Madras High Court
M.Sangeetha vs M/S.Greenways Shipping Agencies ... on 12 October, 2022
C.M.A.No.3524 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:12.10.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.3524 of 2021
1.M.Sangeetha
2.R.S.Priyadharshini (Minor)
3.R.S.Sharini (Minor)
4.R.Mallika
... Appellants/Petitioners
Vs.
1.M/s.Greenways Shipping Agencies Private Limited,
No.113, Armenian Street,
Chennai – 600 001
2.United India Insurance Company Limited,
Motor Third Party Claim Cell (HUB),
Silingi Buildings,
Chennai – 600 006.
... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 15.03.2021 made
in M.C.O.P.No.1191 of 2019, on the file of Motor Accident Claims Tribunal
cum Learned Chief Judge, Small Causes Court, Chennai.
1/12
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C.M.A.No.3524 of 2021
For Appellants : Mr.R.Ravichandran
for Mr.K.Prem Kumar
For Respondents :No Appearance for R1
Ms.R.Rathna Thara for R2
-----
JUDGMENT
(Judgment of the Court was delivered by S.SOUNTHAR,J.)
Aggrieved by the quantum of compensation awarded by the
Motor Accidents Claims Tribunal in M.C.O.P.No.1191 of 2019, dated
15.03.2021, the claimants have come up with this appeal.
2. According to the appellants/claimants, the husband of the
first appellant, father of the appellants 2 and 3 and son of 4th appellant
namely, the deceased Ravikumar was riding his motorcycle on 03.11.2018
proceeding from south to north near Apparsamy Koil Street Junction. The
Mahindra Truck bearing registration No.TN-04AM-8755 owned by the first
respondent was driven by its driver in a rash and negligent manner and
dashed against the right side handle bar of the deceased's motorcycle. As a
result, the deceased was thrown out and died on the spot. The appellants laid
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C.M.A.No.3524 of 2021
the motor accident claim in MCOP.No.1191 of 2019, on the file of the Motor
Accident Claims Tribunal, Chennai, claiming compensation of
Rs.1,50,00,000/-.
3. The respondents herein filed a separate counter denying the
manner of accident, age, monthly income of the deceased and resisted the
claim.
4. Before the Tribunal, the first appellant was examined as
PW.1, the eye witness was examined as PW.2 and HR Manager of the
deceased was examined as PW.3. The claimants marked Exs.P1 to P22 in
support of the claim. The respondents have not examined any witness and no
document was marked.
5. After considering the evidence available on record, the
Tribunal awarded a sum of Rs.69,29,000/- as compensation. Not satisfied
with the quantum of compensation, the claimants have come up with this
appeal.
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C.M.A.No.3524 of 2021
6. The learned counsel for the appellants submitted that the
Tribunal erred in not taking into consideration the statement of account of
deceased Ex.P5, the TDS statement Ex.P6 and income tax returns of the
deceased for the assessment years 2017-2018, 2018-2019, 2019-2020, which
were marked as Ex.P7 and salary certificate issued by the employer Ex.P19
etc., while fixing the income of the deceased. The learned counsel further
submitted that the Tribunal erred in fixing only Rs.36,000/- as the monthly
income of the deceased, whereas, admittedly the documentary evidence
available on record calls for fixation of higher sum and hence, prayed for
enhancement of compensation.
7. The learned counsel for the second respondent/Insurance
Company submitted that the accident had occurred due to own negligence of
the deceased as he failed to exercise reasonable care while driving the vehicle
and hence, the Tribunal should have fixed at least 50% of the contributory
negligence on the part of the deceased. The learned counsel further submitted
that the income tax return filed subsequent to the accident cannot advance the
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C.M.A.No.3524 of 2021
case of the claimants for claiming higher compensation and hence sought for
dismissal of the appeal filed by the claimants.
8. Heard the arguments of both the sides and perused the
materials available on records.
9. The Tribunal, after analysing the evidence of eye witness of
PW.2, copy of the FIR, which was marked as Ex.P1, wherein the criminal
case under Section 304 A of IPC filed against the driver of the first
respondent's lorry, concluded that the accident had occurred only due to the
rash and negligent driving of the first respondent. The Insurance Company
has not filed any separate appeal and assailed the said findings. Therefore, in
the appeal filed by the claimants seeking enhancement of the compensation,
the second respondent cannot be heard to say that the finding of the Tribunal,
with regard to the fixation of negligence wholly on the driver of the first
respondent vehicle cannot be accepted.
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C.M.A.No.3524 of 2021
10. As far as the quantum of compensation is concerned, the
claimants filed Ex.P5-Bank statement of account of the deceased, wherein the
credit of salary from January 2018 to October 2018 found place. Every
month a sum of more than Rs.54,000/- had been credited to the account of the
deceased towards salary. The average sum credited under the head salary
comes around Rs.54,713/-. Ex.P6 is the Form-16 issued by the employer for
the period 01.04.2017 to 31.03.2018 (date of accident 03.11.2018). The total
salary amount paid to the deceased was shown as Rs.8,18,111/-. It also shows
that a sum of Rs.68,890/- was deducted towards TDS. Hence, as per Ex.P6
monthly average salary would be Rs.68,175/-, under Ex.P7 the income tax
returns of the deceased for the assessment years 2017-2018, 2018-2019 and
2019-2020 were filed. The income tax return for the assessment year 2019-
2020 was filed subsequent to the date of accident, therefore the same is not
taken into consideration. In the income tax return for the same assessment
year 2017-2018 which was filed on 24.07.2020, the salary income was shown
as Rs.7,54,594/-. Therefore, the average salary would be Rs.62,882/-. As per
the income tax return for the assessment year 2018-2019, the income from
salary was shown as Rs.8,18,111/-. Therefore, the average salary for that year
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C.M.A.No.3524 of 2021
would be Rs.68,175/-. As per Ex.P19-salary certificate issued by employer of
the deceased on 26.11.2018, the annual salary of deceased was Rs.8,92,960/-.
If that document is taken into consideration, the average salary was
Rs.74,413/-. The HR Manager of the deceased had been examined as PW.3
and Ex.P19 was marked through him. A close perusal of Ex.P19 shows that
there are certain inadmissible components to the salary like conveyance
allowance, variable pay. The conveyance allowance is personal in nature and
the same cannot be taken into consideration for the purpose of calculating the
loss of dependency. Likewise, the variable pay may change from time to time
and the same cannot be taken into consideration. If the inadmissible portions
of the salary are excluded, the loss of income to the family could be fixed at
Rs.64,580/- by taking into consideration of the documents discussed above
including the salary credit given to the deceased immediately preceding ten
months from the date of accident and income tax returns, Form-16 etc. We
find it appropriate to fix the monthly income of the deceased at Rs.60,000/-
per month. In fact, the claimants claimed only Rs.60,973/- as monthly
income of the deceased in the claim petition.
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C.M.A.No.3524 of 2021
11. Considering the fact that the age of the deceased was 39
years at the time of accident, he is entitled to future prospects at the rate of
40%. In Ex.P19-salary certificate, it was mentioned that he had been working
from 1st March 2007 in ITC Limited, therefore, after adding the future
prospects as 40%, the monthly income of the deceased would be Rs.84,000/-
per month. Therefore, the loss of dependency, after deducting 1/4th of the
amount towards his personal expenses would be
(Rs.84,000x12x3/4x15=1,13,40,000/-).
12. In addition to the above said amount, the claimants are
entitled to funeral expenses at the rate of Rs.15,000/-. The first appellant is
entitled to loss of consortium of Rs.40,000/- as against Rs.30,000/- awarded
by the Tribunal. The appellants 2 and 3 are entitled to Rs.40,000/- (each)
towards loss of love and affection. The 4 th appellant is entitled to a sum of
Rs.40,000/- towards loss of parental consortium.
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C.M.A.No.3524 of 2021
13. The total compensation payable to the appellant is as
follows:
S.No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of dependency 68,04,000/- 1,13,40,000/- Enhanced
2. Funeral expenses 15,000/- 15,000/- Confirmed
3. Loss of consortium 30,000/- 40,000/- Enhanced
4. Loss of love and 80,000/- 80,000/- Confirmed
affection
5. Loss of parental - 40,000/- Enhanced
consortium
Total 69,29,000/- 1,15,15,000/- Enhanced by
Rs.45,86,000/-
14. In the result,
(i) the Civil Miscellaneous Appeal is allowed by enhancing the
compensation payable to the appellants to Rs.1,15,15,000/- from
Rs.69,29,000/-.
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C.M.A.No.3524 of 2021
(ii) The second respondent/Insurance Company is directed to
deposit the enhanced compensation within a period of eight weeks from the
date of receipt of a copy of this order together with interest at the rate 7.5%
from the date of petition to the date of deposit;
(iii) The first appellant is entitled to compensation of
Rs.35,15,000/-, the 2nd and 3rd appellants are entitled to a sum of
Rs.30,00,000/- (each), the 4th appellant is entitled to a sum of Rs.20,00,000/-.
(iv) The first and 4th appellant are entitled to withdraw their
share of compensation on deposit of award amount by the Insurance
Company;
(v) The share of minor appellants 2 and 3 shall be deposited in
anyone of the nationalized bank initially for the period of one year and the
same shall be renewed periodically;
(vi) The first appellant, guardian of the minor appellants 2 and
3, is permitted to withdraw the accrued interest, on minor share once in three
months for the benefit of the minors.;
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C.M.A.No.3524 of 2021
(vii) The learned counsel appearing for the appellants is directed
to pay the necessary Court Fee on the enhanced compensation, if any;
(viii) The minor appellants 2 and 3 are permitted to withdraw
their share of the award amount on attaining majority by satisfying the
Tribunal as to the fact of their attaining majority. No costs.
(V.M.V., J) (S.S., J)
12.10.2022
Internet : Yes / No
Index : Yes / No
ub
To
1.The Chief Judge, Small Causes Court, Chennai.
2.The Section Officer
VR Section
High Court
Madras.
V.M.VELUMANI,J.
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C.M.A.No.3524 of 2021
and
S.SOUNTHAR,J.
ub
C.M.A.No.3524 of 2021
12.10.2022
https://www.mhc.tn.gov.in/judis
