Madras High Court
M/S.Reliance General Insurance ... vs Vasanthi on 19 April, 2021
C.M.A.No.54 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBBIAH
and
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A.No.54 of 2019
and
C.M.P.No.308 of 2019
M/s.Reliance General Insurance Co.Ltd.,
Sri Lakshmi Complex, 1st Floor,
Bharathi Street, Omalur Main Road,
Swarnapuri, Salem-636 004. .. Appellant
Vs.
1.Vasanthi
W/o.Late Karate Palanisamy @ I.Palanisamy
2.Minor P.Praveen
S/o.Late Karate Palanisamy @ I.Palanisamy
3.Dhanakodi
W/o.Iyyannan
4.C.Iyyannan
S/o.Chandragounder
5.Minor P.Ramya
D/o.Late Karate Palanisamy @ I.Palanisamy
1/12
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C.M.A.No.54 of 2019
(Minor respondents 2 and 5 are represented by mother
and next friend, Vasanthi/1st respondent
herein)
6.K.Ramesh
S/o.Kulanthaivel .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
18.01.2018 made in M.C.O.P.No.389 of 2011 on the file of the Motor
Accidents Claims Tribunal, Sub Court, Sankari.
For Appellant : Mr.S.Arun Kumar
For R1 to R5 : Mr.B.Vijaya kumar
for T.Senthil Kumar
For R6 : Ex-parte
JUDGMENT
(Judgment of the Court was made by S.KANNAMMAL,J.)
This Civil Miscellaneous Appeal has been filed against award dated
18.01.2018 made in M.C.O.P.No.389 of 2011 on the file of the Motor
Accidents Claims Tribunal, Sub Court, Sankari.
2.The appellant is the second respondent in M.C.O.P.No.389 of 2011
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C.M.A.No.54 of 2019
on the file of the Motor Accidents Claims Tribunal, Sub Court, Sankari. The
respondents 1 to 5 herein have filed the above said claim petition, claiming a
sum of Rs.50,00,000/- as compensation for the death of one Palanisamy, who
died in the accident that took place on 17.03.2011.
3.According to the claimants, the deceased Palanisamy was riding in
his Honda Shine Bike bearing Registration No.TN-52-B-3471 from Sankari
to Bhavani Main Road after delivering his Civil Construction Labors Salary
East to West on the Sangari to Kumarapalayam Road, near India Cement
Mill, Vinayagar Kovil. At that time, the rider of the Yamaha Crux Bike
bearing Registration No.TN-34-C-1184 belonging to the 6th respondent drove
the same in a rash and negligent manner and hit against the vehicle which
was driven by the deceased. Due to the said impact, the deceased sustained
grievous injuries on his back head and injuries all over the body. Immediately
he was taken to the Government Hospital, Sankari through 108 Ambulance.
The Government Hospital Doctor was declared that the Palanisamy was died
on the way itself.
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C.M.A.No.54 of 2019
4.The 6th respondent remained ex parte before the Tribunal.
5.The appellant/Insurance Company filed counter statement and
denied the averments made in the claim petition. The appellant contended
that the respondents 1 to 5 have to prove the age, occupation and income of
the deceased and that they are the dependants of the deceased. In any event,
the total compensation claimed is excessive and prayed for dismissal of the
claim petition.
6.Before the Tribunal, the wife of the deceased was examined as P.W.1
and one Mr.Jagadeeswaran @ Iswaran was examined as P.W.2 and marked
18 documents as Exs.P1 to P18. No oral or documentary evidence was
adduced on the side of the appellant/Insurance Company.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to the rash and negligent riding
by the rider of the Yamaha Crux belonging to the 6 th respondent and directed
the appellant-Insurance Company to pay a sum of Rs.44,10,000/- as
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C.M.A.No.54 of 2019
compensation to the respondents 1 to 5/claimants.
8.Against the said award dated 18.01.2018 made in M.C.O.P.No.389 of
2011, the appellant/Insurance Company has come out with the present appeal.
9.Mr.S.Arun Kumar, learned counsel appearing for the
appellant/Insurance Company contended that the Tribunal without properly
appreciating the evidence on record, has erroneously awarded huge
compensation which is liable to be reduced. According to the learned
counsel, the Tribunal merely relying on the self-serving testimony of P.W.1,
fixed the monthly income of the deceased at Rs.25,000/- p.m. (Rs.3,00,000/-
per annum). He would point out that as regards the avocation of the deceased,
the respondents 1 to 5 have not adduced any documentary evidence to prove
the same. However, the learned counsel would submit that the Tribunal
relying on the evidence of P.W.1 came to the erroneous conclusion that the
deceased might have earned Rs.500/- per day being Mason and also earning
Rs.1,50,000/- per annum from agriculture. Thereby, the Tribunal has wrongly
fixed the total income at Rs.3,00,000/- per year and further added 25%
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C.M.A.No.54 of 2019
towards future prospects. Therefore, the learned counsel would seek
modification of the award amount. The learned counsel would further
contend that towards loss of love and affection, the Tribunal has excessively
awarded the compensation at Rs.4,00,000/- which is liable to be reduced.
10.Per contra, Mr.B.Vijaya kumar, for T.Senthil Kumar, the learned
counsel appearing for the respondents 1 to 5 would submit that on
consideration of both oral and documentary evidence in proper perspective,
the Tribunal has rightly awarded the compensation which requires no
modification. Hence, the learned counsel sought for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant/Insurance
Company as well as the learned counsel appearing for the respondents 1 to 5
and perused the materials available on record.
12.It is the case of the claimants that the deceased was a contractor of
Civil Construction Contract works of Sankari Union and he was also a
Politician (District Counsellor Ward No.2 of Sankari Union) and was
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C.M.A.No.54 of 2019
possession 8.28 acres of land and by way of agriculture, he was earning a sum
of Rs.4,00,000/- per year. But, there is no documentary evidence regarding
his income and avocation available on record. The Tribunal considering the
materials on record and evidence of P.W.1 and P.W.2, fixed a sum of
Rs.3,00,000/- per annum as notional income of the deceased relying upon
Ex.P12 which shows that the deceased was in possession of 8.28 acres of
agricultural land. The Tribunal has fixed Rs.500/- towards income per day of
the deceased by doing civil construction works. The accident is of the year
2011. In the absence of documentary evidence regarding the specific earning
of the deceased, the notional income fixed by the Tribunal, in the opinion of
this Court, is excessive. Considering the fact that the deceased was
possessing 8.28 acres of land (as per Ex.P12) and also undertaking civil
contract works, though no documentary evidence is available regarding
income of the deceased, this Court feels it appropriate to fix the monthly
income at Rs.22,500/- p.m. Considering the age mentioned in transfer
certificate marked as Ex.P8, the Tribunal fixed the age of the deceased as 45
years at the time of accident. The Tribunal has awarded 25% enhancement
towards future prospects is proper. There are 5 dependants of the deceased.
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C.M.A.No.54 of 2019
Deducting 1/4th towards personal expenses of the deceased and the Tribunal
applying proper multiplier as '14' as per the ruling of the Hon'ble Apex Court
in Sarla Verma & others vs. Delhi Transport Corporation & another,
reported in 2009 (2) TNMAC 1 SC, the amount granted by the Tribunal
towards loss of dependency is reduced to Rs.35,43,750/- {[Rs.22,500/- +
Rs.5,625/- (25% of Rs.22,500/-)] x 12 x 14 x 3/4}.
13.The Tribunal awarded a sum of Rs.4,00,000/- towards loss of love
and affection for the respondents 1 to 5 which, in the opinion of this Court, is
excessive and the same is reduced to Rs.1,60,000/- (Rs.40,000/- X 4) for the
respondents 2 to 5 alone since the the wife of the deceased was awarded
consortium. The Tribunal has not awarded any amount towards transportation
and mental agony. This Court granted a sum of Rs.16,000/- and Rs.10,000/-
towards transportation and mental agony respectively. The amounts awarded
by the Tribunal under other heads are just and reasonable and hence, the same
are confirmed. Thus, now the compensation is worked out as follows:
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C.M.A.No.54 of 2019
S. Description Amount Amount Award
No awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted
1. Loss of 39,38,000/- 35,43,750/- Reduced
dependency
2. Loss of 40,000/- 40,000/- Reduced
Consortium to
1st respondent
3. Loss of love 4,00,000/- 1,60,000/- Reduced
and affection to
respondents 2
to 5
4. Loss of estate 15,000/- 15,000/- Confirmed
5. Funeral 15,000/- 15,000/- Confirmed
expenses
6. Transportation - 16,000/- Granted
7. Mental agony - 10,000/- Granted
Total Rs.44,08,000/- Rs.37,99,750/- reduced by
(Rounded off to (Rounded off to Rs.6,10,000/-
Rs.44,10,000/- Rs.38,00,000/-
14.In the result, this Civil Miscellaneous Appeal is partly
allowed and the compensation awarded by the Tribunal at Rs.44,10,000/- is
hereby modified to Rs.38,00,000/- with interest at the rate of 7.5% per annum
from the date of petition till the date of deposit. The appellant-Insurance
Company is directed to deposit the modified award amount now determined
by this Court, together with interest and costs, less the amount already
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C.M.A.No.54 of 2019
deposited, if any, within a period of six weeks from the date of receipt of a
copy of this judgment. On such deposit, the respondents 1, 3 and 4 are
permitted to withdraw their respective share of the modified award amount as
per the ratio of apportionment fixed by the Tribunal, along with proportionate
interest and costs, less the amount if any, already withdrawn by making
necessary applications before the Tribunal. The appellant/Insurance Company
is permitted to withdraw the excess amount if any lying in the deposit to the
credit of M.C.O.P.No.389 of 2011, if the entire award amount has already
been deposited by them. The share of the minors, namely the respondents 2
and 5 are directed to be deposited in any one of the Nationalized Banks, till
the minors/respondents 2 and 5 attains majority. On such deposit, the 1st
respondent, being the mother of the minors, respondents 2 and 5, is permitted
to withdraw the accrued interest once in three months for the welfare of the
minors/respondents 2 and 5. No costs. Consequently, connected
miscellaneous petition is closed.
(R.P.S.J.) (S.K.J.)
19.04.2021
gbi
Index : Yes / No
Internet : Yes/ No
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C.M.A.No.54 of 2019
To
1.The Sub Judge,
Motor Accidents Claims Tribunal,
Sankari.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.54 of 2019
R.SUBBIAH, J.
and
S.KANNAMMAL, J.
gbi
C.M.A.No.54 of 2019
19.04.2021
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