Madras High Court
M/S. Royal Sundaram General vs V.Rajathi on 15 July, 2021
C.M.A. No. 1767 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.07.2021
CORAM :
THE HON'BLE MR.JUSTICE N.KIRUBAKARAN
and
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No. 1767 of 2021
M/s. Royal Sundaram General
Insurance Co. Ltd.
Subramaniam Building, I Floor
No.1, Club House Road
Anna Salai, Chennai – 600 002. ... Appellant
Vs
1. V.Rajathi
2. Minor V.Ashwin
3. Minor V.Harish
4. M.Shanmugam
5. K.Vasanthi ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 19 of the Family
Courts Act, 1984, praying to set aside the judgment and decree dated
07.03.2019 passed in M.C.O.P. No. 7130 of 2016 on the file of the Motor
Accidents Claims Tribunal, Chennai (In the II Court of Small Causes, Chennai).
For Appellant : Mr. G.Vasudevan
JUDGMENT
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C.M.A. No. 1767 of 2021
(Judgment of the Court was delivered by N.KIRUBAKARAN, J)
The matter has been heard through "Video Conference".
“Whether the presence of beneficiary is necessary?
Whether benefit could be given to the party in absentia?”
When the Respondents are to be benefited by the order of this Court, neither
notice is necessary nor their presence is necessary.
2. When a benefit accrues to the concerned parties, even in their absence,
the benefits could be granted by this Court, when this Court notes injustice was
done to the parties. This is the one such case, where the compensation could be
enhanced suo motu to the parties in absentia even, in the appeal filed by the
Insurance Company while dismissing the Insurance appeal at the admission
stage itself.
3. The Appeal has been preferred by the Insurance Company against the
award of the Tribunal, by which the negligence was fixed on the driver of the
insured vehicle and a sum of Rs.22,49,000/- was awarded for the death of the
husband of the 1st Respondent viz., K.Vadivelan. On 21.10.2016 at about 7.45
hours, the husband of the 1st Respondent/deceased was riding his motor cycle
bearing Registration No. TN-13-E-5157 on Chennai to Bangalore National
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C.M.A. No. 1767 of 2021
Highways, from Chennai to Vellore direction. At that time, a Lorry insured with
the Appellant Insurance Company hit behind the victim's vehicle, which came
from the same direction in a rash and negligent manner causing accident
resulting the death of victim. Hence, the claim Petition. On contest, the Tribunal
found that the accident occurred because of the rash and negligent driving of the
driver of the insured lorry and fixed the liability on the Appellant/Insurance
Company and awarded a sum of Rs.22,49,000/-. The said order is being
challenged before this Court.
4. Heard Mr. G.Vasudevan, Learned Counsel appearing for the Appellant,
and perused the materials placed on record.
5. Appellant would contend that there was contributory negligence on the
part of the victim and therefore, the amount awarded by the Tribunal has to be
reduced proportionately. Moreover, the Tribunal fixed the monthly income at
Rs.11,000/- without any proof and therefore the compensation has to be
reduced.
6. A perusal of the records shows that the Tribunal, based on PW2/
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C.M.A. No. 1767 of 2021
eye-witness and Ex.P1 - FIR came to a factual conclusion that the lorry was
driven rashly and the accident occurred because of the negligent driving of the
insured vehicle. There is no contra evidence adduced on behalf of the Appellant
/ Insurance company contradicting what has been stated by PW2 eye-witness.
Therefore, there is no occasion for this Court to interfere with the factual finding
reached by the Tribunal based on the evidence.
7. The claim of the claimants was that the victim was working as a Maistry
and was earning a sum of Rs.30,000/- per month at the time of accident.
However, there is no documentary evidence, except Ex.P7, ID card of the
deceased issued by the Labour welfare board to show that he was a Maistry. It
is a fact that it is very difficult to get a Maistry for Rs.750/- per day. The daily
wages of the Maistry is minimum Rs.750/-, which this Court could take judicial
note of it.
8. Even in the absence of any proof, the Tribunal only took Rs.11,000/- as a
monthly income. Considering the scarcity of the Maistry, who are not available
for less than Rs.750/- per day, this Court is inclined to redetermine the daily
income at Rs.750/-. This Court takes the job of the deceased as Maistry for 25
days per month and hence, the monthly income would be Rs.750/- X 25
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C.M.A. No. 1767 of 2021
= Rs.18,750/-.
9. The Tribunal rightly determined the age of the deceased at 36 based on
Ex.P6 / Driving license of the victim. If 36 is the age, as per the Constitution
Bench's judgment of the Honourable Apex Court in National Insurance
Company Limited V. Pranay Sethi and others, reported in 2017 (2) TN MAC
609 (SC), 40% has to be added towards future prospects. If 40% is added, the
monthly income comes to Rs.26,250/- [Rs.15750/- (+) 40% of Rs.15,750/- viz.,
Rs.7,500/-].
10. The dependents of the deceased family is 4, consisting of his wife, two
minor children and mother. Therefore, the Tribunal rightly deducted 1/4 th
towards personal expenses. If 1/4th is deducted towards personal expenses, the
monthly income would be Rs.19,687.50 [26250.50 – 1/4 (22050/4)]. Since the
age of the deceased was 36 years at the time of the accident, as per the
judgment of the Honourable Supreme Court in the case of Sarla Verma &
Others .Vs. Delhi Transport Corporation & another, reported in 2009 (2)
TNMAC 1 (SC), appropriate multiplier is “15”. Therefore, loss of income would
be at Rs.35,43,750/- (Rs.19687.50 x 12 x 15). 10% income tax has to be
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C.M.A. No. 1767 of 2021
deducted and loss of income after tax deduction would be Rs.35,43,750/- - 10%
= Rs.31,89,375/-
11. The Tribunal awarded a sum of Rs.40,000/- towards Loss of consortium
as per the Constitution Bench's judgment of the Honourable Apex Court in
National Insurance Company Limited V. Pranay Sethi and others, reported
in 2017 (2) TN MAC 609 (SC), a sum of Rs.15,000/- awarded towards Loss of
Estate and a sum of Rs.15,000/- awarded towards Funeral Expenses. Since the
above amounts are reasonable, the same are confirmed.
12. No amount was awarded towards transportation. Therefore, a sum of
Rs.15,000/- is added towards Transportation. Further, it is seen that Rs.50,000/-
was awarded to the Second and Third Respondents towards loss of love and
affection. The said amount is very meager since minor children, who lost love,
affection and care of their father throughout their life. Therefore, Rs.50,000/-
awarded towards loss of love and affection is enhanced to Rs.1,00,000/-.
Similarly no amount was awarded towards loss of love and affection for the
Fourth Respondent, who gave birth to the victim. Therefore, a sum of
Rs.50,000/- is awarded towards loss of love and affection to the Fourth
Respondent. Hence, the award of the Tribunal of Rs.22,49,000/- is suo motu
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C.M.A. No. 1767 of 2021
enhanced as under :-
S.No. Heads Amount
1. Loss of Income Rs.31,89,375/-
2. Loss of consortium Rs.40,000/-
3. Loss of Love and Affection Rs.1,50,000/-
4. Funeral Expenses Rs.15,000/-
5. Loss of Estate Rs.15,000/-
6. Transportation Rs.15,000/-
Total Rs.34,24,375/-
13. Therefore, Rs.22,49,000/- awarded by the Tribunal is enhanced to
Rs.34,24,375/- rounded off to Rs.34,25,000/- and the rate of interest fixed by
the Tribunal at 7.5% is confirmed. Out of the modified award amount, 1st
Respondent is entitled to get Rs.10,00,000/-, Respondents 2 & 3 are entitled to
get Rs.9,50,000/- each and the 4th Respondent is entitled to get Rs.5,25,000/-,
14. Invoking Order 41 Rule 33 of CPC and Section 151 of CPC and Article
227 of Constitution of India this Court suo motu enhances the compensation as
just compensation was not granted by the Tribunal. The provisions of the Motor
Vehicles Act are benevolent in nature and what is required to be awarded is just
and reasonable compensation. Neither it could be inflated nor inadequate.
Therefore, even in the absence of appeal/cross-appeal by the claimant, this
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C.M.A. No. 1767 of 2021
Court has got power and jurisdiction to enhance the compensation, which has
been recognised by the Honourable Supreme Court in Nagappa V. Gurdayal
Singh reported in 2004 (2) TN MAC 398 (SC).
15. The appellant/Insurance Company is directed to deposit the entire
modified award amount as per the Judgment made by this Court along with
interest and costs after deducting the amount, if any, already deposited, within a
period of four weeks from the date of receipt of a copy of this Judgment. On
such deposit being made, the tribunal is directed to transfer the respective
shares of the Respondents as per the ratio stated supra, through RTGS within a
period of one week, except the shares of 2 nd and 3rd Respondents/minors, which
shall be deposited in any one of the Nationalized Banks in interest bearing Fixed
Deposit till they attain majority. The 1st Respondent is permitted to withdraw
the interest accruing on such deposits once in three months.
16. Since without notice to the claimants the enhancement of compensation
has been made suo motu in favour of the claimants, while dismissing the appeal
filed by the insurance company at the time of admission itself, there is no
occasion for the claimants to know about enhancement. Therefore, copy of this
order is directed to be sent to the claimants at free of costs. The Appellants are
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C.M.A. No. 1767 of 2021
directed to deposit the entire award amount along with interests and costs
within a period of four weeks from the date of receipt of a copy of this
judgment. The claimants are directed to pay the requisite court-fee for the
enhanced amount alone, if any, within a period of two weeks from the date of
receipt of a copy of this order. If the requisite court-fee is not paid by the
claimants, the Tribunal is directed to deduct the requisite court fee from the
compensation awarded to the claimants and thereafter, transfer within two
weeks the remaining award amount to the claimants' account as per the share
fixed by this Court.
17. In the result, this Civil Miscellaneous Appeal filed by the Insurance
Company is dismissed at the admission stage itself, enhancing the award of the
Tribunal suo motu from Rs.22,49,000/- to Rs.34,25,000/- with interest at 7.5%
to be paid to the Respondents. No costs. Consequently, connected
Miscellaneous petition is closed.
[N.K.K., J.] [T.V.T.S., J.]
15.07.2021
Maya
Index: Yes
Internet : Yes
Speaking order/Non-speaking order
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C.M.A. No. 1767 of 2021
N.KIRUBAKARAN, J.
and
T.V.THAMILSELVI, J.
Maya
To
The Learned Judge,
II Court of Small Causes
Motor Accidents Claims Tribunal
Chennai.
C.M.A.No.1767 of 2021
Dated: 15.07.2021
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