Madras High Court
Branch Manager vs Krishnaveni on 13 December, 2021
C.M.A. Nos.588 and 590 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.12.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. Nos.588 and 590 of 2021
and CMP.No.3617 of 2021
Branch Manager,
United India Insurance Company Ltd.,
Opposite to Taluk Office,
Mysore Trunk road, Sathyamangalam.
...appellant in both the petitions
Vs.
1. Krishnaveni
2. Sasikumar
3. Minor Narmadha
[Minor claimant rep. by her mother
Guardian Krishnaveni]
4. Edvin Soundarajan
5. M.R.S.Beedi COmpany,
6/196, Devendran Lane,
V.H.Road, Coimbatore District.
...respondents in CMA.No.588 of 2021
1. Gowri
2. Rubini
3. Nandhini
4. Rukmani
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C.M.A. Nos.588 and 590 of 2021
5. Edvin Soundarajan
6. M.R.S.Beedi COmpany,
6/196, Devendran Lane,
V.H.Road, Coimbatore District.
...respondents in CMA.No.590 of 2021
Prayer in CMA.No.588 of 2021: Civil Miscellaneous Appeal filed
under Section 173 of Motor Vehicle Act, 1988 against the award dated
01.07.2020 made in MCOP.No.308 of 2018 on the file of the Motor
Accident Claims Tribunal/Sub Court, Sathyamangalam.
Prayer in CMA.No.590 of 2021: Civil Miscellaneous Appeal filed
under Section 173 of Motor Vehicle Act, 1988 against the award dated
01.07.2020 made in MCOP.No.309 of 2018 on the file of the Motor
Accident Claims Tribunal/Sub Court, Sathyamangalam.
In CMA.No.588 of 2021
For Appellant : Mr.D.Bhaskaran
For Respondents
for RR1 to 3 : Mr.P.K.Harinath Babu
for RR4 & 5 : Notice served-No appearance
In CMA.No.590 of 2021
For Appellant : Mr.D.Bhaskaran
For Respondents
for RR1 to 4 : Mr.P.K.Harinath Babu
for RR5 & 6 : Notice served-No appearance
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C.M.A. Nos.588 and 590 of 2021
COMMON JUDGMENT
[Judgment of the Court was delivered by V.SIVAGNANAM, J]
The appeals are heard through video conferencing.
2. Challenging the judgment and decree dated 01.07.2020 passed by
the Motor Accident Claims Tribunal/Sub Court, Sathyamangalam in
MCOP.Nos.308 & 309 of 2018, the Insurance Company has preferred these
appeals in CMA.Nos.588 and 590 of 2021, respectively.
3. The brief facts of the case are that, on 07.10.2017 at about 04.50
hours, the deceased Nagendran was riding the motor cycle bearing
Registration No.TN-40-X-4714 on Puliyampatti-Sathyamangalam Main
Road with the deceased Kulanthaivelu as a pillion rider. When they were
nearing SRT Garden, a Tempo Traveller bearing Registration No.TN-66-C-
7943, driven by its driver in a rash and negligent manner, dashed against the
motorcycle. Due to the impact, both the deceased sustained grievous
injuries and immediately, they were given first aid in the Government
Hospital, Sathyamangalam and thereafter, referred to Government Hospital,
Coimbatore, but eventually, they died.
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C.M.A. Nos.588 and 590 of 2021
4. The legal heirs of the deceased Nagendran laid a claim petition
MCOP.No.309 of 2018, claiming a sum of Rs.65,00,000/- as compensation
and the legal heirs of the deceased Kulanthaivelu laid a claim petition
MCOP.No.308 of 2018, claiming a sum of Rs.1,10,00,000/-.
5. The appellant/Insurance Company resisted the claims disputing the
manner of accident, age, occupation and income of the deceased and their
liability to pay the compensation.
6. A joint trial was conducted before the Tribunal. In order to
establish the claimants' case, PW1 and PW2 were examined and Exs.P1 to
P24 were marked. On behalf of the Insurance Company, neither any oral
evidence was adduced nor any document was marked.
7. The Tribunal, after considering the oral and documentary evidence,
held that the accident had occurred due to the rash and negligent driving of
the driver of the Tempo Traveller and awarded compensation of
Rs.59,20,000/- to the claimants in MCOP.No.308 of 2018 and
Rs.36,13,792/- to the claimants in MCOP.No.309 of 2018 and directed the
Insurance Company to pay the above compensations.
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C.M.A. Nos.588 and 590 of 2021
8. Heard the learned counsel appearing on either side and perused the
materials available on record.
In CMA.No.588 of 2021 (MCOP.No.308 of 2018)
9. The learned counsel appearing for the appellant/Insurance
Company submitted that though the claimants failed to produce any
document to show that the deceased was doing jewellery business, the
monthly income taken by the Tribunal for the deceased for calculating Loss
of Income, is on the higher side.
10. It is the contention of the learned counsel for the claimants that
the deceased Kulanthaivelu was the Proprietor of the Jewellery Shop, viz.,
Shri Vinayagar Jewellers and earning Rs.75,000/- per month. In support of
their case, Ex.P18 rental agreement, Ex.P19 GST Registration certificate,
Ex.P20 GST payment chellan and Ex.P21 Bank statement were marked. The
Tribunal, taking into consideration the avocation of the deceased, rightly
fixed the notional income of the deceased at Rs.45,000/- per month while
determining the Loss of Income.
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C.M.A. Nos.588 and 590 of 2021
11. The learned counsel appearing for the claimants, by placing
reliance on the decision of the Apex Court in Basanti Devi and another vs.
Divisional Manager, The New India Assurance Company Ltd. and others
would argue that the potentiality of the deceased has to be taken into
account while fixing the income. In the judgment referred by the learned
counsel appearing for the claimants, the deceased was an Engineer and he
died at the age of 25 years. Taking into consideration those aspects, the
Tribunal has observed that the potentiality of the deceased can be taken into
account while fixing the income of the deceased. However, in the instant
case, the second claimant/son of the deceased, who gave evidence as PW2,
admitted in the course of cross-examination that he did not produce Income
Tax Returns, Pan Card, Account Books and other materials to establish that
the deceased was the proprietor of the Jewellery Shop. Hence, we are of the
considered opinion that the said judgment has no application to the facts of
the case on hand for the reason that the claimants failed to produce any
materials to show that the deceased was doing business at the relevant point
of time.
12. Ex.P18 shows that the rental agreement of the jewellery shop was
entered in the year 2017 with the monthly rent of Rs.2,500/- and with an
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C.M.A. Nos.588 and 590 of 2021
advance of Rs.25,000/-. However, Ex.P21 Bank Statement shows that no
amount was credited into the account of the deceased from the Jewellery
Business. On the other hand, meagre amounts of Rs.250/- and Rs.500/- had
been deposited and rarely when lump sum amounts of Rupees 1 Lakh and 2
Lakhs were deposited, on the very next day, the amounts were withdrawn.
Since the claimants failed to produce Income Tax Returns and the Account
Books to show that the deceased was running the jewellery business, we are
of the considered opinion that the income fixed by the Tribunal is on the
higher side. Hence, it is proper to fix the income of the deceased at
Rs.15,000/- per month. Considering the age of the deceased was 48 years at
the time of the accident, 25% is added towards future prospects, and if so
added, the amount would be Rs.18,750/- [15,000 + 3,750]. If 1/3 of the
same is deducted towards personal expenses of the deceased, contribution
to the family would be Rs.12,500/- [18,750 - 6,250]. Then, by applying
multiplier 13, the Loss of Income is arrived at Rs.19,50,000/-[12,500 x 13 x
12]. Thus, the sum of Rs.58,50,000/- awarded by the Tribunal is set aside,
instead a sum of Rs.19,50,000/- is awarded under the head Loss of Income.
13. The amounts awarded by the Tribunal under other heads; viz.,
Rs.40,000/- towards Loss of Love and Affection; Rs.15,000/- towards
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C.M.A. Nos.588 and 590 of 2021
Funeral Expenses; and Rs.15,000/- towards Loss of Estate are confirmed. In
total, the claimant is entitled to Rs.20,20,000/- along with interest at the rate
of 7.5% per annum from the date of claim petition till the date of
realization. Thus, the total compensation payable to the claimants is
re-calculated and tabulated below:
Sl. Head under which the Amounts awarded Amounts awarded
No compensation is awarded by the Tribunal in by this Court in
Rs. Rs.
1. Loss of Income 58,50,000 19,50,000
2. Loss of Love and Affection 40,000 40,000
3. Funeral Expenses 15,000 15,000
4. Loss of Estate 15,000 15,000
Total 59,20,000 20,20,000
14. The total compensation of Rs.58,50,000/- awarded by the
Tribunal is hereby reduced to Rs.20,20,000/-, which shall carry interest at
7.5% p.a. 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 such deposit, the major claimants 1 and 2 are permitted to
withdraw the award amount, less the amount already withdrawn, if any,
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C.M.A. Nos.588 and 590 of 2021
together with proportionate interest and costs. Insofar as the third
claimant/minor child of the deceased is concerned, her share shall be
deposited by the Tribunal in any Fixed Deposit Scheme in any one of the
Nationalised Banks and it shall be renewed periodically till she attains
majority and the interest accrued thereon shall be withdrawn by the first
claimant/mother once in three months. The apportionment of shares as fixed
by the Tribunal to the claimants, remains unaltered. No costs.
In CMA.No.590 of 2021 (MCOP.No.309 of 2018)
15. The learned counsel for the Insurance company submitted that
considering the avocation of the deceased, the monthly income taken by the
Tribunal for the deceased for calculation of Loss of Income, was on the
higher side. Further, though the Tribunal had taken the age of the deceased
as 45 years, but on a perusal of Ex.P13 Identity Card of the Tamil Nadu
Tailors Welfare Association, it is seen that he was 51 years old at the time of
the accident.
16. According to the claimants, the deceased Nagendran was a Tailor
by Profession and he died at the age of 45 years, and the Tribunal rightly
fixed the income of the deceased at Rs.22,500/-.
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C.M.A. Nos.588 and 590 of 2021
17. Perusal of the records, this Court is of the view that the Tribunal,
without any documents to prove the income of the deceased, fixed
Rs.22,500/- as the monthly income. Considering the cost of living prevalent
at the time of the accident, it would be proper to fix Rs.15,000/- as monthly
income of the deceased. Further, as rightly contended by the learned
counsel for the Insurance Company, perusal of Ex.P13 shows that the age
of the deceased at the time of the accident was 51. Hence, this Court fixes
Rs.15,000/- as monthly income of the deceased and 10% is added toward
future prospects. If so added, the actual monthly income of the deceased
would be Rs.16,500/- [15,000 + 1,500]. Then, by deducting 1/4 towards
personal expenses, the contribution to the family comes to Rs.12,375/-
[16,500 - 4,125]. Considering the age of the deceased being 51 years at the
time of the accident, multiplier 11 is applied, and the Loss of Income comes
to Rs.16,33,500/- [12,375 x 12 x 11].
18. In addition to that, the amounts awarded by the Tribunal towards
other heads, viz., Rs.40,000/- towards Loss of Love and Affection;
Rs.15,000/- towards Funeral Expenses; and Rs.15,000/- towards Loss of
Estate; In total, the claimants are entitled to Rs.17,03,500/- along with
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C.M.A. Nos.588 and 590 of 2021
interest at the rate of 7.5% per annum from the date of claim petition till the
date of realization. Thus, the total compensation payable to the claimants is
re-calculated and tabulated below:
Sl. Head under which the Amounts awarded Amounts awarded
No compensation is awarded by the Tribunal in by this Court in Rs.
Rs.
1 Loss of Income 35,43,792 16,33,500
2 Loss of Love and Affection 40,000 40,000
3 Funeral Expenses 15,000 15,000
4 Loss of Estate 15,000 15,000
Total 36,13,792 17,03,500
19. The total compensation of Rs.36,13,792/- awarded by the
Tribunal is hereby reduced to Rs.17,03,500/-, which shall carry interest at
7.5% p.a. 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 such deposit, the claimants are permitted to withdraw the
award amount, less the amount already withdrawn, if any, together with
proportionate interest and costs. The apportionment of shares as fixed by
the Tribunal to the claimants remains unaltered.
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C.M.A. Nos.588 and 590 of 2021
20. With the above observations and directions, these Civil
Miscellaneous Appeals are partly allowed. No costs. Consequently,
connected petitions are closed.
[M.K.K.S, J] [V.S.G., J]
13.12.2021
Index : Yes / No
Speaking order: Yes/No
pvs
To
1. The Sub Judge,
Motor Accident Claims Tribunal, Sathyamangalam
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. Nos.588 and 590 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
pvs
C.M.A. Nos.588 and 590 of 2021
13.12.2021
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