Madras High Court
S.Pramila vs Abuthahir on 19 June, 2023
C.M.A.(MD).No.191 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.06.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD).No.191 of 2023
1.S.Pramila
2.Minor Stephen Infant Rozar ... Appellants
Vs.
1.Abuthahir
2.The Branch Manager,
United India Insurance Company Limited,
Sundaram Maasila Maligai,
TS No.5476 / 79,
Old Thirumayam Road,
Pudukottai District.
... Respondents
PRAYER: Civil Miscellaneous Appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 16.12.2021 in
M.C.O.P.No.126 of 2020 on the file of the Motor Accident Claims Tribunal,
Additional District Court, Pudukottai.
For Appellants : Mr.P.Ganapathi Subramanian
For R1 : No appearance
For R2 : Mr.J.Murali
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C.M.A.(MD).No.191 of 2023
JUDGMENT
This appeal has been filed challenging the award passed by the Motor
Accident Claims Tribunal, Additional District Court, Pudukottai in
M.C.O.P.No.126 of 2020, dated 16.12.2021.
2. The brief facts leading to the filing of this appeal are as follows:
The deceased Ganesan was working as Artist cum Photographer in the
Department of Tamil Nadu Agriculture and retired on 31.05.2017. He was also
doing business in the name of Baskar Digital and earning a sum of Rs.60,000/-
per month. Besides, he had been getting pension of Rs.22,802/-. On
05.06.2019, at about 9.15 a.m., while the deceased was riding the motorcycle
bearing Registration No.TN 55 AC 2425 towards the new bus stand from
Thiruvappur, a lorry bearing Registration No.TN 04 L 2887 owned by the first
respondent was driven by its driver in a rash and negligent manner and dashed
against the deceased. As a result, he died on 07.06.2019. Hence, the claimants
being the legal heirs of the deceased have filed the claim petition before the
Tribunal seeking compensation. It is the contention of the Insurance Company
that the first respondent had driven the vehicle in a moderate speed, however
the deceased rode the vehicle in a rash and negligent manner and dashed
against the lorry.
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C.M.A.(MD).No.191 of 2023
3. Before the Tribunal, on the side of the petitioners, P.Ws.1 and 2 were
examined and Exs.P1 to P13 were marked and on the side of the respondents,
no oral and documentary evidence marked.
4. The Tribunal, on perusal of the evidence of P.Ws.1 and 2 and other
documents, particularly the F.I.R. filed against the driver of the lorry, found that
only the driver of the lorry was negligent in driving the lorry. Thereafter, on
considering the evidence adduced on the side of the petitioners, the Tribunal
has awarded a sum of Rs.9,02,570/- in the following manner:
S. Description Amount awarded by the Tribunal
No
1. For loss of income Rs.8,28,036/-
2. Loss of consortium and Rs.55,000/-
loss of estate
3. Loss of love and affection Rs.50,000/-
4. Medical expenses Rs.1,70,181/-
5. Ambulance charges Rs.10,000/-
6. Funeral expenses Rs.15,000/-
Total Rs.11,28,217/-
After deducting 20% towards negligence on the part of the deceased,
awarded a sum of Rs.9,02,574/-.
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C.M.A.(MD).No.191 of 2023
5. The only contention raised by the learned counsel for the
appellants/claimants is that the Tribunal has not awarded the compensation
based on the pension received by the petitioners. According to the learned
counsel, the same is not valid in the eye of law. In support of his contention, he
has relied on a judgment of this Court in the case of the Branch Manager,
National Insurance Company Limited vs. Shanmugathai and others reported
in 2008(2) TN MAC 314.
6. The learned counsel appearing for the second respondent/Insurance
Company would submit that the wife of the deceased is paid family pension.
Therefore, the Tribunal has rightly deducted the pension amount received by
the wife of the deceased.
7. In the light of the above submissions, now the points for consideration
in this appeal are (i) whether the Tribunal is right in deducting the pension
amount while calculating the loss of income? (ii) whether the compensation
arrived by the Tribunal is just and reasonable?
8. Since the negligent aspect has not been disputed by the Insurance
Company, now the only point is with regard to the quantum of compensation
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C.M.A.(MD).No.191 of 2023
awarded by the Tribunal. The deceased was aged about 59 years and retired
Government employee. This fact is not disputed and to prove the fact that the
wife of the deceased also receiving a sum of Rs.22,802/- as pension, Exs.P6, P7
and P13 were also filed, whereas the Tribunal has not taken that amount while
calculating the loss of income. It is well settled that the deduction of pension
amount on the basis of family pension is not permissible.
9. The Hon'ble Apex Court in the case of Helen C.Rebello and others vs.
Maharashtra State Road Transport Corporation and another reported in
1999 (1) SCC 90, has held that family pension is also earned by an employee
for the benefit of his family in the form of his contribution in the service in
terms of the service conditions receivable by the heirs after his death. The heirs
receive family pension even otherwise than the accidental death. No correlation
between the two. Hence, the pension payable to the wife of the deceased cannot
be deducted. Following the above judgment, this Court, in the judgment
reported in 2008 (2) TN MAC 314 held that deduction of compensation on
account of receipt of family pension is illegal.
10. In such a view of the matter, the Tribunal erred in deducting the
pension while calculating the loss of income. Admittedly, the wife of the
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C.M.A.(MD).No.191 of 2023
deceased was receiving a sum of Rs.22,802/- as pension. Therefore, this Court
fixed the monthly income of the deceased at Rs.22,801/- and added 15%
towards future prospects (Rs.22,802/- + Rs.3,420/- = Rs.26,222/-) and after
deducting 1/3rd amount towards future prospects, the total monthly income
comes around Rs.17,481/- (Rs.26,222/- -Rs.8,741/-). Thus, the total loss of
income comes to Rs.18,87,948/- (Rs.17,481/- x 12 x 9). Further, the amount
awarded by the Tribunal towards loss of love and affection is reduced from Rs.
50,000/- to Rs.40,000/-. The Tribunal has deducted 20% merely on the ground
that the deceased did not possess licence, whereas the licence was very much
available, which is also found place in the M.V. Report. In such a view of the
matter, this Court reduced the contributory negligence from 20% to 10% for
non-wearing of helmet. In respect of the other aspects, the amount awarded by
the Tribunal is confirmed. The modified award amount is as follows:
S. Description Amount
No
1. For loss of income Rs.18,87,948/-
2. Loss of consortium and Rs.55,000/-
loss of estate
3. Loss of love and affection Rs.40,000/-
4. Medical expenses Rs.1,70,181/-
5. Ambulance charges Rs.10,000/-
6. Funeral expenses Rs.15,000/-
Total Rs.21,72,948/-
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C.M.A.(MD).No.191 of 2023
After deducting 10%, the total compensation payable to the claimants is
Rs.19,55,653/-.
11. In the result, the Civil Miscellaneous Appeal is partly allowed. The
second respondent/Insurance Company is directed to deposit the entire award
amount within a period of four weeks from the date of receipt of a copy of this
order. The award amount shall carry interest at the rate of 7.5% per annum from
the date of petition till the date of realisation. On such deposit, the appellants
are permitted to withdraw their share as apportioned by the Tribunal. In respect
of the minor claimant, the amount shall be deposited in a Nationalised Bank till
he attains majority and the guardian of the minor claimant is permitted to
withdraw the interest once in three months. No costs.
19.06.2023
akv
To
1.The Motor Accident Claims Tribunal,
Additional District Court,
Pudukottai.
2.The Record Keeper,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD).No.191 of 2023
N.SATHISH KUMAR,J.
akv
C.M.A.(MD).No.191 of 2023
19.06.2023
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