Madras High Court
The Branch Manager vs Lakshmi on 20 January, 2021
C.M.A.No.529 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.01.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.529 of 2020
and
C.M.P.No.3293 of 2020
The Branch Manager,
M/s.Bajaj Allianz General Insurance
Company Limited,
No.25-26, Prince Towers,
Nungambakkam,
3rd Floor, Chennai. ... Appellant
vs
1.Lakshmi
W/o.Late Anbu Selvam
2.Santhipriya
S/o.Late Anbu Selvam
3.Venkatesh
S/o.Late Anbu Selvam
4.Ekambaram
S/o.Kannan ... Respondents
1/12
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C.M.A.No.529 of 2020
Prayer: Civil Miscellaneous Appeal filed u/s.173 of the Motor Vehicles Act,
1988, against the judgment and decree dated 12.03.2019 passed in
M.C.O.P.No.152 of 2012 on the file of Motor Accident Claims Tribunal, Chief
Judicial Magistrate, Chengalpet.
For Appellant : Mr.M.B.Raghavan
For Respondents : Ms.Ramya V.Rao [R1 to R3]
*****
JUDGMENT
[Judgment of the Court was delivered by R.SUBBIAH, J]
This matter is heard through Video Conference.
2. This appeal has been filed by appellant Insurance Company against the
judgment and decree dated 12.03.2019 passed in M.C.O.P.No.152 of 2012 on the
file of Motor Accident Claims Tribunal, Chief Judicial Magistrate, Chengalpet.
3. For the sake of convenience, the appellant is referred to as the Insurance
Company and the respondents 1 to 3 are referred to as claimants.
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C.M.A.No.529 of 2020
4. The brief facts of the case are as follows:
Claimants are wife and children of the deceased Anbuselvan. The deceased
was working as Special Sub-Inspector in Tamil Nadu Police Service. He was on
duty on 24.08.2012 at GST Road near Thirutheri Vinayagar Temple. While he was
regulating the traffic, at about 15.20 hours, a Lorry bearing registration No.TN-22-
A-6269 belonging to fourth respondent and insured with the Insurance Company,
came in a rash and negligent manner and hit the deceased Anbuselvan, as a result
of which, the deceased sustained multiple injuries and died. Hence, claimants filed
a claim petition seeking compensation in a sum of Rs.50,00,000/-.
5. Resisting the claim made by claimants, Insurance Company has filed a
detailed counter statement inter alia contending that the accident had not occurred
in the manner as projected by claimants. They have also denied the age,
occupation and income of the deceased. The Insurance Company had also taken a
specific defence that on the date of accident, the driving licence of the driver of
the offending vehicle had expired and the same was renewed only on 31.08.2012
i.e. after the date of accident. Since the driver of the offending vehicle did not
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C.M.A.No.529 of 2020
possess valid driving licence at the time of accident, the same amounts to violation
of policy conditions. Thus, Insurance Company prayed for dismissal of the claim
petition.
6. To prove their case, before the Tribunal, claimants have examined PWs.1
to 3 and marked 21 documents viz., Exs.P1 to P21. On the side of the Insurance
Company, 2 witnesses were examined as RWs.1 and 2 and 5 documents were
marked viz., Exs.R1 to R5.
7. On appreciation of materials on record, the Tribunal found that the
accident had occurred owing to the rash and negligent driving of the Lorry
belonging to fourth respondent and held that the Insurance Company, being the
insurer of the offending vehicle, was liable to pay compensation. The
compensation awarded by the Tribunal is as follows:
Sl. Compensation awarded under the Amount
No. head (in Rs.)
1. Loss of dependency 31,16,560/-
2. Love and Affection 50,000/-
3. Loss of consortium 50,000/-
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C.M.A.No.529 of 2020
Sl. Compensation awarded under the Amount
No. head (in Rs.)
4. Medical expenses 35,146/-
5. Funeral expenses 25,000/-
6. Transport expenses 5,000/-
Total 32,81,706/-
The said sum was directed to be paid together with interest at 7.5% p.a. from the
date of petition till the date of realization.
8. With regard to the quantum of compensation, learned counsel for
Insurance Company submits that the Tribunal had taken a sum of Rs.30,795/- as
monthly income of the deceased based on Ex.P8 – Pay Slip. Further, the Tribunal,
after deducting 1/3 towards personal expenses of the deceased, added 15%
towards future prospects, applied multiplier '11' and arrived at compensation in a
sum of Rs.31,16,560/-. It is the specific case of Insurance Company that the
normal procedure is that after adding future prospects with the monthly income,
personal expenses will be deducted. Instead, the Tribunal has done it vice versa,
which had resulted in awarding an exorbitant sum as compensation. The approach
adopted by the Tribunal is incorrect and hence, the same needs proper
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C.M.A.No.529 of 2020
modification. Learned counsel further submits that the amount awarded under the
other heads is also on the higher side.
9. The next submission of learned counsel for Insurance Company is that the
evidence on record clearly shows that the driving licence of the driver of the
offending Lorry had expired much earlier to the date of accident and the same was
renewed only after the date of accident. There is gross violation of policy
conditions. Therefore, the Insurance Company is not liable to pay compensation.
Submitting as above, learned counsel prays this Court to exonerate them from
paying the compensation.
10. Per contra, learned counsel for claimants made his submission
supporting the award passed by the Tribunal.
11. This Court has considered the rival submissions. Perused the materials
on record.
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C.M.A.No.529 of 2020
12. This Court finds force in the submission of learned counsel for
Insurance Company that the Tribunal, instead of adding future prospects with the
monthly income and thereafter, deducting 1/3 towards personal expenses, had
done it vice versa. This Court also finds that the Tribunal had failed to deduct
income-tax. Hence, the compensation awarded under the head 'loss of dependency'
is re-calculated as follows:
Monthly Income : Rs. 30795/-
Add: Future prospects
15% of Rs.30,795/- : Rs. 4,619/-
-----------------
Rs. 35,414/-
Less: 10% Income Tax : Rs. 3,541/-
-----------------
Rs. 31,873/-
Less: Personal expenses
1/3 of Rs.31,873/- : Rs. 10,624/-
-----------------
Rs. 21,249/-
Annual income (21249*12) : Rs.2,54,988/-
Multiplier : 11
Loss of dependency : Rs.28,04,868/-
(254988 * 11)
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C.M.A.No.529 of 2020
13. This Court finds that the Tribunal has awarded a sum of Rs.50,000/- as
loss of consortium to first respondent being the wife of the deceased Anbuselvan.
But, as per the dictum laid down by the Apex Court in the case of National
Insurance Company Limited, Vs. Pranay Sethi and others, reported in 2017 (16)
SCC 680, first respondent-wife of the deceased is entitled to get only Rs.40,000/-
under the head "loss of consortium". Hence, the compensation of Rs.50,000/-
awarded under such head is reduced to Rs.40,000/-.
14. Similarly, this Court finds that the Tribunal had awarded only
Rs.50,000/- (Rs.25,000/- each) under the head "loss of love and affection" to
respondents 2 and 3. As per the recent judgment of the Supreme Court reported in
CDJ 2020 SC 601 = 2020 ACJ 2131 (SC) = 2020 (2) MWN (Civil) 827 (United
India Insurance Company Limited and others Vs. Satinder Kaur @ Satwinder
Kaur and others), respondents 2 and 4, being the children of the deceased
Anbuselvan, are entitled to Rs.40,000/- each towards parental consortium.
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C.M.A.No.529 of 2020
15. Further, this Court finds that a sum of Rs.25,000/- has been awarded
towards funeral expenses, which is on the higher side and hence, the same is
reduced to Rs.15,000/-. This Court also finds that no sum has been awarded
towards 'loss of estate' and hence, a sum of Rs.15,000/- is awarded under such
head. The amount awarded by the Tribunal under the other heads is hereby
confirmed.
16. Accordingly, the modified compensation payable would be:
Sl. Compensation awarded Amount awarded Amount awarded
No. under the head by Tribunal by this Court
(in Rs.) (in Rs.)
1. Loss of dependency 31,16,560/- 28,04,868/-
2. Love and Affection 50,000/- 80,000/-
3. Loss of consortium 50,000/- 40,000/-
4. Medical expenses 35,146/- 35,146/-
5. Funeral expenses 25,000/- 15,000/-
6. Loss of estate - 15,000/-
7. Transport expenses 5,000/- 5,000/-
Total 32,81,706/- 29,95,014/-
Rounded off to 30,00,000/-
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C.M.A.No.529 of 2020
17. As rightly submitted by learned counsel for Insurance Company, the
driving licence of the driver of the offending vehicle had expired much earlier to
the date of accident and was renewed only after the date of accident, which is in
violation of policy terms. Therefore, this Court holds that the Insurance Company,
after making payment, is entitled to recover the compensation from the fourth
respondent/owner of the Lorry.
In the result,
(i) the Civil Miscellaneous Appeal is partly allowed. The amount of
Rs.32,81,706/- awarded by the Tribunal is hereby reduced to Rs.30,00,000/-
The Insurance Company is directed to deposit the compensation of
Rs.30,00,000/- (Rupees Thirty Lakhs only), less the amount already deposited,
together with interest at 7.5% p.a. from the date of petition till the date of
deposit within a period of four weeks from the date of receipt of this judgment.
On such deposit being made by Insurance Company, claimants (respondents 1
to 3 herein) are permitted to withdraw their respective shares, as apportioned
by Tribunal, along with accrued interest and costs, less the amount, if any
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C.M.A.No.529 of 2020
already withdrawn by them, by filing necessary application before the Tribunal.
(ii)The Insurance Company, after making payment, is entitled to recover the entire
compensation from the fourth respondent/owner of the Lorry.
No costs. Connected miscellaneous petition is closed.
[R.P.S., J] [S.S.K., J]
20.01.2021
Speaking / Non-speaking order
Index: Yes/No
Internet: Yes
gm
To
The Motor Accident Claims Tribunal,
Chief Judicial Magistrate,
Chengalpet.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.529 of 2020
R.SUBBIAH, J
and
SATHI KUMAR SUKUMARA KURUP, J
gm
C.M.A.No.529 of 2020
20.01.2021
https://www.mhc.tn.gov.in/judis/
