Madras High Court
The Branch Manager vs Ananth ... 1St on 21 April, 2022
C.M.A.(MD)No.896 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A(MD)No.896 of 2021
and
C.M.P.(MD)No.8426 of 2021 and 924 of 2022
The Branch Manager,
New India Assurance Company Limited,
Kumbakonam, Having its Office at Velacherry,
Chennai-2. ... Appellant / Respondent No.2
-Vs-
1.Ananth ... 1st Respondent / Petitioner
2.Muthukrishnan ... 2nd Respondent / 1st Respondent
(R2 set exparte in Tribunal: Notice dispensed with)
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988, praying this Court to set aside the judgment and
decree passed in M.C.O.P.No.265/2017 dated 24.03.2021 on the file of
the Motor Accident Claims Tribunal, Additional District Court (Fast
Track Court), Kumbakonam.
1/14
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C.M.A.(MD)No.896 of 2021
For Appellant : Mr.J.S.Murali
For R1 : Mr.K.Manoharan
JUDGMENT
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
The Insurance Company is on appeal, challenging the award of
a sum of Rs.83,92,043/- (Rupees Eighty Three Lakhs Ninety Two
Thousand and Forty Three Only) as compensation for the injuries
suffered by the claimant.
2.According to the claimant, the accident occurred due to rash
and negligent driving of the driver of Toyota Innova Car owned by the
second respondent and insured with the appellant / Insurance Company.
According to the claimant, while he was riding in two wheeler along with
his wife and two children, near Samathuvapuram Colony in Villupuram,
a four wheeler, namely, Toyota Innova Car bearing Registration
No.TN 22 CZ 0740, driven by its driver in a rash and negligent manner
came from behind and hit the motorcycle. As a result of the impact, the
passengers in the motorcycle were thrown off and they sustained
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C.M.A.(MD)No.896 of 2021
grievous injuries. While the wife and children of the first respondent
were treated for the injuries, the first respondent was shifted to Bilroth
Hospital at Chennai. His right leg was amputated above knee.
3.Contending that the first respondent / claimant, who was
working as Technician in Automobile Service Centre in Chennai, was
forced to quit his job because of the disability suffered by him, the
claimant sought for compensation of Rs.2 Crores.
4.The Insurance Company resisted the claim, contending that
the accident did not occur in the manner suggested by the claimant. It
was alleged that the claimant was also responsible for the accident. It
was further case of the Insurance Company that the quantum of
compensation claimed was excessive and the claim is not commensurate
with the disability suffered by him.
5.Other Motor Accident Claim Petitions filed by the wife and
the minor children of the claimant / first respondent were clubbed
together and tried jointly.
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C.M.A.(MD)No.896 of 2021
6.At trial before the Tribunal, the first respondent / claimant
was examined as P.W.1 and his wife and one Ragunathan were examined
as P.W.2 and P.W.3. Ex.P.1 to Ex.P.33 were marked on the side of the
claimants. One Manoharan was examined on the side of the appellant /
Insurance Company and no documentary evidence was produced.
Ex.X.1 to X.5 were marked as Court documents through P.W.3.
7.The Medical Board issued disability certificate, certifying
that the injured claimant has suffered 85% of disability. The same was
marked as Ex.P.31. Ex.P.7 discharge summary discloses that the first
respondent's / claimant's right leg was amputated above the knee.
8.Considering the oral and documentary evidence, the Tribunal
concluded that the accident occurred due to rash and negligent driving of
the Toyota Innova Car insured with the appellant / Insurance Company.
On the quantum, the Tribunal took the monthly income of the injured
claimant at Rs.42,595/- based on Ex.X.5. It added 50% towards future
prospects and adopted multiplier of 17. Deducting 15%, since disability
was assessed only at 85%, the Tribunal found that total loss of
dependency would be Rs.79,42,711/-. The Tribunal deducted 30%
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C.M.A.(MD)No.896 of 2021
towards income tax and awarded following amounts under various
heads:-
1. Compensation towards loss of income Rs.79,42,711/-
for 85% permanent disability
2. Medical expenses as per Ex.P.9 Rs.3,48,082/-
3. Attender Charges Rs.21,250/-
4. Extra-nourishment charges Rs.20,000/-
5. Pain and suffering Rs.50,000/-
6. Transportation expenses Rs.10,000/-
Total Rs.83,92,043/-
9.Mr.J.S.Murali, learned counsel appearing for the appellant /
Insurance Company would vehemently contend that the Tribunal erred in
fixing total negligence on the driver of the car. He would also point out
that the Tribunal has erred in fixing the monthly income at
Rs.42,595/- based on Ex.X.5, which is montly income drawn by the
injured claimant, after the accident in July, 2018. He would further point
out that the Tribunal should have taken only a sum of Rs.40,537/-, which
was drawn by the injured claimant at the date of his death. He would
point out the Tribunal erred in not deducting amounts paid towards
medical reimbursement, conveyance allowance, telephone allowance,
night shift allowance, heat allowance, washing allowance, which
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C.M.A.(MD)No.896 of 2021
amounted to Rs.4,326/-. He would also rely upon National Insurance
Company Limited Vs. Indira Shrivastsava reported in 2014 ACJ 614 in
support of his contention. He would also contend that the Tribunal erred
in adopting future prospects as the same, according to him, can only be
added in fatal cases.
10.Contending contra, the learned counsel appearing for the
first respondent / claimant would submit that the deduction of 30% of
total loss of dependency towards income tax is not correct. He would
submit that the Tribunal ought to have deducted income tax payable for
the income and thereafter, adopted the multiplier. He would also point
out that the compensation paid under other heads is very low. He would
add that the future prospects would be applicable to the case of injury,
where there is a loss of income due to the injury.
11.We have heard Mr.J.S.Murali learned counsel for the
appellant / Insurance Company, Mr.K.Manoharan, learned counsel for the
first respondent and considered their rival submissions.
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C.M.A.(MD)No.896 of 2021
12.We are unable to accept the contention of the learned
counsel for the appellant / Insurance Company, regarding adoption of
multiplier method by the Tribunal. No doubt, the claimant has continued
in service for about a year after the accident, however, he has chosen to
resign in July, 2017. Admittedly, the claimant was a Technician, working
in Automobile Service Centre. The nature of job would require extensive
walking. Therefore, amputation of one leg above knee would definitely
have an impact on his regular work. Mere the fact that he worked for
sometime after the accident cannot be a ground to reject the claim of the
injured that he is not able to discharge the work to the satisfaction of his
employer.
13.As regards the second contention of the learned counsel for
the appellant that the Tribunal ought to have taken income at Rs.40,537/-
namely, salary drawn at the time of accident, we are in entire agreement
with him. The Tribunal has taken salary drawn at the time, when the
claimant tendered his voluntary resignation in July, 2018, that is almost
an year after the accident. For fixing loss of dependency salary drawn at
the time of accident would be a proper foundation.
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C.M.A.(MD)No.896 of 2021
14.We also find some force in the contention of the learned
counsel for the appellant that the Tribunal ought to have deducted a sum
of Rs.4,326/-, which is the total of various allowances payable and his
contention in that regard is amply supported by the dictum of the Hon'ble
Supreme Court of India, in the case of National Insurance Company
Limited Vs. Indira Shrivastsava referred to supra.
15.The calculation made by the Tribunal for deduction of
income tax also appears to be very weird. Income tax is payable on the
yearly income and not on the total loss of dependency. The Tribunal
ought to have deducted income tax payable on the yearly income arrived
by it and thereafter, applied multiplier. Hence, the award of the Tribunal
needs to be re-worked.
16.The deduction adopted at 30% for income tax is also not
justified, because the annual income would only come to Rs.6,51,804/-.
Income tax payable on this income alone ought to have been deducted.
Therefore, the award of the Tribunal needs to be re-worked and it is
re-worked as follows:-
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C.M.A.(MD)No.896 of 2021
“The monthly income of the injured is taken at
Rs.40,537/- and after deducting a sum of Rs.4,326/- paid as
allowances, the monthly income would be Rs.36,211/-. If we
add 50% towards future prospects, total amount of monthly
income would be Rs.54,317/-.”
17.At this juncture, we would like to advert to the contention
regarding the future prospects. Of course, adopting of particular
percentage towards future prospects was evolved by the Hon'ble
Supreme Court of India in the case of National Insurance Company
Limited Vs. Pranay Sethi and others reported in 2017 (2) TNMAC 609,
which is the case of fatal accident. However, mere the fact that the
Hon'ble Supreme Court has fixed percentage of the future prospects in a
fatal accident case cannot be a ground to deny grant of future prospects
in all injury cases.
18.Concept of future prospect is to compensate the family of
the victim for the loss suffered by it. Even in case of injury, which
results in loss of earning power of the injured claimant, future prospects
must be added in order to arrive at a just compensation, because to the
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C.M.A.(MD)No.896 of 2021
extent of incapacity, the injured losses earning power. We are, therefore,
unable to accept the contention of the learned counsel for the appellant
that future prospects could be applied or could be granted only in case of
a fatal accident. We are of the opinion that it is to be applied in cases,
where the injury results in significant loss of earning power. If in a case,
where there is 100% loss of earning power, the Tribunal or the Court
refuses to apply future prospects, it would only result injustice to the
claimants.
19.Taking note of the same, we have arrived monthly income
of the deceased at Rs.54,317/- and yearly income of the injured would be
Rs.6,51,804/- In this amount, we have to deduct income tax. As per the
rate prevalent for the financial year 2017-2018, for first Rs.2,50,000/-,
there is total exemption. For income between Rs.2,50,000/- to
Rs.5,00,000/-, 5% will be the tax and for income between Rs.5,00,000/-
to Rs.10,00,000/-, 20% will be tax.
20.In the case on hand, for the income between Rs.2,50,000/-
to Rs.5,00,000/- a sum of Rs.12,500/- would be the tax and for the next
sum of Rs.1,50,000/-, tax payable would be Rs.30,000/- and therefore,
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C.M.A.(MD)No.896 of 2021
total can be towards income tax at Rs.42,500/-. Therefore, yearly loss of
dependency for the injured would be Rs.6,09,304/- and the multiplier
applicable is 17. The total loss of income would be Rs.88,04,442/-. The
compensation awarded under other heads is reasonable. We do not find
any ground to interfere with the same. Therefore, the compensation
awarded under other heads are confirmed and total compensation payable
to the injured claimant would be Rs.92,53,774/-.
21.The compensation arrived at by us is over and above the
compensation awarded by the Tribunal. Though the insurance Company
is on appeal, it is open to us to enhance the compensation subject to
payment of Court fee. Therefore, while dismissing the appeal of the
Insurance Company, we enhance the award of the Tribunal to
Rs.92,53,774/-. No doubt, the Hon'ble Supreme Court has held in the
appeal filed by the Insurance Company, we cannot enhance the
compensation. However, in the case on hand, we are not factually
enhancing the compensation. We have only set right the error committed
by the Tribunal in calculating the compensation. Therefore, while
dismissing the appeal, we fix the compensation payable in the Claim
Petition is at Rs.92,53,774/-. The Insurance Company has deposited 50%
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C.M.A.(MD)No.896 of 2021
compensation as awarded by the Tribunal. The appellant / Insurance
Company is required to deposit balance amount, within a period of eight
(8) weeks from today (21.04.2022).
22.It is seen from the claim petition that the claimant has paid a
sum of Rs.372.50/- as Court fee and they have undertaken to pay
remaining Court fee after the award. The Tribunal will calculate the
Court fee payable by the claimant for a sum of Rs.92,53,774/-, deduct the
same from the compensation payable to the claimant and pay out the
balance to the claimant. The claimant would be entitled to interest at the
rate of 7.5% on the compensation as granted by the Tribunal.
23.Hence, this Civil Miscellaneous Appeal is dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
[R.S.M.,J.] & [N.S.K.,J.]
21.04.2022
Index:Yes/No
Internet:Yes/No
Myr
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C.M.A.(MD)No.896 of 2021
To
1.The Motor Accident Claims Tribunal,
Additional District Court (Fast Track Court),
Kumbakonam.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.896 of 2021
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
Myr
JUDGMENT MADE IN
C.M.A.(MD)No.896 of 2021
21.04.2022
https://www.mhc.tn.gov.in/judis
