Madras High Court
The Divisional Manager vs Anuradha on 20 June, 2022
C.M.A.No.3145 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.3145 of 2021
and C.M.P.No.17783 of 2021
The Divisional Manager
United India Insurance Co. Ltd.
Divisional Office
Rajarshi Shahu Sadan Road
Shahupuri, Kolhapur – 416 001
Maharashtra State. ... Appellant
Vs.
1.Anuradha
2.Minor Sai Dhanush
3.Minor Sai Manasvi
(Minors/respondents 2 and 3 rep. by
their next friend mother Anuradha)
4.Shivaji Ganpat Sarnaik ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 06.09.2019 made
1/12
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C.M.A.No.3145 of 2021
in M.C.O.P.No.866 of 2018 on the file of Motor Accident Claims Tribunal,
Additional District Court, Krishnagiri.
For Appellant : Mr.J.Chandran
For R1 to R3 : Mr.SP.Yuaraj
For R4 : No appearance
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
06.09.2019 made in M.C.O.P.No.866 of 2018 on the file of Motor Accident
Claims Tribunal, Additional District Court, Krishnagiri.
2.The appellant/Insurance Company is the 2nd respondent in
M.C.O.P.No.866 of 2018 on the file of Motor Accident Claims Tribunal,
Additional District Court, Krishnagiri. The respondents 1 to 3 filed the said
claim petition claiming a sum of Rs.2 Crores as compensation for the death of
one Prashanth, who died in the accident that took place on 20.08.2017.
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C.M.A.No.3145 of 2021
3.According to the respondents 1 to 3, on the date of accident i.e., on
20.08.2017 at about 8.00 a.m., while the deceased Prashanth along with his
wife and children were proceeding in Maruthi Suzuki Swift Car bearing
Registration No.KA-01-ME-0759, which was driven by one Nageshbabu,
from Bangalore to Melmalaiyanur Angalamman temple in Villupuram
District, for worship and when the Maruthi car was near Anjaneyar temple in
Aanandhavalli village on Bangalore to Tiruvannamalai N.H. road, the driver
of Tavera Car bearing Registration No.MH-09-DX-5523 belonging to the 4th
respondent, who was coming in the opposite direction from Tiruvannamalai
to Uthangarai, drove the same in a rash and negligent manner, hit against the
said Maruthi Car and caused the accident. In the accident, the said Prashanth
died on the spot and other occupants of the car sustained grievous injuries.
Therefore, the respondents 1 to 3 have filed the above claim petition
claiming compensation against the 4th respondent, owner of the Tavera car
and appellant/Insurance Company, insurer of the said Tavera car.
4.The 4th respondent, owner of the Tavera car remained exparte before
the Tribunal.
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C.M.A.No.3145 of 2021
5.The appellant/Insurance Company insurer of the Tavera Car bearing
Registration No.MH-09-DX-5523 filed counter statement denying the
averments made by the respondents 1 to 3 and stated that the Tribunal has no
territorial jurisdiction as the respondents 1 to 3 are having permanent
residence at Bangalore. The appellant has not issued any policy certificate for
the Tavera car at the time of accident. The driver of the Tavera car belonging
to the 4th respondent did not possess driving license to drive the vehicle at the
time of accident. The owner and insurer of the Maruthi car were not made as
parties to the claim petition. Hence, the claim petition is bad for non-joinder
of necessary parties. Therefore, the appellant/Insurance Company is not liable
to pay any compensation to the respondents 1 to 3. The appellant/Insurance
Company has also denied the age, avocation and income of the deceased. In
any event, the compensation claimed by the respondents 1 to 3 is excessive
and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent, wife of the deceased
Prashanth examined herself as P.W.1 and 29 documents were marked as
Exs.P1 to P29. The appellant/Insurance Company did not let in any oral and
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C.M.A.No.3145 of 2021
documentary evidence. Disability certificate issued by the Medical Board for
P.W.1 was marked as Ex.C1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of Tavera car belonging to the 4th respondent and directed the 4th
respondent as well as appellant/Insurance Company being the insurer of the
said Tavera car to jointly and severally pay a sum of Rs.1,38,92,656/- as
compensation to the respondents 1 to 3.
8.Against the judgment and decree dated 06.09.2019 made in
M.C.O.P.No.866 of 2018, the appellant/Insurance Company has come out
with the present appeal.
9.Though the learned counsel appearing for the appellant raised
grounds with regard to liability and jurisdiction, at the time of arguments, he
restricted his arguments only with regard to quantum of compensation
awarded by the Tribunal and contended that the respondents 1 to 3 have
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C.M.A.No.3145 of 2021
marked pay slip of the deceased only for the month of May and June 2017
and they have not examined the author of the said documents to prove the
avocation and income of the deceased. The Tribunal erred in taking the entire
monthly income of the deceased at Rs.78,385/- without deducting the
expenses of Rs.10,712/-. While arriving the compensation, average of income
of three years should be taken and prayed for setting aside the award of the
Tribunal.
10.Per contra, the learned counsel appearing for the respondents 1 to 3
contended that the deceased was working as Assistant Manager in TATA
Consultancy Services, Bangalore and was earning a sum of Rs.8,58,400/- per
annum. The respondents 1 to 3 have produced Exs.P9 and P10 salary
certificates of the deceased for the months of May and June 2017. The
appellant did not object to marking of the same and he is not entitled to
challenge the same in the appeal. The Tribunal considering Exs.P9 and P10,
fixed monthly income of the deceased and awarded compensation. The total
compensation awarded by the Tribunal is not excessive and prayed for
dismissal of the appeal.
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C.M.A.No.3145 of 2021
11.Though notice has been served on the 4th respondent and his name is
printed in the cause list, there is no representation for him either in person or
through counsel.
12.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondents 1 to 3 and perused the entire
materials on record.
13.From the materials on record it is seen that, the respondents 1 to 3
claimed that at the time of accident, the deceased Prashanth was working as
Assistant Manager in TATA Consultancy Services, Bangalore and was
earning a sum of Rs.8,58,400/- per annum. To prove the said claim, the
respondents 1 to 3 have marked pay slip of the deceased for the months of
May and June 2017. Further, the respondents 1 to 3 have marked TDS
Form – 16 issued by the employer of the deceased as Ex.P11. The appellant
has not disputed the claim of respondents 1 to 3 that deceased was working as
Assistant Manager in TCS, Bangalore and Exs.P9 and P10 are not genuine
and fabricated. In view of the same, the contention of the learned counsel
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C.M.A.No.3145 of 2021
appearing for the appellant/Insurance Company that the respondents 1 to 3
have marked only pay slip for the month of May and June 2017 and author of
the said documents was not examined, is without any merits and not
acceptable. The Tribunal accepting Exs.P9 and P10 fixed the monthly income
of the deceased at Rs.77,135/-, after deducting a sum of Rs.1,250/- towards
sundry medical as per Ex.P10. From Exs.P9 and P10 – Pay slips for the
month of May and June 2017, it is seen that the employer of the deceased has
deducted a sum of Rs.7,962/- towards Income Tax. However, the Tribunal
failed to deduct the same while arriving at the monthly income of the
deceased. The respondents 1 to 3 are entitled to compensation only after
deducting the Income Tax payable by the deceased. Thus, the monthly
income of the deceased is arrived as follows -
Monthly income of the deceased ... Rs.78,385/-
LESS: Sundry Medical Rs. 1,250/-}
LESS: Income tax deduction Rs. 7,962/- } ... Rs. 9,212/-
---------------
Rs.69,173/-
=========
The deceased was aged 35 years at the time of accident. Following the
judgments of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC
[Sarla Verma & Others vs. Delhi Transport Corporation & another] and
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C.M.A.No.3145 of 2021
2017(2)TNMAC 609 (SC) (National Insurance Company v. Pranay
Sethi), the Tribunal has rightly adopted multiplier '16' and granted 40%
enhancement towards future prospects. There are three dependants of the
deceased. The Tribunal has rightly deducted 1/3rd towards personal expenses.
Hence, the same is not interfered with. Thus, by fixing the monthly income
of the deceased as Rs.69,173/-, the amount towards loss of dependency is
arrived as follows -
Monthly income of the deceased Rs.69,173/-
ADD: 40% towards future prospects Rs.27,669/-
----------------
Rs.96,842/-
LESS: 1/3rd towards personal exps. Rs.32,281/-
----------------
Rs.64,561/-
----------------
Loss of dependency
(Rs.64,561 x 12 x 16) Rs.1,23,95,712/-
The sum of Rs.40,000/-, Rs.15,000/- and Rs.15,000/- awarded by the Tribunal
towards loss of consortium, funeral expenses and loss of estate respectively
are just and reasonable and hence, the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S.No Description Amount Amount Award
awarded by awarded by confirmed or
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C.M.A.No.3145 of 2021
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of 1,38,22,656 1,23,95,712 Reduced
dependency
2. Funeral 15,000 15,000 Confirmed
expenses
3. Loss of 40,000 40,000 Confirmed
consortium
4. Loss of estate 15,000 15,000 Confirmed
Total 1,38,92,656 1,24,65,712 Reduced by
Rs.14,26,944/-
14.With the above modification, the Civil Miscellaneous Appeal is
partly allowed. The compensation of Rs.1,38,92,656/- awarded by the
Tribunal is hereby reduced to Rs.1,24,65,712/- together with interest at the
rate of 7.5% per annum (excluding the default period, if any) from the date of
petition till the date of deposit. The appellant/Insurance Company and the 4th
respondent are jointly and severally directed to deposit the award amount
now determined by this Court 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. On such deposit, the 1st respondent is permitted to
withdraw her respective share of the award amount, now determined by this
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C.M.A.No.3145 of 2021
Court, as per the apportionment fixed by the Tribunal along with
proportionate interest and costs, less the amount if any, already withdrawn.
The shares of the minor respondents 2 and 3 are directed to be deposited in
any one of the Nationalized Banks, till the minors attain majority. The 1 st
respondent, mother of the minor respondents 2 and 3, is permitted to
withdraw the accrued interest, once in three months for the welfare of the
minor respondents 2 and 3. The appellant/Insurance Company and 4th
respondent are permitted to withdraw the excess amount lying in the deposit
to the credit of M.C.O.P.No.866 of 2018 on the file of Motor Accident Claims
Tribunal, Additional District Court, Krishnagiri, if the entire award amount
has already been deposited by them. Consequently, connected Miscellaneous
Petition is closed. No costs.
(V.M.V., J) (S.S., J)
20.06.2022
Index : Yes / No
kj
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C.M.A.No.3145 of 2021
V.M.VELUMANI,J.
and
S.SOUNTHAR,J.
kj
To
1.The Additional District Judge
Motor Accident Claims Tribunal
Krishnagiri.
2.The Section Officer
VR Section
High Court
Madras.
C.M.A.No.3145 of 2021
and C.M.P.No.17783 of 2021
20.06.2022.
https://www.mhc.tn.gov.in/judis
