Madras High Court
S.Kavitha vs M/S.Annamalai Enterprises on 5 January, 2023
C.M.A.Nos.2094 and 2911/2022
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.Nos.2094 and 2911/2022 and CMP.Nos.16689/2021 and 1846 and
16245/2022
CMA.No.2094/2022 :
1. S.Kavitha
2. S.Sree Hari (minor)
3. S.Sri Janani (minor)
4. G.Deivanai ... Appellants
(appellants 2 and 3 are minors represented
by their Natural Guardian and mother
the 1st appellant Mrs.S.Kavitha)
Vs.
1. M/s.Annamalai Enterprises,
No.7, Bajanaikoil Street,
Veppampattu, Thiruvallur District-602 024.
1/13
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C.M.A.Nos.2094 and 2911/2022
2. Royal Sundaram Alliance Ins. Co.Ltd.,
No.113/114, Sir Thiagaraja Road,
4th Floor, Meena Kampala Arcade,
T.Nagar, Chennai-17. ... Respondents
CMA.No.2911/2022 :
Royal Sundaram Alliance Ins. Co.Ltd.,
No.113/114, Sir Thiagaraja Road,
4th Floor, Meena Kampala Arcade,
T.Nagar, Chennai-17. ... Appellant
Vs.
1. S.Kavitha
2. S.Sree Hari (minor)
3. S.Sri Janani (minor)
4. G.Deivanai
5. M/s.Annamalai Enterprises,
No.7, Bajanaikoil Street,
Veppampattu, Thiruvallur District-602 024. ... Respondents
(respondents 2 and 3 are minors represented
by their Natural Guardian and mother
the 1st respondent Mrs.S.Kavitha)
Prayer: Civil Miscellaneous Appeals filed under Section 173 of the Motor
Vehicles Act, 1988, against the decree and judgment dated 16th February,
2021 passed in M.C.O.P.No.6528 of 2014, by the Motor Accident Claims
Tribunal, Special Sub-Court No.1, Small Causes Court, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2094 and 2911/2022
For Claimants : Ms.Ramya V. Rao
For Insurance Company : Mr.M.Krishnamoorthy
COMMON J U D G M E N T
(Judgment of the Court was pronounced by R.SUBRAMANIAN, J.)
These appeals are by the Claimants and the Insurance Company
respectively, challenging the award of the Motor Accident Claims Tribunal,
Special Sub-Court No.1, Small Causes Court, Chennai in
MCOP.No.6528/2014 dated 16.02.2021 granting a sum of Rs.86,85,000/- as
compensation for the death of one G.Saravanan in a road accident that
occurred on 19.06.2014 at about 07.00 a.m.
2. According to the claimants, while the deceased was riding a Two
Wheeler bearing Registration No.TN-05-AT-1443 on Paper Mill Road from
East to West direction, a Van bearing Registration No.TN-20-BK-3120
belonging to M/s.Annamalai Enterprises, the 1st respondent in
CMA.No.2094/2021 and 5th respondent in CMA.No.2911/2021, insured
with the Royal Sundaram Alliance Insurance Company Limited, 2nd
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C.M.A.Nos.2094 and 2911/2022
respondent in CMA.No.2094/2021 and appellant in CMA.No.2911/2022
linked with a concrete mixer, came from behind and dashed against him. As
a result of the accident, the driver of the motor cycle fell down and the van
ran over his head resulting his instantaneous death. Contending that the
deceased was earning around Rs.67,000/- p.m. as Project Leader in a
Software company the claimants sought for a compensation of
Rs.1,50,00,000/-.
3. The Insurance Company resisted the claim contending that there
was a breach of policy condition in as much as a concrete mixer was
attached with the Van. It is his further contention that the accident occurred
due to the rash and negligent driving of the deceased since he attempted to
overtake the vehicle on the left side. Non-wearing of a helmet was also
made a ground to attribute contributory negligence to the deceased. The
income particulars were denied and the total compensation claim was
termed as excessive.
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C.M.A.Nos.2094 and 2911/2022
4. Before the Tribunal, the 1st claimant was examined as P.W.1. Two
eye-witnessess were examined as P.W.2 and P.W.4 and an Officer attached
with the employer of the deceased was examined as P.W.3. Ex.P.1 to
Ex.P.27 were marked. On the side of the respondent-Insurance Company,
the Special Sub-Inspector, Chintadripet Traffic Investigation Wing, Chennai
was examined as R.W.1 and one Mr.N.Ganesh, Executive-Legal of the
Insurance Company was examined as R.W.2. Ex.R.1 to Ex.R.7 were
marked.
5. The Tribunal, on consideration of the evidence on record found
that the accident occurred due to the rash and negligent driving of the driver
of the van. To reach the said conclusion, the Tribunal relied upon the
evidences of two eye-witnesses and the F.I.R. that was marked as Ex.P.1.
The fact that no attempt was made by the Insurance Company to examine
the driver of the Van was also taken as a ground by the Tribunal in support
of its conclusion that the negligence is on the part of the driver of the van.
On the quantum, the Tribunal took the income of the deceased at
Rs.50,000/- p.m. though there was evidence in the form of salary certifiate
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C.M.A.Nos.2094 and 2911/2022
to show that the deceased was drawing a much higher income. The Tribunal
added 40% towards future prospects and deducted 25% towards personal
expenditure and adopted the multiplier of 15 to arrive at a total loss of
dependency at Rs.94,50,000/-. Since the deceased was not wearing the
helmet, the Tribunal deducted 10% towards contributory negligence and
after adding conventional damages towards loss of Consortium, loss of love
and affection, loss of estate, the Tribunal fixed out the compensation at
Rs.86,85,000/-. Hence these appeals.
6. We have heard Ms.Ramya V. Rao, learned Counsel appearing for
the claimants and Mr.M.Krishnamoorthy, learned Counsel appearing for the
Insurance Company. Notice to the owner of the Lorry is dispensed with
since he had remained absent before the Tribunal.
7. Mr.M.Krishnamoorthy, learned Counsel appearing for the
Insurance Company would vehemently contend that there was a breach of
policy condition since a concrete Mixer was attached with the vehicle, the
Tribunal ought not to have awarded the pay and recovery. It should have
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C.M.A.Nos.2094 and 2911/2022
made the owner of the lorry liable for the payment of compensation. He
would also contend that the quantum of compensation is on the higher side
inasmuch as there was no concrete evidence to show that the actual income
of the deceased except the salary certificate. The learned Counsel for the
Insurance Company would also point out that the eye-witnesses have
deposed that the deceased was not wearing a helmet. Therefore, the
Tribunal should have deducted atleast 15% for contributory negligence.
8. Contending contra, Ms.Ramya V. Rao, learned Counsel appearing
for the claimants would submit that in view of Section 149 (4) of the Motor
Vehicles Act and the proviso thereto, the Tribunal was justified in ordering
the Insurance Company to pay the compensation with liberty to recover the
same from the owner of the vehicle. She would further contend that the
fixation of monthly income at Rs.50,000/- by the Tribunal is flawed in view
of the fact that there is evidence to show that the yearly salary of the
deceased was Rs.8,83,572/- as per the Salary Certificate Ex.P.16. She
would also point outtat the documents are supported by the oral evidence of
P.W.3.
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C.M.A.Nos.2094 and 2911/2022
9. In these appeals, the claimants have filed CMP.No.16245/2022 for
receiving additional documents, namely, the Form-16 and the Bank
Statement of the deceased to establish that the deceased was drawing atleast
a sum of Rs.59,980/- p.m. after deductions. Relying upon the documents
that are sought to be produced in these appeals, the learned Counsel for the
claimants would contend that the Tribunal has committed an error in fixing
the income of the deceased at Rs.50,000/-. Considering the fact that the
documents that are sought to be produced are public documents, namely,
Form-16 and Bank Statement, which would be definitely useful for deciding
the appeals, the application to let in additional evidence is allowed and the
two documents are taken on record and they are marked as Ex.P.28 and
Ex.P.29. (Registry to assign Exhibit numbers to the two documents
produced along with the CMP.No. 16245/2022).
10. We have considered the contentions of the learned Counsel on
either side on the merits of the appeals.
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C.M.A.Nos.2094 and 2911/2022
11. No doubt, an attempt was made by the learned counsel for the
Insurance Company to demonstrate that the negligence was on the part of
the deceased. We are unable to sustain the said submission of the learned
Counsel for the Insurance Company in view of the concrete evidence that is
available in the form of FIR and the evidences of P.Ws.2 and 4 who are the
eye-witnessess. The fact that the insurance company had not chosen to
examine the driver of the van also militates against the said contention of
the learned Counsel for the Insurance Company. We are unable to fault the
Tribunal for having concluded that the negligence was on the part of the
driver of the van.
12. On the quantum, we find that the Tribunal was not justified in
taking Rs.50,000/- as monthly salary of the deceased. Even before the
Tribunal, there was some evidence to show that the deceased has drawn
more than Rs.50,000/- p.m. The documents that have been produced before
us add weight to the contentions of the claimants to the effect that the
deceased was earning much more than Rs.50,000/- p.m. The bank statement
which is an indisputable document shows that the deceased was drawing a
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C.M.A.Nos.2094 and 2911/2022
sum of Rs.59,980/- p.m. Therefore, we take the monthly income of the
deceased at Rs.58,000/- p.m. If we add the future prospectus at 40%, the
total income for a month comes to Rs.81,200/- and total loss of income after
adopting the multiplier at 15 would be Rs.1,46,16,000/-. If we deduct 1/4 th
for personal expenditure, the total loss of dependency would be at
Rs.1,09,62,000/-. With this, we need to add the conventional damages at
Rs.1,95,000/- so that the total compensation would be Rs.1,11,57,000/-,
deducting 10% towards contributory negligence, the compensation payable
by the owner of the van would be at Rs.1,00,41,300/- rounded to
Rs.1,00,41,000/-. We are adopting the percentage of contributory
negligence as fixed by the Tribunal. We should not be taken to have decided
that 10% should be the standard percentage of deduction in case of injured
or deceased is found to be accused of not wearing the helemt. The direction
to pay and recover made by the tribunal is sustained.
13. In fine, the CMA.No.2094/2022 will stand allowed partly to the
extent indicated above and CMA.No.2911/2022 will stand dismissed. The
claimants shall pay the balance court fee payable in their appeal.
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C.M.A.Nos.2094 and 2911/2022
Consequently, connected Miscellaneous Petitions are closed.
14. At this stage, it is stated by the learned Counsel for the Insurance
Company that the Insurance Company has deposited 50% of the award
amount. It is directed to deposit balance 50% of the award amount along
with the enhanced compensation within a period of four weeks from the
date of receipt of a copy of this order.
15. On such deposit, we apportion the compensation awarded as
follows:
a.The wife would be entitled to Rs.32,85,000/- with proportionate
interest and costs as awarded by the Tribunal;
b. The minor claimants, namely, the son and daughter of the deceased,
would be entitled to Rs.31,78,000/- each, namely, claimants 2 and 3, with
proportionate interest and costs; and
c. The mother of the deceased would be entitled to Rs.4,00,000/- as
awarded by the Tribunal.
On the deposit of the compensation by the Insurance Company, the
major claimants, namely, the widow and the mother of the deceased would
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C.M.A.Nos.2094 and 2911/2022
be entitled to withdraw their respective share. The remaining amount of the
minor shares would be kept in deposit in a Nationalised Bank with auto
renewal clause till they attain majority.
(R.S.M.,J.) (S.S.K.,J.)
05.01.2023
tsi
Internet :Yes
Index :No
Speaking order
To:
The Motor Accident Claims Tribunal,
Special Sub-Court No.1,
Small Causes Court, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2094 and 2911/2022
R.SUBRAMANIAN, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
tsi
C.M.A.Nos.2094 and 2911/2022
05.01.2023
https://www.mhc.tn.gov.in/judis
