Madras High Court
Icici Lombard General vs Shanthi on 2 July, 2021
CMA Nos.2837 of 2014 and 2759 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.07.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
CMA Nos.2837 of 2014 and 2759 of 2015
and
MP No.1 of 2014
ICICI Lombard General
Insurance Company Ltd.,
Mint Street,
Walltax Road,
Chennai – 600 002. ...
Appellant
in
CMA No.2837 of 2014
1. Shanthi
2. Minor – Santhosh
3. Minor – Ganesh
Minor Petitioners are
Rep. By their mother Shanthi
4. Shanmugam
5. Amsa ...
Appellants
in
CMA No.2759 of 2015
Versus
1. Shanthi
2. Minor – Santhosh
3. Minor – Ganesh
Minor Respondents are
Rep. By their mother Shanthi
4. Shanmugam
5. Amsa
6. S. Sesuraj ... Respondents
in
CMA No.2837 of 2014
https://www.mhc.tn.gov.in/judis/
CMA Nos.2837 of 2014 and 2759 of 2015
1. S. Sesuraj
2. ICICI Lombard General
Insurance Company Ltd.,
Mint Street,
Walltax Road,
Chennai – 600 002. ... Respondents
in
CMA No.2759 of 2015
Prayer in CMA No.2837 of 2014 : Civil Miscellaneous Appeal filed
under Section 173 of the Motor Vehicles Act against the judgment and
decree dated 31.01.2014 in MCOP No.997 of 2011 on the file of the
Motor Accidents Claims Tribunal (II Additional District Judge),
Tiruvallur at Poonamallee.
Prayer in CMA No.2759 of 2015 : Civil Miscellaneous Appeal filed
under Section 173 of the Motor Vehicles Act to allow this appeal and be
pleased to enhance the amount awarded in M.C.O.P. No.997 of 2011,
dated 31.01.2014 on the file of Motor Accidents Claims Tribunal (II
Additional District Court), Poonamalle.
CMA No.2837 of 2014
For Appellant : Ms.R. Sreevidhya
For Respondents : Mr.K.Varadha Kamaraj
for R1 to R5
R6 -unclaimed
CMA No.2759 of 2015
For Appellants : Mr.K.Varadha Kamaraj
For Respondents : Ms.R. Sreevidhya for R2
Not ready in notice reg. R1
https://www.mhc.tn.gov.in/judis/
CMA Nos.2837 of 2014 and 2759 of 2015
COMMON JUDGMENT
(Heard Video Conference)
CMA No.2759 of 2015 has been filed by the claimants seeking
enhancement of compensation awarded under the impugned award dated
31.01.2014 passed by the Motor Accidents Claims Tribunal, (II
Additional District Court), Poonamalle.
2.The very same award has been challenged by the Insurance
Company also in CMA No.2837 of 2014 on the ground that the Tribunal
failed to adopt correct multiplier while assessing the compensation
payable to the claimants, who are the appellants in CMA No.2759 of
2015.
3. The details of the compensation awarded by the Tribunal under
the impugned award are as follows :-
Heads Amount awarded
by the Tribunal
(Rs.)
Compensation for loss of 12,24,000/-
revenue
Loss of consortium of the 1st 25,000/-
petitioner
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CMA Nos.2837 of 2014 and 2759 of 2015
Heads Amount awarded
by the Tribunal
(Rs.)
Loss of love and affection to 2 10,000/-
& 3 petitioners
Loss of love and affection to 4 5,000/-
& 5 petitioners
Loss of transport expenses 5,000/-
Loss of funeral expenses 5,000/-
Total 12,74,000/-
4. Heard Ms.R. Sreevidhya, learned counsel for the appellant /
Insurance Company in CMA No.2837 of 2014 as well as the learned
counsel for the 2nd respondent / Insurance Company in CMA No.2759
of 2015 and Mr.K.Varadha Kamaraj, learned counsel for the appellants
in CMA No.2759 of 2015 as well as the learned counsel for the
respondents 1 to 5 in CMA No.2837 of 2014. Remaining respondent in
both appeals were set ex-parte before the Tribunal, hence notice to him is
dispensed with.
5. This Court has perused the materials and evidence available on
record before the Tribunal.
https://www.mhc.tn.gov.in/judis/
CMA Nos.2837 of 2014 and 2759 of 2015
6. In the claim petition, the claimants who are dependants of the
deceased have pleaded that the deceased Umapathy was a Collection
Supervisor in Jack TV Communications and was doing Shamiana and
Pandhal lease business and was aged 34 years earning Rs.20,000/- p.m.
at the time of the accident. Before the Tribunal, the appellants in CMA
No.2759 of 2015 /claimants have sought for a compensation of
Rs.16,00,000/- for the death of Umapathy as a result of an accident
caused by a vehicle owned by the first respondent in CMA No.2759 of
2015 and insured with the second respondent in CMA No.2759 of 2015,
who is also the appellant in CMA No.2837 of 2014. However, the
Tribunal has awarded a compensation of Rs.12,74,000/- to the claimants
together with interest and costs against the owner of the vehicle as well
as the Insurance Company.
7. Before the Tribunal, the claimants have filed eight documents,
which were marked as Exs.P1 to P8 and three witnesses were examined
on their side viz., the first appellant in CMA No.2759 of 2015/ first
claimant, who is the wife of the deceased as PW1; Gunasekaran, an eye
witness to the accident as PW2 and K.Bhaskaran, the alleged employer of
the deceased as PW3. However, on the side of the respondents in CMA
No.2759 of 2015, neither any witness was examined nor any document
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CMA Nos.2837 of 2014 and 2759 of 2015
filed before the Tribunal.
8. Even though the claimants have pleaded that the deceased was
earning Rs.20,000/-p.m. at the time of the accident, the Tribunal has
assessed his monthly income at Rs.7,500/-, which in the considered view
of this Court is low. The claimants have filed identity card of the
deceased, which was marked as Ex.P5 to show that he was working as
Collection Supervisor in Jack TV communications, Avadi, Chennai – 67.
They have also filed the salary certificate of the deceased, which was
marked as Ex.P4 in support of their case that the deceased was earning
Rs.20,000/-p.m., on the date of the accident. The alleged employer of the
deceased by name K. Bhaskaran has also been examined as a witness by
the claimants as PW3, in support of their stand that the deceased was
earning Rs.20,000/-p.m. at the time of the accident. However, the
Insurance Company both before the Tribunal as well as before this Court
has disputed the avocation of the deceased as a Supervisor in Jack TV
Communications and they have also disputed that the deceased was
earning Rs.20,000/-p.m. on the date of the accident. Excepting for
producing his salary certificate, neither the attendance register nor any
other documents like Income Tax returns, salary vouchers / salary slips
have been filed by the claimants to support their claim that the deceased
https://www.mhc.tn.gov.in/judis/
CMA Nos.2837 of 2014 and 2759 of 2015
was earning Rs.20,000/-p.m., on the date of the accident. The Tribunal
was right in fixing the monthly income of the deceased on notional basis.
No contra evidence has also been produced by the Insurance Company
to disprove the contention of the claimants that the deceased was
working as a Supervisor in Jack TV Communications, Avadi, Chennai –
67. Further, no contra evidence has also been produced by the Insurance
Company to prove that the salary certificate (Ex.P4) and Identity Card
(Ex.P5) are bogus documents. However, this Court is of the considered
view that the notional monthly income of the deceased fixed by the
Tribunal at Rs.7,500/- is low considering the fact that no contra evidence
has been produced by the Insurance Company to disprove the avocation
and the salary of the deceased. However, in view of the fact that the
Income Tax returns have not been filed nor any salary vouchers has been
filed by the appellants / claimants, the monthly income of the deceased
can be fixed only on notional basis. However, the Tribunal has also not
taken into consideration the year of the accident for the purpose of
assessing the monthly income of the deceased. The accident having
happened in the year 2011, this Court is of the considered view that a
Supervisor in a private concern would have earned a minimum of
Rs.9,000/-p.m. Hence, the notional monthly income of the deceased is
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CMA Nos.2837 of 2014 and 2759 of 2015
enhanced from Rs.7,500/- to Rs.9,000/- by this Court instead of
Rs.7,500/- fixed by the Tribunal.
9. The Tribunal has erroneously adopted 17 multiplier instead of
adopting 16 multiplier, since the deceased was yet to reach 35 years as
seen from his Driving Licence (Ex.P7) before the Tribunal, which
discloses that his Date of Birth as 14.08.1976, which would reveal that as
on the date of the accident i.e. on 07.07.2011, the deceased would have
been aged 34 years and 11 months only and would not have reached 35
years as fixed by the Tribunal. Hence for a person aged 34 years, the
correct multiplier to be adopted is 16 and not 17 as erroneously fixed by
the Tribunal. Hence, this Court adopts 16 multiplier instead of 17
multiplier erroneously adopted by the Tribunal.
10. The Tribunal has also erroneously failed to award any
compensation towards loss of future prospects which the appellants /
claimants are legally entitled to as per the decision of the Hon'ble
Supreme Court in the case of National Insurance Co. Ltd. vs. Pranay
Sethi reported in 2017 16 SCC 680. Accordingly, this Court awards a
compensation towards loss of future prospects at 40% in accordance with
the settled law.
https://www.mhc.tn.gov.in/judis/
CMA Nos.2837 of 2014 and 2759 of 2015
11. The Tribunal ought to have deducted 1/4th towards personal
expenses of the deceased but instead deducted 1/5th. The claimants are
the wife, two minor children and parents of the deceased. Since, there
are only 5 dependants, the Tribunal ought to have deducted 1/4th towards
personal expenses of the deceased but instead has erroneously deducted
1/5th. Accordingly the same is modified by this Court.
12. Thus, the compensation for loss of earning is fixed by this
Court at Rs.18,14,400/-, as detailed hereunder, instead of Rs.12,24,000/-,
fixed by the Tribunal to the appellants / claimants.
Rs.9,000/- + 40% - 1/4th = Rs.9450/- x 16 x 12
= Rs.18,14,400/-
13. The Tribunal has awarded a compensation of Rs.25,000/-
towards loss of consortium which is low and not in accordance with
Pranay Sethi's case referred to supra. In accordance with the said
judgment, the loss of consortium has to be fixed at Rs.40,000/-.
14. Similarly, the compensation awarded by the Tribunal under the
head loss of love and affection at Rs.15,000/- is also low and it has to be
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CMA Nos.2837 of 2014 and 2759 of 2015
enhanced to Rs.80,000/-. Accordingly, the same is enhanced to
Rs.80,000/- in accordance with the settled practice.
15. The Tribunal has awarded Rs.5,000/- towards transportation
which is a just compensation and the same is confirmed by this Court.
16. The Tribunal has awarded a compensation of Rs.5,000/-
towards funeral expenses, which is not in accordance with law as per the
decision of Pranay Sethi's case, where the compensation was awarded
at Rs.15,000/-. Accordingly, the compensation towards funeral expenses
is enhanced to Rs.15,000/- from Rs.5,000/- by this Court.
17. The claimants are legally entitled for loss of estate in
accordance with settled law. However, the Tribunal has erroneously
failed to award any compensation towards the said head. Accordingly,
this Court awards a compensation of Rs.15,000/- to the claimants
towards loss of estate in accordance with the settled law.
18. For the foregoing reasons, the award of the Tribunal is hereby
enhanced in the following manner :
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CMA Nos.2837 of 2014 and 2759 of 2015
Heads Amount awarded Amount awarded
by the Tribunal by this Court
(Rs.) (Rs.)
Compensation for loss of 12,24,000/- 18,14,400/-
revenue * #
* Rs.7,500/- Less 1/5th =
Rs.6,000 x 12 x 17
# Loss of earning
Rs.9,000/- Add 40% Less
1/4th x 12 x 16
Loss of consortium of the 1st 25,000/- 40,000/-
petitioner
Loss of love and affection to 10,000/- 40,000/-
2 & 3 petitioners
Loss of love and affection to 5,000/- 40,000/-
4 & 5 petitioners
Loss of transport expenses 5,000/- 5,000/-
Loss of funeral expenses 5,000/- 15,000/-
Loss of estate - 15,000/-
Total 12,74,000/- 19,69,400/-
15. In the result, the appeal filed by the appellant / Insurance
Company in CMA No.2837 of 2014 is dismissed and the appeal filed by
the appellants / claimants in CMA No.2759 of 2015 stands partly
allowed by enhancing the compensation from Rs.12,74,000/- to
Rs.19,69,400/-, as indicated above. No costs. Consequently, connected
miscellaneous petition is closed.
https://www.mhc.tn.gov.in/judis/
CMA Nos.2837 of 2014 and 2759 of 2015
20. The appellant in CMA No.2837 of 2014 as well as 2nd
respondent in CMA No.2759 of 2015 / Insurance Company is directed to
deposit the entire award amount as assessed by this Court together with
interest at 7.5% p.a. from the date of claim petition till the date of
realization, less the amount, if any, already deposited to the credit of
M.C.O.P. No.997 of 2011, on the file of Motor Accidents Claims
Tribunal (II Additional District Court), Poonamalle, within a period of
eight weeks from the date of receipt of a copy of this Judgment. On such
deposit being made, the Tribunal is directed to transfer the award amount
directly to the bank account of the respondents 1st, 4th and 5th / major
claimants, as per the same ratio of apportionment made by the Tribunal,
through RTGS, within a period of two weeks thereafter. Insofar as the
share of the 2nd and 3rd respondents / minor claimants are concerned,
the same shall be deposited in Fixed deposit in any one of the
Nationalised Banks, till they attain the age of majority and the interest
accrued thereon shall be withdrawn by the guardian of the minor
claimants once in three months, directly from the Bank. Necessary Court
fee, if any has to be paid by the appellants in CMA No.2759 of 2015 /
claimants before receiving the copy of this Judgment.
02.07.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
vsi2
https://www.mhc.tn.gov.in/judis/
CMA Nos.2837 of 2014 and 2759 of 2015
To
1. The II Additional District Judge,
Motor Accident Claims Tribunal,
Poonamalle,
Tiruvallur.
2. The Section Officer,
V.R. Section
High Court of Madras, Chennai - 104.
https://www.mhc.tn.gov.in/judis/
CMA Nos.2837 of 2014 and 2759 of 2015
ABDUL QUDDHOSE, J.
vsi2
CMA Nos.2837 of 2014
and 2759 of 2015
02.07.2021
https://www.mhc.tn.gov.in/judis/
