Madras High Court
New India Assurance Co. Ltd vs B.Amirthalakshmi on 15 December, 2021
C.M.A.No.4016 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.4016 of 2019
and
C.M.P.Nos.22679 of 2019 & 14898 of 2021
New India Assurance Co. Ltd.,
No.2, B.R. Complex, Wood Road,
Chennai – 600 002. ... Appellant
Vs.
1..B.Amirthalakshmi
2.Minor Ashmitha Arvind
(rep. by her mother and Natural Guardian
Mrs.Amirthalakshmi)
3.R.Shamshad Biwi
4.R.Yasmin (Minor)
5.R.Abdul Rafi (Minor)
6.R.Aishwarya Banu (Minor)
... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 against the Judgment and Decree passed in MCOP No.4268 of
2012 on 04.05.2017 on the file of the Motor Accident Claims Tribunal, (III Small
Causes Court, Chennai.
1/11
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C.M.A.No.4016 of 2019
For Appellant : Mr.J.Chandran
For Respondents : Mr.K.Chandrasekaran
(for R1 and R2)
JUDGMENT
[Judgment of the Court was delivered by V.SIVAGNANAM, J.]
This appeal arises out of the award passed by the Motor Accident Claims
Tribunal, III Small Causes Court, Chennai in MCOP No.4268 of 2012 dated
04.05.2017.
2.The facts of the case in nutshell:-
On 20.06.2008, at about 01.45 hours, the deceased Dr.Aravind Sivam was
riding his Wagon R Car bearing Reg.No.TN-07-AA-4579 from Chennai to
Chidambaram on the ECR, Vadanemili village. At that time, a Swaraj Mazda, a
goods van was driven by its driver, by name, Rasheed in a rash and negligent
manner and crossed on the right side of the road and dashed on the Wagon R Car.
In the impact, the driver of the Wagon R Car Dr.Aravind Sivam and driver of the
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C.M.A.No.4016 of 2019
Swaraj Mazda died on the spot. The driver of the Swaraj Mazda van is
responsible for the gruesome accident. The respondents 3 to 6 herein are the
legal heirs of the owner and the appellant is the insurer of the Swaraj Mazda Van.
The wife and minor daughter of the deceased Dr.Aravind Sivam laid a petition,
claiming compensation of Rs.5,72,00,000/-. Though the parents of the deceased
filed another claim petition in MCOP No.328 of 2010 separately claiming
compensation of Rs.40,00,000/-, the Tribunal clubbed the claim petitions together
for the purpose of arriving at a just conclusion and to avoid conflicting views.
3.Resisting the claim, the appellant/New India Assurance Company filed
their counter disputing the manner of accident, age, avocation and income of the
deceased and its liability to pay the compensation. It was also contended that the
claim is excessive. Further, in the counter, it has been stated that the accident had
not occurred due to the rash and negligent driving of the driver of the Van and it
has been occurred only due to rash and negligent driving of the driver of the
Wagon R Car, namely, the deceased Dr.Aravind Sivam.
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C.M.A.No.4016 of 2019
4.To substantiate the case, on the side of the claimants, P.Ws.1 to 4 were
examined and Exs.P.1 to Ex.P.22 were marked. On the side of the appellant/New
India Assurance Company, R.W.1 to R.W.6 were examined and Exs.R.1 to R.32
were marked.
5.The Tribunal after considering the pleadings, oral and documentary
evidence, held that the driver of the Swaraj Mazda Van is the root cause for the
accident and the driver of the Wagon R Car also contributed for this accident to
some extent. Hence, the Tribunal has fixed the liability at 75% on the driver of
the van and 25% on the driver of the Wagon R Car and awarded compensation as
follows:-
S.No Heads Amount (Rs)
1 Pecuniary Loss 2,24,64,000/-
2 Loss of consortium to wife 1,00,000/-
3 Loss of Love and Affection 2,00,000/-
4 Funeral expenses 25,000/-
5 Transport Expenses 10,000/-
Total 2,27,99,000/-
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C.M.A.No.4016 of 2019
6.Further, the Tribunal observed that the insurer of the Swaraj Mazada van,
namely, the appellant/New India Assurance Company and the insurer of the
Wagon R Car, namely, HDFC General Insurance Company Limited, are liable to
pay the compensation in the ratio of 75% : 25% in the total amount. Aggrieved
by the said order, the appellant/New India Assurance Company has filed the
present appeal challenging the quantum and liability.
7.The learned counsel appearing for the appellant/New India Assurance
Company would contend that the compensation awarded towards death of 31 year
Dr.Aravind Sivam is highly excessive, exorbitant and unsustainable in law. The
Tribunal went wrong in fastening 75% negligence against the appellant's insured
vehicle Swaraj Mazda van instead of fastening the entire negligence and liability
against the driver of the car driven by Dr.Aravind Sivam. He would contend that
the Tribunal ought to have disbelieved the pleading that the deceased Dr.Aravind
Sivam earned Rs.22,00,000/- per annum from medical practice, real estate and
transport business to fix the income of Rs.5,000/- per day. Hence, the learned
counsel seeks to set aside the said award.
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C.M.A.No.4016 of 2019
8.Per contra, the learned counsel appearing for the respondents/claimants
would submit that the impugned Judgment and Decree awarding the aforesaid
compensation is well reasoned and it requires no interference and therefore, this
Civil Miscellaneous Appeal is liable to be dismissed.
9.This Court carefully considered the rival submissions and perused the
materials available on record.
10. As against the award passed by the Tribunal, the insurer of the car has
not preferred any appeal. Similarly, the claimants also did not come forward with
any cross objection seeking enhancement of compensation. This appeal is filed
by the insurer of the Swaraj Mazda van, questioning the liability to pay
compensation and the quantum of compensation.
11.Though the learned counsel appearing for the appellant/Insurance
Company argued in respect of liability, a perusal of the records shows that the
Tribunal after considering the Rough Sketch (Ex.P.15) held that the front right
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C.M.A.No.4016 of 2019
wheel of the Swaraj Mazda Van got burst, which is the main root cause for this
accident and hence, the Tribunal fixed the contributory negligence as 75% : 25%.
We are of the view that the same is just, proper and reasonable and the same does
not require any interference by this Court.
12.In respect of quantum, in the instant case, before the Tribunal, the
appellant/New India Assurance Company filed Exs.R.1 to R.3 and Ex.R.30
Income Tax Returns of the deceased, but the Tribunal, without considering the
same, has fixed the daily income of the deceased as Rs.5,000/-. Further, the
Tribunal held that the deceased has earned three types of incomes i.e., out of his
medical profession, Real-Estate Business and Transport Business, but there is no
proof filed. Further, the Tribunal added 50% of the annual income towards
future prospectus, which is contrary to the decision of the Hon'ble Supreme Court
in the case of National Insurance Company Ltd., vs. Pranay Sethi and others
reported in 2017(2) TNMAC 609 (SC). The Tribunal, without considering the
Income Tax Returns of the deceased (Exs.R.1 to R.3 & R.30) fixed the monthly
notional income as Rs.1,30,000/-. Hence, this Court fixes the monthly notional
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C.M.A.No.4016 of 2019
income as Rs.90,000/-. As per the decision of Pranay Sethi (supra), the
claimants are entitled to 40% addition as future prospects. Hence, after adding
40% of the income, the monthly income works out at Rs.1,26,000/-
(90000+36000 (40%) = 126000). After deducting 10% towards income tax and
1/3rd towards personal and living expenses, contribution to the family will be
Rs.75,600/- (126000-12600=113400-37800) per month. By applying multiplier
'16', this Court hereby awards Rs.1,45,15,200/- (75600 x 12 x 16) towards loss of
dependency. In addition, as per the decision of the Hon'ble Apex Court in the
case of Magma General Insurance Co. Ltd., vs. Nanu Ram and others
reported in 2018(1) TN MAC 452 (SC), the claimants are entitled to Rs.40,000/-
each towards filial and parental consortium, which comes to Rs.1,20,000/-,
Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate.
Hence, the amount of Rs.1,00,000/- awarded under the head of loss of
consortium, Rs.2,00,000/- towards loss of love and affection and Rs.10,000/-
towards transportation are set aside. The amount of Rs.25,000/- awarded towards
funeral expenses is reduced to Rs.15,000/-. Rs.15,000/- is awarded for loss of
estate. The rate of interest fixed by the Tribunal is confirmed. The negligence
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C.M.A.No.4016 of 2019
fixed by the Tribunal as 75% : 25% is also confirmed. Hence, the compensation
awarded by the Tribunal to the claimants is re-quantified as follows:-
Heads Rs.
Loss of dependency 1,45,15,200/-
Loss of consortium 40000 x 3 1,20,000/-
Funeral expenses 15,000/-
Loss of Estate 15,000/-
Total 1,46,65,200/-
Rounded Off 1,46,65,000/-
13.In such view of the matter, this Civil Miscellaneous Appeal is partly
allowed and the award amount of Rs.2,27,99,000/- is reduced to Rs.1,46,65,000/-.
Out of the amount, the wife of the deceased is entitled to Rs.50,00,000/- (Rupees
Fifty Lakh only); the daughter of the deceased is entitled to Rs.70,00,000/-
(Rupees Seventy Lakhs only) and the mother of the deceased is entitled to
Rs.26,65,000/- with proportionate interest and cost. The appellant/New India
Assurance Company Ltd., and the HDFC General Insurance Company are
directed to deposit the modified award amount in the ratio of 75% : 25% with
accrued interest and costs, less the amount already deposited, if any, within a
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C.M.A.No.4016 of 2019
period of eight weeks from the date of receipt of a copy of this order.
14.On such deposit, the major claimants are permitted to withdraw their
share after filing a memo, along with a copy of this order, less the amount if
already withdrawn. Further, the Tribunal is directed to deposit the share of the
minor claimant in any one of the nationalised banks, as fixed deposit under the
Cumulative Deposit Scheme, till the minor attains majority and the mother of the
minor claimant who is the guardian of the minor claimant, is permitted to
withdraw interest once in six months directly from the Bank. No costs.
Consequently, connected miscellaneous petition is closed.
[M.K.K.S.,J.] [V.S.G.,J.]
15.12.2021
Intex : Yes/No
Internet : Yes/No
skn
To
1.The Motor Accident Claims Tribunal,
III Small Causes Court, Chennai.
2.The Section Officer, V.R.Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.4016 of 2019
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
skn
C.M.A.No.4016 of 2019
and
C.M.P.Nos.22679 of 2019 & 14898 of 2021
15.12.2021
https://www.mhc.tn.gov.in/judis
