Madras High Court
The Manager vs S.Syamala on 13 October, 2022
C.M.A.No.1717 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.10.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MRS. JUSTICE N. MALA
C.M.A.No.1717 of 2018
and
C.M.P.No.13306 of 2018
The Manager,
HDFC ERGO General Insurance Company Ltd.,
Motor Third Party Claims, New No.579 (Old No.528),
2nd Floor, Anna Salai,
Teynampet, Chennai – 600 002. ... Appellant
Vs.
1.S.Syamala
2.S.Gayathri
3.S.Mahalakshmi
4.S.Hariharan
5.S.Abhiraman
6.S.Sulochana
7.M/s.Rajarajan Transport Services, No.1484,
G.N.T. Road, Padiyanallur, Red Hills,
Chennai – 600 042. ... Respondents
[Respondents 4 & 5 declared as Major and her
mother and Natural Guardian S.Syamala discharged
Page 1 of 10
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C.M.A.No.1717 of 2018
from Guardianship vide Court order, dated 10.02.2022,
made in C.M.P.Nos.20127, 20129, 20130 & 20131
of 2021 in C.M.A.No.1717 of 2018]
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the decree and judgment, dated 14.02.2018, in
M.C.O.P.No.258 of 2015 on the file of the Motor Accident Claims Tribunal
(Special District Court), Tiruvallur.
For Appellant : Mr.K.Vinod
For R1 to R6 : Mr.K.R.Ponnusamy
for M/s.Anand and Suryas
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
As against the award of compensation by the Motor Accident Claims
Tribunal-I (Special District Court), Tiruvallur (“the Tribunal” for brevity),
dated 14.02.2018, in M.C.O.P.No.258 of 2015, the above appeal is preferred
by the Insurance Company.
2.The respondents 1 to 6 are the wife, children and mother of the
deceased, by name, Subramani Iyyer. It is admitted before this Court that
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C.M.A.No.1717 of 2018
the deceased Subramani Iyyer was riding his two-wheeler from Thandalam
to Uthukkottai and near Ellampettai Bus Stop, a TATA Multi Axle Goods
Vehicle, belongs to the 7th respondent, hit the two-wheeler driven by the
deceased. As a result of the accident, the said Subramani Iyyer died on the
spot.
3.The respondents 1 to 6 (hereinafter referred to as “claimants”) filed
M.C.O.P.No.258 of 2015 before the Motor Accident Claims Tribunal-I
(Special District Court), Tiruvallur, claiming a sum of Rs.26,50,000/- by
way of compensation. It is to be noted that, in the claim petition, the income
of the deceased was specifically stated as Rs.12,000/- per month. The
appellant denied the liability on the ground that the accident was not caused
due to the rash and negligent driving of the driver of the 7th respondent's
vehicle, but due to the negligence of the deceased.
4.The Tribunal specifically rendered a finding that the accident was
due to the rash and negligent driving of the driver of the 7th respondent's
vehicle. The Tribunal, however, found that the monthly income of the
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C.M.A.No.1717 of 2018
deceased was Rs.20,000/-. Adding a sum of Rs.5,000/- towards future
prospects, the income arrived at by the Tribunal was Rs.25,000/-. Adopting
13 as multiplier, the total compensation towards pecuniary loss was
calculated at Rs.29,25,000/-. The compensation awarded by the Tribunal
under other heads are as follows :
Heads Amount awarded by the
Tribunal
Loss of consortium Rs.40,000/-
Funeral Expenses Rs.15,000/-
Transport Expenses Rs.10,000/-
Loss of Estate Rs.15,000/-
Love and affection Rs.2,25,000/-
Thus, a sum of Rs.32,30,000/- was fixed by the Tribunal by way of
compensation, in all. The apportionment was also as indicated in Para
No.10 of the award of the Tribunal.
5.Challenging the award of the Tribunal, the Insurance Company has
preferred the above appeal.
6.Learned counsel appearing for the appellant/Insurance Company,
though strenuously argued on several issues, has focussed much on the
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C.M.A.No.1717 of 2018
quantum of compensation towards loss of income. The learned counsel
submitted that the claimants have admitted the income of the deceased even
in the claim petition as Rs.12,000/- per month. It is his grievance that the
Tribunal, on the basis of evidence of P.W.2, P.W.3 and P.W.4, who claim to
be the Dharmakartas of different Temples, has fixed the monthly income
erroneously at Rs.20,000/-. The evidence of P.W.2 to P.W.4 were relied
upon by the Tribunal to fix the monthly income of the deceased at
Rs.20,000/-.
7.On a perusal of the evidence of P.W.2, who claims to be the
Dharmakarta of Arulmigu Mahalakshmi Temple, Kakkavakkam Village,
Uthukkottai Taluk, it is seen that he has deposed to the effect that he is the
Dharmakarta of Arulmigu Mahalakshmi Temple as well as another Temple,
namely, Arulmigu Varasakthi Pillaiyar Temple. It is his evidence that he was
paying a sum of Rs.10,000/- to the deceased for rendering services in two
temples. Similarly, P.W.3 has deposed to the effect that he was paying a
sum of Rs.5,000/- per month to the deceased for his service in Arulmigu
Mukkandeeswarar Temple. However, he admits that there is no written
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C.M.A.No.1717 of 2018
document for appointing the deceased. The salary certificate issued by
P.W.3 shows that P.W.3 was paying a sum of Rs.5,000/- as salary to the
deceased. Similarly, P.W.4 has also given evidence, apart from issuing a
salary certificate that, P.W.4 was paying a sum of Rs.5,000/- to the deceased
for rendering services in Arulmigu Lakshmi Amman Temple.
8.Though the three witnesses (P.W.2 to P.W.4), in chief-examination,
state that they are the Dharmakartas of different Temples, in the cross-
examination, all the three witnesses admit that there is no record to show
that they are either the Hereditary Trustees or Dharmakartas of the Temples.
All the three witnesses refer to different Temples, in which, they are acting
as Hereditary Trustees or Trustees of the Temples. However, the relevant
document to show their status either as Hereditary Trustee or Dharmakarta
or Trustee of the Temple, is not produced. Except the salary certificates in
which the witnesses have signed, no other document is produced before the
Court to show that the witnesses were the Hereditary Trustees or
Dharmakartas of the Temples. No Temple record is produced to corroborate
the evidence of P.W.2 to P.W.4.
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C.M.A.No.1717 of 2018
9.In the said circumstances, this Court is unable to sustain the finding
of the Tribunal that the deceased was drawing a salary of Rs.20,000/- per
month. The fact that the deceased was performing pooja in few temples is
spoken by P.W.1 and the respondents have no independent witness to
contravene the evidence of P.W.1. Even in the course of evidence, it is
revealed that the deceased used to do prohidham and perform other religious
services like homam, pooja, etc. Having regard to the specific case of the
claimants that the deceased was drawing a salary of Rs.12,000/- per month,
in the claim petition itself, this Court is of the view that the salary of the
deceased can be taken as Rs.12,000/- per month. Adding 25% of the
monthly income towards future prospects, the salary of the deceased should
be Rs.15,000/- per month. The deceased left behind his wife, children and
mother and the number of dependants are 6. This Court is of the view that
the deduction towards personal expenses should be 1/4th. Deducting 1/4th
from Rs.15,000/-, the monthly salary of the deceased is fixed at Rs.11,250/-.
Therefore, the claimants are entitled to a sum of Rs.17,55,000/- (Rs.11,250/-
x 13 x 12).
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C.M.A.No.1717 of 2018
10.This Court is unable to countenance the submissions of the learned
counsel for the appellant in relation to the quantum that was fixed by the
Tribunal under other heads. Therefore, except reducing the quantum
towards loss of income from Rs.29,25,000/- to Rs.17,55,000/-, the award of
the Tribunal is confirmed in other respects, including the interest @ 7.5%
p.a. as ordered by the Tribunal.
11.This Civil Miscellaneous Appeal is partly allowed and the award of
the Tribunal is modified to the extent indicated above. In fine, the claimants
are entitled to a sum of Rs.20,60,000/- (Rupees Twenty Lakhs and Sixty
thousand only), in total. The apportionment as per the award of the Tribunal
is also confirmed. No costs. Consequently, connected miscellaneous
petition is closed.
12.It is submitted by the learned counsel for the appellant that the
appellant has already deposited the entire amount awarded by the Tribunal,
with interest. The appellant/Insurance Company is permitted to withdraw
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C.M.A.No.1717 of 2018
the excess amount from the Tribunal. The claimants/respondents 1 to 6 are
also permitted to withdraw the modified award amount, proportionate to
their share as per the order of the Tribunal, less the amount already
withdrawn by them, if any.
(S.S.S.R., J.) (N.M., J.)
mkn 13.10.2022
Internet : Yes
Index : Yes / No
To
The Special District Judge,
(Motor Accident Claims Tribunal),
Tiruvallur.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1717 of 2018
S.S. SUNDAR, J.
and
N. MALA, J.
mkn
C.M.A.No.1717 of 2018
13.10.2022
https://www.mhc.tn.gov.in/judis
