Madras High Court
Vasuki vs Subramanian on 3 November, 2022
C.M.A.No.1357 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.11.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.1357 of 2022
1.Vasuki
2.Sreeram
3.Angayarkkani …Appellants
Vs.
1.Subramanian
2.Hemachandrababu
3.The Oriental Insurance Co.Ltd, Trichy branch,
Having office at No.4 Promenade road,
Cantonment, Trichy. Pin 620 001.
4.Tata AIG Insurance Co.Ltd, Coimbatore branch,
No.72, 1st Floor, May Flower Castle,
Dr.Balasundaram Road,
P N Palayam, Coimbatore, Tamil Nadu 641 018.
...Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, against the judgment and decree in M.C.O.P.No.97 of 2016
dated 17.02.2022 on the file of the Motor Accidents Claims Tribunal/Special
District Judge, Erode.
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For Appellants : Mrs.Ramya V.Rao
For R1 : Not ready in notice
For R3 : Mr.D.Bhaskaran
For R4 : Mrs.C.Harini
for M/s.M.B.Gopalan Associates
JUDGMENT
(Judgment of the Court was delivered by SUNDER MOHAN,J.)
This Civil Miscellaneous Appeal has been filed by the appellants against
the Judgment and Decree dated 17.02.2022 made in M.C.O.P.No.97 of 2016 on
the file of Motor Accident Claims Tribunal/Special District Court, Erode to deal
with M.C.O.P cases Chennai.
2. The Appellants filed M.C.O.P No.97 of 2016 claiming a sum of
Rs.95,91,000/- (Rupees Ninety Five Lakhs Ninety One Thousand only) towards
compensation for the death of the first appellant/petitioner’s husband and the
father of second and third appellants.
3. According to the Appellants on the date of accident i.e. on 07.02.2016
at about 14.00 hours the deceased R.Rajeshwaran and the second appellant
herein went to buy lunch in a motorcycle namely TVS Jupiter bearing the
Registration No.TN 56 F 2918 to Ammu Mess, Thindal. After buying lunch the
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deceased started from Ammu Mess, Thindal to their home in Murugan Nagar,
Thindal. The second appellant stayed back to meet his friends who came to
Ammu Mess. The deceased who rode the vehicle, was waiting near the centre
median to cross the road southwards near BVB School road junction, Thindal.
At that time the Tempo Traveller bearing the Registration Number TN 45 AQ
0254 driven by the first respondent came from west to east in a rash and
negligent manner in a high speed and without observing the rules and
regulations of the road and dashed against the vehicle of the deceased. As a
result of the accident, the deceased was severely injured and thrown out. Inspite
of treatment, he succumbed to injuries. Therefore, the appellants filed the claim
petition against the respondent herein.
4. The first and second respondents herein remained ex-parte
before the Tribunal. The third respondent herein filed counter denying the
averments made in the claim petition and stated that the accident occurred only
due to rash and negligent riding of the deceased. The third respondent further
stated in the counter that though the accident took place on 07.02.2016, the
vehicles were inspected by the Motor Vehicles Inspector only on 18.02.2016
and therefore, the inspection reports cannot be the basis for any conclusion. The
third respondent/Insurance Company therefore stated that they are not liable to
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pay any compensation. In any event, the compensation claimed by the
appellants are excessive. The fourth respondent the insurer of the two wheeler
of the deceased, filed counter stating that the accident occurred only due to the
rash and negligent driving by the driver of the Tempo Travellor. Hence, they are
not liable to pay any compensation to the appellants.
5.Before the Tribunal, two witnesses were examined on the side of the
appellants and 26 documents, Ex.P.1 to Ex.P.26 were marked. On the side of the
respondents, the first respondent was examined as R.W.1 and the law officer of
the 4th respondent was examined as R.W.2 and two documents Exs.R1 and R.2
were marked on their side.
6. The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occurred due to the rash and negligent driving
of the first respondent and directed the 3rd respondent Insurance Company
being the insurer of the vehicle driven by the first respondent to pay
Rs.35,63,844/- (Rupees Thirty Five Lakhs Sixty Three Thousand Eight
Hundred and Forty Four only) as compensation to the appellants.
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7. Aggrieved by the quantum awarded by the Tribunal the appellants
have filed the above appeal for enhancement.
8. The learned counsel appearing for the appellants contended that the
Tribunal ought not to have deducted 30% of the gross salary towards family
pension, received by the 1st appellant. The Tribunal ought to have taken into
consideration the entire gross salary of the deceased as monthly income and
after granting 15% enhancement towards future prospects and deducting 1/3rd
towards his personal expenses, awarded compensation towards loss of
dependency. The Tribunal ought to have taken Rs.79,400/- as the monthly
income of the deceased as per the 7th pay commission which he would have
earned if he was alive. The income tax deduction made by the Tribunal is not
in accordance with the rulings of the Hon'ble Apex Court. The compensation
awarded by the Tribunal under different heads are meagre and prayed for
enhancement of the compensation.
9.The learned counsel appearing for the third respondent submitted that
the award was in accordance with law and contented that the compensation
awarded by the Tribunal requires no interference.
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10.Heard the learned counsel appearing for the appellants, learned
counsel for the third respondent and fourth respondent and perused the entire
materials on record.
11. From the materials on record, it is seen that the deceased was aged 54
years at the time accident, working as PG Assistant (Physics) in Govt. Higher
Secondary School, Chittoor and was earning a sum of Rs.68,602/- per month.
The appellants have marked Ex.P.12 – salary certificate to substantiate their
contention. The Tribunal considering Ex.P12-salary certificate, fixed a sum of
Rs.68,602/- as monthly income of the deceased. As per Ex.P26 – service
register, the deceased was aged 54 years at the time of accident. Following the
judgments of the Hon'ble Apex Court in 2009 (2) TNMAC 1 SC (Sarla Verma
and others vs. Delhi Transport Corporation and another) and 2017 (2) TN
MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others],
the Tribunal rightly applied multiplier 11 and granted 15% enhancement
towards future prospects. However, the Tribunal erroneously deducted 30%
towards family pension and the same is not correct. The Hon'ble Apex Court
in the judgment reported in 2013 (1) TNMAC 641 SC [Vimal Kanwar & Ors.
vs. Kishore Dan and Ors.] has categorically held that salary receivable on
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compassionate appointment comes within the periphery of the Motor Vehicles
Act and the pecuniary advantage received on such appointment is not liable for
deduction for determination of compensation under the Motor Vehicles Act.
Hence, the deduction of 30% towards family pension made by the Tribunal is
liable to be set aside and is hereby set aside. There are three dependents of the
deceased and the Tribunal has rightly deducted 1/3rd towards personal
expenses. The accident has occurred on 07.02.2016. Thus, by fixing
Rs.68,602/- as monthly income of the deceased, the calculation for arriving
annual income is as follows :-
Annual income of the deceased ... Rs.8,23,224.00
(Rs.68,602 x 12)
15% enhancement towards }
future prospects } ... Rs.1,23,483.60
-----------------------------
Annual income ... Rs.9,46,707.60
----------------------------
Rounded off to ... Rs.9,46,708.00
Income Tax Slab for Assessment Year 2016-2017
Upto Rs.2,50,000/- - Nil
Rs.2,50,001 to Rs.5,00,000 - 10% -
(Rs.2,50,000 x 10%) Rs. 25,000.00
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Rs.5,00,000 to Rs.10,00,000/- - 20% -
(Rs.9,46,708 – Rs.5,00,000 = Rs.4,46,708 x 20%) Rs. 89,341.60
-------------------
Rs.1,14,341.60
-------------------
Rounded off to Rs.1,14,342/-
Annual income after deducting income tax
(Rs.9,46,708 – Rs.1,14,342) - Rs.8,32,366/-
Hence, fixing the annual income of the deceased as Rs.8,32,366/-
applying multiplier 11 and deducting 1/3rd towards personal expenses of the
deceased, the compensation awarded by the Tribunal towards loss of
dependency is modified to Rs.61,04,020/- [Rs.8,32,366/- x 11 x 2/3].
The amounts awarded by the Tribunal under other heads 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 awarded by Amount Award
Tribunal awarded by this confirmed or
(Rs) Court (Rs) enhanced or
granted
1. Loss of pecuniary 33,39,369/- 61,04,020/- Enhanced
benefits
2. Funeral expenses 15,000/- 15,000/- Confirmed
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3. Loss of estate 15,000/- 15,000/- Confirmed
4. Loss of consortium 40,000/- 40,000/- Confirmed
5. Loss of parental 80,000/- 80,000/- Confirmed
consortium
6. Pain & Sufferings 50,000/- 50,000/- Confirmed
7. Medical expenses 24,475/- 24,475/- Confirmed
Total Rs.35,63,844/- Rs.63,38,495/- Enhanced by
Rs.27,64,651
14. With the above modification, the Civil Miscellaneous Appeal is partly
allowed and the Compensation awarded by the Tribunal at Rs.35,63,844/- is
hereby enhanced to Rs.63,38,495/- together with interest at the 7.5% per annum
(excluding the default period, if any) from the date of petition till the date of
deposit. The third respondent/Insurance Company is directed to deposit the
enhanced award amount now determined by this Court along with interest and
costs, less the amount already deposited, if any, within a period of six (6) weeks
from the date of a receipt of copy of this Judgment. On such deposits the
appellants are permitted to withdraw their respective share of the award amount
as per the apportionment fixed by the Tribunal, along with proportionate
interest and costs, less the amount if any, already withdrawn. The appellants are
directed to pay the necessary Court Fee on the enhanced amount award, if any.
No costs.
[V.M.V.,J] [S.M.,J]
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Index: Yes/No
dk
To
1.The Motor Accidents Claims Tribunal/ Special District Judge,
Erode,
2.The Section Officer
VR Section
High Court
Madras.
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V.M.VELUMANI.J.
and
SUNDER MOHAN,J.
dk
C.M.A.No.1357 of 2022
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