Madras High Court
The Divisional Manager vs )R.Sankaramariyammal on 22 February, 2021
CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CMA(MD)No.121 of 2020
and
CROS.OBJ(MD)No.2 of 2021
and
CMP(MD)Nos.2283 of 2020 and 597 of 2021
CMA(MD)No.121 of 2020:-
The Divisional Manager,
The New India Assurance Company Limited,
No.105, 1st Floor,
Madurai Road,
Virudhunagar-626 001. ... Appellant
vs.
1)R.Sankaramariyammal
2)A.Shanthi ... Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the decree and judgment dated
27.11.2019 made in MCOP.No.162 of 2018 on the file of learned
Additional District Court, Virudhunagar.
For Appellant : Mr.A.Ilango
For R1 : Mr.D.Sakkaravarthi
For R2 : No appearance
CROS.OBJ(MD)No.2 of 2021:-
R.Sankaramariyammal ... Petitioner
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CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
vs.
1)The Divisional Manager,
The New India Assurance Company Limited,
No.105, 1st Street, Madurai Road,
Virudhunagar-626 001.
2)A.Shanthi ... Respondents
Prayer : Cross Objection filed under Section 173 of Motor Vehicles Act,
1988, to enhance the compensation and modify the decree and judgment
dated 27.11.2019 made in MCOP.No.162 of 2018 on the file of the
MACT/Additional District Court, Virudhunagar.
For Petitioner : Mr.D.Sakkaravarthi
For R1 : Mr.A.Ilango
COMMON JUDGMENT
The Civil Miscellaneous Appeal has been filed against the decree
and judgment dated 27.11.2019 made in MCOP.No.162 of 2018 on the
file of learned Additional District Court, Virudhunagar.
Cross Objection has been filed to enhance the compensation and
modify the decree and judgment dated 27.11.2019 made in MCOP.No.
162 of 2018 on the file of the MACT/Additional District Court,
Virudhunagar.
2.In an accident which occurred on 20.05.2018, son of the 1st
respondent/claimant, aged 21 years died. The mother of the deceased
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CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
filed a claim petition in MCOP.No.162 of 2018 before the Motor
Accident Claims Tribunal, Additional District Court, Virudhunagar,
claiming compensation of Rs.40 Lakhs. The appellant insurance
company who is the insurer of the offending vehicle driven by the 2 nd
respondent, filed counter disputing the manner of accident and also
disputed the compensation claimed under various heads. The Tribunal
considering the oral and documentary evidence adduced on both sides,
held that the accident had occurred due to the rash and negligent driving
of the 2nd respondent's vehicle insured with the appellant and directed the
appellant to pay compensation of Rs.20,46,000/- with 7.5% interest per
annum. Aggrieved by the quantum of compensation, the insurance
company has filed the present appeal and not satisfied with the quantum
of compensation, the claimant has filed cross objection seeking
enhancement.
3.The learned counsel for the appellant/insurance company would
state that while the claimant claimed that the deceased was working as a
Cook in M/s.Jayam Caterings at Kanchipuram District and earned Rs.
17,000/- per month, in Ex.P1-FIR lodged by the paternal uncle of the
deceased, it has been stated that the deceased was working in a Bakery at
Goa and when there is a contradiction in the avocation of the deceased
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CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
itself in the claim petition and Ex.P1-FIR, the learned Judge ought not to
have fixed the notional income at Rs.10,000/- which is on the higher
side. He would further state that at the time of accident, the deceased
was aged 21 years and he was a bachelor, but the Tribunal instead of
deducting 50% towards the personal expenses, has erroneously deducted
1/3rd. Except the above, the compensation under other heads are not
disputed.
4.The learned counsel for the cross objector/claimant would state
that the Tribunal without considering Ex.P7-salary certificate of the
deceased marked through PW3-employer of the deceased, to prove that
the deceased was earning Rs.17,000/- per month by working as a Cook,
has erroneously fixed the notional income of the deceased at Rs.10,000/-
per month, which is contrary to the judgment of this Court reported in
2019 (1) TN MAC 54 (DB), Andal vs. Avinav Kannan, wherein, the
Division Bench evolving formula for determining notional income
considering rise in inflation index, fixed Rs.11,000/- as notional income
for the accident occurred therein in 2014. In the present case, the
accident is of the year 2018 and therefore, the Tribunal ought to have
fixed the monthly income of the deceased as per Ex.P7 and arrived at the
compensation and if it is calculated so, then the compensation under the
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CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
head 'loss of income' would be more. He would further state that the
Tribunal ought to have awarded Rs.10,000/- towards transportation and
Rs.40,000/- towards loss of consortium and Rs.50,000/- towards damage
to clothes and articles and as per the judgment in National Insurance
Company Ltd., vs. Pranay Sethi and others reported in 2017 (2) TN
MAC 609 (SC), the Tribunal ought to have awarded Rs.40,000/- towards
loss of love and affection. Thus, he would pray for enhancement on the
quantum.
5.Heard the learned counsel for the appellant as well as the
respondent/claimant.
6.Perusal of record shows that the claimant claimed that at the time
of accident, the deceased was aged 21 years and was earning a sum of
Rs.17,000/- per month by working as a Cook in M/s.Jayam Caterings,
Kanchipuram District and in this regard, the claimant marked the salary
certificate of the deceased as Ex.P7 and also examined PW3-Manager of
the above concern. It is the contention of the learned counsel for the
appellant that there is a contradiction in the avocation of the deceased
i.e., while in the claim petition, it was stated that the deceased was
working as a Cook in Kanchipuram and earned Rs.17,000/- per month, in
http://www.judis.nic.in
CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
Ex.P1-FIR lodged by the paternal uncle of the deceased, it has been
stated that the deceased was working in a Bakery at Goa. Though PW3-
employer of the deceased was examined to prove the avocation of the
deceased as Cook in Kanchipuram, the Tribunal considering his
testimony that his concern is not registered and not produced any record
for showing the particulars of employees and customers, rejected his
evidence as not trustworthy. Be that as it may, the accident is of the year
2018 and the deceased was aged 21 years at the time of accident and
therefore, in my opinion, fixation of monthly income at Rs.10,000/-
cannot be said to be erroneous considering the rise in inflation index
during the relevant point of time. After adding 40% future prospects as
per Pranay Sethi's case, and deducting 1/3rd towards the personal
expenses and applying 18 multiplier, the Tribunal arrived at the loss of
income at Rs.20,15,928/-. Apart from that, a sum of Rs.15,000/- towards
funeral expenses; Rs.15,000/- towards loss of estate was awarded by the
Tribunal. Altogether, a sum of Rs.20,46,000/- was awarded as
compensation with 7.5% interest per annum from the date of petition till
the date of deposit.
7.As rightly contended by the learned counsel for the
appellant/insurance company, since the deceased was a bachelor at the
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CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
time of accident, 50% of income has to be deducted towards the personal
expenses instead of 1/3rd. The notional income of the deceased fixed by
the Tribunal is Rs.10,000/- per month. After adding 40% towards future
prospects, the monthly income would be Rs.14,000/- and if 50% of
income is deducted towards the personal expenses, then the monthly
income would be Rs.7,000/-. After computing annual income and
applying 18 multiplier loss of income works out to Rs.15,12,000/- (Rs.
7000x12x18). Accordingly, the award under the head loss of income is
reduced to Rs.15,12,000/- from Rs.20,15,928/- awarded by the Tribunal.
8.Perusal of record shows that the widowed mother of the
deceased aged 42 years, has lost her only son aged 21 years and she lost
the love and affection of her only son, but the Tribunal has not awarded
any sum for the loss of love and affection and therefore, a sum of Rs.
1,00,000/- is hereby awarded for the loss of love and affection. There is
no award for transportation of corpse by the Tribunal and a sum of Rs.
10,000/- is hereby awarded for transportation. Considering the facts and
circumstances of the case, the award of Rs.15,000/- each awarded by the
Tribunal under the heads loss of estate and funeral expenses is enhanced
to Rs.25,000/- each. Accordingly, the total compensation is modified and
apportioned hereunder:-
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CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
Loss of income = Rs.15,12,000/-
Loss of love and affection = Rs. 1,00,000/-
Loss of estate = Rs. 25,000/-
Funeral expenses = Rs. 25,000/-
Transportation = Rs. 10,000/-
Damage to clothes and articles
= Rs. 10,000/-
----------------------------
Modified compensation = Rs.16,82,000/-
(Less) Award of the Tribunal = Rs.20,46,000/-
-----------------------------
Reduction on quantum = (-)Rs. 3,64,000/-
------------------------------
9.In the result, there shall be reduction of Rs.3,64,000/- on the
quantum of compensation. The appellant insurance company is directed
to deposit the modified compensation of Rs.16,82,000/- with 7.5%
interest from the date of petition till the date of deposit, less the amount
already deposited, to the credit of the claim petition within a period of
eight weeks from the date of receipt of a copy of this judgment. On such
deposit, the respondent/claimant is permitted to withdraw the same,
without filing formal permission petition before the Tribunal.
10.With the above modification, the Civil Miscellaneous Appeal
and Cross Objection are allowed in part. No costs. Consequently,
connected miscellaneous petition is closed.
22.02.2021
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CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
Index : Yes / No
Internet: Yes / No
bala
NOTE: In view of the present lock down owing to COVID-19 pandemic,
a web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant concerned.
To
The Additional District Judge,
Virudhunagar.
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CMA(MD)No.121 of 2020 and
CROS.OBJ(MD)No.2 of 2021
J.NISHA BANU, J.
bala
JUDGMENT MADE IN
CMA(MD)No.121 of 2020
DATED : 22.02.2021
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