Madras High Court
The Manager vs Bindu on 7 January, 2022
C.M.A. No.1315 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2022
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. No.1315 of 2020 &
C.M.P.No.9513 of 2020
(Heard through VC)
The Manager,
M/s.Royal Sundaram General Insurance Company Limited,
Corporate Office, Visharanti Melaram Towers,
No.2/319, Rajeev Gandhi Salai (OMR),
Karapakkam, Chennai -600 097. ... Appellant
Vs.
1.Bindu, W/o.Late Sunilkumar
2.Minor Greeshma, D/o.Late Sunilkumar
3.Venkatalakshmaiah, S/o.Chinnabbaiah
4.Nagaveniyamma, W/o. Venkatalakshmaiah
(Minor represented by Next friend,
Mother Bindhu,
All are residing at
Door No.3/126, Ragavendra Nagar,
Bagalur, Hosur Taluk,
Krishnagiri District.
5.V.Balasundaram ... Respondents
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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.1072 of
2018, dated 30.08.2019, on the file of the Motor Accidents Claims Tribunal,
Additional District Judge, Krishnagiri.
For Appellant : Ms.C.Harini
For Respondents : Mr.Mukund R.Pandiyan 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,
Additional District Judge, Krishnagiri in M.C.O.P.No.1072 of 2018, dated
30.08.2019, the present appeal has been filed by the Insurance Company.
2. The facts in brief are that on 29.08.2017, the deceased Sunil Kumar
was driving Qualis car bearing No.KA-35-MB-1859 from Bangalore. Along with
him, two other persons also travelled. When the car was proceeding in
Kakanoor to Bagalur Road, near TLT Company, a Tipper lorry bearing
registration No.TN-70-Q-3632, which came from the opposite direction driven
by its driver in a rash and negligent manner, dashed against the car. In the
impact, the driver Sunil Kumar was thrown away from the car and sustained
fatal injuries, while the other passengers sustained some injuries.
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Immediately, they were taken to Chandrasekar Hospital, Hosur for treatment,
then, the deceased was referred to Sprash Hospital, Bangalore, however, on
examination, the duty doctor revealed that he is dead. The claimants are the
wife, children and parents of the deceased.
3.According to the claimants, at the time of accident, the deceased
Sunil Kumar was 34 years and they are depending upon the income of the
deceased. Alleging that the accident had taken place due to the rash and
negligent driving of the driver of the tipper lorry, the claimants laid a petition,
claiming compensation of Rs.1,00,00,000/-.
4. In the counter, the Insurance Company denied and disputed the
manner of accident, age, avocation and income of the deceased and its
liability to pay the compensation.
5. The claim petition was tried by the Tribunal and to substantiate the
case, on the side of the claimants P.W.1 to P.W.3 were examined and Ex.P1 to
Ex.P19 were marked. On the side of the Insurance Company, one Venkatesh
was examined as R.W.1 and no document was marked.
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6. The Tribunal, after considering the oral and documentary evidence
held that the driver of the tipper lorry was responsible for the accident and
awarded a compensation of Rs.53,90,224/- along with interest at 7.5% per
annum. Assailing the award, the Insurance Company has filed the present
appeal.
7. Ms.C.Harini, learned counsel for the appellant would contend that
the Tribunal erred in holding the lorry driver negligent and awarding
compensation, when the accident occurred only due to the rash and negligent
driving of the deceased himself. It is further contended that the Tribunal at
least ought to have fixed contributory negligence on the deceased, who caused
the accident by hitting against the lorry coming in the opposite direction. It is
further contended that there was no evidence to show that business was
closed and not continued subsequent to the death of the deceased. It is next
argued that the amount awarded by the Tribunal is excessive.
8. Per contra, the learned counsel for the respondents 1 to 3 / claimants
made his submissions supporting the award passed by the Tribunal and prayed
to dismiss the appeal.
9. Heard both sides and perused the materials available on record.
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10. It is the contention of the learned counsel for the appellant that the
deceased also contributed to the accident and therefore the entire liability
cannot be fastened upon the Insurance Company. Contributory negligence
must be proved like any other fact, it cannot be a matter of assumption and
presumption. There must be legal evidence to show that there is a
contributing factor on the part of the victim of the accident, which is also
responsible for the accident. In the absence of any evidence on the side of
the Insurance Company, the Court does not find any infirmity in the findings
rendered by the Tribunal that the accident had occurred due to the rash and
negligent driving of the driver of the tipper lorry. P.W.2 has spoken about the
accident in his evidence. Ex.P.1 First Information Report, Ex.P.17 rough sketch
were produced to corroborate the evidence of P.W.2. The evidence produced
by the claimants indicates that the criminal case was registered against the
driver of the tipper lorry and he was also prosecuted before the criminal
Court. On the basis of the evidence, the Tribunal came to the conclusion that
the accident occurred due to the negligence of the driver of the tipper lorry.
11. So far as quantum of compensation is concerned, we find that it is
the case of the claimants that the deceased was running a mobile-cum
stationary store, viz., Sri Vani Stores, and he was earning not less than
Rs.1,00,000/- per month. However, from the Income Tax Returns marked as
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Ex.P6, we find that he earned a sum of Rs.3,22,916/- during the year 2014-
2015, a sum of Rs.4,07,848/- during the year 2015-2016, a sum of
Rs.4,48,315/- during the year 2016-2017 and a sum of Rs.5,94327/- during the
year 2017-2018. By considering these documents, the Tribunal has fixed a sum
of Rs.4,43,351/- as annual income and after deducting 1/4th income of the
deceased for his family expenses, fixed a sum of Rs.3,32,514/- as the yearly
income of the deceased. Thereafter, the Tribunal by applying multiplier of '16'
has passed an award for a sum of Rs.53,20,224/- under the head of total loss of
dependency.
12. But, as contended by the learned counsel appearing for the
appellant/Insurance Company, there cannot be any loss for the claimants in
respect of the income earned from the business and there was no evidence to
show that subsequent to the death of the deceased, the business was closed.
Under such circumstances, we are of the opinion that the sum of Rs.3,32,514/-
fixed by the Tribunal as yearly income of the deceased appears to be on the
higher side. Further, at the same time, we are of the opinion that the
documents marked as Ex.P6, Income Tax Returns filed by the deceased, would
show that the deceased was making some considerable income. Hence, we are
of the opinion that it would be appropriate to fix the monthly income of the
deceased at Rs.22,000/- to arrive at a just and proper compensation. Since
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the age of the deceased at the time of the accident was below 40 years, 40%
of the income is to be added towards Future Prospects as per the decision of a
Larger Bench of the Hon'ble Supreme reported in 2017(2) TN MAC 609 (SC)
[National Insurance Co. Ltd., Vs. Pranay Sethi and others], if so added,
the total income comes to Rs.30,800/-, which sum could be taken as monthly
loss of income. Then, the annual loss of income works out to Rs.3,69,600/-
(30,800/- x 12). If 1/4th amount is deducted towards personal expenses, the
balance amount comes to Rs.2,77,200/- (3,69,600/- (-) 92,400/-), which shall
be taken as actual annual loss of income. Considering the age of the
deceased who was aged 34 years at the time of accident, the correct
multiplier that has to be applied in this case is 16. If multiplier 16 is applied,
the the total comes to Rs.44,35,200/- (2,77,200/- x 16), which shall be the
just and proper compensation under the head of loss of income.
13. Further, as per the decision of the Hon'ble Supreme Court in
National Insurance Co Ltd (cited supra), the 1st respondent/wife of the
deceased is entitled to Rs.40,000/- towards loss of consortium and the
respondents 2 to 4 each are entitled to a sum of Rs.40,000/- under the head of
"filial consortium". The amount awarded by the Tribunal under the other
heads, viz., Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss
of estate, are confirmed.
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14. For the foregoing reasons, the total compensation amount of
Rs.53,90,224/- awarded by the Tribunal is hereby modified and reduced to
Rs.46,25,200/-. The break up details of the modified compensation amount
are as follows:-
Loss of income = Rs.44,35,200/-
Loss of Consortium
to the first claimant = Rs. 40,000/-
Filial Consortium to the
claimants 2 to 4 = Rs. 1,20,000/-
Funeral Expenses = Rs. 15,000/-
Loss of Estate = Rs. 15,000/-
---------------------
Total Rs.46,25,200/-
----------------------
15. In fine, the appeal is partly allowed and the compensation amount
of Rs.53,90,224/- awarded by the Tribunal is hereby modified and reduced to
Rs.46,25,200/-. The Appellant/Insurance Company is directed to deposit the
entire modified compensation amount, after deducting the amount if any
already deposited, with interest at the rate of 7.5% from the date of claim
petition till the date of deposit. On such deposit being made, the 1st
respondent/wife is entitled to Rs.18,00,000/-, the 2nd respondent/daughter is
entitled to Rs.18,00,000/-, and the balance amount shall be equally
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apportioned by the parents of the deceased/respondents 3 & 4, with
respective proportionate interests. The respondents 1, 3 & 4 are entitled to
withdraw their respective shares by making necessary application before the
Tribunal. The share amount of the minor (2nd respondent/daughter) is
directed to be deposited in any one of the nationalized banks till she attains
majority and the 1st respondent, mother of the minor, is permitted to
withdraw the interest accrued thereon, once in three months. Connected
Miscellaneous Petition is closed. No costs.
[M.K.K.S, J] [V.S.G., J]
07.01.2022
Index : Yes / No
Speaking order: Yes/No
rns
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C.M.A. No.1315 of 2020
To
1. The Additional District Judge,
Motor Accidents Claims Tribunal,
Krishnagiri.
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. No.1315 of 2020
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
rns
C.M.A. No.1315 of 2020 &
C.M.P.No.9513 of 2020
07.01.2022
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