Madras High Court

S.Yasmin vs Balasubramanian on 10 August, 2023

                                                                                    C.M.A.No.2091 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 10.08.2023

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                               C.M.A.No.2091 of 2022
                                                        and
                                               C.M.P.No.16220 of 2022

                     1.S.Yasmin
                     2.Mohammed Iqbal
                     3.S.Nasrin Banu
                     4.Umma Salima Syed Mohammed                                     ... Appellants

                                                             Vs

                     1.Balasubramanian

                     2.The New India Assurance Co.Ltd.,
                       Divisional Office, Jerome Building,
                       Fort Station Road, Trichy.                                   ... Respondents
                       [R1 remained ex parte before the Tribual]
                     Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
                     Vehicles Act, 1988, against the judgment and decree dated 11.03.2022 in
                     M.C.O.P.No.829 of 2018 on the file of the Motor Accident Claims Tribunal,
                     Principal District Judge, Perambalur.

                                        For Appellants            : Mr.S.P.Yuaraj
                                        For Respondents           : Mr.R.Neethi Perumal, for R2
                                                                    R1 – Ex parte



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                                                                                   C.M.A.No.2091 of 2022




                                                    JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellants

challenging the quantum of compensation granted by the Tribunal in the

award dated 11.03.2022, made in M.C.O.P. No.829 of 2018 on the file of

the Motor Accident Claims Tribunal, Principal District Judge, Perambalur.

2. The appellants filed M.C.O.P. No.829 of 2018 on the file of the

Motor Accident Claims Tribunal, Principal District Judge, Perambalur,

claiming a sum of Rs.1,00,00,000/- as compensation for the death of one

Sharfudeen, who died in the accident that took place on 16.08.2018.

3. According to the appellants, on 16.08.2018 at about 09.00 am,

while the deceased Sharfudeen was driving in a Ford Figo Car bearing

Registration No.TN-30-AQ-6832 from East to West at Trichy-Salem main

road near Vellursathiram, the first respondent lorry bearing Registration

No.TN-81-A-6377 which was coming in opposite direction, driven by its

driver in a rash and negligent manner, dashed against a road side tree and

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then dashed against the car of the said Sharfudeen and then dashed against

a two wheeler which came behind the car. In the said accident, the said

Sharfudeen sustained multiple grievous injuries and died on the spot.

Hence, the appellants filed claim petition against the respondents.

4. The 1st respondent remained ex-parte before the Tribunal.

5. The 2nd respondent / Insurance Company filed a counter

denying all the averments made in the claim petition and stated the deceased

alone drove the car in a rash and negligent manner and gone to the right side

of the road and invited the accident; and that the driver of the first

respondent was under the influence of alcohol but the rash and negligence is

only upon the deceased. Hence, the second respondent is not liable to pay

compensation to the appellants; and that the first respondent alone is liable

to pay compensation; that the total compensation claimed by the appellants

is excessive and prayed for dismissal of the claim petition.

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6. The 1st appellant examined herself as PW.1 and one Syed

Ibrahim, eye witness to the accident was examined as P.W.2 and marked

Ex.P.1 to Ex.P.11. On behalf of the 2nd respondent/Insurance Company two

witnesses were examined as R.W.1 and R.W.2 and marked six documents

as Exs.R1 to R6.

7. The Tribunal after considering the evidence and documents

filed on either side, held that the accident occurred due to rash and negligent

driving by the driver of the first respondent and directed the first respondent

to pay a sum of Rs.20,24,144/- as compensation to the appellants, for

violation of policy conditions and dismissed the claim petitions as agains the

second respondent.

8. Aggrieved by the said judgment, the appellants have preferred

the present appeal challenging the liability as well for enhancement of

compensation.

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9. The learned counsel for the appellants submitted that the

Tribunal erred in holding that there was no policy coverage for the first

respondent vehicle and therefore, exonerated the second respondent /

Insurance Company and directed the first respondent to pay the

compensation. The learned counsel further submitted that there was a policy

coverage and unfortunately, the policy document was not marked before the

Tribunal. The learned counsel also had filed an application under Order 41

Rule 27 of CPC to receive the copy of the Insurance policy of the first

respondent vehicle insured with the second respondent. As per the said

document, there is a policy coverage for the first respondent vehicle and

therefore, the Tribunal ought to have directed the second respondent to pay

compensation. The learned counsel further submitted that though the

appellants had filed the income tax returns of the deceased for nearly 6

years, Exs.P4 to P9 which shows the average income of the deceased as

Rs.25,000/- per month, the Tribunal had erroneously without any basis

came to the conclusion that those returns pertain to a partnership firm and

not to an individual / deceased. Hence, the Tribunal awarded compensation

by taking into consideration Rs.14,109/- as notional income based on the

formula fixed by the Division Bench of this Court in Andal and Others Vs.

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Avinay Kannan reported in 2019 (1) TN MAC 54 (DB). The learned

counsel therefore, prayed for enhancement of compensation and also for a

direction to the second respondent / Insurance Company to pay the

compensation.

10. Though notice was served to the first respondent and his name

is printed in the cause list none has entered appearance.

11. The learned counsel for the second respondent / Insurance

Company submitted that in the claim petition, the appellants had referred to

an insurance policy which is also referred to in MVI Report / Ex.R4. As per

Ex.R4, the Insurance policy expired on 19.07.2018 whereas the accident

took place on 16.08.2018. Since no document was produced to show that

the insurance policy was renewed, the Tribunal was right in holding that

there was no policy coverage. However, the learned counsel also on

instructions would submit that the document filed by the appellants along

with the petition under Order 41 Rule 27 shows that the policy has been

renewed. The learned counsel further submits that as regards compensation

awarded by the Tribunal, it is just and reasonable and there is no reason to

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interfere with the same and prayed for dismissal of the appeal.

12. The questions in the instant appeal are-

a) Whether there was a policy coverage for the first respondent vehicle with the second respondent herein?

b) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

13. Admittedly, the appellants had referred to an insurance policy

which expired on 16.08.2018 before the Tribunal. They have not produced

the renewed insurance policy which was valid at the time of accident. In the

application filed before this Court under Order 41 Rule 27 CPC, the

appellants have enclosed the insurance policy for the period between

20.07.2018 to 19.07.2019. The second respondent is unable to point out

any reason as to why this document should not be accepted. Being satisfied

with the reasons given in the affidavit filed in support of this petition,

C.M.P.No.16220 of 2022 in C.M.A.No.2091 of 2022 is allowed and the said

document is marked as Ex.P12. Therefore, this Court is of the view that

there was a valid insurance coverage for the first respondent vehicle with the

second respondent. The finding of the Tribunal with regard to fixing of

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liability on the first respondent is set aside. The second respondent

insurance company is liable to pay the compensation.

14. As regards the quantum, this Court finds that the appellants

have marked Exs.P4 to P9, the income tax returns for the Assessment year

2012 -13 to Assessment Year 2018 – 19 for 6 years. Ex.P6 is the income

tax return for the Assessment Year 2014-15 which shows the gross income

of the deceased as Rs.2,57,515/-. Likewise, Ex.P7 is the income tax return

for the Assessment Year 2015-16 which shows the gross income of the

deceased as Rs.2,41,333/-. Ex.P8 is the income tax return for the

Assessment Year 2016-17 which shows that the gross income of the

deceased as Rs.2,92,287/-. Ex.P9 is the income tax return for the

Assessment year 2018-19 which shows the gross income of the deceased as

Rs.3,04,799/-.

15. From a reading of the above Exhibits, this Court is of the view

that the average income of the deceased is Rs.25,000/- per month. This

Court is inclined to fix the said sum as the monthly income of the deceased.

However, it is seen that the Tribunal had rejected Exs.P4 to P9 stating that

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they pertain to a partnership firm. A reading of these Exhibits does not

indicate that it refers to a partnership firm. The returns are that of the

individual namely the deceased. The finding of the Tribunal is therefore

without any basis. The deceased was aged 48 years at the time of accident.

Hence, the appellants are entitled to 25% enhancement towards future

prospects. Therefore, the loss of income has to be Rs.25,000 + 6,250

(25,000+25%) X12X 13 X 2/3 = Rs.32,50,000/-. The compensation

awarded under other heads are reasonable and hence, the same are

confirmed.

16. Thus, the compensation awarded by the Tribunal is enhanced

from Rs.20,24,144/- to Rs.34,40,000/-, break-up as follows -

                            Sl. Description              Amount         Amount          Award
                            No                          awarded by    awarded by     confirmed or
                                                         Tribunal      this Court    enhanced or
                                                           (Rs)           (Rs)         granted
                            1.    Loss of dependency    18,34,144/-   32,50,000/-      Enhanced
                            2.    Loss of consortium     40,000/-      40,000/-       Confirmed
                            3.    Parental consortium    80,000/-      80,000/-       Confirmed
                            4.    Filial consortium      40,000/-      40,000/-       Confirmed
                            5.    Loss of estate         15,000/-      15,000/-       Confirmed



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                                                                                   C.M.A.No.2091 of 2022


                            6.    Funeral expenses      15,000/-      15,000/-       Confirmed
                                        Total          20,24,144/-   34,40,000/-     Enhanced
                                                                                         by
                                                                                   Rs.14,15,856/-

17. With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.20,24,144/- is hereby enhanced to Rs.34,40,00/- together with interest at

7.5% per annum (excluding the default period, if any) from the date of

petition till the date of deposit. The second respondent / Insurance

Company is 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 twelve (12) weeks from the date of a receipt of copy

of this Judgment. On such deposit, the appellants 2 and 3/ children of the

deceased are entitled to Rs.7,00,000/- each, 4 th appellant/mother of the

deceased is entitled to Rs.6,00,000/- and the 1st appellant/wife of the

deceased is entitled to remaining amount. The appellants are permitted to