Madras High Court
United India Insurance Company ... vs V. Adhitya (Minor) on 10 July, 2023
C.M.A.No.2578 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.07.2023
CORUM
The Hon'ble Mr.Justice Krishnan Ramasamy
C.M.A.No.2578 of 2019
and
C.M.P.No.12374 of 2019
United India Insurance Company Ltd.,
Divisional Office,
Kumaran Road, Tirupur. ... Appellant
Vs.
1. V. Adhitya (minor)
rep. by its Maternal Grand Mother Santhamani
D.No.64 B, Thippay Gounder, 4th Street,
Ondipudur, Coimbatore – 641016.
2. Sagayaraj
3. Hindustan Corporation,
71, Patel Road Ram Nagar,
Coimbatore.
... Respondents
Civil Miscellaneous Appeal has been filed under Section 173 of
Motor Vehicles Act 1988 against the judgment and decree dated
28.03.2017, in M.A.C.T.O.P.No.462 2011, passed by the Motor Accident
Claims Tribunal (Chief Judicial Magistrate), Tirupur District.
Appearance :-
For Appellant : Mr.J.Chandran
For Respondent-1 : Mr.Ma.P.Thangavel,
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C.M.A.No.2578 of 2019
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the
quantum of compensation awarded by the Tribunal.
2. Since the present Appeal has been filed, questioning the quantum
of compensation, this Court is not traversing into the other aspects of the
award.
3. On 27.08.2005, when Velusamy (since deceased) was riding a
Motorcycle, bearing Regn. No.TN-41-Z-4715, on the left side of the road,
from East of AVR Textiles, Pallapalayam, Sulur, at that point of time, a
Tractor Trailer, bearing Regn.No.TN-37-A-0466, belonging to the first
respondent turned right side of the road, in a rash and negligent manner, and
dashed against the deceased's Vehicle. Due to the said accident, the said
Velusamy sustained grievious injuries on right side of the forehead and
primary brain stem injury and despite treatment, he died on 03.02.2006.
4. At the time of the accident, the deceased was aged about 33
years. He was an agriculturist and also running a Hatchery Farm and
earning a monthly income of Rs.25,000/-. Hence, the minor son of the
deceased (represented by his maternal grand mother) being his legal heir,
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C.M.A.No.2578 of 2019
filed a claim petition against the the owner/Hindustan Corporation and
insurer/United India Insurance, viz., first and second respondents to pay a
sum of Rs.41,26,500/- as compensation for the death of his father,
Velusamy.
5. The driver of the offending Vehicle, viz., Sagayaraj, as well its
Owner, remained ex parte before the Tribunal.
6. The Insurance Company resisted the Claim Petition by filing a
counter statement, inter alia contending that, it was the deceased, who
contributed to the accident, inasmuch as, he was riding motorcycle, without
noticing the oncoming vehicle. Therefore, the Insurance Company cannot
be mulcted with any liability to pay compensation to the claimant. It was
further contended that the compensation amount claimed by the claimant
was excessive and baseless, and therefore, prayed for dismissal of the claim
petition.
7. Before the Tribunal, the claimant examined four witnesses as
P.W.1 to P.W.4, and marked 15 documents as Exhibits Ex.P1 to Ex.P.15.
On the side of the Insurance Company, neither any witness were examined
nor any documents were exhibited. The document produced by witness
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C.M.A.No.2578 of 2019
was marked as Ex.W.1.
8. The Tribunal, on the basis of both oral and documentary evidence,
came to the conclusion that the accident had occurred only due to the rash
and negligent driving of Tractor Trailor, bearing Regn.No.-TN-37-A-0466,
driven by the first respondent's driver, and therefore, held that the Insurance
Company is liable to pay the compensation amount and awarded a total sum
of Rs.24,34,000/- as compensation to the claimant together with interest at
the rate of 7.5% p.a. from the date of claim petition (i.e. 01.04.2011) till the
date of deposit, as compensation.
8. The break up details of the compensation amount awarded by the
Tribunal are as follows:-
Sl.No Heads Amount
.
1 Loss of Dependency Rs.19,20,000/-
2 Transportation Rs. 20,000/-
3 Medical Expenses Rs. 2,29,000/-
4 Damage to Clothes and articles Rs. 25,000/-
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5 Loss of Love and Affection Rs. 2,00,000/-
C.M.A.No.2578 of 2019
Sl.No Heads Amount
.
6 Funeral Expenses Rs. 50,000/-
Total Rs.24,34,000/-
9. Mr.J.Chandran, learned counsel appearing for appellant/Insurance
Company submitted that, initially, claim was made only for a sum of
Rs.24,00,000/- by stating the monthly income of the deceased at Rs.25,000/-
Subsequently, the claimant filed a Petition seeking amendment of the claim
from Rs.24,00,000/-to Rs.70,00,000/-and in the sworn affidavit annexed to
the claim, it is stated that the deceased was paid with an annual income of
Rs.4,24,296/-, pursuant to the supply of chicks made to M/s.Santhi Poultry
Pvt Ltd., (now renamed as M/s.Shanthi Feeds Private Ltd).
9.1 The learned counsel for the appellant submitted the sworn
affidavit filed by the first respondent/claimant was strongly objected by the
appellant by way of filing additional counter, wherein, the appellant pleaded
that though the deceased's annual income was mentioned at Rs.4,24,296/-in
the sworn affidavit, to prove same, no document with regard to the payment
of revenue tax by the deceased was adduced on behalf of the claimant. Had
the deceased earned monthly income of Rs.44,000/- by running such
Hatchery Farm, obviously, he would have paid income tax, for having run
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C.M.A.No.2578 of 2019
such a large Farm, but, no document relating to ITR was filed by the
claimant. Further, the learned counsel submitted that the document, viz., the
Account Ledger, maintained by M/s.Shanthi Feeds Pvt. Ltd., which was
marked as Ex.P.11, through P.W.4, is merely a computer generated copy in
a plain paper, without seal or Letter Head of the Firm and though the
Tribunal has rightly disregarded the same, however, proceeded to determine
the compensation towards Loss of Dependency by hastily fixing his
monthly income at Rs.20,000/- which has resulted in awarding such an
exorbitant sum of Rs.19,20,000/-. Hence, the learned counsel prayed that
the monthly income of the deceased may be fixed in an appropriate manner.
9.2 The learned counsel further submitted that the compensation
awarded towards Damages to Clothes and articles at Rs.25,000/- is on the
higher side. Similarly, the compensation awarded by the Tribunal towards
Love and Affection at Rs.2,00,000/- and Funeral Expenses at Rs.50,000/-
are high and against the ratio laid down by the Hon'ble Supreme Court, in
the case of National Insurance Company Limited Vs. Pranay Sethi and
others reported in 2017 (2) TN MAC 601. Therefore, the learned counsel
contended that the award passed by the Tribunal on the aforesaid heads
requires appropriate reduction.
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C.M.A.No.2578 of 2019
10. Refuting the contention putforth by the learned counsel
appearing for the appellant/Insurance Company, Mr.Ma.P.Thangavel,
learned counsel for first respondent/claimant would contend that the
deceased was a Self Employed (running Hatchery Farm) and since he was
in the business for a long time, obviously, he would have earned more than
Rs.25,000/- per month. In order to prove the income of the deceased, the
Accountant, Mr.Rajan of M/s.Shanthi Poultry Pvt Ltd., was examined as
P.W.4, and through him, account ledger maintained by the said Firm,
(wherein, a sum of Rs.4,24,000/- was stated to have been paid to the
deceased towards his annual income, as per the statement of account from
01.04.2004 to 31.03.2005) was marked as Ex.P.11. Therefore, the learned
counsel submitted that all these documents would per se prove that the
deceased was earning more than Rs.25,000/- per month, however, Tribunal
regardless of the same, fixed the monthly income of the deceased at
Rs.20,000/- and arrived at a sum of Rs.19,20,000/-towards the Loss of
Dependency. It is further submitted that the Tribunal also failed to add any
amount towards future prospects, and therefore, prayed that the same may
be granted.
10.1 The learned counsel for the first respondent/claimant further
submitted the compensation awarded by the Tribunal towards
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C.M.A.No.2578 of 2019
Transportation at Rs.10,000/- is on lower side as the deceased sustained
grievious head injuries and primary brain stem injury due to the accident
occurred on 27.08.2005, and took medications and treatments at Hospital
for a period of six months and spent more than sum of Rs.10,000/- towards
transportation. Hence, the learned counsel prayed to enhance the
compensation under the said head.
10.2 Insofar the compensation awarded by the Tribunal towards
Damages to Clothes at Rs.25,000/- is concerned, the learned counsel fairly
admitted the Tribunal's award is on the higher side and the same may be
modified appropriately. The learned counsel also fairly admitted that the
compensation awarded by the Tribunal towards Love and Affection at
Rs.2,00,000/- and Funeral Expenses at Rs.50,000/-are also on the higher
side and submitted that the same may be reduced appropriately.
11. I have given due consideration to the submissions made by the
learned counsel for the appellant/Insurance Company and the learned
counsel for the first respondent/claimant and also produced the materials
placed on record.
12. On a perusal of the award passed by the Tribunal, it is seen
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C.M.A.No.2578 of 2019
that, initially, the claimant filed a claim petition on 01.04.2011, seeking a
compensation of Rs.24,00,000/-, by stating that the deceased was an
agriculturists and running Hatchery Farm and earning a sum of Rs.25,000/-
as monthly income. Subsequently, in a sworn affidavit annexed to claim
petition filed for amendment of the compensation from Rs.24,00,000/- to
Rs.70,00,000/-, dated 22.09.2015, it is stated that the deceased was earning
a sum of Rs.44,000/- per month and to buttress the same, one Mr.Rajan, the
Accountant of M/s.Shanthi Poultry Pvt. Ltd., was examined as P.W.4 and
Ex.P.11, viz., account ledger maintained by the said Firm, (wherein, it is
stated that as per the statement of account from 01.04.2004 to 31.03.2005,
deceased earned annual income of a sum of Rs.4,24,000/-) was marked
through him (P.W.4.). However, as rightly pointed out by the learned
counsel for the appellant/Insurance Company, Ex.P.11 is merely a
computer generated copy in a plain paper, neither it consists of any seal or
Letter Head of the Firm and therefore, it cannot be relied upon. Had the
deceased had really earned monthly income of Rs.44,000/- by running such
Hatchery Farm, he would have, perhaps, paid income tax for the concerned
financial year, for having run such Hatchery Farm, but, no document
relating to ITR was filed by the claimant and this is only a revenue that
arose out of sale of chicks but not the profit earned and all these aspects
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C.M.A.No.2578 of 2019
were rightly considered by Tribunal and brushed aside Ex.P.11. Further,
Tribunal also found that no document was produced on the side of the
claimant to prove that the deceased was earning Rs.25,000/- from his
agricultural activities.
12.1 Thus, Tribunal having considered all these aspects in a rightful
manner, and brushed aside Ex.P.11, proceeded to fix the monthly income of
the deceased at Rs.20,000/- in a hasty manner. This Court is at loss to
understand as to on what basis, Tribunal has fixed the monthly income at
Rs.20,000/- Though it is the contention of the learned counsel for the first
respondent/claimant that the deceased was doing the aforesaid business for
a long time, and hence, he would earn more than Rs.25,000/- per month, and
in order to prove the income of the deceased, Accountant, Mr.Rajan, was
examined as P.W.4, and Ex.P.11 was marked, there is no other
substantiative documentary evidence to show that the deceased was earning
Rs.25,000/- per month and in the absence of the same, this Court is inclined
to take the monthly income of the deceased Rs.7,500/-. Hence, monthly
income fixed by Tribunal at a sum of Rs.20,000/- is set aside and it is re-
fixed at Rs.7,500/-. Since the Tribunal failed to add amount towards future
prospects, and as per the ratio laid down by the Hon'ble Supreme Court, in
the case of Pranay Sethi (cited supra) 40% is added towards Future
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C.M.A.No.2578 of 2019
Prospects. Thus, by fixing the monthly income of the deceased at
Rs.7,500/-; adding 40% towards future prospects; deducting 1/3 towards his
personal expenses and by applying right multiplier of '16' (since the
deceased was aged 33 years), the total Loss of Dependency of the deceased
works to Rs.13,44,000/- in the manner as stated hereunder:-
Monthly income + 40% future prospects
(i.e. Rs.7,500/- + Rs.3,000) = Rs.10,500/-
(Deduction of 1/3rd x (Multiplier of '16')
towards personal expenses)
10,500 x12 x 1/3 x 16 = Rs.13,44,000/-
Loss of Dependency = Rs.13,44,000/-
12.1 So far as the grievance expressed by the learned counsel for
the first respondent/claimant with regard to the low fixation of
compensation towards Transportation at Rs.10,000/- is concerned, since it is
stated that the due to the accident, deceased sustained grievious head
injuries and primary brain stem injury and for such treatments, often, he
went to Hospital and thereby, incurred more than Rs.10,000/- towards
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C.M.A.No.2578 of 2019
Transportation, this Court is inclined to award additional sum of
Rs.10,000/-. Accordingly, the compensation awarded by the Tribunal
towards Transportation is modified and enhanced to Rs.20,000/-.
12.2 As far as the compensation awarded by the Tribunal towards
Damages to Clothes and articles at Rs.25,000/- is concerned, since the same
is high, this Court is inclined to modify the same. Accordingly, the sum of
Rs.25,000/- awarded towards Damages to Clothes and Articles is hereby
modified and reduced to Rs.15,000/-. Similarly, the compensation awarded
by the Tribunal towards Love and Affection at Rs.2,00,000/- and Funeral
Expenses at Rs.50,000/-are on the higher side and is against the ratio fixed
by the Hon'ble Supreme Court, in Pranay Sethi's case (cited supra) this
Court is inclined to modify the same. Accordingly, the compensation
awarded by the Tribunal towards Love and Affection at Rs.2,00,000/- is
modified and reduced to Rs.40,000/- and the compensation awarded
towards Funeral Expenses at Rs.50,000/- is modified and reduced to
Rs.15,000/-. Thus, this Court has modified the compensation awarded by
the Tribunal under all other heads, excluding the compensation awarded
under the head, Medical Bills at Rs.2,29,000/-.
12.3 Thus, the revised compensation awarded by this Court under
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C.M.A.No.2578 of 2019
various heads is extracted hereunder:
Sl.No Heads Tribunal Award High Court
. Award
1 Loss of Dependency Rs.19,20,000/- Rs.13,44,000/-
2 Transportation Rs. 10,000/- Rs.20,000/-
3 Medical Expenses Rs. 2,29,000/- Rs.2,29,000/
Damage to Cloth and Rs. 25,000/- Rs.15,000/-
4 articles
Loss of Love and Rs. 2,00,000/- Rs.40,000/-
5 Affection
6 Funeral Expenses Rs. 50,000/- Rs.15,000/-
Total Rs.24,34,000/- Rs.16,63,000 /-
13. Consequently, the total compensation amount of Rs.24,34,000/-
awarded by the Tribunal is hereby modified and reduced to Rs.16,63,000/-
which shall carry interest at the rate of 7.5% per annum from the date of
claim petition till the date of deposit.
14. In the result, this Civil Miscellaneous Appeal filed by the
appellant/Insurance Company is partly allowed on the following terms:-
(i) The appellant, United India Insurance Company Ltd.,is directed to
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C.M.A.No.2578 of 2019
deposit the modified amount awarded by this Court equally along with
interest and costs before the Tribunal within a period of eight weeks from
the date of receipt of a copy of this judgment, after deducting the amount
already deposited, if any.
(ii) As regards the award amount to be disbursed to the minor
claimant is concerned, it is seen that, at the time of filing of the claim
petition i.e., in the year 2011, the claimant was a minor aged 6, and by this
time, his age is 17. Therefore, on deposit of the award amount being made
by the Insurance Company, Tribunal shall transfer the entire award amount
in the name of minor claimant, in any of the Nationalized Bank, in an
interest bearing FD Account till the minor attains majority and the interest
accrued thereon shall also be retained in his account, and once, the minor
attained Majority, Tribunal shall take steps to settle the award amount to the
claimant in accordance with law.
(iv) However, there shall be no order as to costs.
(v) Consequently, connected Miscellaneous Petition is closed.
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C.M.A.No.2578 of 2019
10.07.2023
Internet : Yes / No
Index : Yes / No
sd
To
The Motor Accident Claims Tribunal
(Chief Judicial Magistrate), Tirupur District.
Krishnan Ramasamy, J.,
sd
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C.M.A.No.2578 of 2019
C.M.A.No.2578 of 2019
10.07.2023
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