Madras High Court
J.Vijayalakshmi vs A.Sundaresan on 3 January, 2023
C.M.A.No.2132 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
C.M.A.No.2132 of 2017
1.J.Vijayalakshmi
2.Priya Jeyaraman
3.V.J.Karthik
4.N.Vaidyanathasamy (died)
5.V.Gopalakrishnan
6.V.Kalyanaraman
7.V.Sankaran
8.V.Chandrasekaran ...Appellants
-Vs-
1.A.Sundaresan
2.Tata AIG General Ins. Co. Ltd.,
No.1, Commander in Chief Road,
Ethiraj Salai,
Chennai – 600 008. ...Respondents
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree, dated 09.11.2016, in
M.C.O.P.No.1177 of 2009 on the file of the learned Chief Judge, Small Causes
Court, Chennai.
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C.M.A.No.2132 of 2017
For Appellants : Mr.T.G.Balachandran
For R1 : No appearance
For R2 : Mr.M.B.Raghavan
JUDGMENT
[Judgment of the Court was made by S.S.SUNDAR, J.,]
As against the award of compensation by the Motor Accident Claims
Tribunal, Chennai dated 09.11.2016, in M.C.O.P.No.1177 of 2009, the above
appeal is preferred by the appellants.
2.The appellants are the wife and children of the deceased, by name,
V.Jayaraman. It is admitted before this Court that on 18.02.2009 at about 10.45
hrs, the deceased V.Jayaraman was riding his two-wheeler from west to east
near Peninsula Hotel and at that time a bolero jeep, which was driven in a rash
and negligent manner hit the vehicle of the deceased. As a result of the
accident, the said V.Jayaraman died on the spot.
3.The appellants (hereinafter referred to as “claimants”) filed
M.C.O.P.No.1177 of 2009 before the Motor Accident Claims Tribunal,
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C.M.A.No.2132 of 2017
Chennai, claiming a sum of Rs.63,05,000/- (restricted to Rs.50,00,000/-) by
way of compensation. The Tribunal held that the accident was caused due to the
rash and negligent driving of bolero jeep and that the claimants are entitled to a
sum of Rs.3,87,137/- as total compensation.
4.It is to be noted that, in the claim petition, the income of the deceased
was specifically stated as Rs.50,000/- per month. From the Award, it is seen
that the Tribunal has taken a sum of Rs.4,000/- as the monthly income of the
deceased. After deducting 1/4th towards personal expenses of the deceased a
sum of Rs.3,000/- has been taken as monthly income of the deceased. Adopting
7 as the multiplier to fix the compensation, the Tribunal awarded compensation
towards loss of consortium, loss of love and affection, medical bills as per
Ex.P.15, and funeral expenses etc and awarded the total compensation amount
as Rs.3,87,137/-. Aggrieved by the quantum awarded by the Tribunal, the
above appeal is preferred by the claimants.
5.The learned counsel appearing for the appellants submitted that there is
ample evidence to show that the income of the deceased was Rs.50,000/- per
month. He relied upon the documents Exs.P8, P9 and P12 which stands in the
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C.M.A.No.2132 of 2017
name of M/s.Abbas Cultural Organization. The claimants had not filed any
other documents to prove the legal status of M/s.Abbas Cultural Organization.
However, the learned counsel appearing for the appellants before this Court has
advanced his argument that the deceased is the proprietor of the M/s.Abbas
Cultural Organization and the statement of accounts of M/s.Abbas Cultural
Organization should be taken as the income of the deceased. The statements of
accounts of M/s.Abbas Cultural Organization is for the period from 10.04.2007
to 12.06.2008.
6.Ex.P9 is marked as income and expenses statement of the deceased.
However, an auditor has prepared the income and expenses statement for the
period from 01.04.2008 to 18.02.2009. Ex.P9 is not even the income tax return.
The person who prepared this income and expenses statement is examined as
P.W.3. During the cross examination of P.W.3, the witness has categorically
admitted that the organization named as M/s.Abbas Cultural Organization is
being run for more than 30 years and that they have not paid income tax for any
of the financial year. The evidence of the auditor is self contradictory. From the
evidence, the document produced by the claimants would only indicate that the
deceased who was the Secretary of the Organization was organising cultural
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C.M.A.No.2132 of 2017
events in various places. Since income was not assessed for the purpose of
income tax as admitted by the auditor himself, there is no clue as to how the
claimants could rely upon this document under Ex.P9 to prove the income of
the deceased on the date of accident.
7.The admission that the income received by M/s.Abbas Cultural
Organization was not assessed to tax in the name of deceased demolishes the
case of the claimants that the income of the organisation should be treated as
the income of the deceased. In the absence of supporting documents to show
juristic personality of M/s.Abbas Cultural Organization, this Court cannot
accept the arguments of the learned counsel appearing for the appellants that
the document under Ex.P9 should be considered as relevant to decide the
income of the deceased. The auditor who was examined as P.W.3 has also
admitted that the claimants have not paid any tax for the income of M/s.Abbas
Cultural Organization even after the death of the deceased.
8.On behalf of the claimants one of the sons of the deceased, by name,
V.J.Karthick, who was examined as P.W.1. It is stated by P.W.1 that there was
no post of President in the M/s.Abbas Cultural Organization and his father was
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C.M.A.No.2132 of 2017
managing the day-to-day affairs in the position of the Secretary of M/s.Abbas
Cultural Organization. He admitted that his father has not paid any tax. Though
the learned counsel appearing for the appellants submitted that the deceased
was the sole proprietor of M/s.Abbas Cultural Organization, P.W.1 has
categorically admitted the fact that the deceased had been described as the
proprietor of M/s.Abbas Cultural Organization wrongly and that he is only the
Secretary of M/s.Abbas Cultural Organization. It is also to be noted that P.W.1
has specifically admitted that the deceased had PAN card, whereas M/s.Abbas
Cultural Organization had no PAN card.
9.Having regard to the admitted facts, this Court is unable to sustain the
arguments of the learned counsel appearing for the appellants. The income of
the deceased should be assessed based on the documents filed by the claimants
under Exs.P8 and P9 and other documents which are only the income generated
by an organization, by name, M/s.Abbas Cultural Organization. The income of
the Organization is not assessed to tax in the name of the deceased. Hence it is
impermissible in law to take the income of M/s.Abbas Cultural Organization as
the legitimate income of the deceased. Therefore, this Court is unable to sustain
the arguments of the learned counsel appearing for the appellants.
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C.M.A.No.2132 of 2017
10. From the documents produced by the claimants, it is seen that the
deceased has been actively organising several cultural events as the Secretary
of the said Organization. Having regard to the evidence available to prove the
capacity of the deceased to organize several cultural events inviting popular
artist, this Court is of the view that the income of the deceased on the date of
accident cannot be fixed less than Rs.15,000/- per month. After, deduction of
1/4th, the net monthly income of the deceased should be taken as Rs.11,250/-.
Since the deceased is more than 64 years at the time of accident no additional
income is permissible towards future prospects. Therefore, the claimants are
entitled to a sum of Rs.9,45,000/- towards loss of income.
11.This Court is unable to find any irregularity in the amount that was
awarded by the Tribunal under other heads. Hence the claimants are entitled to
a sum of Rs.10,80,937/- towards total compensation. The claimants are also
entitled to interest at 7.5% from the date of the petition. The appellants 5 to 8
are not dependants. The learned counsel appearing for claimants agree to
specify a sum of Rs.50,000/- to them and the entire balance shall be disbursed
to appellants 1 to 3 in equal proportion.
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C.M.A.No.2132 of 2017
12.Therefore, this civil miscellaneous appeal is partly allowed and the
award of Tribunal is modified as directed above. No costs.
[SSSRJ] [AANJ]
03.01.2023
cda
Index : Yes/No
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C.M.A.No.2132 of 2017
To
1.The Chief Judge, Small Causes Court,
(Motor Vehicle Accident Claims Tribunal),
Chennai.
2.Tata AIG General Insurance Company Ltd.,
No.1, Commander in Chief Road,
Ethiraj Salai,
Chennai – 600 008.
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C.M.A.No.2132 of 2017
S.S.SUNDAR, J.,
AND
A.A.NAKKIRAN, J.,
cda
C.M.A.No.2132 of 2017
03.01.2023
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