Madras High Court

Royal Sundaram Alliance vs S.K. Vijayakumar on 21 December, 2023

Author: R. Subramanian

Bench: R. Subramanian

                                                                 CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                    Judgment Reserved on     :   01.12.2023

                                    Judgment Pronounced on :     21.12.2023

                                                     CORAM:
                             THE HONOURABLE MR. JUSTICE R. SUBRAMANIAN
                                                           And
                            THE HONOURABLE MR. JUSTICE N. SENTHILKUMAR


                                               C.M.A.No. 986 of 2023
                                                      and
                                               CMP.No. 9091 of 2023

                Royal Sundaram Alliance
                Insurance Company Limited
                No.1, Club House Road, 2nd Floor,
                Subramaniam Building,
                Anna Salai,
                Chennai – 600 002.                                                         …Appellant

                                                       versus

                1. S.K. Vijayakumar
                2.V. Viji
                3.K.V. Pushparaj
                4.The Chancellor,
                  VIT University
                   Vellore – 632 014.                                                   …Respondents


                          Civil Miscellaneous Appeal filed under Section 173 of the Motor

                Vehicles Act, 1988 seeking to set aside the judgment and decree in MCOP.No.

                1613 of 2014, dated 27.09.2018 on the file of the Motor Accidents Claims
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                1/15
                                                                 CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

                Tribunal, II Judge Court of Small Causes, Chennai.


                                         Cross Objection No. 84 of 2023

                1. S.K. Vijayakumar
                2. V. Viji
                3. K.V. Pushparaj                                …Cross Objectors

                                                     -versus-

                     1.Royal Sundaram Alliance
                     Insurance Company Limited
                     2.The Chancellor
                     VIT University
                     Vellore – 632 014                           …Respondents



                For Appellant in CMA No.986 of 2023          :         Mr. M. Krishnamoorthy
                & R1 in Cross Objection No.84 of 2023

                For RR1 to 3 in CMA No.986 of 2023           :         Mr. S. Angamuthu
                & Cross Objectors in
                Cross Objection No.84 of 2023

                R4 in CMA No.986 of 2023,
                R2 in Cross Objection No.84 of 2023
                were remained ex-parte before the Tribunal


                                            COMMON JUDGMENT

N. SENTHILKUMAR, J.

The above Civil Miscellaneous Appeal has been filed by the Appellant

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CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

Insurance Company challenging the award passed in MCOP.No. 1613 of 2014,

dated 27.09.2018 by the Motor Accidents Claims Tribunal, II Court of Small

Causes, Chennai. The Claimants before the Tribunal, have filed a cross

objection before this Court, seeking for enhancement of compensation awarded.

2. On 26.08.2013 at about 05.50 p.m., while the second Respondent

herein was riding as the pillion rider in the Scooty Pep bearing Registration No.

TN-22-AY-8752 being driven by the deceased Nagalakshmi, the VIT College

bus bearing Registration No. TN-23-AK-3435 came in the opposite direction in

a rash and negligent manner without following any traffic rules and regulations,

hit and caused the accident of deceased Nagalakshmi, the daughter of the first

and Second Respondents herein. The said deceased Nagalakshmi was studying

in Agni College of Technology and was aged about 20 years when she met with

the accident. Due to the impact, the deceased had sustained grievous injuries

and was hospitalized in Pallikaranai Kamachi Hospital and thereafter

hospitalized in Miot. The said accident had taken place on the Velachery main

road near Pallikaranai Oil Mill, opposite to Saint Peter Metric School.

3. The accident had amputated the one leg of the deceased, who after

undergoing 40 days of medical treatment in the said hospitals met with an https://www.mhc.tn.gov.in/judis

CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

untimely death. Based on the complaint given by the father of the deceased, a

criminal case was registered in Crime No. 200 of 2013 by the Chrompet Traffic

Investigation Wing, Tambaram, Police Station.

4. The father, mother and the brother of the deceased, who are the 1st,

2nd and 3rd Respondents herein, had filed a claim petition before the Tribunal for

a sum of Rs.1,00,00,000/- which was resisted by the Appellant Insurance

Company. The fourth respondent herein remained ex-parte before the Tribunal.

After perusing the records, the Tribunal awarded a sum of Rs.62,61,000/- to the

claimants. Challenging the impugned Award passed by the Tribunal, the

Insurance Company has come forward with the present appeal.

5. The Tribunal had fixed the notional income of the deceased at

Rs.20,000/- per month, and as per the judgment of the Hon’ble Supreme Court

in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121, adopted a

multiplier of 18. The Tribunal after arriving at Rs.43,20,000/- as the total

notional income (Rs. 20,000 x 12 x 18) and added 40% of the said amount as

future prospects (Rs.17,28,000/-), deducted 1/3rd towards personal expenses

(Rs.20,16,000/-), Rs.15,000/- towards loss of estate and Rs.15,000/- towards

funeral expenses. The Tribunal, therefore, awarded a total sum of https://www.mhc.tn.gov.in/judis

CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

Rs.40,62,000/- (Rupees Forty Lakhs Sixty-Two Thousand).

6. The learned counsel for the appellant, through Ex. P7 (A copy of

the College Transfer Certificate of the deceased), contended that there is no

dispute with regard to the fact that the deceased Nagalakshmi was aged about

20 years and was in the III year of pursuing her B.E. (Bachelor of Engineering)

degree in Agni College of Technology.

7. The learned counsel appearing for the appellant vehemently

contended that the notional income fixed as Rs.20,000/- for the deceased is on

the higher side and further contended that the Tribunal has miserably erred by

deducting 1/3rd towards personal expenses, as against Pranay Sethi’s dictum

(National Insurance Company Ltd. v. Pranay Sethi and others, (2017) 16

SCC 680). Whereas, it is the submission placed that the Tribunal ought to have

deducted 50% towards personal expenses.

8. The learned counsel for the appellant has relied on a portion of K.

Bannarisamy and Ors v. Anbalagan and Ors, 2018 (2) TNMAC 407 (DB),

which reads as follows:-

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CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

“10. However, it was proved before the Tribunal through Ex.P12, the Degree Certificate that the deceased already completed the Bachelor of Science Degree of Computer Science with First Class and subsequently joined the Engineering College as a lateral entry student and was pursuing his Third year course at the time of accident, as proved by Ex.P13, the Transfer and Conduct Certificate issued by the College. Since the deceased was a Student, only National Income can be fixed. A Division Bench of this Court in Royal Sundaram Alliance Insurance Co. v. Chinthamani and two Others, in CMA.Nos. 2655 and 2844 of 2015, dated 24.04.2018, following the earlier judgment of the Division Bench in Royal Sundaram Alliance Insurance Co. Ltd., v. S. Lakshmi and two others, 2016 (1) TN MAC 490, determined the income at Rs.15,000/- per month, as the deceased was a First year B.E., student in that case. Though in this case, the monthly income of Rs.15,000/- is opposed by Mr. S. Manohar, learned Counsel for the Insurance Company, this Court is bound to follow the earlier judgments. Therefore, the monthly income of the deceased is determined at Rs.15,000/-.”

9. The learned counsel has further relied on a judgment rendered by one

of us [R.Subramanian, J] in M/s. Royal Sundaram General Insurance

Company Limited v. R. Kavitha and Ors, in CMA.No. 1576 of 2020, dated

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CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

03.12.2021, which reads as follows:-

“10. Admittedly, the claimant was an Engineering Graduate, he was pursuing Post Graduate Engineering Course at the time of the accident and he was only aged about 24 years. His parents have been deprived of their only son because of the accident. May be, he had contributed to the accident, but considering the pain of the parents and the fact that the deceased was aged about 24 years old at the time of the accident. I do not think that the Tribunal could be faulted for taking the monthly income at Rs.20,000/- per month. There was every chance of the deceased earning more than that also. Therefore, considering the uncertainities involved, I do not think that the fixation of Rs.20,000/- as monthly income could be said to be on the higher side.”

10. The Learned counsel submitted that though the above judgment is

also a case of an Engineering student where the notional income was fixed at

Rs. 20,000/-, the deceased therein was a post-graduate student and the same

analogy should not be adopted in the present case, as the facts of the present

case differ. The Tribunal therefore, as per the learned counsel, has erred in

fixing Rs. 20,000/- as the notional income.

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CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

11. Per Contra, the learned counsel appearing for the Respondents 1-3,

contended that the deceased, having already spent three years into forming a

reputable educational background in Engineering, a huge considerable amount

of money would have been spent for her future and education. It is the

submission of the learned counsel that the deceased person could have earned

much more based on her educational qualification and therefore a higher

amount ought to have been considered as the notional income.

12. To this effect, the Respondents 1-3 have also filed an appeal

against the award of the Tribunal, in Cross Objection No. 84 of 2023. The

Learned Counsel further points out Ex.P1, i.e. the First Information Report, to

contend that the accident had taken place only because of the rash and negligent

driving of the bus.

13. The learned counsel for the respondent has relied upon a judgment

reported in Balamanohari, represented by Power Agent, Rajalingam and

Ors v. Sri Venkateswara College of Engineering, represented by its

Chairman and Ors, reported in 2018 (2) TNMAC 81 (DB), wherein it has

been held in Paragraph Nos.42, 44 & 46 as follows:-

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CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

42. The learned counsel appearing for the claimants would contend that the deceased was 20 years at the time of accident. He was a student pursuing his III year Engineering Degree. On the fateful day on 09.03.2006, while the deceased was returning home, he was hit by the offending Bus, which was owned by the first respondent and is in possession and control of the second respondent.

The Tribunal, on analysing the oral and documentary evidence, rendered a specific finding that due to the rash and negligent driving of the Driver of the Bus, the accident had occurred. This finding of the Tribunal has reached a finality as it was not assailed by any of the respondents.

44. The main contention urged on behalf of the claimants is that the deceased was a young, vibrant and bright student and even during the course of his studies, he was offered employment in an United States based company namely, M/s. Butler International with an Annual Salary of Rs.96,000/- US Dollars. In order to fortify this submission, the Claimants have marked Ex.P17, Visa issued to the deceased, Ex.P20, Job Offer Letter issued by M/s. Butler International. Apart from these documents, the passport of the deceased was marked as Ex.P18, the testimonials of the deceased were also marked as Exs.P13 and P14. On the basis of these documentary evidence, it is contended that the Tribunal

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CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

failed to award reasonable and fair compensation to the claimants. It was also urged before us that the Tribunal, while determining the compensation amount, erred in taking the age of the mother of the deceased instead of taking the age of the deceased.

46. At the same time, it is universally accepted principle that half of the earning capacity or expected earning capacity can be taken into account for the purpose of determining compensation under the head “Future Prospects”. Applying this principle, we feel that the Tribunal ought to have awarded atleast 40% of the Notional income assessed in favour of the deceased towards future prospects especially when it was proved that the deceased was offered an employment in a foreign country. In such view of the matter, we are inclined to Award 40% of the notional amount fixed by the Tribunal towards future prospects which would work out to Rs.8,000/- per month. Thus, the total notional income of the deceased can be fixed at Rs.28,000/- out of which 50% deduction can be given towards personal expenses of the deceased, who died as a bachelor. In that event, the loss of income to be determined will be Rs.30,24,000 (Rs.14000x12x18) which will be the just and fair compensation payable to the claimants.

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CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

14. The learned counsel for the Respondent has relied upon Basanti

Devi v. Divisional Manager, New India Assurance Co. Ltd. & others, 2022

(1) TNMAC 148, wherein the deceased at the time of the accident was aged

about 25 years and was a Bachelor of Engineering in Computer Technology.

Based on the facts of the said case, the Tribunal had fixed the notional income

at Rs. 20,000.

15. It is argued by the learned counsel for the Respondents 1-3 that in

Balamanohari’s case, the sum awarded by the Tribunal was in fact increased to

Rs.20,000/-. It is further argued by the learned counsel that the Hon’ble Apex

Court in Basanti Devi upheld the award of the Tribunal fixing an amount of

Rs.20,000/- as notional income and set aside the judgment of the High Court

therein which had reduced the amount. It is further pointed out that the deceased

persons pursued engineering in both the above cases. Owing to similar facts in

both the cited judgments and the present appeal, it is learned counsel’s argument

that the fixation of Rs.20,000/- in the present case does not warrant any

reduction.

16. We find a substantial force in the contention of the Appellant that

there is no data or scientific method for the fixation of Rs. 20,000/- as notional https://www.mhc.tn.gov.in/judis

CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

income. We are unable to lean towards the contention of the

Respondents/Cross-Objectioners that the notional income ought to have been

increased. The judgment in Basanti Devi cited on behalf of the Respondents

was a case where the Hon’ble Supreme Court affirmed the value fixed by the

Tribunal at Rs.20,000/-. In fact, in the said case, the deceased was a graduate

having been assessed of an income of Rs.20,000/- by the Tribunal. Bearing in

mind that the deceased in the present case was a student pursuing Engineering

and could have been a successful professional, we fix the notional income as

Rs.18,000/- and future prospects at 40%. Considering the age of the deceased,

the multiplier method is 18 as per Sarla Verma. The Tribunal had deducted only

1/3rd towards personal expenditure, which deduction ought to have been 50% as

per the judgment of the Hon'ble Supreme Court in Pranay Sethi.

17. While the above being so, the Tribunal has also not considered any

amounts towards loss of consortium for the survivors of the deceased which it

ought to have awarded in favour of the Cross-Objectioners. Loss of consortium

is fixed at Rs. 40,000/- per claimant.

18. We therefore, re-fix the compensation as follows:

                                               HEAD                                 AMOUNT (in Rs.)
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                                                                   CMA.No. 986 of 2023 & Cros.Obj No.84 of 2023

                  Notional Income                                                          18,000
                  (Add) Future Prospects @ 40%                                              7,200
                  Sub-total                                                                25,200
                  (Less) Personal Expenditure @ 50%                                        12,600
                  Therefore, Loss of Dependency (12,600 x 12 x 18)                        27,21,600
                  Medical Expenses                                                        21,63,314
                  Loss of Consortium (Rs.40,000 x 3)                                      1,20,000
                  Funeral Expenses                                                         16,500
                  Loss of Estate                                                           16,500
                                          Total                                           50,37,914

19. The first respondent, the father of the deceased, is entitled to a sum

of Rs.25,00,000/- and the second respondent, the mother of the deceased, is

entitled to a sum of Rs.25,37,914/-. The third respondent, being the brother of

the deceased, is not a dependent on the deceased. Therefore, the third

respondent is not entitled to a share in the compensation. The parents of the

deceased are entitled for an interest at the rate of 7.5% p.a from the date of

filing of the claim petition till the date of deposit. Further, the Appellant

Insurance Company is directed to deposit the award amount within a period of

8 weeks from the date of receipt of a copy of this judgment after deducting the

compensation already deposited before the Tribunal.

20. With the above observations, the Civil Miscellaneous Appeal is

partly allowed. The Cross-Objection is dismissed. However, there shall be no