cross Objection S.R.No.145398 of 2019
C.M.A.No.1051 of 2019:
United India Insurance Co. Ltd.,
77, Oriental Complex,
Arunachala Asari Street, Salem-1. .. Appellant
Vs.
1. Jayalatha, W/o Late Dr.Sundaravathanam
2. Vigneshram, S/o Late Dr.Sundaravathanam
3. Dr.P.Vijayan, S/o Ponnusamy
4. S.Ganesan, S/o Shinnusamy
5. Reliance General Insurance Co. Ltd.,
Sri Lakshmi Complex, 1st Floor,
Barathi Street, Omalur Main Road,
Salem-636 004. .. Respondents
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
Civil Miscellaneous Appeal (C.M.A) filed under Section 173 of
the Motor Vehicles Act, against the order and decree dated 27.06.2018
made in M.C.O.P.No.1282 of 2015 on the file of the Motor Accidents
Claims Tribunal/II Additional District Court, Special District Court (FAC),
Salem.
For appellant : Mr.S.Arun Kumar
For respondents : Ms.J.Prithivi for
Mr.S.Kaithamalai Kumaran for RR.1 and 2
No appearance for RR-3 and 4
Mrs.C.Bhuvana Sundarai for R-5
Cross Objection No.145389 of 2019
1. Mrs.Jayalatha, W/o Late Dr.Sundaravathanam
2. Vigneshram, S/o Late Dr.Sundaravathanam .. Cross Objectors
Vs.
1. United India Insurance Co. Ltd.,
77, Oriental Complex,
Arunachala Asari Street,
Salem-636 001.
2. Dr.P.Vijayan, S/o Ponnusamy
3. S.Ganesan, S/o Shinnusamy
4. Reliance General Insurance Co. Ltd.,
Sri Lakshmi Complex,
1st Floor, Barathi Street,
Omalur Main Road, Salem-636 004. .. Respondents
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
Cross Objection filed under Order 41 Rule 22 of the Code of Civil
Procedure (CPC) against the order and decree dated 27.06.2018 made in
M.C.O.P.No.1282 of 2015 on the file of the Motor Accidents Claims
Tribunal/II Additional District Court, Special District Court (FAC), Salem.
For Cross Objectors : Ms.J.Prithivi for Mr.S.Kaithamalai Kumaran
For respondents : Mr.S.Arun Kumar for R-1
No appearance for RR-2 and 3
Mrs.C.Bhuvana Sundarai for R-4
COMMON JUDGMENT
(The Common Judgment of the Court was delivered by R.Subbiah,J)
This appeal has been filed by United India Insurance Company
Limited, as against the Award dated 27.06.2018 made in M.C.O.P.No.1282
of 2015 on the file of the Motor Accidents Claims Tribunal/II Additional
District Court, Special District Court (FAC), Salem.
2. Cross Objection S.R.No.145398 of 2019 is filed by the
claimants as against the very same Award.
3. For the purpose of convenience, the parties are referred to as
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
they are ranked before the Tribunal.
4. The claimants are the wife and son of the deceased
Dr.Sundaravathanam.
5. It is the case of the claimants that, on 22.08.2014 at about 20
hours, when the deceased was travelling in a car bearing Registration
No.TN-30-AM-2107 on the Attur-Salem Main Road, which was driven by
first respondent, it met with an accident due to rash and negligent driving of
the first respondent. The said Car hit on the rear side of the on-going lorry.
Due to the said accident, the said Dr.Sundaravathanam died on the spot
itself. The deceased Dr.Sundaravathanam was 60 years at the time of
accident and he was a retired Government Doctor (Surgeon) and was doing
private practice in Dharmapuri and earning Rs.1,50,000/- per month. Hence,
the claimants have filed the claim petition before the Tribunal, claiming a
sum of Rs.50 lakhs as compensation as against the owner of the said car and
its insurer, namely United India Insurance Company Limited.
6. The said claim petition was resisted by the United India
Insurance Company Limited by filing counter statement, denying the age
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
and avocation of the deceased and the manner in which the accident
occurred, etc.
7. In order to prove the claim, on the side of the claimants, the
wife of the deceased was examined as P.W.1, besides, two other witnesses
were examined as P.W.2 and P.W.3 being an eye-witness to the accident
and 23 documents were marked on their side as Exs.P-1 to P-23.
8. On the side of the Insurance Company, the first respondent was
examined as R.W.1, apart from R.Ws.2 and 3 and Exs.R-1 to R-3 were
marked as documents of the respondents before the Tribunal.
9. The Tribunal, after analysing the entire evidence available on
record, had come to the conclusion that the accident is the result of rash and
negligent driving of the car and passed an Award for a sum of
Rs.28,79,672/- with interest @ 7.5% per annum from the date of petition till
the date of deposit. Aggrieved by the same, the present C.M.A. is filed by
the United India Insurance Company Limited being the insurer of the said
Car and the cross objection in Cross.Obj.S.R.No.145398 of 2019 is filed by
the claimants.
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
10. It is the submission of the learned counsel for the United India
Insurance Company that the deceased was a retired Government Doctor,
aged about 60 years at the time of accident. Therefore, there is no possibility
of earning monthly income after his retirement, whereas the claimants have
projected the case as if, apart from pension, he was also earning after his
retirement. After his retirement, the deceased was receiving Rs.40,887/- as
pension after deductions. After his demise, his wife, P.W.1, was receiving
the same amount as family pension. In fact, she had admitted in her
evidence that she was receiving Rs.40,887/- as the monthly family pension.
When that being so, absolutely, there is no loss of income to the family.
Hence, in such circumstances, for the purpose of calculation of loss of
income, the Tribunal ought to have taken only 50% of the pension amount
as the basis for calculation and instead of doing so, the Tribunal had taken
the entire sum of Rs.40,887/- and added Rs.10,000/- as post-retirement
income and fixed a sum of Rs.50,887/- as the monthly loss of income, which
is extremely on the higher side. Hence, taking 50% of the pension amount
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
as the loss of monthly income, the calculation has to be made.
11. The learned counsel appearing for the claimants, by relying
upon the decision of the Supreme Court reported in 1999 (1) SCC 90 (Helen
C.Rabello Vs. Maharashtra State Road Transport Corporation), submitted
that there cannot be any deduction in pension amount while calculating the
loss of income. That apart, he further submitted that, after retirement, the
deceased was working as Superintendent in Adhi Parasakthi Institute of
Science and Research, Melmaruvathur and earning income of Rs.1,50,000/-.
In order to prove the same, the learned counsel appearing for the claimants
relied on Ex.P-7 Salary Certificate/Pay slip and Ex.P-8 Form-16 - TDS form
(2014-2015) of the deceased which were marked, and now, on account of
the death of the deceased, the claimants have even lost that income.
Therefore, there is loss of income to the extent of Rs.1,50,000/- and
therefore, by fixing at least Rs.1 lakh as the monthly income of the
deceased, the compensation awarded by the Tribunal may be enhanced.
12. By way of reply, the learned counsel appearing for the United
India Insurance Company Limited submitted that Ex.P-8 TDS shows that
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
the deductions were made only upto November 2013 and thereafter, there
was no deduction and it means that he was working only for a period of
eight months in the said Adhi Parasakthi Hospital. After November 2013,
there is no document to show that the deceased was earning income and
paying tax till 22.08.2014 (date of accident). Therefore, it will not be proper
to take the sum of Rs.1,50,000/- as the monthly income of the deceased.
13. Heard both sides and perused the materials available on
record.
14. It is the submission of the learned counsel appearing for the
United India Insurance Company that the deceased was a retired
Government Doctor and was receiving a sum of Rs.40,887/- as pension
during his lifetime and even after his demise, the same amount is being
received by his wife, which had been admitted by her in her cross-
examination. But, the Tribunal, by relying upon the decision of the Supreme
Court reported in 1999 (1) SCC 90 (Helen C.Rabello Vs. Maharashtra State
Road Transport Corporation), had come to the conclusion that, if a person
who is receiving salary, died, the family pension that may be received by the
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
wife/dependent, cannot be deducted. In this regard, the learned counsel
appearing for the United India Insurance Company Limited submitted that,
in the case on hand, there is no difference between the pension paid to the
deceased and the family pension that is being received by the wife, and
therefore, the said judgment of the Supreme Court cannot be made
applicable to the facts of the present case. The learned counsel appearing for
the United India Insurance Company Limited also submitted that, the
deceased was earning Rs.1,50,000/- after his retirement by working as a
Doctor in the private hospital and TDS/Form -16 marked as Ex.P-8 shows
that the tax was deducted upon November 2013 and thereafter, there is no
document to show that the deceased was working in the said private hospital
and earning such income. Under such circumstances, the subsequent income
after his retirement cannot be taken into consideration. Since there is no
document to show that the deceased was earning income till the date of
accident, the question of fixation of Rs.1,50,000/- as the monthly loss of
income, as prayed for by the claimant, cannot be accepted. Further, we find
that in the case on hand the wife of the deceased herself had admitted in her
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
evidence that Rs.40,887/- per month had been received as family pension
by her after the death of her husband (deceased). Therefore, the judgment
relied on by the learned counsel for the claimant cannot be made applicable
to the facts of the present case. Hence, we are of the opinion that by fixing
Rs.30,000/- as the monthly income of the deceased, the amount awarded by
the Tribunal under the head "loss of dependency" had to be re-calculated to
arrive at a just, fair and proper compensation.
15. Accordingly, if Rs.30,000/- is fixed as the monthly income of
the deceased, the annual income works out to Rs.3,60,000/-. If 1/3 is
deducted towards personal expenses, the actual loss of income works out to
Rs.2,40,000/- (3,60,000 - 1,20,000/-). The correct multiplier that has to be
adopted in this case is '6'. Accordingly, the loss of dependency works out to
Rs.14,40,000/-. Hence, the sum of Rs.28,49,672/- awarded by the Tribunal
under the head "loss of dependency" is hereby reduced to Rs.14,40,000/-.
16. The amount of Rs.15,000/- each awarded by the Tribunal
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
under the heads "funeral expenses" and "loss of estate" being reasonable,
are hereby confirmed.
17. The amounts awarded by the Tribunal in comparison with the
amounts now awarded by this Court, are tabulated hereunder:
Sl. Heads under which the Amounts Amounts
No. amounts are awarded awarded by the awarded by this
Tribunal (in Court (in
Rs.) Rs.)
1 Loss of dependency 28,49,672 14,40,000
2 Funeral expenses 15,000 15,000
3 Loss of estate 15,000 15,000
Total 28,79,672 14,70,000
18. In the result, the appeal filed by the United India Insurance
Company is partly allowed. The amount of compensation awarded by the
Tribunal is reduced to Rs.14,70,000/- (Rupees fourteen lakhs and seventy
thousand only) from Rs.28,79,672/-. The said amount of Rs.14,70,000/- is
awarded with interest @ 7.5% per annum from the date of claim petition till
the date of deposit. The United India Insurance Company is directed to
deposit the said amount of Rs.14,70,000/- with interest as stated above and
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
costs as awarded by the Tribunal, within a period of four weeks from the
date of receipt of a copy of this judgment, after adjusting the amounts if any
already deposited. On such deposit, the claimants are permitted to withdraw
the compensation amount along with proportionate/accrued interest and
costs as awarded by the Tribunal, in the ratio as adopted by the Tribunal,
after adjusting the amounts if any already withdrawn by them.
Consequently, the Cross Objection S.R.No.145398 of 2019 is dismissed.
There shall be no order as to costs in the present appeal and Cross
Objection. The Miscellaneous Petitions are closed.
(R.P.S.J) (S.K.J)
27.04.2021
Index: Yes/no
Speaking Order: Yes
cs
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
To
1. The Motor Accidents Claims Tribunal
(II Additional District Court, Special District Court (FAC) ), Salem.
2. The Section Officer, V.R. Section, High Court, Madras.
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Judgment dated 27.04.2021 in
C.M.A.No.1051 of 2019
and Cross Objection SR.No.145398 of 2019
R.SUBBIAH, J
and
S.KANNAMMAL, J
cs
C.M.A.No.1051 of 2019
and
Cross Objection S.R.No.145398 of 2019
27.04.2021
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