Madras High Court

V. Ambiga vs K. Dhananjayan on 8 January, 2021

CMA No. 1641 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 08-01-2021

Coram :

The Honourable Mr. Justice R. Subbiah
and
The Honourable Mr. Justice Sathi Kumar Sukumara Kurup

C.M.A. No. 1641 of 2020
----

1. V. Ambiga
Wife of S.R. Vanavaramban

2. S.R. Vanavaramban .. Appellants

Versus

1. K. Dhananjayan

2. Royal Sundaram General Insurance Co., Ltd.,
Legal Department
Subramaniam Building
2nd Floor, No.1, Club House Road
Anna Salai, Chennai - 600 002 .. Respondents

Civil Miscellaneous Appeal filed under Section 173 of The Motor
Vehicles Act, 1988 against the Order dated 06.11.2019 made in M.C.O.P. No.
369 of 2018 on the file of Motor Accident Claims Tribunal, Chennai (Chief
Judge, Court of Small Causes at Chennai)

For Appellants : Mr. K. Suryanarayanan

For Respondent : Mr. N. Vijayaraghavan for R2

https://www.mhc.tn.gov.in/judis/

1/11
CMA No. 1641 of 2020

JUDGMENT

R. SUBBIAH, J

Not being satisfied with the quantum of compensation awarded by the

Motor Accidents Claims Tribunal, Chennai, in and by award dated 06.11.2019

made in MCOP No. 369 of 2018, the present appeal has been filed by the

appellants, who are the claimants before the Tribunal, for enhancement of

compensation amount.

2. The appellants/claimants are the parents of the deceased V.

Jayanthan. It is the case of the appellants/claimants before the Tribunal that on

12.12.2017, at about 18.45 hours, the deceased was riding the motor cycle

bearing Registration No. TN 02 AU 1478 to K.G. Signature, Service Road,

East Side By-pass Road, Nolambur, Chennai - 600 095. At that time, the car

owned by the first respondent herein bearing Registration No. TN 13 A 4183

came from the opposite direction, driven by its driver in a rash and negligent

manner and dashed against the motor cycle. In the impact, the deceased

sustained grievous injuries and died on the spot. According to the claimants,

the deceased was aged 29 years at the time of accident and was working as a

Rank II Officer, Navig-8, Ship Management Service Limited, Mumbai and

earning a sum of Rs.4,00,000/- per month. Therefore, the claimants have filed https://www.mhc.tn.gov.in/judis/

CMA No. 1641 of 2020

the claim petition before the Tribunal against the owner of the car as well as its

insurer, claiming a sum of Rs.10 crores as compensation for the death of their

son.

3. The second respondent-Insurance Company filed a counter

statement before the Tribunal denying the various allegations made by the

claimants in the claim petition with respect to the age, occupation and income

of the deceased and prayed for dismissal of the claim petition.

4. In order to prove the averments made in the claim petition, on the

side of the claimants, second claimant/father of the deceased was examined as

PW1 besides examining one T. Murthy, an eye witness to the occurrence, as

PW2. That apart, three other witnesses were examined to prove the

employment and income earned by the deceased, as PWs 3 to 5. The claimants

have also marked Exs. P1 to P28 on their side. On the side of the Insurance

Company, no witness was examined but one document was marked as Ex.R1,

during the cross-examination of PW1. The Tribunal, after analysing the entire

evidence, has come to the conclusion that the accident was a result of rash and

negligent driving of the driver of the car bearing Registration No. TN 13 A

4183 owned by the first respondent and insured with the second https://www.mhc.tn.gov.in/judis/

CMA No. 1641 of 2020

respondent/Insurance Company. By coming to such a conclusion, the Tribunal

passed an award for a sum of Rs.71,95,000/- in favour of the claimants. The

breakup of the award amount is as follows:-

                  Loss of dependency                                           Rs.71,40,000.00
                  Towards funeral expenses                                     Rs. 15,000.00
                  Loss of love and affection                                   Rs. 40,000.00
                                                                               ______________
                                                                               Rs.71,95,000.00
                                                                               ______________

5. As against the award passed by the Tribunal, the Insurance

Company has not filed any appeal. This appeal has been filed by the claimants

seeking for enhancement of compensation.

6. Now, it is the submission of the learned counsel for the appellants

that the Tribunal, while calculating the compensation under the head of loss of

dependency, had taken only a sum of Rs.70,000/- as monthly income inspite of

the fact that the claimants have filed documentary proof to show that the

deceased was earning a sum of Rs.4,00,000/- per month, which resulted in

awarding an inadequate compensation of Rs.71,40,000/-. Therefore, the

learned counsel for the appellants would submit that atleast a sum of

Rs.4,00,000/- per annum as monthly income has to be taken and consequently

the amount awarded by the Tribunal has to be enhanced. Further, it is

contended that in order to prove the income of the deceased, three witnesses https://www.mhc.tn.gov.in/judis/

CMA No. 1641 of 2020

were examined before the Tribunal as PWs 3 to 5 and through them,

documents were marked. Therefore, he would contend that the Tribunal is not

justified in taking only a sum of Rs.70,000/- per month as income of the

deceased and he prayed for enhancement of the compensation awarded in

favour of the appellants.

7. Per contra, the learned counsel for the second

respondent/Insurance Company would vehemently contend that though the

appellants claimed that the deceased was earning Rs.4 lakhs per month, as a

Rank II Officer, Navig-8, Ship management service limited, Mumbai PW3 has

spoken about the nature of employment of the deceased and his salary. PW3

has categorically stated in his evidence that all the jobs in the ship are only

contractual in nature. The owner of the ship is a private party and he used to

employ the workers only on contract basis. PW4, who was an authorised

representative of Navig-8, Ship management service limited, Mumbai has

deposed that the deceased was employed with their company from 12.11.2016

to 24.04.2017 on a contractual basis. He has also stated that the deceased was

paid salary in US Dollars and he was conferred with NRI Status and therefore,

the statement under Form 16 was not applicable to him. PW5 also deposed

that employees in the ship will be employed only on contract basis. Thus, https://www.mhc.tn.gov.in/judis/

CMA No. 1641 of 2020

from the deposition of PWs 3 to 5, it is clear that the income of Rs.4 lakhs said

to have been received by the deceased will not form the basis for computation

of loss of dependency inasmuch as such income is not permanent. Under such

circumstances, the question of fixing the monthly income of the deceased at

Rs.4 lakhs and making calculation for compensation of loss of dependency on

that basis is unwarranted. On the other hand, the Tribunal by considering the

bank statement of the deceased has come to the conclusion that for the past 9

years from 2008 to 2017, a sum of Rs.79,75,995/- has been credited into the

account of the deceased. Based on such income, the Tribunal rightly has taken

note of a sum of Rs.70,000/- per month as income of the deceased to compute

the loss of dependency. Therefore, according to the learned counsel for the

second respondent/Insurance Company, the Tribunal has rightly rejected the

claim of the claimants to fix the monthly income of the deceased at Rs.4 lakhs.

On the other hand, the Tribunal, by taking note of the average income of the

deceased at Rs.8.50 lakhs per annum, had fixed a sum of Rs.70,000/- per

month. Thereafter, by applying multiplier of '17'and deducting 50% towards

personal expenses, awarded Rs.71,40,000/- towards loss of dependency. Such

a calculation made by the Tribunal is proper over which, interference by this

Court is not warranted. The learned counsel for the second respondent/

Insurance Company therefore prayed for dismissal of the appeal. https://www.mhc.tn.gov.in/judis/

CMA No. 1641 of 2020

8. We have heard the counsel for both sides and perused the

materials placed on records. The main grievance of the appellants in this

appeal is that though they have examined three witnesses before the Tribunal

and proved that the deceased was earning Rs.4 lakhs per month, the Tribunal

had taken the monthly income of the deceased as Rs.70,000 per month based

on the amount credited into the account maintained. According to the

appellants, the reliance placed by the Tribunal on the statement of bank

account to conclude that the monthly income of the deceased was only

Rs.70,000/- is not proper. Therefore, the appellants prayed for fixing Rs.4

lakhs per month as the monthly income of the deceased and consequently to

enhance the compensation amount awarded by the Tribunal.

9. We are not inclined to accept this submission of the counsel for

the appellants. Invariably, all the witnesses examined by the appellants have

stated that the job of the deceased was contractual in nature and it is not

permanent or continuous one. It is also the evidence of the witnesses that the

income of the deceased was not permanent and it was fluctuating every year.

It is also an admitted fact that 8 months prior to the accident, the deceased was

not employed and for this period, he had not received any income in the form

of salary. When that be so, we are not inclined to fix a sum of Rs.4 lakhs as https://www.mhc.tn.gov.in/judis/

CMA No. 1641 of 2020

monthly income of the deceased. At the same time, on perusal of the bank

statement and the amount credited into the bank account of the deceased, it is

evident that from the year 2012-2013 to 2017-2018, the highest amount

received by the deceased towards yearly income, on an average, was

Rs.10,93,498/-. This is not disputed by the learned counsel for the second

respondent/Insurance Company. Therefore, this sum of Rs.10,93,498/- can

safely be construed as the basis for calculating loss of dependency of the

deceased. Or in other words, this sum of Rs.10,93,498/- has to be taken as the

yearly income of the deceased.

10. When the emoluments received by the deceased in a given year

exceeds Rs.10 lakhs, then the deceased is liable to pay income tax. Therefore,

out of this sum of Rs.10,93,498/- 20% is deducted towards income tax. If 20%

is deducted, then the net yearly income of the deceased will be (Rs.10,93,498 -

Rs.2,18,700/-) Rs.8,74,798/-. Out of this amount, 40% has to be added

towards future prospects of the deceased and it will come to Rs.3,49,919/-.

Thus, the total loss of income of the deceased was (Rs.8,74,798/- +

Rs.3,49,919/-) Rs.12,24,717/-. As the deceased died as a bachelor, 50% of

Rs.12,24,717/- has to be deducted towards personal expenses. After deduction

of 50% towards personal expenses, the loss of dependency of the deceased https://www.mhc.tn.gov.in/judis/

CMA No. 1641 of 2020

will be (Rs.12,24,717/2) Rs.6,12,358/-. The multiplier to be applied in this

case is '17'. Applying multiplier '17', the loss of dependency to be awarded to

the appellants will be (Rs.6,12,358/- X 17) Rs.1,04,10,096/-.

11. It is seen from the award passed by the Tribunal that the sum of

Rs.40,000/- awarded towards loss of love and affection to the parents and

Rs.15,000/- towards funeral expenses are meagre and they are required to be

enhanced. Similarly, the Tribunal has not awarded any amount towards loss of

estate to the appellants. Therefore, the award passed by the Tribunal is

required to be modified. Accordingly, the amount awarded by the Tribunal is

modified as mentioned below:-

                  Loss of dependency                                         Rs.1,04,10,096.00
                  Towards funeral expenses                                   Rs.       25,000.00
                  Loss of love and affection                                 Rs.       80,000.00
                  Loss of Estate                                             Rs.       15,000.00
                                                                             ----------------------
                                                                             Rs.1,05,30,096.00
                                               Rounded off to                Rs.1,05,30,100.00
                                                                             ----------------------

In the result, the Civil Miscellaneous Appeal filed by the Appellants is

partly allowed by modifying the Order dated 06.11.2019 made in M.C.O.P.

No. 369 of 2018 on the file of Motor Accident Claims Tribunal, Chennai https://www.mhc.tn.gov.in/judis/

CMA No. 1641 of 2020

(Chief Judge, Court of Small Causes at Chennai). The amount awarded by the

Tribunal in favour of the appellants is hereby enhanced from Rs.71,95,000/- to

Rs.1,05,30,100/- (Rupees One Crore Five Lakhs Thirty Thousand and One

Hudnred Only). The amount which we have determined in this appeal shall be

deposited by the second respondent-Insurance Company to the credit of

M.C.O.P. No. 369 of 2018 on the file of Motor Accident Claims Tribunal,

Chennai (Chief Judge, Court of Small Causes at Chennai) within a period of

eight weeks from the date of receipt of a copy of this Judgment. On such