Madras High Court
The Branch Manager vs Geetha on 12 August, 2022
C.M.A.No.2484 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.2484 of 2016
and
C.M.P.No.17602 of 2016
The Branch Manager,
United India Insurance Co. Ltd.,
No.280, Ooty Main Road,
Mettupalayam – 641 301. .. Appellant
Vs.
1.Geetha
2.Velu Asari
3.Ramanjaneya .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
04.08.2015, made in M.C.O.P.No.578 of 2012, on the file of the Motor
Accident Claims Tribunal, Principal District Court, Krishnagiri.
For Appellant : Ms.I.Malar
For RR 1 & 2 : Mr.K.Prasanna
for Mr.Mukund R.Pandiyan
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C.M.A.No.2484 of 2016
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.)
This Civil Miscellaneous Appeal has been filed by the appellant /
Insurance Company against the judgment and decree dated 04.08.2015,
made in M.C.O.P.No.578 of 2012, on the file of the Motor Accident
Claims Tribunal, Principal District Court, Krishnagiri.
2.The appellant is the 2nd respondent in M.C.O.P.No.578 of 2012,
on the file of the Motor Accident Claims Tribunal, Principal District
Court, Krishnagiri. The respondents 1 & 2/claimants filed the said claim
petition, claiming a sum of Rs.5,00,00,000/- as compensation for the
death of their son Rajesh Velu, who died in the accident that took place
on 13.03.2012.
3.According to the respondents 1 & 2, on 13.03.2012, the deceased
Rajesh Velu was travelling in the Ford car bearing Registration No.TN 01
AP 6429 along with his wife and daughter from Chennai to Bangalore. At
about 11.30 P.M., while he was travelling on the Krishnagiri – Bangalore
Highway near Shoolagiri, the driver of the tipper lorry bearing
Registration No.TN 40 C 919, who was driving the lorry from the
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C.M.A.No.2484 of 2016
opposite direction towards Krishnagiri, drove the same in a rash and
negligent manner at high speed, dashed the centre divider barricade and
after broking it, came to the opposite lane, in which the deceased Rajesh
Velu was coming, landed on the top of the car crushing all the five
occupants of the car and dragged the car to the left side of the road, hit
another lorry which was going on the left side of the car and caused the
accident. In the said accident, all the occupants of the car died. Hence,
the respondents 1 & 2, filed the said claim petition claiming a sum of
Rs.5,00,00,000/- as compensation against the 3rd respondent and
appellant, being the owner and insurer of the lorry respectively.
4.The 3rd respondent-owner of the lorry remained exparte before
the Tribunal.
5.The appellant-Insurance Company, being the insurer of the lorry
filed counter statement and denied all the averments made by the
respondents 1 & 2 in the claim petition. The appellant denied the manner
of accident as alleged by the respondents 1 & 2. The appellant denied the
age, avocation and income of the deceased. The driver of the lorry
belonging to 3rd respondent was not possessing valid driving license to
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C.M.A.No.2484 of 2016
drive the lorry at the time of accident. The respondents 1 & 2 have to
prove their legal heirship by producing documentary evidence. The
respondents 1 & 2 are not entitled to claim entire loss of dependency as
the wife and daughter of the deceased were alive till the time of accident.
The incentives cannot be taken into consideration as salary and
respondents 1 & 2 have not calculated the payment of income tax and
professional tax. In any event, the quantum of compensation claimed by
the respondents 1 & 2 are highly excessive and prayed for dismissal of
the claim petition as against the appellant.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1
and 4 other witnesses were examined as P.W.2 to P.W.5 and 30
documents were marked as Exs.P1 to P30. The appellant did not mark
any oral and documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by the driver of the lorry belonging to 3rd respondent and directed
the appellant-Insurance Company to pay a sum of Rs.1,49,85,000/- as
compensation to the respondents 1 & 2.
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C.M.A.No.2484 of 2016
8.Questioning the quantum of compensation awarded by the
Tribunal in the award dated 04.08.2015, made in M.C.O.P.No.578 of
2012, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance
Company contended that the Tribunal failed to properly consider Ex.P30
series to fix the monthly income of the deceased. The salary mentioned in
Ex.P30 includes allowances given to the deceased. The Tribunal failed to
consider that allowances will vary every month and the deceased will not
be getting the same amount every month. The Tribunal ought to have
fixed the average income of the deceased only at Rs.99,000/- per month.
In Ex.P29 / Form-16 of the deceased, the annual income was shown only
as Rs.15,47,055/-. P.W.5, the representative of the employer deposed that
incentives, bonus and allowances will vary every month and deceased
will not get any fixed allowances. 50% enhancement towards future
prospects granted by the Tribunal is unsustainable. The total
compensation granted by the Tribunal is excessive and prayed for setting
aside the award passed by the Tribunal.
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C.M.A.No.2484 of 2016
10.The learned counsel appearing for the respondents 1 & 2
submitted that apart from salary, the deceased was regularly paid
incentives and bonus for the business growth of the company. Ex.P30
series clearly reveal that deceased was earning more than Rs.2,00,000/-
per month on average. The Tribunal erroneously fixed meagre amount of
Rs.1,50,000/- as monthly income of the deceased. The deceased was aged
29 years at the time of accident and the Tribunal erroneously applied
multiplier '11' instead of '17'. The deceased was married and the Tribunal
ought to have deducted 1/3rd towards personal expenses instead of
deducting 50% and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the learned counsel appearing for the respondents 1
& 2 / claimants and perused the entire materials on record.
12.From the materials on record it is seen that it is the case of the
respondents 1 & 2 that the deceased was working as Regional Sales
Manager at Texas Instruments, a Multinational Company at Chennai and
was earning a sum of Rs.3,44,758/- per month. To substantiate the said
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C.M.A.No.2484 of 2016
contention, the 1st respondent examined herself as P.W.1, one Udhayam
Shankar, representative of the Company where the deceased was working
was examined as P.W.5. The respondents 1 & 2 filed three documents
including Exs.P29 & P30 series to prove the avocation and income of the
deceased. From Ex.P30 series, it is seen that the income received by the
deceased varied considerably. For the months of August 2011,
November 2011 and February 2012, the deceased was receiving sales
bonus, retention allowance and cash profit sharing. These sales bonus,
retention allowance and cash profit sharing vary and it is not a fixed
amount. It has been paid only for few months and not for every month.
From Ex.P30, it is seen that the average income of the deceased is not
exceeding Rs.1,00,000/- per month. It is the case of the appellant that the
Tribunal ought to have fixed monthly income of the deceased at
Rs.99,000/-, but erroneously fixed at Rs.1,50,000/- per month. From the
award of the Tribunal, it is seen that there is no reason given by the
Tribunal for fixing a sum of Rs.1,50,000/- per month as notional income
of the deceased. In view of Ex.P30 series, the contention of the learned
counsel appearing for the respondents 1 & 2 that the Tribunal ought to
have fixed a sum of Rs.3,00,000/- as monthly income of the deceased is
without merits. In Form-16 which was marked as Ex.P29, the annual
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C.M.A.No.2484 of 2016
income of the deceased was shown as Rs.15,47,055/-, which includes
sales bonus and other allowances. The Tribunal ought to have deducted
this amount while fixing the monthly income of the deceased.
12(i)The deceased was aged 29 years at the time of accident. The
Tribunal granted 50% enhancement towards future prospects. The
deceased was in a permanent job and hence, 50% enhancement granted
by the Tribunal towards future prospects is not erroneous. The claim of
the respondents 1 & 2 that the Tribunal ought to have deducted only 1/3 rd
towards personal expenses instead of deducting 50% is not acceptable as
the respondents 1 & 2 are the parents of the deceased and the Tribunal
has rightly deducted 50% towards personal expenses. The Tribunal
applied multiplier 11, taking into consideration the age of the 1st
respondent, mother of the deceased and awarded a sum of
Rs.1,49,00,000/- towards loss of dependency. As per the judgment of the
Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC), [National
Insurance Company Limited Vs. Pranay Sethi and others], the age of
the deceased is the basis for applying multiplier. The Tribunal ought to
have applied multiplier '17' as per the judgment of the Hon'ble Apex
Court reported in 2009 (2) TNMAC 1 SC Supreme Court, [Sarla Verma
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C.M.A.No.2484 of 2016
& others Vs. Delhi Transport Corporation & another], taking into
consideration the age of the deceased. If the monthly income of the
deceased is fixed at Rs.99,000/- as claimed by the appellant and the
correct multiplier '17' is applied, the compensation for loss of
dependency comes to Rs.1,51,47,000/-, but the Tribunal has granted only
a sum of Rs.1,49,00,000/- towards loss of dependency. In view of the
above, the monthly income of the deceased fixed by the Tribunal is not
interfered with. Hence, the total compensation awarded by the Tribunal is
just compensation and it does not warrant any interference by this Court.
13.In the result, this Civil Miscellaneous Appeal is dismissed and a
sum of Rs.1,49,85,000/- awarded by the Tribunal as compensation to the
respondents 1 & 2, along with interest and costs is confirmed. The
appellant-Insurance Company is directed to deposit the award amount
along with 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, to the credit of M.C.O.P.No.578 of 2012, on the file of the
Motor Accident Claims Tribunal, Principal District Court, Krishnagiri.
On such deposit, the respondents 1 & 2 are permitted to withdraw their
respective share of the award amount as per the ratio of apportionment
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C.M.A.No.2484 of 2016
fixed by the Tribunal, along with proportionate interest and costs, less the
amount if any, already withdrawn by making necessary applications
before the Tribunal. Consequently the connected Miscellaneous Petition
is closed. No costs.
(V.M.V., J) (S.S., J)
12.08.2022
(½)
krk
Index : Yes / No
Internet : Yes / No
To
1.The Principal District Judge,
Motor Accidents Claims Tribunal,
Krishnagiri.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.2484 of 2016
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
krk
C.M.A.No.2484 of 2016
12.08.2022
(½)
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