Madras High Court
S. Sasikala vs M/S. Shakhi Enterprises on 17 June, 2021
CMA No. 322 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 17.06.2021
Coram :
THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MRS. JUSTICE S. KANNAMMAL
Civil Miscellaneous Appeal No. 322 of 2021
1. S. Sasikala
2. S. Sarmila
3. S. Harinipriya (Minor)
(Minor third appellant is represented
by mother and natural guardian
S. Sasikala, the first appellant) .. Appellants
Versus
1. M/s. Shakhi Enterprises
No.43, V.N. Industrial Estate
Barathi Colony, 3rd Street
Peelamedu, Coimbatore - 641 004
(set exparte before the Tribunal)
2. The New India Assurance Company Limited
Bombay Mutual Building, 6th Floor
N.S.C. Bose Road
Chennai - 600 001 .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of The Motor
Vehicles Act, 1988 against the Judgment and Decree dated 12.03.2020 made
in MACT OP No. 4770 of 2018 on the file of the Motor Accidents Claims
Tribunal (on the Chief Judge, Court of Small Causes) Chennai
For Appellants : Mr. K. Suryanarayanan
For Respondents : Mrs. R. Sree Vidhya for R2
https://www.mhc.tn.gov.in/judis/
1/12
CMA No. 322 of 2021
JUDGMENT
(Judgment of the Court was delivered by R. Subbiah, J)
Not being satisfied with the quantum of compensation awarded by the
Motor Accident Claims Tribunal, Court of Small Causes, Chennai in and by
the award dated 12.03.2020 made in MACT OP No. 4770 of 2018, the present
appeal has been filed by the claimants.
2. The appellants in this appeal are the claimants before the
Tribunal. They are the wife and children of the deceased Selvarasu. It is the
case of the claimants before the Tribunal that on 03.06.2018 at about 06.00
hours, when the deceased was riding his two wheeler bearing Registration No.
TN 19 AF 2972 in G.S.T. Road from Chengalpet to Tambaram, near
Nellikuppam Road Junction, a lorry bearing Registration No. TN 37 CQ 0966
came in a rash and negligent manner and dashed against the two wheeler
driven by the deceased. In the impact, the deceased sustained multiple injuries
all over his body. He was immediately taken to SRM Medical College and
Hospital and Research Centre, Potheri for treatment. However, inspite of
treatment, he succumbed to the injuries at about 08.05 hours on the same day.
3. It is the further case of the claimants that the deceased was aged
https://www.mhc.tn.gov.in/judis/
CMA No. 322 of 2021
53 years at the time of accident. It is further stated that the deceased was the
Proprietor of Nala Caterers, Urapakkam and earning a sum of Rs.1,50,000/-
per month. Therefore, the claimants have filed the claim petition claiming a
sum of Rs.2 crores as compensation for the death of the deceased Selvarasu as
against the owner of the lorry/first respondent and it's insurer/second
respondent herein.
4. The claim petition was resisted by the second respondent-
Insurance Company by filing a counter statement. It was contended that the
accident did not occur in the manner as portrayed by the claimants. According
to the claimant, it was the deceased who had driven the two wheeler in a rash
and negligent manner and contributed to the accident. It is also stated that the
age, income and other particulars furnished in the claim petition are incorrect
and therefore, the second respondent-Insurance Company prayed for dismissal
of the claim petition.
5. Before the Tribunal, in order to prove the averments made in the
claim petition, the first claimant, wife of the deceased, examined herself as
PW1 and an eye witness to the accident was examined as PW2 besides
marking 33 documents as Ex.P1 to P33. On behalf of the respondents in the
https://www.mhc.tn.gov.in/judis/
CMA No. 322 of 2021
claim petition, neither any witness was examined nor any document was
marked.
6. The Tribunal, upon analysing the oral and documentary evidence,
concluded that the accident had occurred due to the rash and negligent driving
by the driver of the lorry bearing Registration No. TN 37 CQ 0966, owned by
the first respondent and insured with the second respondent. By coming to
such concusion, the Tribunal has calculated the compensation payable to the
claimants and awarded a total sum of Rs.60,81,600/- in their favour. The
break-up details of the compensation awarded by the Tribunal is tabulated
hereunder:-
Loss of future dependency Rs.60,01,600.00
Loss of love and affection (Rs.15000 X 3) Rs. 45,000.00
Loss of consortium (for first claimant) Rs. 20,000.00
Funeral expenses Rs. 15,000.00
-------------------
Total Rs.60,81,600.00
-------------------
7. Now, it is the submission of the counsel for the
appellants/claimants that before the Tribunal, it was claimed by the claimants
that the deceased was earning a sum of Rs.1,50,000/- per month through his
catering business. In order to prove the income, the claimants have also
produced various documentary evidence such as Pan Card, income tax
statement/returns, bank statement, agreements entered into with various
https://www.mhc.tn.gov.in/judis/
CMA No. 322 of 2021
customers etc., under Exs. P11 to P23. Among those documents, the copies of
Income Tax Returns for the period from 2015-2016, 2016-2017 and 2017-
2018 were marked under Ex.P12 to prove the income of the deceased.
According to the counsel for the appellants, the income tax returns filed under
Ex.P12 would show that the income of the deceased was increasing every year.
While so, the Tribunal ought to have taken the income tax return submitted by
the deceased just prior to his death namely the return for the year 2017-2018.
Instead of doing so, the Tribunal has taken the average income from the three
years and arrived at a sum of Rs.7,45,303/- as loss of income per year and
made calculation on that basis, which has resulted in awarding an inadequate
compensation under the head 'loss of dependency'. The learned counsel for the
appellants therefore prayed for enhancing the compensation amount by taking
the income of the deceased as Rs.10,25,385/- as reflected in the income tax
return for the year 2017-2018.
8. Per contra, the learned counsel appearing for the second
respondent- Insurance Company would contend that the Tribunal has awarded
a fair and reasonable amount as compensation and it does not call for any
interference of this Court. It is her further contention that even after the death
of the deceased, the first claimant is continuing the catering business, while so,
https://www.mhc.tn.gov.in/judis/
CMA No. 322 of 2021
there is no loss of income to the claimants. It is also submitted that in order to
prove that the first claimant is continuing the business, documents are
available with the second respondent-Insurance Company in the form of
audited report which would only show that the catering business run by the
deceased was not closed or discontinued after his death. Even though the
audited report has not been filed before the Tribunal, now the second
respondent has filed the said document before this Court to show that even
after the death of the deceased, the first appellant is continuing the catering
business. The learned counsel for the second respondent-Insurance Company
therefore would contend that the question of enhancing the compensation
amount at the instance of the appellants need not be considered by this Court.
She therefore prayed for dismissal of the appeal.
9. In reply to the submission of the learned counsel for the second
respondent, the learned counsel for the appellants would contend that the
second respondent-Insurance Company has not raised any plea with regard to
the continuance of the catering business carried on by the deceased by the
claimants. When there is no defence raised before the Tribunal with regard to
the status of the catering business run by the deceased, the respondent cannot
be permitted to raise such a defence in this appeal. Furthermore, the learned
https://www.mhc.tn.gov.in/judis/
CMA No. 322 of 2021
counsel for the appellant would contend that the first appellant/first claimant is
a Doctor by profession. When that be so, it is highly doubtful as to whether
the first claimant could carry on the catering business of the deceased by
abandoning her profession as a Doctor. Therefore, the learned counsel for the
appellants prayed this Court to reject such a defence raised by the second
respondent-Insurance Company.
10. Keeping the submission of the counsel for both sides, we have
carefully perused the materials placed on record.
11. As regards the plea of the second respondent-Insurance Company
with regard to the continuance of the catering business by the claimants even
after the death of the deceased, at the first blush, such a defence has not been
raised by the second respondent-Insurance Company before the Tribunal. The
Tribunal has no occasion to deal with such a defence raised before this Court
by the second respondent-Insurance Company. Even otherwise, it is not
known as to whether the first claimant, who is a Doctor by profession, is
temporarily continuing the business of the deceased to conclude the existing
contracts or she had abandoned her profession as a Doctor and taking up the
catering business. During the course of argument in this appeal, the learned
https://www.mhc.tn.gov.in/judis/
CMA No. 322 of 2021
counsel for the second respondent-Insurance Company contended that she has
documentary evidence in the form of audit report to substantiate such a
defence. In any event, when the defence as to the continuance of the catering
business by the claimants even after the death of the deceased has not been
taken before the Tribunal, it is futile on the part of the second respondent-
Insurance Company to raise such a defence in the present appeal filed by the
claimants seeking enhancement of th compensation amount awarded by the
Tribunal.
12. It is the case of the appellants-claimants that the deceased was
earning substantially through his catering business and to prove the same,
Income Tax Returns for the assessment years 2015-2016, 2016-2017 and
2017-2018 have been filed under Ex.P12. As per Ex.P12, the deceased had
disclosed his income for the aforesaid three assessment years as follows:-
Assessment year Gross Income Tax paid Net income
2015-2016 Rs.5,61,611.00 Rs.30,970.00 Rs.5,30,641.00
2016-2017 Rs.7,49,572.00 Rs.69,690.00 Rs.6,79,852.00
2017-2018 Rs.11,73,216.00 Rs.1,47,831.00 Rs.10,25,385.00
13. The Tribunal also considered the aforesaid documentary evidence
under Ex.P12. However, the Tribunal had taken the average of the net income
https://www.mhc.tn.gov.in/judis/
CMA No. 322 of 2021
by dividing it by 3 to arrive at a sum of Rs.7,45,303/- as the annual income of
the deceased. In our considered view, the net income of the deceased is
scaling up year after year. Therefore, there is no justification on the part of the
Tribunal to take an average of the deceased. Even otherwise, the income tax
return submitted by the deceased just prior to his death will be the determining
factor for the purpose of computing the loss of income. In the present case, the
income tax return filed for the year 2017-2018 will be the determining factor
for the purpose of awarding compensation to the claimants. Accordingly, we
fix the sum of Rs.10,25,385/- as the annual income of the deceased. Out of
this amount, 10% of the income is added towards future prospectus of the
deceased taking into account his age. If 10% is added, the annual income of
the deceased will be scaled up to (Rs.10,25,835 + Rs.1,02,538) Rs.11,27,323.
By deducting 1/3rd amount thereof, a sum of Rs.7,51,548.66 could be arrived.
By applying multiplier '11' the total amount payable to the claimants could be
(Rs.7,51,548.66 X 11) Rs.82,67,035/- which would be the fair and reasonable
amount payable to the claimants towards loss of dependency. Therefore, we
enhance the amount of Rs.60,01,600.00 awarded by the Tribunal towards loss
of dependency to Rs.82,67,035/-.
14. The Tribunal awarded a sum of Rs.45,000/- towards loss of love
https://www.mhc.tn.gov.in/judis/
CMA No. 322 of 2021
and affection to the claimants. Out of the claimants, the third claimant was a
minor at the time of the death of the deceased. In any event, the amount of
Rs.45,000/- awarded by the Tribunal is inadequate and therefore we scale it up
to Rs.40,000/- each to the claimants 2 and 3, being the children of the
deceased.
15. The Tribunal awarded a sum of Rs.20,000/- towards loss of
consortium to the first claimant/first appellant, which we find is inadequate.
We therefore, enhance the compensation awarded towards loss of consortium
from Rs.20,000/- to Rs.40,000/-.
16. The Tribunal has not awarded any amount towards loss of estate,
which we determine at Rs.15,000/- to be awarded in favour of the claimants.
Loss of Dependency Rs.82,67,035.00
Loss of love and affection to claimants 2 & 3 Rs. 80,000.00
Loss of consortium (for first claimant) Rs. 40,000.00
Loss of Estate Rs. 15,000.00
Funeral expenses Rs. 15,000.00
-------------------
Total Rs.84,17,035.00
-------------------
https://www.mhc.tn.gov.in/judis/
In the result, we allow this Civil Miscellaneous Appeal by
CMA No. 322 of 2021
modifying the compensation awarded by the Tribunal on 12.03.2020 in
MACT OP No. 4770 of 2018 by enhancing the compensation amount from
Rs.60,81,600.00 to Rs.84,17,035/-. The second respondent-Insurance
Company is directed to pay the enhanced compensation amount, which we
have determined in this appeal, to the credit of MACT OP No. 4770 of 2018
on the file of the Chief Judge, Court of Small Causes (Motor Accidents
Claims Tribunal), Chennai, within a period of six weeks from the date of
receipt of a copy of this Judgment with accrued interest. On such deposit, the
first claimant shall withdraw a sum of Rs.34,17,035/- and the second claimant
shall withdraw a sum of Rs.25,00,000/-. The sum of Rs.25 lakhs being the
share of the third claimant, who is a minor, shall be deposited in any one of the
Nationalised Banks, till she attains majority. The accrued interest thereof shall
be withdrawn by the first claimant once in three months.
(R.P.S.J) (S.K.J)
17.06.2021
rsh
Index : Yes / No
Internet : Yes / No
Speaking Order : Yes / No
To
1. The Chief Judge
Court of Small Causes
https://www.mhc.tn.gov.in/judis/
CMA No. 322 of 2021
(Motor Accidents Claims Tribunal )
Chennai
2. The Section Officer
VR Section
High Court, Madras
R. SUBBIAH, J
and
S. KANNAMMAL, J
rsh
CMA No. 322 of 2021
17-06-2021
https://www.mhc.tn.gov.in/judis/
