Madras High Court
The New India Assurance Co. Ltd vs P.Bhavani on 6 April, 2022
C.M.A. Nos.786 and 643 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.04.2022
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. Nos.786 and 643 of 2021
and
CMP.Nos.4676 and 10293 of 2021
In C.M.A. No.786 of 2021
The New India Assurance Co. Ltd.,
Third Party Cell, No.45, Moore Street,
Chennai 600 001. ...appellant
vs.
1. P.Bhavani
2. Minor G.Hitesha
3. Minor G.Charikha
4. K.Lalithammal
[Minor respondents 2 and 3 are rep. by their mother
and natural guardian P.Bhavani]
5. S.Mahesh ...respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicle Act, against the judgment and decree passed in
MCOP.No.298 of 2019 on 15.11.2019 on the file of the Motor Accident
Claims Tribunal (III Additional District Judge) Poonamalle
For Appellant : Mr.J.Chandran
For Respondents
for R1 to R4 : Mr.K.Varadha Kamaraj
for R5 : Notice not ready
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C.M.A. Nos.786 and 643 of 2021
In C.M.A. No.643 of 2021
1. P.Bhavani
2. Minor G.Hitesha
3. Minor G.Charikha
4. K.Lalithammal
[Minor respondents 2 and 3 were rep. by their mother
and natural guardian P.Bhavani] ...appellant
vs.
1. S.Mahesh
2. The New India Assurance Co. Ltd.,
Third Party Cell, No.45, Moore Street,
Chennai 600 001. ...respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicle Act, against the judgment and decree dated 15.11.2019 made
in MCOP.No.298 of 2019 on the file of the learned Motor Accident Claims
Tribunal (III Additional District Judge), Tiruvallur, Poonamalle.
For Appellant : Mr.K.Varadha Kamaraj
For Respondents
for R1 : Notice not ready
for R2 : Mr.J.Chandran
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C.M.A. Nos.786 and 643 of 2021
COMMON JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J]
Being dissatisfied with the quantum of compensation awarded by the
Motor Accident Claims Tribunal/ III Additional District Judge, Tiruvallur,
Poonamalle in MCOP.No.298 of 2019, dated 15.11.2019, C.M.A.No.643 of
2021 has been filed by the claimants. Challenging the very same order,
C.M.A.No.786 of 2021 has been filed by the Insurance Company.
2. The facts of the case in nutshell, are:-
i) On 18.07.2018 at about 21.45 hours, the deceased Giri was riding a
Motor-cycle bearing Registration No.TN-13-C-3157 from North to South
Direction on Ayapakkam Road at Ambattur. When he was coming opposite
to "My Choice Western Wear Readymade Shop", a Tipper Lorry bearing
Registration No.TN-12-L-4848 was driven by its driver in the same
direction in a rash and negligent manner and hit the motor-cycle. Due to the
impact, the deceased sustained multiple injuries all over the body.
Immediately, he was admitted at ESS VEE Hospital and for better treatment
he was shifted to Apollo Hospital, Ayapakkam. In spite of the same, he died
in the Hospital on 19.07.2018.
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ii) According to the claimants, the deceased was working as a Deputy
General Manager in Networking and System at Nine Stars Information
Technologies Private Limited and earning Rs.1,40,000/- per month. He is
the sole breadwinner of the family and due to his sudden demise, they are
suffering for their livelihood. Hence, they made a claim for a sum of
Rs.5,00,00,000/-.
3. The Insurance Company resisted the claim petition, disputing the
manner of accident, age, occupation and income of the deceased and their
liability to pay the compensation.
4. To substantiate the case, on the side of the claimants, PW1 to PW3
were examined and Exs.P1 to P27 were marked. On the side of the
Insurance Company, RW1 to RW3 were examined and Exs.R1 to R3 were
marked.
5. The Tribunal, after considering the oral and documentary evidence,
held that the accident had occurred due to the rash and negligent driving of
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the driver of the Tipper Lorry and directed the Insurance Company to pay a
compensation of Rs.1,55,61,926/-. Challenging the same, these appeals
have been filed.
6. The learned counsel for the Insurance Company Mr.J.Chandran
submitted that while the Tipper Lorry was driven by its driver in a normal
speed, it is only the deceased who drove the motor-cycle in the opposite
direction in a rash and negligent manner and dashed against the Lorry.
Hence, the entire negligence has to be fixed on the deceased. He further
added that the Tribunal, while fixing the monthly income of the deceased,
failed to deduct the allowances paid to him by his employer.
7. Per contra, the learned counsel appearing for the claimants
Mr.K.Varadha Kamaraj argued that both the vehicles are moving in the
same direction and the driver of the Tipper Lorry drove the vehicle in a rash
and negligent manner and hit the deceased from behind. He further argued
that FIR Ex.P1 itself was registered against the driver of the Lorry. Hence,
the Tribunal has rightly held that the accident had occurred due to the
negligent driving of the driver of the Lorry. He further submitted that the
Tribunal based on Ex.P23 Pay slip, fixed the monthly income of the
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deceased and awarded a reasonable compensation, which needs no
interference by this Court.
8. Heard the rival submissions made on either side and perused the
materials available on record.
9. Insofar as negligence is concerned, Ex.P14/Rough Sketch clearly
shows that both the vehicles are moving in the same direction and
Ex.P1/FIR and Ex.P17/Final Report shows that the accident had occurred
due the negligent driving of the driver of the Tipper Lorry. That apart, the
eye witness corroborated the documentary evidence. Hence, this Court is of
the view that the Tribunal had rightly fixed the liability & negligence on the
part of the driver of the Tipper Lorry.
10. With regard to quantum, the learned counsel for the claimants
produced Ex.P23/Pay Slip of the deceased, which shows that the deceased
was receiving Gross salary of Rs.1,36,931/- as his monthly income, out of
which, the deceased was paid Rs.25,377/- towards conveyance, Driver
salary and fuel for the Car. If the same is deducted, the actual monthly
income of the deceased would be Rs.1,11,554/-. Considering the avocation
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C.M.A. Nos.786 and 643 of 2021
and age of the deceased, 25% is added towards future prospects and if so
added, the amount would be Rs.1,39,442/- [1,11,554 + 27,888]. Then, the
annual income would be Rs.16,73,304/- [1,39,442 x 12]. Since the annual
income of the deceased is taxable, income tax has to be deducted. The Tax
slab, at the time of the accident, i.e., for the year assessment year 2018-19,
is as under:
Income Percentage of tax Amount of Tax
Upto 2,50,000 - Nil - 0
2,50,000 – 5,00,000 - 5% - 12,500
5,00,000 – 10,00,000 - 20% - 1,00,000
10,00,000 – 16,73,304 - 30% - 2,01,991
_______
__
Total 3,14,491
Income Tax Cess 4% 12,560
_______
__
Total Tax payable 3,27,051
Thus, the annual income of the deceased after deduction of tax is arrived at
Rs.13,46,253/- [16,73,304 - 3,27,051]. If 1/4 is deducted towards personal
expenses of the deceased, then the amount works out to Rs.10,09,690/-
[13,46,253 - 3,36,563]. Considering the age of the deceased, multiplier 14 is
applied, the Loss of Dependency comes to Rs.1,41,35,660/-.
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C.M.A. Nos.786 and 643 of 2021
11. Further, the Tribunal awarded Rs.2,50,000/- towards Loss of Love
and Affection. However, as per the Magma General Insurance Co. Ltd.,
vs. Nanu Ram and others reported in 2018(1) TN MAC 452 (SC),
claimants 2 and 3 are entitled to Rs.40,000/- each towards Parental
Consortium; and fourth claimant is entitled to Rs.40,000/- towards Filial
Consortium. Hence, the amount awarded towards Love and Affection is set
aside. In addition to that the amounts awarded by the Tribunal viz.,
Rs.40,000/- towards Loss of Consortium; Rs.15,000/- towards Loss of
Estate; and Rs.15,000/- towards Funeral Expenses, are confirmed. In total,
the claimant is entitled to Rs.1,43,25,660/-, which is rounded off to
Rs.1,43,25,000/- along with interest at the rate of 7.5% per annum from the
date of claim petition till the date of realization. Thus, the total
compensation payable to the claimants is re-calculated and tabulated below:
S. Heads under which the Amount awarded Amount awarded by
No. amount is awarded by by the Tribunal in this Court in Rs.
the Tribunal Rs.
1. Loss of Dependency 1,52,41,926 1,41,35,660
2. Loss of Love and 2,50,000 -
Affection
3. Loss of Estate 15,000 15,000
4. Funeral Expenses 15,000 15,000
5. Loss of Consortium 40,000 40,000
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S. Heads under which the Amount awarded Amount awarded by
No. amount is awarded by by the Tribunal in this Court in Rs.
the Tribunal Rs.
6. Loss of Parental - 80,000
Consortium
7. Loss of Filial Consortium - 40,000
Total 1,55,61,926 1,43,25,660
(rounded off to
Rs.1,43,25,000/-)
12. In fine, the sum of Rs.1,55,61,926/- awarded by the Tribunal is
reduced to Rs.1,43,25,000/-. Out of the award amount, the first claimant is
entitled for a sum of Rs.76,25,000/-; the claimants 2 and 3 are entitled to
Rs.30,00,000/- each; and the fourth claimant is entitled to Rs.7,00,000/-.
The Insurance Company is directed to deposit the above modified award
amount to the credit of the claim petition with accrued interest and costs,
less the amount already deposited, if any, within a period of six weeks from
the date of receipt of a copy of this judgment. On such deposit, the major
claimants 1 and 4 are permitted to withdraw their shares as apportioned
above, less the amount already withdrawn, if any, together with
proportionate interest and costs. Insofar as the minor claimants 2 and 3 are
concerned, their shares shall be deposited by the Tribunal in any Fixed
Deposit Scheme in any one of the Nationalised Banks and it shall be
renewed periodically till they attain majority and the interest accrued
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C.M.A. Nos.786 and 643 of 2021
thereon shall be withdrawn by the first claimant/mother once in three
months. No costs. Consequently, connected Miscellaneous Petition is
closed.
13. With the above directions, the appeal filed by the claimant is
dismissed and the appeal filed by the Insurance Company is partly allowed.
No costs. Consequently, connected miscellaneous petitions are closed.
[M.K.K.S, J] [V.S.G., J]
06.04.2022
Index : Yes / No
Speaking order: Yes/No
jer/pvs
To
1. The III Additional District Judge,
Tiruvallur
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. Nos.786 and 643 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
pvs
C.M.A. Nos.786 and 643 of 2021
06.04.2022
https://www.mhc.tn.gov.in/judis
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