Madras High Court
M/S.Reliance General Insurance ... vs M.Krishnakumari on 30 June, 2022
C.M.A.No.1033 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.1033 of 2021
and C.M.P.No.5551 of 2021
M/s.Reliance General Insurance Company Limited,
Reliance House, 6th Floor,
Nungambakkam, Chennai – 6. ... Appellant
Vs.
1.M.Krishnakumari
2.Minor.Anjana
3.S.Muthulakshmi
4.P.Selvam
... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 16.07.2018 made
in M.C.O.P.No.373 of 2014, on the file of Motor Accident Claims Tribunal,
II Court of Small Causes, Chennai.
1/10
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C.M.A.No.1033 of 2021
For Appellant : Mr.S.Arunkumar
For Respondents :Mr.R.Nalliyappan for R1 to R3
Not ready in notice - R4
JUDGMENT
(Judgment of the Court was delivered by S.SOUNTHAR,J.)
Aggrieved by an award dated 16.07.2018 passed by the Motor
Accident Claims Tribunal, (II Court of Small Causes), Chennai, the
appellant/Insurance company has come up with this appeal.
2. The respondents 1 to 3 being wife, minor daughter and
mother of deceased filed Motor Accident Claim Petition in MCOP.No.373 of
2014, claiming compensation for the death of one Balamurugan. According
to the claimants, the deceased was aged about 28 years at the time of accident
and he held the position of Senior Executive, Accounts in Akshaya Private
Limited, received a salary of Rs.35,000/- per month. It was averred in the
claim petition that on 28.12.2013, when the deceased was riding a motor
cycle at the Junction of Velacherry Main Road and Kamalapuram Main Road
from East to West, a Tata Sumo vehicle bearing registration
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C.M.A.No.1033 of 2021
No.TN-22-CV-0240 owned by 4th respondent and insured with the appellant
came in the opposite direction from West to East in a rash and negligent
manner and dashed against the vehicle of the deceased. The deceased died on
the spot. The respondents 1 to 3 claimed compensation of Rs.1,22,00,000/-
for the death of Balamurugan.
3. The 4th respondent/owner of the vehicle remained
ex-parte before the Tribunal and the claim was contested by the
appellant/Insurance company by filing counter. In the counter, the appellant
denied the averments in the claim petition, with regard to the manner of
accident. The Insurance company averred that the insurer of the motor cycle
of the deceased was a necessary party to this claim petition and hence, raised
the plea of non-joinder. It was also claimed that the averments in the claim
petition were exaggerated to create sympathy for getting higher award.
4. Before the Tribunal, the first respondent/widow of the
deceased was examined as PW.1. One Leela Vinothan, eye witness to the
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C.M.A.No.1033 of 2021
occurrence and also complainant in FIR was examined as PW.2. The Officer
working in the HR Department of employer of the deceased was examined as
PW.3. The officer of the bank in which, the deceased had bank account was
examined as PW.4. Exs.P1 to P27 were marked on behalf of the claimants.
On behalf of the appellant/Insurance Company, no witness was examined and
no exhibit was marked.
5. On the basis of the evidence available on record, the Tribunal
came to the conclusion that the accident had occurred due to the rash and
negligent driving of the driver of Tata Sumo vehicle owned by 4th respondent.
Since the said vehicle was duly insured with the appellant, the Tribunal held
that the appellant and the 4th respondent were liable to pay compensation
amount to the respondents 1 to 3 and fixed the quantum of compensation at
Rs.55,50,000/- together with interest at the rate of Rs.9% per annum from
the date of petition to the date of deposit. Aggrieved by the same, the present
appeal has been preferred by the appellant/Insurance Company.
6. The learned counsel for the appellant/Insurance Company
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C.M.A.No.1033 of 2021
submitted that the accident occurred only due to the rash and negligent
driving of the deceased and hence, the Tribunal was at fault in fastening the
liability on the driver of 4th respondent vehicle. He further submitted that the
salary slip contains certain allowances like conveyance allowance and medical
allowance which were personal in nature and the Tribunal erred in taking the
gross salary into consideration without deducting those allowances, which
were personal in nature. He submitted that such allowances cannot be
construed as the loss to the family. The learned counsel for the appellant also
submitted that the Tribunal erred in granting an interest at the rate of 9% per
annum having regard to the low inflation scenario at the date of accident.
7. The learned counsel for the respondent submitted that the
Tribunal based on evidence of eye witness PW.2 coupled with Ex.P1-FIR;
Ex.P14-charge sheet, rightly came to the conclusion that the accident took
place due to the rash and negligent driving of the driver of the vehicle owned
by 4th respondent. He further submitted that as per Exs.P22 and
P24-salary of the deceased was shown as Rs.33,334/- per month. But, the
Tribunal fixed the salary of the deceased only at Rs.28,519/- based on Ex.P11
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C.M.A.No.1033 of 2021
and therefore, the monthly income fixed by the Tribunal is very much on the
lower side. He also sought for confirmation of the interest at 9% as ordered by
the Tribunal.
8. In order to prove the negligence of the driver of the vehicle of
the 4th respondent, the respondents 1 to 3 examined one Leela vinothan, eye
witness to accident as PW.2. He clearly deposed that the accident took place
only due to the rash and negligent driving of the driver of the Tata Sumo
vehicle owned by 4th respondent. The FIR was also lodged by PW.2. Though
in the FIR, the registration number of the vehicle was not mentioned, the
offending vehicle was mentioned as a Tata Sumo vehicle. After investigation,
the charge sheet was laid against the driver of the vehicle owned by 4 th
respondent and the same was marked as Ex.P14. In the charge sheet, the
name of the driver and also the registration number of the Tata sumo vehicle
owned by 4th respondent was clearly mentioned. The respondent has not let in
any contra evidence. Hence, the finding of the Tribunal that the accident took
place due to the rash and negligent driving of the driver of 4 th respondent
vehicle is sustainable and calls for no interference.
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C.M.A.No.1033 of 2021
9. In order to prove the income of the deceased, the claimants
marked salary certificates Ex.P11; Ex.P22-salary slip and Ex.P23-joining
letter; Ex.P24 - performance and salary details. The Officer working in the
HR Department of the employer of the deceased was examined as PW.3.
As per Ex.P11, the salary of the deceased was mentioned as Rs.28,519/- per
month. A perusal of Exs.P22 and P23 shows that the salary of deceased was
mentioned as Rs.33,334/- per month. However, the Tribunal fixed the income
of the deceased only at Rs.28,519/- by taking into consideration Ex.P11 only.
If other document namely Exs.P22 and P24 are taken into consideration, the
income of the deceased should be fixed on higher side. Hence, we feel that
the income fixed by the Tribunal at Rs.28,519/- calls for no interference and
the same was confirmed.
10. The Tribunal awarded interest at the rate of Rs.9% per
annum and the same is excessive in the present scenario of low bank interest
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C.M.A.No.1033 of 2021
rate. The prevailing Bank interest rate is a guiding factor while fixing interest
rate payable on quantum of compensation. Hence, we deem it appropriate to
reduce the interest rate from 9% to 7.5% per annum.
11. In the result:
(a) This Civil Miscellaneous Appeal is partly allowed by
modifying the rate of interest awarded by the Tribunal from 9% to 7.5% per
annum. The award is confirmed in other respects.
(b) The appellant insurance company is directed to deposit the
award amount now determined in this appeal, if not already deposited, 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.
(c) On such deposit, the respondents 1 and 3 are permitted to
withdraw their respective share along with interest and costs, less the amount
if any, already withdrawn.
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C.M.A.No.1033 of 2021
(d) The second respondent, who was a minor at the time of filing
the claim petition is permitted to withdraw her respective share by satisfying
the Tribunal about the fact of her attaining majority.
(e) The appellant Insurance Company is permitted to withdraw
excess amount if any, already deposited over and above the compensation
amount now determined in this appeal. No costs. Consequently connected
Miscellaneous Petition is closed.
(V.M.V., J) (S.S., J)
30.06.2022
Internet : Yes / No
Index : Yes / No
ub
V.M.VELUMANI,J.
and
S.SOUNTHAR,J.
ub
To
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C.M.A.No.1033 of 2021
1.The II Court of Small Causes, Chennai
2.The Section Officer
VR Section
High Court
Madras.
C.M.A.No.1033 of 2021
and C.M.P.No.5551 of 2021
30.06.2022
(½)
https://www.mhc.tn.gov.in/judis
