Madras High Court
The Manager vs Maheswari on 29 September, 2021
C.M.A. No.893 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.09.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. No.893 of 2021 &
C.M.P.No.5129 of 2021
(Heard through VC)
The Manager,
United India Insurance Company Ltd.,
No.A5/A6, Appasamy Towers,
Sir Theagaraya Road,
Pondy Bazaar, Chennai - 600 017. ... Appellant
Vs.
1.Maheswari
2.Yuvaraj
3.Lalitha
4.Deepa
5.Gopinath ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988 against the judgment and decree made in M.C.O.P.No.145 of
2017, on the file of the Motor Accidents Claim Tribunal-I (Special District
Court), Tiruvallur.
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For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.R.Kalai Arasan
For Mr.N.M.Muthurajan for R1 to R4
JUDGMENT
Judgment of the Court was delivered by V.SIVAGNANAM. J.
Questioning the award passed by the Motor Accident Claims Tribunal,
(Special District Court), Tiruvallur, in M.C.O.P.No.145 of 2017, dated
07.04.2018, the present appeal has been filed by the Insurance Company.
2. It is the case of the claimants/respondents 1 to 4, that on
15.07.2017, at about 07.15 p.m., when the deceased Krishnan was proceeding
on his bicycle towards west to east, crossing the Vandalur to Minjur bypass
road, the fifth respondent, who was riding the motorcycle bearing Registration
No.TN-03-S-5222, on the north to south direction, came in a rash and negligent
manner and hit the deceased bicycle. As a result, he sustained grievous head
injuries and died on the spot. Since the accident had occurred due to the
negligence of the rider of the motor cycle, the owner as well as the insurer are
liable to pay compensation.
3. Resisting the claim made by the claimants, the Insurance Company
filed a counter statement inter alia contending that the accident had not
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occurred in the manner as projected by the claimants. They also denied the
the age, occupation and income of the deceased.
4. In order to prove the claim before the Tribunal, on the side of the
claimants three witnesses were examined as P.W.1 to P.W.3 and 15 documents
were marked as Exs.P1 to P15. On the side of the Insurance Company, neither
any oral evidence was adduced nor document was marked.
5. On appreciation of evidence, the Tribunal came to the conclusion
that the rider of the motorcycle caused the accident and awarded a
compensation of Rs.35,57,000/- to the claimants. Challenging the said
findings of the Tribunal, the present appeal has been filed by the appellant-
Insurance Company.
6. It is the contention of Mr.D.Bhaskaran, learned counsel for the
appellant that second claimant is married son and the third and fourth
claimants are married daughters, therefore, the Tribunal ought to have
deducted 1/3rd of the amount towards personal and living expenses, however,
deducted 1/4th of the income towards personal and living expenses based on
number of claimants. It is further contended that the Tribunal having observed
that the deceased completed 58 years and remaining period of service is only
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C.M.A. No.893 of 2021
1 years 3 months, has erred in adopting '9' multiplier to arrive the pecuniary
loss, which warrants interference.
7. Per contra Mr.R.Kalai Arasan, learned counsel for the
respondents 1 to 4 made submissions supporting the award passed by the
Tribunal. It is contended that though the claimants 2 to 4 are married, they
are the children of the deceased and they are dependants and therefore, the
Tribunal, rightly deducted 1/4th income towards personal and living expenses.
It is further contended that the Tribunal erred in deducting 20% towards
income tax from the monthly income of the deceased and ought to have
deducted the amount towards income tax from the annual income arrived,
as per the income tax slab for the financial year 2017-18.
8. Heard the learned counsels appearing on either side and perused the
materials available on record.
9. This appeal has been filed only challenging the quantum, hence, the
other issues need not be dealt with herein.
10. It is the case of the claimants before the Tribunal that the deceased
was working as Mess Mason, in Indian Air Force, Avadi and was earning
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Rs.45,654/- per month. The Tribunal by deducting 20% towards income tax,
fixed the actual salary as Rs.36,524/-, and added 50% to the salary as future
prospectus and arrived at income at Rs.42,002/-. After deducting 1/4th, it is
held that he was contributing Rs.31,500/- to the family.
11. As rightly contended by the learned counsel appearing for the
Insurance Company, the claimants 2 to 4 are married and they are not the
dependants on the deceased. Though it is the contention of the learned
counsel for the claimants that the children are depending upon the income of
the deceased, no materials have been produced to substantiate the same. At
this juncture, it would be useful to refer the following judgments:-
(i) United India Injsurance Company Ltd. Vs. N.Rajeswari and Others
[CDJ 2021 MHC 2513]
8. The second respondent / second claimant is a married
daughter and therefore cannot be treated as a dependant of the
deceased. Hence, the Tribunal ought to have deducted 1/3rd
towards personal expenses of the deceased. No evidence has also
been placed by the respondents / claimants to prove that the
second respondent / second claimant is a dependant of the
deceased. Therefore, this Court is of the considered view that
the Tribunal ought to have adopted 1/3rd towards personal
expenses of the deceased instead of 1/4th under the impugned
award. Accordingly, this Court modifies the deduction to 1/3rd
instead of 1/4th made by the Tribunal.
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(ii) Saroja Vs. Branch Manager, United India Insurance Company [CDJ
2021 MHC 2650]
"43. Therefore, in all the above cases, the discussion made
would show that dependency is the criteria to award
compensation. Hence, mere status of legal representative alone
is not sufficient to make a claim. Thus, the basis for entitlement
for compensation is dependency. If a legal representative is not a
dependant of the deceased, he is not entitled for compensation
for loss of dependency. Whether the claimants are dependants or
not, has to be examined only based on the evidence adduced in
a particular case. So far as the present case is concerned, it is
the submission of the learned counsel appearing for the
respondents 1 and 2 that the respondents 1 and 2 were not only
residing with the deceased Vanitha and her family, but were also
dependants on her income. It is their further assertion that the
deceased took care of the day~to~day needs of the respondents 1
and 2 by living with them under one roof. In fact, the first
respondent entered into the box and deposed that deceaseed
Vanitha and her husband and child were residing with the
claimants. He has also stated that the deceased Vanitha was
spending her salary for them. The categorical statement of the
first respondent was not shattered during his cross~examination
and not even a single question was posed or suggestion was made
to PW1 denying his claim. The Insurance Company had not raised
any such plea before the Tribunal. Though the Insurance
Company had cross~examined the claimant twice, on both the
occasions, there was no useful suggestion or anything contra
elicited. It is settled law that, where a party fails to avail right
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of cross examination of witness, despite there being sufficient
opportunity and testimony of such witness, remains unrebutted
and unimpeached, then, in such circumstances, such testimony
has to be given due credence. Therefore, considering the
evidence, prima~facie, the respondents 1 and 2 proved their
dependency. Therefore, we do not find any infirmity in awarding
compensation to the claimants/respondents 1 and 2 herein based
on the theory of dependency, which is the paramount
consideration to be weighed while dealing with a claim petition,
claiming compensation before the Tribunal for death or bodily
injury in a motor accident."
(iii) C.M.A.No.538 of 2021, dated 26.03.2021
"11. ....... As regards the deduction towards the personal
and living expenses of the deceased by 1/3rd, it is pertinent to
note that the 1st respondent being husband, is a legal heir, but
he cannot be construed as a dependent on the deceased and as
such, amount awarded under the head -loss of dependency- is
liable to be reduced by fixing the personal and living expenses of
the deceased at ½."
As per the dictum laid down in the above judgments, mere status of legal
representative alone is not sufficient to make a claim. When the legal
representatives are not depending on the deceased, they are not entitled for
compensation for loss of dependency. Admittedly, in the case on hand, though
the claimants have taken a stand that the claimants 2 to 4 are depending upon
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the income of the deceased, to substantiate the same, no evidence has been
produced. Therefore, 1/3 of the income has to be deduced for personal and
living expenses.
12. The next point to be considered in this Appeal is with regard to
fixation of income arrived, after the superannuation period of the deceased.
As per Ex.P11 service particulars, his date of birth is given as 21.11.1958 and
the date of accident was 15.07.2017. Hence, there is no dispute that the
deceased Krishnan died at the age of 59 years and he was left with service of
one year and three months. Admittedly, there is no proof that the deceased
after his retirement will be earning some amount. When the deceased had
left service for a period of 1 year and three months and the claimants 2 to 4
are married, the Tribunal ought not to have taken the calculation of the
monthly income arrived for the entire period of 9 years. It is settled principle
that only 50% deduction towards personal and living expenses is sustainable
where claimants have their own source of income and were not dependant on
the deceased.
13. At the same time, as rightly contended by the learned counsel for
the claimants, the Tribunal has wrongly deducted 20% towards income tax from
the monthly income of the deceased, without making deductions as per the
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slab of the financial year. Hence, necessary modifications are required for
arriving pecuniary loss:-
As per Ex.P12-salary slip, the income of the deceased is fixed as
Rs.45,654/-. By adding 15% towards future prospects, the gross salary comes to
Rs.52,502/- and the Annual income of the deceased is arrived at Rs.6,30,000/-.
It is not in dispute that the accident had occurred on 15.07.2017. As per the
slab for the financial year 2017-18, a sum of Rs.38,500/- shall be deducted
from the income arrived and the total annual income is arrived at
Rs.5,91,500/- (Rs.6,30,000-Rs.38,500/-). As already observed, 1/3rd of
personal and living expenses shall be deducted from the total income, and
then it comes to Rs.3,94,333/-. (Rs.5,91,500/- (-) Rs.1,97,167/-). Considering
the age of the deceased, multiplier '9' shall be adopted, as per decision of the
Hon'ble Supreme Court in Sarala Verma and others vs. Delhi Transport
Corporation [2009 (6) SCC 121. Further, the deceased had service only one
year and three months and for the said period, the income arrived shall be
taken i.e., Rs.3,94,333 x 1 year and three months (15 months) and it comes
Rs.4,92,916/-. The remaining period i.e., 7 years and 9 months, 50% of the
income only taken to arrive a calculation i.e, Rs.1,97,166/- (Rs.50% on
Rs.3,94,333) and then it comes to Rs.15,28,036/- (Rs.1,97,166 x 7 year and 9
months) and the total pecuniary loss is arrived at Rs.20,20,952/- (Rs.4,92,916 +
Rs.15,28,036/-).
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14. In addition to that, this Court is inclined to modify the award of the
Tribunal under the conventional head, viz.,Rs.75,000/- awarded by the
Tribunal under the head of "loss of love and affection" by awarding Rs.25,000/-
to each of the claimants 2 to 4 is hereby set aside, instead a sum of
Rs.1,20,000/- is awarded to the claimants under the head of "Consortium" by
awarding Rs.40,000/- to each of the claimants 2 to 4. The amount awarded by
the Tribunal under the other heads are confirmed. Hence, the award amount
is reduced to Rs.22,20,952/- from Rs.35,57,000/-. In total, the claimants
are entitled to Rs.22,20,952/- along with interest at the rate of 7.5% per
annum from the date of claim petition till the date of realization.
15. Thus, the total compensation payable to the claimants is
re-calculated and tabulated below:-
S. Heads under which Amount awarded by Amount awarded by
No. amounts are awarded the Tribunal in Rs. this Court in Rs.
by the Tribunal
1. Loss of pecuniary Rs.34,02,000/- Rs. 20,20,952/-
benefits
2. Loss of consortium Rs. 40,000/- Rs. 40,000/-
3. Love and affection Rs. 75,000/- Rs.1,20,000/-
4. Loss of Estate Rs. 15,000/- Rs. 15,000/-
5. Funeral expenses Rs. 15,000/- Rs. 15,000/-
6. Transport expenses Rs. 10,000/- Rs. 10,000/-
Total Rs.35,57,000/- Rs.22,20,952/-
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16. In view of the above modifications, the Civil Miscellaneous Appeal is
partly allowed. The appellant/Insurance Company is directed to deposit the
above modified award amount with accrued interest and costs, less the
amount already deposited, if any, within a period of eight weeks from the date
of receipt of a copy of this order. On such deposit, the claimants 1 to 4 are
permitted to withdraw the award amount, less the amount already withdrawn,
if any, together with proportionate interest and costs, as per the ratio fixed by
the Tribunal. No costs. Consequently, connected Miscellaneous Petition is
closed.
[M.K.K.S, J] [V.S.G., J]
29.09.2021
Index : Yes / No
Speaking order: Yes/No
rns
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C.M.A. No.893 of 2021
To
1. The Special District Court,
Motor Accidents Claim Tribunal-I
Tiruvallur.
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. No.893 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
rns
C.M.A. No.893 of 2021 &
C.M.P.No.5129 of 2021
29.09.2021
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